Narrow Authority of the Court of Justice of the EU on the democratic backsliding in Poland and Hungary

London, United Kingdom

26 February 2020

In times of raising populist tendencies, courts might appear as the key institution guaranteeing counter-majoritarian checks and balances. As democratic values are embedded in the EU Treaties and form a preliminary requirement for EU accession, one could also expect the Court of Justice of the EU (CJEU) to pull the break on the democratic backsliding in the EU Member States. However, in the case of limitations to judicial independence, freedom of press and freedom of association in Poland and Hungary taking place since 2011, the CJEU has played a rather marginal role. This paper identifies factors in the institutional and political context of the operation of the CJEU that have shaped the cases brought before the Court as well as the expectations regarding possible compliance or backlash against its decisions. The paper stipulates that these factors have played a crucial role in shaping the Court's indirect approach and limited impact on the democratic backsliding and systemic rule-of-law violations in Poland and Hungary. Such a hypothesis might contradict the theories about judicial activism or judicialization of European governance.

A contextual analysis of the legal cases before the bench in Luxembourg is necessary in order to uncover their political sensitivity and frame them in terms of judicial strategy of authority building and resistance mitigation. In this particular political and historical context, the CJEU does not live up to its expectations of a powerful supranational court. However, this does not seem to be driven primarily by the will to avoid backlash from the Member States' governments that would want to exit or limit the Court's jurisdiction. Instead, what appears crucial is the political framing of these crises by other EU institutions - both the expert/independent institutions (Commission) as well as those where political opinion of the biggest Member States are reflected (Council and Parliament).

Seminar Series: Institute for the Study of European Laws (ISEL)

Guest Speaker: Dr Pola Cebulak, University of Amsterdam

Chair/Discussant: Dr Joelle Grogan, Middlesex University London

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