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The supranational rule of law as first principle of the European Public Space – on the journey in ever closer union among the peoples of Europe in flux (Ponadnarodowa rule of law jako metazasada Europejskiej Przestrzeni Publicznej – esej o ewoluującej podróży w kierunku jak najściślejszej unii pomiędzy narodami Europy)

This analysis argues that the so-called reform of the Polish judicial system has sparked a paradigmatic shift in the case law of the Court of Justice. Responding to the referrals from Polish courts and deciding the infringement actions brought by the Commission, the Court of Justice has been taken to task and has stayed true to its mandate, or in the words of former Judge of the Court C. Kakouris, “its mission”, of ensuring “the supranational legality” within the sphere of application and interpretation of EU law. By insisting on the rule of law as the shared value of the European legal space and by explaining the components that make up the supranational rule of law, the Court has been enforcing the commitments of the Member States that have been always implicit in the constitutional design of the European legal order. However, while this emerging rule-of-law case law adds novel constitutional layers to the community of law, the queries as to its reformative potential, reach and significance go clearly beyond the courtroom and bring to the fore existential questions of mega – politics, identity and belongingThis paper brings together various strands of my research that span time spent as the LAPA Fellow at Princeton University (2017–2018); https://lapa.princeton.edu/content/welcome-2017-2018-lapafellows and as Fernand Braudel Fellow at the European University Institute in Florence (2019; https:// www.eui.eu/DepartmentsAndCentres/Law/People/Fellows/FBF/Tomasz-Tadeusz-Koncewicz). For further references see note 7 infra. Each of these unique institutions and academic settings enriched the analysis in its own inimitable way and I feel privileged to recognize this contribution here. I acknowledge the funding received from the European Union’s Horizon 2020 Research & Innovation program under Grant Agreement No. 770142, project RECONNECT–Reconciling Europe with its Citizens through Democracy and Rule of Law. I am forever grateful to Professor Martin Shapiro for his friendship, inspiration and our many conversations we have had over the years on the themes touched upon here. The usual disclaimer applies..

Déterminés à établir les fondements d’une union sans cesse plus étroite entre les peuples européens

Preamble to the Treaty establishing the European Economic Community

 

Selon l’article 164, le droit ecrit du traité a au dessus de lui le Droit avec un D majuscule,

le Droit non ecrit, l’Idée du droit. Et la Cour doit assurer le respect de ce Droit

C. KakourisC. Kakouris, La Cour de justice des Communautés européennes comme Cour Constitutionnelle: Trois Observations (in:) Festschrift für Ulrich Everling, O. Due, M. Lutter, J. Schwarze (eds.), Baden-Baden 1995, p. 632.

1. The Rule of Law Crisis: Focus on the boats, and miss out on the journey

As important and devastating Brexit and financial crises are, they remain crises of governance and institutional structure. The argument presented here is that none of these crises strike as deadly a blow to the European edifice as the crisis in which a single member state tramples the values of democracy, rule of law, and human rights; values presumed to be common for the EU and its member states (art. 2 Treaty on the European Union; hereinafter referred to as the TEU). With the rise of the politics of resentment, we are not dealing with yet another rogue government riding roughshod over its treaty obligations. Instead, we are facing a government that calls into question the very basis of European integration, liberal democracy and undermines it from withinFor detailed analysis and further references K.L. Scheppele, L. Pech, Illiberalism Within: Rule of Law Backsliding in the EU, “Cambridge Yearbook of European Legal Studies” 2017/19, p. 3. Also T.T. Koncewicz, Democratic backsliding and the European Constitutional Design in Error: When will How meet Why?, at https://verfassungsblog.de/the-democratic-backsliding-and-the-european-constitutional-designin- error-when-how-meets-why/ and the analysis infra (30.04.2020)..

The Polish case of democratic backsliding has a special place in the annal of the European UnionSee, in general, M. Wyrzykowski, Antigone in Warsaw (in:) Human Rights in Contemporary World. Essays in Honour of Professor Leszek Garlicki, M. Zubik (ed.), Warsaw, 2017; W. Sadurski, How Democracy Dies (in Poland): A Case Study of Anti- Constitutional Populist Backsliding, “Sydney Law School Research Paper” 2018/1; W. Sadurski, Polish Constitutional Tribunal under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler, “Hague Journal on the Rule Law” 2018/11, p. 63; J. Zajadło, Constitutionhostile Interpretation, “Przegląd Konstytucyjny” 2018/2.. The constitutional captureOn the concept, J.-W. Müller, Rising to the challenge of constitutional capture. Protecting the rule of law within EU member states, https://www.eurozine.com/rising-to-the-challenge-of-constitutional-capture/ Also see the analysis infra.in Poland has undermined the very idea of Europe bound together by (allegedly) shared values of the rule of law, democracy, human rights and underpinned by liberalism, tolerance, ‘living together’, and ‘never again constitutionalism’. Polish counter-revolution replaced these founding principles with zero-sum politics, a vision of ‘us vs. them’ and a competing constitutional narrative of fundamental disagreement over valuesOn the animus behind, and main tenets of the counterrevolution T.T. Koncewicz, The Polish Counter- Revolution Two and a Half Years Later: Where Are We Today?, https://verfassungsblog.de/the-polish-counter- revolution-two-and-a-half-years-later-where-are-we-today/.. It proclaimed that “We, the European peoples” are not ready to live together in one pluralistic constitutional regime. The differences took over the commonalities.

