Poland, Hungary, Denmark, Spain… offer a depressing list of constitutional sins. The European Commission has finally woken, perhaps Europe’s fundamental values can be salvaged and emboldened. EU Files asks: ‘What’s next for Europe’s rule of law?’

This is our fortress, Europe’s last line of defence against tyranny, the cathedral of law; a strong tower protecting a new generation from aggressive radicals. But the enemy is not at the gate, the enemy of our freedom lurks in the shadows of the law, hidden by process, dressed in populism.

In 1940, HG Wells wrote his treatise ‘The Rights of Man’ partly in response to the ongoing war with Germany. It was instrumental in the creation of the United Nation’s Declaration of Human Rights; and the European Convention of Human Rights.

In ‘The Rights of Man’ Wells sets out a legal framework designed to oppose tyranny, and offer a standard for all peaceable citizens. He writes that, “The destruction of confidence is one of the less clearly recognised evils, of the present phase of world disintegration.”

Economic crisis of confidence

Just as the global economic crisis was caused, not by a lack of money, but a lack of confidence in money supply; so too today, there is a crisis of confidence in our laws and our governments – there is no shortage of law, good and bad; there is no lack of government in Europe – the crisis is one of eroded trust and compromised values.

Just as economic factors led to the rise of fascism in the 1930s, it could be market forces, demanding transparency and stable political systems for investment, which purge imprudence from political discussion.

Today, Poland, Hungary, Denmark, Spain… Slovakia… have served up a depressing basket of constitutional sins, some in the letter, some in the spirit of the law. As confidence in the European rule of law disintegrated, the European Commission was accused of being too diplomatic at best, negligent at worst – exactly as Wells observed the weak and ineffective League of Nations.

Now, finally, the European Commission has woken, and perhaps still, Europe’s fundamental values, in the letter and the spirit of the law, can be salvaged and emboldened.

Polish courts

In October, ahead of general elections for the lower chamber of the Polish parliament, the outgoing legislature nominated five persons to be ‘appointed’ as judges by the president of the republic. Three judges would take seats vacated during the mandate of the outgoing legislature while two would take seats vacated during that of the incoming legislature which commenced on November 12.

When the new parliament was elected, they overturned these appointments, creating a constitutional crisis and the intervention of the European Commission.

Now, the EU executive wants to complete what it calls “a constructive and facts-based dialogue with Poland to prevent the emergence of a systemic threat to the rule of law.”

The main reason for beginning this assessment under the 2014 rule of law framework is the situation concerning the Polish Constitutional Tribunal, and in particular the dispute about the nomination of a number of judges of the Tribunal.

This should simply be an issue for the Constitutional Tribunal to resolve itself, but the other Polish institutions of State have failed to complied with the Tribunal’s judgments.

On top of that, the Polish Parliament shortened the mandates of the President and Vice-President of the Tribunal.

Poland’s media law

Then there’s the Poland’s new media law. The rule of law, as defined in the European Union’s rule of law framework, requires respect for democracy and fundamental rights.

Media freedom and pluralism are also closely tied with fundamental rights, in particular, freedom of expression. That’s why the Commission thinks it necessary to assess the new media law too.

The European Union is founded on a common set of values enshrined in Article 2 of the Treaty on European Union, which includes in particular the respect for the rule of law.

Commission Vice President Frans Timmermans said: “Mutual trust among EU member states and their respective legal systems depends on the confidence that the rule of law is observed in all member states… [Therefore] when national rule of law safeguards seem to come under threat, the EU needs to act.”

Both the European Commission and the Polish government have asked the Venice Commission of the Council of Europe for its opinion.

Small media law

At the end of December, the Polish Senate adopted the “small media law” concerning the management and supervisory boards of the Polish public television broadcaster (TVP) and public radio broadcaster (PR).

The new law changed the rules of appointment for the management and supervisory boards of the public service broadcasters, putting them under the control of the treasury minister, rather than an independent body. The new law also provided for the immediate dismissal of the existing supervisory and management boards.

In March 2014, the European Commission adopted a new framework for addressing systemic threats to the rule of law in any of the EU’s 28 member states.

The framework allows the Commission to enter into a dialogue with the member state concerned to prevent the escalation of systemic threats to the rule of law that could develop into a “clear risk of a serious breach” which would potentially trigger the use of the ‘Article 7 Procedure’ and the suspension of voting rights at the European Council.

What’s next?

In January, the Commission sent a letter to the Polish government to start structured dialogue. The College of Commissioners agreed to come back to the matter by mid-March, in close cooperation with the Venice Commission.

Spanish laws infringing press freedom; Danish confiscation of migrants personal items; Hungarian aggression against media freedom and migrants fleeing war, have challenged our sense of what it means to be European; sometimes breaking Europe’s de facto constitutional law; often, trampling on the spirit of the law.

Populism has soared, in part because of poor political and economic management within Europe; but also because of a failure to defend this fortress.

Europe’s ancient enemy, tyranny is within; and as Wells said, it is the destruction of confidence which will bring down our walls. It will take the wisdom of Solomon to ensure that this youthful European Union, is not destroyed by selfishness and anger.

  • Author: Brian Maguire, Euranet Plus News Agency