Tensions in the European Union and Symptoms of Backsliding
The ex-communist countries welcomed the interpretation of constitutionalism supported by the European institutions, and adopted the relevant concepts and models in approving their new constitutional legislation.
As the previous chapters underlined, the constitutional policies of the Council of Europe and the EU substantially coincided with Western European constitutional traditions. In recent times, some of the ex-communist countries have started claiming an alternative constitutional policy. Therefore, they adopted many constitutional reforms, especially in the field of the judiciary and the constitutional justiceTensions in the European Union and Symptoms of Backsliding 109 system. These reforms put in danger the new European policy for the implementation of the rule of law.[338] [339] For example, the reforms are at the centre of conflicts between Hungary and Poland, on the one side, and the European institutions, on the other. Both states have looked for a justification in the new text of the Treaty on the European Union. According to Article 2, the EU is founded on the values of human dignity, freedom, democracy, equality, rule of law and human rights, including the rights of persons belonging to minorities. This statement is qualified to some degree by Article 4(2), which binds the EU to respect the national identities of the Member States. According to an important doctrine,11 these provisions testify ‘a shift in emphasis from national identity as such to constitutional identity’.[340] However, the claim for constitutional identity of the concerned states is not a good reason for the adoption of some recent reforms. A state may claim the safeguarding of its constitutional identity when a constitutional transformation is considered necessary to recover the previous state’s identity that was cancelled or amended because of an external intervention. So long as a state does not leave the EU and the Council of Europe, its constitutional identity is the constitutional identity adopted at the moment of accession to the relevant supranational institution. Transformative developments are apparently taking place in Central and Eastern Europe. Some months ago, the President of Russia, Vladimir Putin, said that the Western European model of democracy is inadequate for dealing with the complexity of the economic and social problems of contemporary society.[344] This intervention revives the old category of the ‘illiberal democracies’ proposed more than 20 years ago by F Zakaria.[345] However, while Zakaria’s term was used for the purpose of raising criticism, President Putin has meant it in a positive way. The conversion to illiberal democracy is not compatible with European membership. The Central and Eastern European countries do not share these conclusions. It has been noted, for instance, that the European Commission’s influence over Romanian authorities is limited following the constitutional crisis of 2012.[347] On 20 December 2017, the European Commission proposed to the Council of Europe the adoption of a decision on the existence of an evident risk of serious breach of the rule of law by the Republic of Poland. The document underlined the ‘lack of an independent and legitimate constitutional review’ and expressed ‘serious concerns as regards judicial independence, the separation of powers and legal certainty’.[348] On 12 September 2018, the European Parliament invited the Council of Europe to determine the existence of a clear risk of serious breach by Hungary of the basic values of the EU. The Parliament’s concerns were with regard to the safeguarding of human rights and fundamental freedoms, the functioning of the constitutional and electoral systems, and the independence of the judiciary. Both initiatives invited the Council to proceed in accordance with Article 7(1) TEU, which provides for a special procedure aimed at determining the existence of a risk of a serious breach of the EU’s basic principles. The Council may open a procedure by a majority of four-fifths of its Member States. The concerned states are allowed to submit observations and can be required to reform their legislation. If the state does not comply with the requests of the European authorities, the Council has the power to determine by unanimous vote the serious breach by the state of basic EU principles and values. Moreover, the behaviour of the state may be sanctioned with a qualified majority of the Council. Different political strategies adopted by the Member States, combined with the required qualified majorities when deciding upon these issues, have held up these initiatives. While ‘the European Union simply did not have the tools to intervene’, the Member States ‘simply do not want to judge each other’.[349] The ‘predominantly political nature of Article 7 TEU’ has been correctly underlined in the legal literature.[350] The strategy to implement that Article needs an overall consideration of the constitutional order of the state in question. Within this framework, the concept of a living constitution can be useful again with regard to the exercise of monitoring functions and may help the interpreters again in their work. The treatment of the citizens’ personal rights is also at stake. The above-mentioned Resolution of the European Parliament of September 2018 emphasises this aspect. Nevertheless, a general overview of the actual functioning of the institutions of a state requires something more than an evaluation according to a strictly legal yardstick. Thus, a political evaluation has to be adopted. In the meantime, the rule of law in Poland and Hungary has worsened. The EU’s discussions with both countries have yet to result in a positive outcome. The European Parliament has suggested the introduction of ‘an annual independent review aimed at assessing, on equal footing, the compliance of all Member States with the values stipulated in Article 2 TEU’.[351] III.