1460 Days Later: Rule of Law in Poland R.I.P. (Part II)

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Writing a year ago, we warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself.” This is no longer a mere threat but a clear and present danger. Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration.

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The Supranational Rule of Law: Thinking the Future


Writing at the end of 2019 it must be clear that art. 7 TEU is not a viable political option at all. However, the Treaties do contain legal mechanisms to enforce the rule of law against the member states. Art. 7 is not, and must not, be the center of the rule of law world in the EU. Poland’s refusal to obey the Court’s judgments and its readiness to do everything possible to circumvent it strike at the very heart of the EU rule of law. The challenge is to use what is legally available rather than keep finding excuses for not using the mechanisms already in place.

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The Supranational Rule of Law: Taking Stock


While a transnational conception of the rule of law requires the engagement of and commitment to the EU project from all actors involved, this begs the question as to what happens when the assumptions underlying art. 2 TEU are no longer applicable? For the rule of law, 2019 has been of fundamental importance because we have been taught important constitutional lessons and started getting answers to some of the most crucial constitutional questions. While much still remains shrouded in mystery and question marks are aplenty, at least the judicial trajectory for the rule of law in 2020 has been set in 2019.

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Enforcement of EU Values and the Tyranny of National Identity – Polish Examples and Excuses

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Professor A. von Bogdandy in his recent piece published at Verfassungsblog analyzes difficulties regarding enforcement of the EU values. He argues that the application of Treaty provisions relating to EU fundamental values should be cautious in order to avoid controversy or pressure. However, the ‘national identity argument’ is not convincing in the Polish case. It cannot be used by a Member State in an arbitrary or blanket way without being checked and confirmed.

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The Perils of Passivity in the Rule of Law Crisis: A Response to von Bogdandy

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In a recent contribution to Verfassungsblog, Professor Armin von Bogdandy observes, “European constitutionalism is perhaps facing a ‘constitutional moment’. But rather than calling on the EU to stand up to increasingly authoritarian member governments, von Bogdandy concludes that, “Powerful arguments suggest caution.” His admonitions offer a lesson into how scholars can inadvertently propagate what political economist Albert Hirschman described in his 1991 book as The Rhetoric of Reaction.

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The Tyranny of Values or the Tyranny of One-Party States?

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In his contribution ‘Fundamentals on Defending European Values,’ Armin von Bogdandy counsels caution. His arguments are wise in normal times. But we no longer live in normal times. The current governments of at least two EU Member States, Hungary and Poland, are engaged in normative freelancing with the explicit aim of making future democratic rotation impossible. The rogue governments we see today are undermining the values of the European Union when the EU is more popular in these Member States than their own governments are.

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This is not the End: What lies ahead for the VDL Commission in terms of Brexit


Brexit is the ‘shock’ that united Europe according to the President-elect of the Commission, Ursula von der Leyen. There’s certainly an element of truth to this. Despite some occasional signs of disagreement, the EU-27 have given every show of maintaining a unified position in all stages of the Brexit process so far. There may be a tempting political expediency of prioritising a unified position on Brexit (no doubt in ‘protection of the European project as a whole’) above holding individual Member States’ governments’ to account for measures which further and entrench rule of law backsliding. This post aims to outline only some of those challenges, and highlight outstanding issues, in the years of the Brexit process ahead.

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When Journalists Weaken Democracy or How to Better Communicate the Rule of Law


Discussing years of controversies between Polish lawyers and the ruling Law and Justice party, the law professor Marcin Matczak concluded: “We won the legal discussions, but we lost the public debate.” Despite manifest violations of the law, Poland’s ruling party did not lose votes in recent parliamentary elections. In Hungary the situation seems to have been even worse. The public debate was not lost, it hardly took place. That’s a problem.

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The Rule of Law Crisis as the Watershed Moment for the European Constitutionalism


Is a soft law instrument the right object of assessment in a situation where most commentators on the ongoing rule of law crisis summarise previous EU actions with the statement: too late, too long, too mild? This piece offers a look at the July blueprint for action as a political declaration which provides important general statements regarding the concept of the rule of law within the EU legal system in times of democratic backsliding in Member States.

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