When discussing the deterioration of democracy in the European Union, particular attention is always drawn to two countries – Poland and Hungary. Anti-democratic processes have taken on a signifficantly dangerous turn in Hungary, where the authorities have brought the judiciary and other public institutions, the media, and the civil sector, under their control to a large extent. Some international organizations no longer consider Hungary a democracy. According to the Rule of Law Index, it ranks last in the European Union and falls behind many other countries, including Georgia.
As for Poland, it has the sharpest decline among the EU countries in this index in recent years.
In the following article, we will discuss three significant judgments adopted by the European Court of Justice to protect democracy.
Why should I be interested in this topic?
In anticipation of the recognition of Georgia's European perspective and granting of candidate status by the European Union, the analysis of the peculiarities of the European legal environment becomes especially relevant. It is essential to determine what role, levers, and opportunities the Court of Justice of the European Union has to protect democracy in the member states, as well as, what is its power to stop anti-democratic and authoritarian tendencies happening inside the country.
Our comment
The Court of Justice of the European Union has demonstrated that it guarantees the protection of the fundamental values of the European Union. Even though its judgments cannot completely change the political climate inside the country, in critical moments, it can at least partially restrain anti-democratic processes.
Case #1: Attempts to gain control over the judiciary in Poland
What was the context of the case?
In 2018, Poland passed a law lowering Supreme Court judges' retirement age from 70 to 65. The amended law also included already-appointed judges. In order for them to continue to hold office under the old rule, they had to submit a relevant request, otherwise, they had to resign. The exclusive power to make a decision on that matter was given to the President of the Supreme Court. Before coming to a decision, the President had to request the opinion of the National Council of Justice, which, in turn, evaluated whether extending the judge's term was reasonable, taking into account the “interests of the justice system”. The amended law affected almost 40% of judges.
What did the Court of Justice of the European Union say?
At the first stage, the court, by employing a temporary measure, practically obliged Poland to restore the old regulation before the judgment, and until then restricted dismissing any judge. Later, in 2019, the court noted:
- Resolving organizational issues of the judiciary is the prerogative of member states, however they do not have unlimited power in this area;
- It is the obligation of the member states to ensure the effectiveness of the judiciary and the protection of its independence.
According to the court, the “reform” process in Poland did not serve legitimate aims. It raised serious questions that “it aimed to remove a particular group of judges from the system”. Therefore, the court found a violation of the Treaty of the European Union and the Charter of Fundamental Rights by Poland.
It should be noted that the court assessed the legislative amendments in the light of the general essence of the “reform” and its “hidden aims” and not by focusing on technical, narrow legal details. This approach is crucial for identifying and precluding setbacks of democracy.
Case #2: Attack on non-governmental organizations in Hungary
What was the context of the case?
The case against Hungary concerned the so-called Transparency Law, which recently became a subject of discussion also in Georgia, and due to the March 7-8 protests, the Parliament had to withdraw and drop this bill. However, events developed differently in Hungary, where civil society organizations have come under additional legal restrictions, obligations, and political pressure for being “foreign-funded” by a regulation adopted in 2017.
What did the Court of Justice of the European Union say?
The Court emphasized freedom of assembly and association as the foundation of democracy and public life. According to the Court, Hungarian law unreasonably limited this right and, therefore, was in contradiction with European values. The so-called Transparency Law imposed a discriminatory regime on foreign-funded organizations by restricting the free circulation of capital without justification. The law also violated the rights to respect for private and family life and protection of personal data. As a result, what was not precluded by the internal political and public processes in Hungary, was revoked by the decision of the Court of Justice.
Interestingly, the European Commission and the Parliament, along with 15 member states, referred to the Court of Justice on another issue against Hungary. The case concerns a law passed in Hungary in 2021 that bans “propaganda of homosexuality or gender reassignment". The court has not yet ruled on this matter.
Case #3: Financial leverage against anti-democratic regimes
What was the context of the case?
According to the 2020 regulation of the European Parliament and the Council, in case of violating the principles of the rule of law, the European Union may suspend financing of budgetary funds or postpone the transfer of funds for certain programs to an EU member state. Violation of rule of law principles entails:
- Imposing a threat to the independence of the judiciary;
- Non-investigation of illegal and arbitrary decisions by public persons;
- Non-enforcement of court decisions, etc.
What did Poland and Hungary object to?
In a joint complaint, Poland and Hungary indicated that the regulation adopted in 2020:
- Excessively increased the power of EU structures over member states;
- Violated legal certainty principles, i.e. it was vague about in which specific cases the EU could use financial leverage against member states.
What did the Court of Justice of the European Union say?
In a 2022 ruling, the Court noted that the basis of the EU is shared obligations – the Rule of Law and Solidarity – and that these principles “define the EU's identity”. Therefore, the European Union should be able to uphold said principles. The court also indicated that adhering to these values is not only a formal prerequisite for joining the European Union. If this was the case, the states would not implement these principles in their systems and would not act accordingly after becoming EU members.
Summary
In all three cases discussed above, the Court of Justice of the European Union demonstrated a strong will to uphold democracy, the rule of law, and human rights. In fact, among the EU institutions, the Court has proven to be the most effective of restraining the policies of the far-right governments of Hungary and Poland. This experience is particularly important for Georgia. On the one hand, it reminds us which values the European Union stands for as an interstate unity, and which principles Georgia should adhere to on the way to joining the European Union. On the other hand, the landmark cases of the Court of Justice of the European Union provide a guarantee that membership in the EU will strengthen these values for our country and reduce the chances of developing anti-democratic processes.
The article was prepared by the Komentari with the support of the USAID Rule of Law Program funded by the United States Agency for International Development (USAID) through the East-West Management Institute (EWMI). The views expressed in this article are the sole responsibility of the author and do not necessarily refleect the views of USAID and EWMI.
