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From constitutional pluralism to authoritarian tendencies: how did we get here?
EU & VISEGRAD 4
PANEL
Adriana Svítková, 9th Feb 2022
Disclaimer: the opinions of our writers do not reflect the opinions of the conference as a whole.
Adriana Svítková, our Director General, delves into the legislative background of rule of law violations.
Separation of power in state, transparency, civil society (Havel, V., 1994) and in the case of the EU, adherence to its law; all constitute the pillars of democracy. The rise of authoritarianism can be partly viewed as an unfortunate consequence of EU Law. This article will aim to explain that authoritarian behavior is partly a consequence of the EU’s constitutional pluralism as it stands.
One of the legal theories argues that authoritarianism in Hungary and Poland is on the rise as the governments can call to the concept of constitutional identity, which is an unintended course of action resulting from EU’s constitutional pluralism (Kelemen & Pech, 2019). The specific legal doctrine in discussion is Article 4(2) TEU, which states: “The Union shall respect the equality of Member States before the Treaties, as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” This provision was, however, made under no expectation of authoritarian abuse.
Nonetheless, some EU Member States' positions go against the core rule of law principles including the necessity for legal clarity and the requirement that laws be "universal" and "applied to everyone according to its provisions." In the 1964 landmark ruling on the primacy of EU law in Costa v ENEL, the Court of Justice of the EU ruled unequivocally that allowing domestic law to override Community law would result in discrimination based on nationality, as well as to questioning of the legal basis of the Community. That is how it confirmed the supremacy of EU law in national courts.
However, EU primary law is not case law and for the change of Treaties, a unanimous vote of all Member States is required. Therefore, governments were not able to call it into question. In spite of that, when German courts ruled on the relation of the European Central Bank’s 2015 bond-buying program and EU law supremacy, they made clear that ‘the constitution-amending legislature’ cannot violate ‘the identity of the [German's] free constitutional order’. This was not the case in other EU member states challenging EU law, notably in Hungary and Poland.
In Hungary, both in 2016 with regards to the migration crisis, and in 2018, its constitutional amendments bill claimed that Article 4(2) TEU entitles Hungary not only to override EU law based on aspects of its national identity, but also to oppose EU law based on its ‘choice of political and social values considered as significant from the aspect of the national and political self-identity’. The Polish government, similarly, claims that the matter of independence of their courts are topics within their exclusive jurisdiction, quoting that the constitutional identity imposes limits solely on EU's regulatory intervention, but no limits on national authorities.
It seems that illiberal leaders would use any feasible justification to oppose EU law and it would therefore be better to exclude the ‘national identity’ provision from TEU. This way, they look ‘almost democratic’ and thus it is easier for them to uphold power. This form of soft power seems to be very effective in today’s globalized world.
Separation of power in state, transparency, civil society (Havel, V., 1994) and in the case of the EU, adherence to its law; all constitute the pillars of democracy. The rise of authoritarianism can be partly viewed as an unfortunate consequence of EU Law. This article will aim to explain that authoritarian behavior is partly a consequence of the EU’s constitutional pluralism as it stands.
One of the legal theories argues that authoritarianism in Hungary and Poland is on the rise as the governments can call to the concept of constitutional identity, which is an unintended course of action resulting from EU’s constitutional pluralism (Kelemen & Pech, 2019). The specific legal doctrine in discussion is Article 4(2) TEU, which states: “The Union shall respect the equality of Member States before the Treaties, as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” This provision was, however, made under no expectation of authoritarian abuse.
Nonetheless, some EU Member States' positions go against the core rule of law principles including the necessity for legal clarity and the requirement that laws be "universal" and "applied to everyone according to its provisions." In the 1964 landmark ruling on the primacy of EU law in Costa v ENEL, the Court of Justice of the EU ruled unequivocally that allowing domestic law to override Community law would result in discrimination based on nationality, as well as to questioning of the legal basis of the Community. That is how it confirmed the supremacy of EU law in national courts.
However, EU primary law is not case law and for the change of Treaties, a unanimous vote of all Member States is required. Therefore, governments were not able to call it into question. In spite of that, when German courts ruled on the relation of the European Central Bank’s 2015 bond-buying program and EU law supremacy, they made clear that ‘the constitution-amending legislature’ cannot violate ‘the identity of the [German's] free constitutional order’. This was not the case in other EU member states challenging EU law, notably in Hungary and Poland.
In Hungary, both in 2016 with regards to the migration crisis, and in 2018, its constitutional amendments bill claimed that Article 4(2) TEU entitles Hungary not only to override EU law based on aspects of its national identity, but also to oppose EU law based on its ‘choice of political and social values considered as significant from the aspect of the national and political self-identity’. The Polish government, similarly, claims that the matter of independence of their courts are topics within their exclusive jurisdiction, quoting that the constitutional identity imposes limits solely on EU's regulatory intervention, but no limits on national authorities.
It seems that illiberal leaders would use any feasible justification to oppose EU law and it would therefore be better to exclude the ‘national identity’ provision from TEU. This way, they look ‘almost democratic’ and thus it is easier for them to uphold power. This form of soft power seems to be very effective in today’s globalized world.
