Constitutional Populism versus EU Law: A Much More Complex Story than You Imagined

Abstract

Anti-institutional actions resulting from the populist narrative in the EU Member States concentrated on the independence of the judiciary, led – at the supranational level – to a reinvention of the EU rule of law. From a system of ‘declaratory’ rule of law, where adherence by national authorities to this principle is merely a presumption, the Union has emerged, thanks to the recent foundational case-law of the Court of Justice, as a constitutional system where this presumption is being gradually replaced by a requirement for full adherence as a matter of fact. However, framing EU rule of law as an unconditional good focuses on the specific purpose of reinforcing EU law’s supremacy and allows the Court of Justice to question the criticism of its vision of the law from any quarter: the instrumental side of the rule of law reinforces EU law’s claim to supremacy pre-empting substantive disagreements about the law. The strategy of deploying the rule of law in such a way has paid off: the Court is triumphant. However, two aspects of this triumph are particularly troubling: first, the absolute lack of change on the ground in Poland and Hungary in the name of which the Court claimed new sweeping powers; and second, the emergence of dual standards of judicial independence demonstrated by the illegal removal of AG Sharpston from office without any lawful reason and in the absence of judicial review. Neither the supremacy of EU law nor its autonomy were able to protect the Court against the attack by the Member States. The same supremacy of EU law was not able to stop the rule of law backsliding in Member States resulting from the constitutional populism offered by their leaders and cheered on by large sections of the general public. The rule of law is forgotten in both respects. A much more complex story of EU rule of law emerges, than the one often told.

Keywords: Rule of Law, Judicial independence, populism, CJEU, Sharpston, Poland, ECt.HR