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Judicial Independence in Hungary and Poland: What Can the EU Do?

Updated: Sep 13, 2023

By Sara Campeti, Javier Del Castillo, Gaia Gazzara, & Eva Koch


Judicial independence has been a topic of contention in the European Union for the last few years. Poland with the PiS party and Hungary with the Fidesz party: both have been challenging the rule of law for almost a decade. To discuss alleged breaches of EU law, MJPE interviewed Martina Coli, a researcher at the University of Florence, focusing her postdoc on judicial independence in the EU.


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Article II of the Treaty on the European Union (TEU) establishes that the rule of law is a core value of the EU and that it shall be respected by its member states (MS). Previously, Martina Coli obtained a double PhD on the same topic. More recently, the European Commission (EC) v. Poland case of 2019 is an example where an MS is faced with its lack of compliance with EU values addressed in this interview.


Do you think that the EU has the appropriate tools to deal with such a breach of EU law? Does the EU know how to deal with it?


"Judicial independence is part of the respect of the rule of law, one of the core values of the Union which is protected by the aforementioned article II of the TEU". Nonetheless, Coli emphasises that "the term value can be misleading as it can make us think that it has something to do with moral conviction, with no legal effect.


"That idea is exactly the opposite of the truth in the EU since these values (among which we find the rule of law) are enlisted in a provision of the treaty: they must be considered legally binding principles, at both national and supranational levels.".


She specifies that "the EU is empowered by the EU law toolbox: a set of different instruments that are envisaged to protect the values of the EU and specifically the rule of law. Article VII of the TEU is an example, but there is also another more specific mechanism: the conditionality regulation. Since December 2020 it allows the EU to stop sending funds to MS that violate the rule of law, which impacts the financial management of the Union.".


"That said, we know that the EU has not been doing too much to defend the rule of law, or, at least, this is the impression we might get from the long ongoing problems in Hungary and Poland. We should never forget that the EU has limited competencies; the EU is constrained in its actions by the principle of the conferral: there are things they can do, and others they cannot as they are not allowed by the treaties. "


Moreover, "we are in a very sensitive area here because the majority of the violations of the rule of law and judicial independence take place in an area where the sovereign Member States have the power to make their own reforms. There is an issue of democracy: the EU cannot ignore that there is popular support for the government that enacts these kinds of reforms. "


Coli highlights one of the core problems of the EU: the back-and-forth pulling of power and sovereignty between the Union and the MS. What can the EU really do about a breach of EU law if the MS has the treaty-given power to form their own judicial system? To put it simply, nothing.


The mechanisms that have been mentioned as the "rule of law toolbox require a lot of collaboration between the institutions and have very high thresholds.” This means that even if the EU enacts some sort of punishing procedure against a member state, it will be a burdensome and long process that will most likely be unsuccessful.


As the EC has the main supervisory and sanctionary role, do you think that the EU should change tactics and “spread out” the sanctionary role between the other two main institutions, Parliament (EP) and Council?


"The EC is, of course, the guardian of the treaty and has many powers and responsibilities when it comes to enforcing the respect of EU values. The EP is the institution with fewer powers in this respect, but it has been one of the main actors in trying to tackle and push the Union for action in the context of the rule of law violations by Hungary and Poland."


"When it comes to actually imposing the sanctions, it is up to the Council and the EP to decide on that. We touch on sovereignty, and we deal with extremely politicised issues: the MS retain a lot of influence on decision-making in these respects. "


It is impossible not to mention the internal struggles of the EU: its structural problems. Treaty revision seems like the only successful method in dealing with EU law breaches, as it would create new mechanisms and new criteria to be respected by the MS, but "opening the pandora’s box of the treaty revision, how can we expect the system to become better as Poland and Hungary would need to be part of the amending and decision-making?"

Coli continues that "I think it’s better to work with what we have, to keep in mind the structural problems and try to work around them and to develop a mechanism to shed more in light of what the Union is allowed to do in this field. We do not need to try and exacerbate the competencies of the Union, as it would not be perceived in the correct way by the concerned countries."


The initial reaction of the EC to these breaches was to open a dialogue between the concerned MS and the Union. "Therefore, they set up a new soft law instrument: the rule of law framework. The latter envisaged a structured dialogue between the EC and the MS about rule of law concerns."

"Of course, it is difficult to have a dialogue about this: the two parties must be willing to dialogue. Poland was not willing to have a dialogue with the EC in this respect, even though the EC kept trying without any harder measures."


"This resulted in making the same mistake they committed with Hungary: the EC was either doing nothing or the measures to respond were too long and burdensome to have a real effect on the measures adopted by the countries. From the political point of view, the Commission could have done better with the instruments they had."


Do you think that these breaches of EU law impact the reliability of the EU internally? With EU member states who are not Eurosceptic questioning their beliefs?


"Well, of course, these events impact the credibility of the EU, but not so much in the eyes of the other MS. As I said before, the MS take part in the decision-making of the EU. They also have a right in saying something when it comes to the breaches of EU law."


"Therefore, I believe that the liberal MS that opposes Hungary and Poland are among those to be blamed for the weakening of the rule of law in Europe. Generally, I think that when it comes to political pressures, MS such as Germany and the Netherlands could have leverage in pushing Hungary and Poland for reforms."


She concludes by stating that "yet, they were more willing to do it rhetorically and covering vaguely the respect of the rule of law, than acting and doing something for empowering the Union or pushing bilaterally."


Values Versus Sovereignty

This interview has shown the problems that impact the European Union and that come in the way of fulfilling its purposes: in compliance, internal structural problems, hesitation by MS to denounce the actions of others and, finally, the shadow zone between EU competencies and national sovereignty.


All of these issues are multi-faceted, no right answer exists. Once a breach of EU law takes place, the apparent perfect structure and perfect functionality of the utopic Union falls into a crisis. What institutions have the power? What can they really do? And can they really do it? What competencies does an MS really retain at the national level?


Opening the "pandora’s box" of the EU’s structural issues leaves one with more questions than before.



Sources: Martina Coli, EUR-Lex


Written by Sara Campeti

June 2023




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