The Rule of Law and Judiciary in the EU Member States: a conference report
On 28 January 2022, the first “Trinational Conference on the Rule of Law and Judiciary in the EU Member States” took place in hybrid form, both online and in the city of Leipzig. The issue of the rule of law could not be more topical: In recent years, new challenges have emerged within the European Union, namely in relation to fundamental and common rights. Some member states’ governments have demonstrated differing understandings of rule of law or democracy than the European Union itself, which has led to tensions. Furthermore, legal proceedings have been launched against Poland and Hungary, the Polish Constitutional Court recently questioned the primacy of EU law and the unity of the European legal order, and there is a lively both academic and political debate on what the rule of law entails. The conference aimed at discussing these matters with participants from three countries.
Initiated by the Minister of Justice, Democracy, European Affairs and Gender Equality of the Free State of Saxony in cooperation with Prof. Dr Astrid Lorenz and Prof. Dr Mattias Wendel (Leipzig University), the international and interdisciplinary conference brought together political scientists, lawyers, judges, country experts and scholars from the three countries. Katja Meier, Saxony’s Minister of State for Justice, Democracy, Europe and Gender Equality, emphasized in her speech that the Free State of Saxony, which shares a similar history both with the Czech Republic and Poland, aims to continue and enhance cooperation with its neighbouring countries through this conference format.
Many researchers have been focusing on the rule of law and judicial independence. The conference gave them opportunity to present their latest research results and projects, thereby contributing to a better understanding of certain processes and issues. The international and interdisciplinary character of the trinational event reflected the widely stressed importance of discourse, both between countries and within academia; during three panels issues were discussed not only from a political science perspective, but also from a legal point of view by scholars and practitioners from all three participating countries.
The first panel “Foundations and Challenges” offered insight into different understandings dealing with rule of law. Prof. Dr Astrid Lorenz and Dr Lisa H. Anders (Leipzig University) outlined how rule of law can be defined and measured by presenting different indices which take into account various legal and economic factors. The presentation was based on the interdisciplinary project “Rule of Law in East Central Europe” which aims to map and analyse these multifaceted discourses of the rule of law in Poland, the Czech Republic, Slovakia, Hungary and Romania by evaluating political documents, parliamentary debates and conducting interviews with politicians and judges.
In the following presentation, Prof. Dr Ivo Šlosarčík (Charles University in Prague) gave an overview of the “Current Challenges in (Central) Europe”. He stated that in addition to the established definition of rule of law that has judicial independence at its core and is enshrined in the EU Charter, a counter-narrative has evolved in some European countries criticising judicial activism as a threat to the state, which has in turn led to various counter-measurements.
Prof. Dr Mattias Wendel continued with a legal EU perspective on the rule of law and the national judiciary. He considered the vertical relation between the EU institutions and the member states concerning legal measures and proceedings by the EU in case of rule of law infringements. Professor Wendel pointed out that the role of the EU Commission, already being strong as it has been involved in the majority of instruments and mechanisms and representing the institutional centre of the EU, was further strengthened by the case law of the Court of Justice of the EU, particularly in the context of infringement procedures.
In his keynote speech, Prof. Dr Dr h.c. Klaus Rennert, former President of the Federal Administrative Court, considered the appointment of judges against the backdrop of politics, judicial independence and professionalism from a practitioner’s point of view. Professor Rennert clearly illustrated that during the appointment process judges are to a certain extent dependent on political circumstances, but before and after the process, independence should be safeguarded to guarantee impartiality.
The next panel continued with the issue of appointment and the status of judges as well as public prosecutors: Prof. Dr Werner Reutter (Martin Luther University Halle-Wittenberg) focussed in his presentation on a comparative analysis of the 16 German subnational (Land) Constitutional Courts. Professor Reutter emphasised the variety of selection, election and impeachment procedures, generating a specific composition of the respective Constitutional Court.
Dr Michał Krajewski (University of København) gave an overview of the problems in judicial appointments with special emphasis on the law culture in Poland during 2000 and 2015. He identified various issues and debates dating back to this period that are (still) relevant factors with respect to analysing the current “judicial crisis” in Poland. Dr Krajewski contextualized in this manner e.g. the criticism about the Polish National School of Judiciary, as the central institution responsible for the training of future judges and public prosecutors, in the wider and ongoing debate about the lack of a functional and resilient judicial education system.
