“The principle of majority decision does not mean that the majority can do whatever it wants”

The European Union is more than merely a single market, it also promotes a democratic society across Europe. However, in recent years, the governments of Poland and Hungary have challenged this fundamental principle of the union. Armin von Bogdandy, Director at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, studies these developments and explores potential responses from the EU. In this interview, he discusses democracy, the rule of law in Europe, and draws parallels with Latin America.

Professor von Bogdandy, a few days ago the European Court of Justice ruled that Poland's 2019 judicial reform, which had been pushed by the PiS party, is in violation of EU law. Why is this ruling of such fundamental importance for the European Union?

Armin von Bogdandy: With the ruling, which declares several measures taken by the Polish government against its own judiciary contrary to EU law, the Court of Justice reaffirms the support for the Polish constitutional state. At an event hosted at our Institute, the former Polish constitutional judge Miroslaw Wyrzykowski emphasised the significance of this ruling by stating: "The guardian of the Polish constitution now sits in Luxembourg". The Court goes on to state that the preservation of democratic principles and the rule of law within member states, along with their protection by the European Union, are vital elements for the European Union and emphasises that the value of the rule of law is an integral part of the EU's identity.

The European Commission has been examining the rule of law in Poland since 2018. How did this come about? And what role did legal scholarship play in this?

Article 2 of the Treaty on European Union, which is at the core of the Treaty, affirms that the European Union is established on the principles of democracy, the rule of law, and human rights. Since recognizing that the Polish government's interference in the judiciary undermines the democratic essence of the EU, the European Commission has been actively addressing the issues in Poland. This understanding has been significantly influenced by legal scholars, who have elucidated the extent of these interventions and criticized the initial inaction of European institutions. Our Institute has been involved in these debates since 2012.

During that time, Minister of State Hoyer from the Federal Foreign Office sought our advice on how to approach the developments in Hungary within the framework of EU law, and we provided a comprehensive response.

What can we expect now? Will the Polish government row back?

As a legal scholar, I cannot predict what the actors will do next. It is especially difficult to anticipate the behaviour of actors like the Polish government, where the presumption of principally law-abiding conduct no longer applies. However, it is reasonable to expect that if there is continued resistance from the Polish government, the European institutions will respond accordingly.

On Whit Monday, Poland's President Andrzej Duda signed into law a bill that had been previously approved by a narrow majority by the Sejm.  The law provides for the immediate creation of a special state commission that will be given quasi-judicial powers. This new administrative body is tasked with investigating "Russian influence" in Poland from 2007 to 2022 and taking extrajudicial measures to punish individuals accused of supporting Russia. Does this present new challenges to the European rule of law?

I am familiar with the law only from the press. The general assessment that this law constitutes a direct attack not only on the rule of law, but also on democracy, appears plausible to me.

It seems to revolve around removing the main competitor for the upcoming elections. It is noteworthy that a similar situation has recently unfolded in Guatemala. The parallels between Poland and Hungary in Europe, and Guatemala, Nicaragua, and Venezuela in Latin America, are evident, troubling, and the subject of comparative research in our field.

According to the European Commission, violations of the rule of law principle in Hungary appear to be even more severe than in Poland. Under the so-called rule of law mechanism, billions of euros in funding were suspended at the end of 2022. To unlock this money, the government in Budapest now seems to have taken the necessary steps to respond to the EU’s demands, as the parliament has recently adopted a judicial reform that apparently reverses measures aimed at political control of judges.

The erosion of democratic rule of law in Hungary has progressed much further than in Poland. It is more challenging for European authorities to take action against it because the Hungarian government often commands a constitutional majority, making many measures undermining democracy more difficult to address. The extent to which the recent revision of some measures restores the rule of law in terms of democratic separation of powers is still difficult to assess definitively. It is important to bear in mind that the government has already engaged in targeted personnel policies for the appointment and promotion of judges over the course of 13 years.

What are the reasons for the problems we are currently seeing in the countries of the former Warsaw Pact?

This is a question that can only be answered with expertise by social psychologists and political scientists. From my reading of relevant research, it appears that various factors are at play: actual shortcomings of the judicial systems in those countries, disillusionment among the population due to the rapid societal transformations and unmet expectations of faster prosperity. Additionally, the relevant politicians have been adept at navigating the political landscape and have received protection from other EU countries through European party alliances. They have also received support through European subsidies and German industrial investments, to name just a few aspects.

Is the design of a national judicial system not a matter of democratic majority decision? In Hungary, Orbán's government indeed has a constitutional majority, so it could advance the restructuring of the judiciary formally correctly.

While the organization of the judicial system is indeed subject to majority decision, it is important to note that the principle of majority decision in Europe does not mean the majority can do whatever it wants. It is not democratic to solidify one's own power and limit the opportunities of the opposition. This is precisely the concern in Poland and Hungary, irrespective of whether the majority possesses the authority to amend the constitution.

What significance does the independence of the judiciary have for democracy, in Europe and in other parts of the world?
I gave a presentation on this very topic at a meeting of the European, Inter-American, and African Courts of Human Rights two weeks ago. One of the questions raised was whether these courts should protect the independence of national judiciaries. The simple answer is that democracy and human rights rely on an independent judiciary. This is why international courts involve themselves in such conflicts, even though they anticipate backlash from the governments involved and put their own role at risk. Venezuela, for example, withdrew from the Inter-American Human Rights Convention due to such decisions. Similarly, a ruling by the Polish Constitutional Court in autumn 2021, which declared an entire line of jurisprudence from the European Court of Justice regarding the enforcement of European values inapplicable, represented a partial exit from the supranational European system of protecting fundamental rights and human rights. Nonetheless, decisions by international courts are important precisely because they bring such developments to international attention, authoritatively document the erosion of the rule of law, and strengthen the internal opposition. Democratic change typically requires external support, and these decisions help lay the groundwork for that support.

How can the EU’s rule of law mechanism be strengthened and expanded without endangering the EU's competence structure?

The European Rule of Law Mechanism is a relatively weak instrument. However, more significant are the new possibilities to exclude member states that systematically undermine democratic rule of law from European financial resources. This is evident in the current situation, where the Commission has frozen substantial funds destined for Poland and Hungary, and both countries are reacting. The fact that the freezing of funds is in line with EU law has been solidly established by the European Court of Justice. Nevertheless, it is important to closely monitor the Commission's justifications for the non-disbursement of funds as well as its negotiations with the affected member states. It is evident that such negotiations between the Commission's budget officials and representatives of the Hungarian or Polish government are not the ideal setting for constitutional development. Nonetheless, the anticipated complexity of legal regulations promises a rich field of research for us in the field of legal scholarship, much like Alexander von Humboldt once encountered in the Orinoco Basin.

Interview by Alexandra Kemmerer.