This paper aims at contextualizing these developments. It argues that the so-called reform of the Polish judicial system has sparked a paradigmatic shift on Kirchberg. Responding to the referrals from Polish courts and deciding the infringement actions brought by the Commission, the Court of Justice (hereinafter to referred as “the Court”) has been taken to task and has stayed true to its mandate, or in the words of former Judge of the Court C. Kakouris’ evocative term, “a mission”, of ensuring the supranational legality within the sphere of application of EU law.

Undoubtedly, while this emerging rule-of-law case law adds constitutional layers to the community of law, its reformative potential and significance go clearly beyond the courtroom. The cases decided thus far by the Court have set the EU law on the novel course of re-discovery and re-imagination, while provoking important questions and queries about the identity and belonging that need to be considered in earnest.

For starters, though, one must be very clear that not everything should be grouped under the high-handed tag of “the rule of law crisisThe arguments presented here draw on T.T. Koncewicz, The existential jurisprudence of the Court of Justice of the European Union. An essay on the judicial incrementalism in defence of European First Principles (in:) K. Szczepanowska-Kozłowska (ed.), Profesor Marek Safjan znany i nieznany. Księga jubileuszowa z okazji siedemdziesiątych urodzin, Warsaw 2019; Understanding the politics of resentment: of the principles, institutions, counter-strategies, normative change and the habits of heart, “Indiana Journal of Global Legal Studies” 2019/26, p. 501; The politics of resentment and first principles in the European Court of Justice (in:) F. Bignami (ed.), EU in Populist Times. Crises and Prospects, Cambridge University Press 2020; The Democratic backsliding in the European Union and the challenge of constitutional design (in:) X. Contiades, A. Fotiadou (eds.), Routledge Handbook of Comparative Constitutional Change, Routledge 2020. In Polish see my Filozofia unijnego wymiaru sprawiedliwooeci. O ewolucji podstaw unijnego porządku prawnego, Warsaw 2020, in particular chapters I and V.. When properly defined, it is not about well-intentioned disagreements among reasonable democrats on how best to implement a technical piece of EU law. There is a categorical difference between a lack of implementation of EU law and/or interference with citizens’ EU rights and the blatant rejection of the Court’s authority, targeting national judges for sending preliminary rulings to the Court or masterminding a hate campaign against the judges that dare to say “no” to such practices of intimidation and fear-mongering, and now stripping the European mandate of national judges of any practical significance. It is exactly these extreme examples of rule of law breaches that demand, and will continue to demand in 2020 and beyond, the explicit spelling out of the core of the EU rule of law. Excluding arbitrariness as a widely agreed-upon rationale for the rule of lawT. Konstadinides, The Rule of Law in the European Union. The Internal Dimension, Hart Publishing 2017.must translate into constructing the core of the rule of law principles that are shared by all, as part of once implicit and non-negotiable elements of the original consensus that brought all its parties together. If such a core cannot be agreed upon and enforced in times of crisis, then, the integration project itself is being undermined and loses its ethos.

While commitment to the EU project by all actors involved is absolutely crucial, one of the tenets of the rule of law crisis is that such an assumption is no longer valid today. Rather, it has become counterfactual, as not all member states are ready to acknowledge that the values are shared indeed. Quite to the contrary, some member states question the common understanding of some basic ideas, chief among them the rule of law. The rule of law crisis has made it clear that there must be no free riding and that there must be EU content of the rule of law and standards binding on all. The rule of law, while clearly anchored in the domestic legal systems and traditions, must take on its own meaning if it is indeed to serve as a behavioural yardstick. If there is one indisputable lesson from the rule of law crisis, this is exactly it.

