19 February 2022

Who we are

On Wednesday, the European Court of Justice ruled on the actions brought by Poland and Hungary against the rule-of-law conditionality mechanism, and if you read the rulings, there isn’t much to get your blood pressure up: This is all essentially in line with the previous case law, moderate and sober, apparently aimed at giving minimum cause for offense. The threshold for the Commission remains in place: even the most blatant and systematic violation of the rule of law will not suffice by itself to block funds unless the Commission can prove precisely that and how the EU budget is in danger by it. This won’t be easy, particularly in Poland where the government is a lot less manifestly corrupt than in Hungary.

This pair of judgments is meant to be perceived as huge by the Court, nevertheless, which has passed it as a Full Court as distinct from the usual Chamber or Grand Chamber judgments. The reasons for that, I assume, are bundled in an inconspicuous word in paragraphs 127 and 145 of the respective judgments: Identity.

The values contained in Article 2 of the EU Treaty (democracy, rule of law, etc.), the Court says, “define the very identity of the European Union as a common legal order. Thus, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties.”

Identity then. The Union has an identity. She looks in the mirror and says: This is me. I am defined, I am distinct, I am self-aware. It is a normative mirror in which the Union attains this awareness of herself: her values. I don’t do that, she says to her reflection. Destroy the rule of law, undermine democracy, disregard human rights. That is against my very identity.

Oh, is it now?, the mirror image speaks back. Really? Harrumph. Well, to be completely honest…

I know, says the Union. That’s why this has to stop! I am a community of values. This has to stop immediately! This is just not who I am!

This is how the self-aware Union talks to herself and makes up her mind in her institutions and procedures provided by its constitution, so that she can recognize herself in the mirror as what she is and wants to be. Parliament, Council, Commission: there, one would think, is where this self-reflecting soliloquy should be taking place.


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But it isn’t, actually. Ultimately it is the Court of Justice that is pushing forward this conversation. It has been the Court that came up with this whole concept of identity in the first place. And, being a Court, is turning it from a matter of political self-discovery into something from which legal obligations are derived, the observance of which it will monitor itself.

Doesn’t that sound familiar? It was the German Federal Constitutional Court, in the Lisbon treaty judgment back in 2009, that coined the concept of constitutional identity. Democracy, the idea goes, is by not just a value that keeps the Republic from being unfaithful to itself as it looks in the mirror. It is a right that entitles every single citizen to call upon the Karlsruhe Court if the government starts doing funny things in its European policy. And as far as the constitutional identity of the Republic, or whatever the Bundesverfassungsgericht defines as such, is at stake, it is absolutely forbidden for any political majority, no matter how large, to enter into any compromise with itself.

This way, Karlsruhe has installed itself as a kind of superego vis-à-vis the Bundestag and the federal government in all matters European. And 13 years later, I am not exactly certain if this has served the Court, German parliamentary democracy, or the European Union too well in the end.

Now the ECJ, in return, seems to claim something like a European constitutional identity control for itself. This may even contain a message to the Commission: Look, if you can’t get anywhere with the rule-of-law conditionality because you lack evidence that the rule-of-law issues in Poland endanger EU funds, why don’t you bring us one more big-time infringement procedure. And this time one that does not focus on disciplinary chambers or muzzling laws or any other specific stuff, but one aiming directly at the violation that Poland is inflicting on the values of Article 2 with its judicial policy. Combined with an application for a zillion Euro fine for every day the violation continues, to be offset against the transfer funds that Poland is owed to. Let’s see if that makes an impression in Warsaw.


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Perhaps the ECJ has even bigger things in mind. Elections will be held in Hungary in early April, and many warn that these elections may be neither free nor fair. According to Article 10 TEU, Member States are represented at the EU level by governments, “themselves democratically accountable either to their national Parliaments, or to their citizens.” Democracy is another foundational value of the Union. Shouldn’t a Council member who has not been freely and fairly elected, count as a violation of the European constitutional identity, too?

Much as I am in favor of answering that question in the affirmative, I don’t know if it’s necessarily the ECJ who should give that answer. The Union’s ego is political. It has a voice, and it should raise it, instead of meekly consulting its Luxembourg superego all the time, and finally take responsibility for who it wants to be. If a part of it systematically disregards the values that define its identity, then what is needed is not necessarily a court case, but a long hard look in the mirror: This is just not who we are.

Next Wednesday, the Council of Ministers for General Affairs meets in Brussels. On the agenda is a hearing on the rule of law in Poland under Article 7(1) of the Treaty on European Union. The Article 7 procedure, as flawed as it is, is what the Treaty provides for having that long hard look in the mirror. The procedure has been kept frozen for months by the member state governments in the Council, under the feeble excuse that the unanimity required in the very last stage of the procedure is out of reach at the moment. It’s time that we, the citizens of the Union, most of all we Germans, finally stop letting our national governments get away with that ignoble foot-dragging exercise.

