27 April 2020
Let’s not fool ourselves either!
I read with great interest the blogpost “Don’t be fooled by autocrats!”. However, to my great regret there are some factual errors in the text which require clarification and, consequently, the post’s very dire conclusion about the actual situation in Hungary shall be to a certain extent revised. Continue reading >>
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25 April 2020
The Green Pact and Rule of Law in the EU
The governments of 13 EU member states have signed a letter calling for a "green" way out of the COVID-19 crisis (although the Czech government has asked the EU to "forget" about its Green Pact). Interesting as this initiative may be, the EU must ensure that it does not become an instrument that undermines the fight for the rule of law in the EU. The history advises us to be vigilant because EU funds may become a useful instrument in hands of illiberal governments. Continue reading >>
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23 April 2020
A “Marshall Plan” for Rule of Law in Europe
In the past weeks, the European judges have been confronted in multiple ways by the Covid19 crisis. The challenges for judiciary were exceptional: the willingness to serve our fellow citizens, providing solidarity and support, in times of plague; the duty to supervise, as broadly as permitted by political authorities, the lawfulness of emergency measures; the emergent call to deal with the negative consequences of judicial lockdowns for the efficiency of courts and, moreover, the anxiety arising from the need to look after one’s own health and that of others, in particular witnesses, litigants or other citizens present in court. Continue reading >>22 April 2020
Don’t Be Fooled by Autocrats!
On 9 April, Vera Jourová, Vice President of the European Commission for values and transparency with lead responsibility for rule of law, gave an interview to Euronews on democracy in the pandemic. A journalist asked whether she believes that Hungary still qualifies as a democracy after the Enabling Act creating an indefinite state of emergency was enacted by the Hungarian Parliament on 30 March. Her answer was not reassuring. Continue reading >>
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21 April 2020
The Constitution as a Bargaining Chip
Despite the ongoing COVID-19 pandemic, Poland’s government is refusing to announce an emergency state, presumably in order to go ahead with the Presidential election on 10 May. Instead, the ruling coalition in Poland has been presenting increasingly controversial proposals aimed at ensuring that the country’s PiS-aligned President will remain in office. The most recent one envisages a constitutional amendment which would extend the president’s term of office. This proposal is nothing but an attempt to blackmail the opposition: either vote for a constitutional change or be blamed for the consequences of holding a presidential election during the pandemic. Continue reading >>19 April 2020
The State of Emergency Virus
The current pandemic is said to be the worst health crisis the world has experienced for a century. Beyond causing thousands to die and millions to lose their jobs, it has also caused more than ever before governments to declare a state of emergency and, thus, to considerably broaden their own competencies. Previous experience, however, has shown that governments do not use their additional powers to save lives but, rather, to make themselves better off. Considering that more than half of the world’s democracies have declared a state of emergency, the rule of law will be subject to a number of dangers in the following months. Continue reading >>19 April 2020
Domestic Courts Pushing for a Workable Test to Protect the Rule of Law in the EU
On 17 February 2020, the Oberlandesgericht Karlsruhe passed a decision in a surrender case that we expect to shape the future of the LM-test. Its decision can be seen not only as a result of Luxembourg’s unworkable LM test but also as an acknowledgement of the effect of Poland’s muzzle law on the independence of its judiciary. Shortly after, Rechtbank Amsterdam engaged with this decision, thus making it more likely that the CJEU will have to move forward and develop its test into a more meaningful one. Continue reading >>18 April 2020
Luxembourg’s Unworkable Test to Protect the Rule of Law in the EU
A key rule of law case illustrating the conversation taking place between national judges and the Court of Justice about the how-to of rule of law protection is the CJEU’s LM ruling dealing with the implementation of the European Arrest Warrant. In it the CJEU developed a test to balance mutual trust and individual rights, particularly the right to a fair trial. The Rechtbank Amsterdam and the Karlsruhe Oberlandesgericht applied Luxembourg’s LM test with respect to Polish suspects in a series of recent (interlocutory) rulings. This national case-law is interesting both for its immediate outcome (suspension of surrenders) and its implicit message to Luxembourg: “Sorry, we tried, but your test is unworkable.” Continue reading >>
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13 April 2020
Fighting the Virus and the Rule of Law – A Country Report on Norway
Governments across Europe are quick to limit personal freedoms in the name of fighting the pandemic. The case of Norway, however, reveals how the process of adopting these measures can compromise democratic discourse and procedure. The main rule of law challenges we have seen here are an overreach of the authorities of their legal powers, a lack of transparency and exclusion of the public from public decision-making and battle over jurisdiction to regulate between the central government and local authorities. In the end, it is not just our health, but the rule of law that is under threat. Continue reading >>
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11 April 2020