Again, one should be clear and precise about the language. Agreeing on the core is never about imposing uniformity, but rather about enforcing these basic features of the legal order that are essential to its functioning, and more broadly, survival. This is not “imposed uniformity”, but acceptance of being bound by the essential principles that make up the EU. The EU will lose its ethical face exactly when it fails to enforce these agreed-upon constitutional essentials. This would only acknowledge the oft quoted and driven by the hopeless status quo saying that the EU has a body but not a soul. After all, if we cannot find the core of our commitments, then the whole political community that the EU undoubtedly is, loses much of its credence and credibility. The choice of words (enforcing credible commitments, not imposing uniform standards) is particularly important as it frames and orders our discourse about the rule of law as we struggle to move along. All too often, too much is read into the differences, instead of focusing on, and locating, the commonalities that are shared.

The problem with the EU – wide response to the democratic backsliding from within – boils down to not so much the lack of common point of reference, but rather to the lack of understanding among Peoples of Europe why and how the quality of democracy and the rule of law in one of the member states should matter to them. EU not only needs to build trust in its member states’ adherence to democratic values and the rule of law, but first and foremost, to construct a civic narrative and loyalty to these allegedly shared values. As long as that does not happen, even most ambitious legal proposals for the rule of oversight in the EU will founder on the sands of lack of democratisation and apolitical ethos of the European polity, leaving the citizens with the hopeless feeling that this is yet another debate for afficionados. Therefore, EU must be able to defend the narrative and explain at the domestic level not only what and how the EU is “doing things”, but also why it acts to defend voluntary commitments and duties adopted by the states on the Accession. Europe needs its own voice and counter-narrative in defence of the rule of law that would be heard in the national capitalsFor global approach, D. Landau, Abusive constitutionalism, “University of California Davis Law Review” 2013/47, p. 189; O. Varol, Stealth authoritarianism, “Iowa Law Review” 2015/100, p. 1673; M. Tushnet, Authoritarian constitutionalism, “Cornell Law Review” 2015/100, p. 391; C.R. Sunstein (ed.),Can It Happen Here. Authoritarianism in America, New York 2018; A. Huq, T. Ginsburg, How to Lose a Constitutional Democracy, “UCLA Law Review” 2017/65; T. Ginsburg, A. Huq, How we lost constitutional democracy (in:) C.R. Sunstein, (ed.), Can It Happen Here. Authoritarianism in America, New York 2018, p. 135–156; T. Daly, Enough Complacency: Fighting Democratic Decay in 2017, I-CONnect, http://www.iconnectblog. com/2017/01/enough-complacency-fighting-democratic-decay-in-2017-i-connect-column/..

These intangibles go well beyond the (undeniably important) talk of procedures, paragraphs, new institutions, etc. They ask questions about the political will and imagination, readiness and, yes, also political courage to stand up for and defend the common project against the domestic idiosyncrasies, fleeting voters’ preferences and electorates. True debate about the rule of law oversight needs these intangibles just as much as strong legal mechanisms. As things stand right now, domestic rule of law and independence of courts are of no concern to Dutch, French, etc. people. Without such recalibration of our perspectives and loyalties, rule of law oversight is doomed to be no more than a patching-up process applied here and there, rather than much needed global and principled approach that would look to the causes, not simply cure the symptoms.

These are all important systemic caveats that should be borne in mind when reading the analysis that follows. Important as it is in its scope and seriousness, Polish rule of law crisis is but a boat. What should equally matter is the journey of creating an ever-closer union among the peoples of Europe, and the processes that make the boat veer off its course. The journey is too often overshadowed by the vessel. Accordingly, the analysis that follows seeks to restore some balance between the boats and the journey.

2. Setting the scene: From a resentment to the politics of resentment

Attack on the judiciary in Poland and the case law of the Court must be looked at from a more systemic and broader perspective which this paper frames around the term of the politics of resentment.

The resentment is crucial for understanding the rise of illiberal narratives in Europe and beyondSee ground-breaking K.J. Cramer, The Politics of resentment: Rural consciousness in Wisconsin and the Rise of Scott Walker, University of Chicago Press 2016.. Although the role of emotion in politics has traditionally been undertheorized as compared to reason and the rational side of human beings, there is no doubt that in contemporary politics, emotion has become equally, or indeed, more important. Emotions are not only a driving force behind the political struggle, they are also a prize to be won. Crucially, emotions play a performative and constitutive function. They not only express, but also help bring subjects into being and constitute identitiesM. Holmes, Feeling beyond Rules, Politicizing the Sociology of Emotion and Anger in Feminist Politics “European Journal of Social Theory” 2004/7, p. 212.. And one particularly potent combination of emotions has become salient in recent times – resentment. Populist leaders have tapped into a reservoir of anxiety about ‘the other’, anger at the liberal establishment and the imposition of one correct world view, fear of exclusion, and uncertainty of one’s place in the contemporary world. In short, resentment is driving many of the contemporary political developments. To be sure, emotions are a legitimate part of the democratic process, and anger and fear are not to be removed from the realm of political discourse altogether, as any such attempt would be counterfactual. When, however, populist politicians tap into resentment and create political movements that have distinct implications for the existing institutional order, they take emotion to another level. Resentment is no longer a feeling – it becomes utterance and performance, and is transformed into the ‘the politics of resentment’. Resentment is anchored within mainstream politics and is articulated in the public sphereFor general discussion, see S. Ahmed, The Cultural Politics of Emotion, Edinburgh University Press 2014..