If only so that we ourselves can look in the mirror.

Thanks to Ulrich Karpenstein and Alexander Thiele for valuable input.

The week on Verfassungsblog

Just before the ECJ rulings on the rule-of-law mechanism were handed down, we were finally able to finish our big project on the EU v. Poland conflict: the sixth and last part of our podcast series is out, and it’s about what happens when the essence of EU membership is at stake. If you want to understand how it came to this, and why all attempts to fix the problem have failed so far, and what options now exist (and if you understand German) – do take the time and listen to these six episodes. We have interviewed dozens of the most well-versed experts and dug up a wealth of information on one of the most consequential developments of our time. It’s worth it.

On the rule-of-law mechanism judgments, LAURENT PECH analyzes the main implications, and DANIEL HALBERSTAM and WERNER SCHROEDER call for further action: a rule-of-law mainstreaming process.

Next week, there will be another set of exciting ECJ rulings in this context. One will be about Polish EU arrest warrants and whether the ECJ will stick to its rather restrictive two-step test, which it requires before member state courts may depart from the principle of mutual trust and stop implementing Polish arrest warrants. Less well known is the fact that this mutual trust has been eroding in other areas of law as well – for example, in competition law: the European General Court has issued a ruling on whether the Polish Competition Authority can still be considered sufficiently independent. KATI CSERES and MICHAEL BORGERS examine what this means.

PAWEŁ FILIPEK and MACIEI TABOROWSKI explore the implications of the recent case law from Luxembourg in the conflict with the Romanian Constitutional Court for the Polish rule-of-law debate.


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At any moment now, Russia may descend upon its neighbor Ukraine, and even if the old German evil of acquiescing gleefully to the most hideous imperial fantasies if only it’s Russia that indulges in them and America they are directed against, appears to be somewhat in retreat lately, it is still far too vivid for my liking. On a different note is whether Ukraine – speaking of constitutionalizing policy preferences – was wise to entrench the goal of NATO accession in its constitution. It did, though, and VIKTORIIA LAPA and JUSTIN FROSINI examine the legal implications.

In southeastern Europe, too, black clouds are gathering: In Bosnia and Herzegovina, a rotten compromise is supposed to end the institutional boycott by Republika Srpska. TAHIR HERENDA explains at which cost.

DEBYANI PRABHAT criticizes the ruling of the UK Supreme Court on the excessive fees for naturalization and its consequences for socially disadvantaged children.

Beyond the Olympics, mobility toward China has been drastically reduced since the pandemic began. In fact, however, the pandemic is only a catalyst for a development that began several years ago, writes HENNING KLÖTER.

The Federal Constitutional Court has dismissed climate lawsuits against the Länder. Nevertheless, the reasons given are of fundamental importance, because the Federal Constitutional Court by no means releases the states from their responsibility for climate protection, writes THOMAS SCHOMERUS.

Whether or not compulsory vaccination will arrive in Germany in the end, a bill to achieve that has been tabled in the Bundestag. What it tries to do makes no sense at all to THORSTEN KINGREENNICO ROMAN WEBER draws a line,  to Georg Wilhelm Friedrich Hegel, to whom German Health Minister Karl Lauterbach had referred to in a speech. Contrary to the idea of making the question of compulsory vaccination a matter of conscience, however, Hegel’s understanding of law and freedom would have suggested a much stronger politicization. Compulsory vaccination might mean for many people not only losing their jobs, but also facing a suspension of unemployment benefits. ANNA-LENA HOLLO shows that the consequences could be even more serious, depending on how compulsory vaccination is designed.

The state government of Baden-Württemberg has a hard time navigating between court rulings, freedom of religion and the general principle of equality, as can be seen from its zigzag course in amending its COVID rules. The underlying question of whether religious services are cultural events or something else altogether is explored by SEBASTIAN WOLF.

The Federal Constitutional Court has handed down a much-applauded decision on hate speech against politicians. TIM WIHL disagrees with the fans of this decision. His criticism is fundamental: in the future, the court should be guided by a decidedly democratic conception of freedom of expression.

TOBIAS MAST takes a close look at a planned service directive of the German public broadcasting institution WDR, which wanted to oblige its employees to remain neutral on their private social media accounts. His conclusion: This, if implemented, would be clearly illegal.

That is all for this week. As you may have noticed, this editorial arrives a day later than usual, I hope you don’t mind. Meanwhile, all the best to you, please don’t forget to support us on Steady, and stay safe.

Max Steinbeis

SUGGESTED CITATION  Steinbeis, Maximilian: Who we are, VerfBlog, 2022/2/19, https://verfassungsblog.de/who-we-are-2/, DOI: 10.17176/20220220-001159-0.

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