Values and rights, rule of law, security
#TheFutureIsYours Looking after citizens’ freedoms
The rule of law, the European Court of Justice, and the future of the EU
In a case-by-case analysis, professors Laurent Pech, Middlesex University, and Dimitry Kochenov, Central European University, have offered a guide to navigate the Court of Justice’s fast-expanding case law and to grasp its significance for the future of the EU.
The study is published in the framework of a SIEPS’ research project on the EU Rule of Law toolkit, which aims to provide critical analysis of EU initiatives to confront the regression in the rule of law.
At the webinar, the authors will present their findings, which will be commented by Jane Reichel, Professor in administrative law at Stockholm University and member of SIEPS’ advisory board. The webinar will be concluded with a discussion with the audience, including scholars and practitioners.
The webinar will be shown below from 10:00 to 11:30. A recording will be available afterwards.
Event reportThe weakening of the rule of law in some Member States affects the whole EU. This seminar focused on how the case law of the European Court of Justice (ECJ) has evolved in the light of these developments. EU Minister Hans Dahlgren underlined his conviction that the strength of the EU is based on democracy, freedom and the rule of law. Citizens and taxpayers also expect the EU to act. Even if the EU has taken important steps recently – for example to make the disbursement of EU funds conditional on respect for the rule of law – the minister stressed that vigilance is needed, not least regarding media freedom. Professor Laurent Pech emphasized that where the rule of law is weakened, democracy is also undermined. Against this background, the ECJ has given the EU institutions a whole set of tools relating to the rule of law, in the space of just three years. According to Pech, it is important to use them in order not to worsen the situation. Most of the judgments and decisions are based on cases involving Poland, and more are expected. Ultimately, it is an existential issue for the Union: thousands of invalid judgments in one Member State affect the trust within the whole system. That the EU is a union of democracies has hitherto been taken for granted, argued Professor Dimitry Kochenov, but this is no longer the case. It is in this light that Article 2, which lists the EU’s values, should be viewed. According to Kochenov, this article has so far constituted a summary of what has been a reality in the Member States. Now, it should rather be seen as a formalisation of the fact that the EU is a value-based system. This gives cause for optimism, argued Kochenov. However, EU law is based on dialogue between courts, and this is difficult in the case of Poland: judges are not appointed on legal grounds and the courts therefore cannot be qualified as real courts, he said. He also pointed out that there are now countries outside the EU that show more respect for the European convention on human rights than a country within the EU. Commenting, Professor Jane Reichel pointed out questions about the role of the ECJ: Could it be given too much authority? And could this be detrimental to the dialogue and cooperation between courts? She also argued that there could be risks when the development of case law is based solely on the experience of authoritarian systems. She said that caution is needed considering the possible impact on other Member States. In response, Laurent Pech pointed out that the Polish government is only using the principle of the primacy of EU law as a smokescreen, in its strive to create an authoritarian system. The case law of the ECJ also shows that Poland must respect not only EU law, but also its national law. During the Q&A session, participants discussed the relationship between the ECJ’s case law and Article 7, what the European Commission can do, and the fact that the ECJ’s case law on the rule of law is in constant evolution. Before and after the seminar, the panelists had further discussions with the audience, including senior representatives of courts in Sweden and at EU level, lawyers, journalists and other researchers. The seminar was also filmed and is so far SIEPS’ second most watched event of 2021.
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