The paper deals with the “abusive comparativism” – method of framing arguments regarding various aspects of rule of law principle, based on reference to other jurisdictions, without analysing broader constitutional, historical or institutional context. It aims, first of all, at broadening the scope of discretionary legislative power in relation to changes regarding constitutional institutions. Secondly, in the rule of law backsliding context, it allows to undermine the independence of institutions. The term “abusive comparativism” was used in relation to Turkey, however a similar method was analysed in context of Hungary. The paper constitutes a case study dealing primarily with the amendments to the Act on National Council of Judiciary in Poland introduced in 2018. It analyses how the “abusive comparativism” was expressed by political actors, by new National Council of Judiciary and finally how it was reviewed by the Court of Justice and captured Constitutional Tribunal.
The paper analyzes the current, general tendency of Constitutional Courts to claim a more intrusive review on EU Law and to hinder the direct effect of the Charter of Fundamental Rights. My take is that resistance to full enforcement of EU Law by national Constitutional Courts are inevitable and likely to increase in number and quality. This emerging judicial nationalism cannot be superficially dismissed as a sign of crude ignorance, but rather needs to be understood in its structural motives. Like political nationalism, judicial nationalism may assume two opposite forms: a ‘bad’, sovereignist and a ‘good’, constitutional. The former is aimed at sabotaging EU integration and the oversight carried out by EU institutions over the respect of human rights by Member States; the latter seeks to address the problems left unresolved by the yet uncompleted process of constitutionalizing Europe and to partaking in the common building of a more balanced understanding of fundamental rights.
The populist onslaught against the constitutional pillars of democracy has shown that the traditional “checks and balances” such as courts, independent electoral bodies, free media and civil and political rights might not be as powerful in defending democracy from backsliding towards autocracy as many legal scholars tend to believe. Two conclusions from this brief review of the literature emerge. One is that law has only a weak role in preventing a breakdown of constitutional democracy when democracy is not the only game in town and when democratic support for constitutional checks and balances is eroding. The second one shows that a constraining role of law differs in different stages of the rise of populism. During the early stage of the rise of authoritarian populism, constitutional design features serve as “speed bumps” to slow the deconsolidation of liberal democracy.
What came to be generically known as “the rule of law crisis” in the European Union has led the Court of Justice to add a new chapter to its own jurisprudential tradition. Since 2017, the Court, by relying on the constitutional mandate conferred on it in art. 19 TEU has been laying foundations for a jurisprudential paradigm shift. This analysis introduces a novel term: “existential jurisprudence”. Jurisprudence is called “existential” because the EU institutions are called on to stand for the EU legality. In times of clashing constitutional doctrines and narratives, the EU legality demands fidelity and existential jurisprudence responds to the call. It is based on the subtle dialectics between institutional self-defence and upholding integrity of the legal order. As the existential jurisprudence recognises this systemic function of the supranational court and brings to the surface step by step the components of the European rule of law, the journey has only started.
Building on the analysis of the European Court of Justice case-law and cutting-edge Rule of Law scholarship, including the work of Professors Palombella and Krygier, I demonstrate that the principle of the Rule of Law in the sense of the value included in Article 2 TEU, has largely been, throughout the evolution of the European integration exercise, tautological in nature: its only purpose seems to be to proclaim and entrench the supremacy claim of the Court in question. Recent case-law, although striding in the substantive direction of ensuring judicial independence, fails to depart from the familiar use of the concept. Article 19(1) as a trigger of the Rule of Law policing in the hands of the supranational court unquestionably boosts the Court's authority, while failing to introduce any meaningful understanding of the Rule of Law at the supranational level, let alone hardly applying to the ECJ itself.
The EU claims its foundation is based on values common to its Member States including the rule of law. Accession to the EU requires the realisation of these values to a high standard, and it was assumed that EU membership would ensure the greater development of these values. However, in Member States including Hungary and Poland, ruling political parties have deformed the democratic voice to become a tool of manipulation. Member States’ national authorities now fracture between those arguing for the place of the EU in resisting this autocratic shift, and those considering national sovereignty to exclude it. This paper argues that while the authority and limitations of EU action are contentious, EU (non)intervention in backsliding Member States will continue to be characterised by national authorities as either the illegitimate intervention of an external power, or the permissive enabling of autocratic regimes within the EU, which will only result in the fracturing of the EU.