Dr Katarína Šipulová (Masaryk University Brno) built on these case studies by presenting her research on judicial councils and their role and capacities in strengthening judicial independence. Recurring on empirical data conducted during more than 130 interviews with judges, politicians and lawyers in six European countries, Dr Šipulová noted that there is a triple understanding of judicial councils: She distinguished between judge-centred, coordinating inter-branch and fourth-branch judicial councils that are varying in their independence to the legislative, executive as well as to the judiciary.
Prof. Dr Adam Bodnar, former Ombudsman for Human Rights of the Republic of Poland, stressed in his keynote that the causes for the “judicial crisis” cannot be dated back to single decisions, but are embedded in the broader cultural and political context of judiciary after 1989. In this regard, Professor Bodnar noted that the judicial system has not gained sufficient backing in society due to a shortage of time to develop strong bonds after transition and therefore remained unstable and susceptible for political interference.
Judicial independence was then further discussed in a comparative way in the third panel. Starting with the Czech perspective, Dr Ladislav Vyhnánek (Masaryk University Brno) stressed that judicial independence is not solely determined by legal but also by political and social factors such as the political fragmentation level in the respective state, the appointment procedures or the social support of the judiciary. Those factors combined create a certain national context that may explain a stronger resilience level in the Czech Republic than in other states in the region.
Prof. Dr Christoph Hönnige (Leibniz University Hanover) continued with a comparative viewpoint presenting the interdisciplinary research project “Courts under pressure” which evaluates the effect of social media on political discourse about the rule of law in Germany, the Netherlands, Poland and the United Kingdom. The three-year project argues that Twitter, Facebook and Instagram allow politicians to propagate and disseminate ideas that would not have found a public forum on traditional media channels that easily. Recurring on this observation, the project analyses the social media accounts of right-wing populist politicians of the respective countries in order to measure the degree of attack on various courts. Professor Hönnige also provided insight in first research results, noting that there is a common tendency to attack the independence of both Supreme and Constitutional Courts by undermining the legitimacy and citizen’s trust in the judiciary via social media.
Another country insight was given by Assoc. Prof. Dr Anna Śledzińska-Simon (University of Wrocław). She explained the current rule of law situation in Poland metaphorically as a fragile house held together only by few remaining joints: individual judges willing to sacrifice their professional career, civil society organisations and EU support.
The panel concluded with an input by Prof. Dr Anne Sanders (Bielefeld University) who assessed the role and instruments of the Council of Europe and its bodies as further actors to defend the rule of law. Professor Sanders identified the active and visible role of this organisation within the rule of law debate, but also stated clearly that due to a low integration level, measures could be regarded rather symbolic and less enforcing than EU instruments.
The final event of the one-day conference was a high-level panel discussion with Dr Joachim Herrmann, Member of the Cabinet of the European Commissioner for Justice, Prof. Dr Wojciech Piątek (University Poznań), Prof. Dr Ivo Šlosarčík (Charles University Prague) and Bettina Limperg, President of the German Federal Court of Justice, addressing the key challenges for the rule of law in the aforementioned countries. In this context, the establishment and strengthening of judicial independence was highlighted again, as well as the fact that the rule of law entails not only rights but also certain obligations that should not be overlooked. The panellists also stressed the role of the rule of law in supporting other core values of the EU, such as respect for human dignity, democracy, equality and human rights. The question of a common European culture of the rule of law was also raised, on which the invited speakers broadly agreed: there is a common general European culture of rule of law, based on common foundations, but there are differences between countries that exist for historical and cultural reasons, and these should be also kept in mind.
In conclusion, while the need for action from the EU institutions to defend the independence of the judiciary as a fundamental base for good governance has been made evident, the concrete means to resolve such a dispute, as some conference presentations outlined, are limited. It still remains to be seen whether the ruling of the Court of Justice of the EU on the application of the conditionality mechanism, the tool that aims to suspend funds for member state governments in case of rule of law infringements, may be a turning point. Given the fact that the Article 7 inquiry imposed several years ago on the Polish and Hungarian governments lacked any substantial effects, and that the daily payment of 1 million euros imposed by the Court of Justice of the EU on Poland remains ignored, the potential application of the conditionality mechanism can be regarded as the boldest step taken by the EU thus far. With the European Court of Justice’s ruling released in mid-February 2022, the conference was held at a time of culminating events regarding rule of law, a time when fundamental values of the European community are on the table for discussion.