While emotional politics are part of the populist constitutionalism, the novelty of the politics of resentment is that it frames the resentment (and emotions more general) in legal terms. This is where the term «constitutional capture» is of fundamental importance and becomes the core conceptCore concept is defined as referring to the basic unit without which ideologies cannot exist; M. Freeden, Ideologies and Political Theory: A Conceptual Approach, Oxford, 1996, at p. 77–80.of the politics of resentmentFor more conceptual analysis, see my Understanding the politics of resentment: of the principles, institutions, counter-strategies, normative change and the habits of heart, “Indiana Journal of Global Legal Studies” 2019/26, s. 501. More recently, Polish Counter – Revolution 2015–2019 and beyond. Of Constitutional Designs, Regime Trajectories, Institutions and Constitutional Fidelities, (2020) Jahrbuch des offentlichen rechts (forthcoming).. It not only defines, but also justifies the continuing existence of the populist ideology. It couches in legal terms what the populists want and how they want to achieve it. Legal resentment is a conceptual term that is channelled through the capture. The latter delivers on the promise of the former. The constitutional capture is a generic and novel concept that defines the core of the politics of resentment is constitutional captureCore concept is defined as referring to the basic unit without which ideologies cannot exist. See M. Freeden, Ideologies and Political Theory..., p. 77–80.. Müller defines the constitutional capture as aiming “at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficultM. Freeden, Ideologies and Political Theory..., p. 77–80.. It connotes a systemic weakening of checks and balances and the entrenchement of power by making future changes in control difficultFor an incisive analysis, see K.L. Scheppele, Autocratic legalism, “The University of Chicago Law Review” 2018/85, p. 545. She argues: „When electoral mandates and constitutional/legal change are used in the service of an illiberal agenda, I call this phenomenon ‘autocratic legalism’”..

Importantly for my analysis, the capture has an inherent spill-over effect as seemingly isolated constitutional capture in Poland and elsewhere risks the potential of adverse consequences throughout the entire continent. The capture travels in time and space, and, just like, the politics of resentment, it has its own trajectoryOn this see brilliant reconstruction L. Pech, K.L. Scheppele, Poland and the European Commission, Part II: Hearing the Siren Song of the Rule of Law at https://verfassungsblog.de/poland-and-the-european-commission- part-ii-hearing-the-siren-song-of-the-rule-of-law/. They argue that first people lose faith in the system and vote to break the system by electing populist autocrats. Securing parliamentary majority is instrumental in going after the institutions. Power once gained must be entrenched so the changes to election laws follow and make the turnout in power very unlikely.. The captures in Turkey, Hungary and Poland have shown how new authoritarians learn from each other. As there is simply no place for a veto emanating from within the government, other than from the majoritarian parliaments, the «politics of resentment» target institutions that otherwise might be seen as a brake on the power of the people’s representatives. Institutions are only accepted as long as they are seen as ‘their’ institutions and translate only messages that the controlling parties believe to deserve to be in the public sphere. Such an understanding leads to an important tweak to the established narrative: institutions that have been channelling (for populists “distorting”) the rule of law must be dealt with as expeditiously as possible. With the extreme majoritarianism as one of the cornerstones of the new doctrine, disabling constitutional courts and judicial review is the first order of the day for constitutional capture. All institutions, domestic, supranational, stand in the way and are not part of the new populist constitutionalismCrucially, Polexit is much more than a mere slogan. For the attempts to frame it in legal terms, see T.T. Koncewicz, PIS takes its first step on the way toward POLEXIT, “Gazeta Wyborcza”, 13.08.2017, http://wyborcza.pl/7,75968,22227617,w-puszczy-pis-robi-pierwszy-wielki-krok-do-polexitu. html?disableRedirects=true, T.T. Koncewicz, POLEXIT? Quo Vadis Polonia?, “Dialog” 2020/131.. This is no longer gentle constitutional tinkering. This is an all-out constitutional re-conquestInterestingly, while the literature (mostly political science) on the populism has been growing beyond imagination, the question of how (institutionally and procedurally) to deal with the rise of populist politics, received only scant attention. For rare exception, see C.R. Kaltwasser, Populism and the Question of How to Respond to it (in:) C.R. Kaltwasser, P. Taggart, P. Och. Espejo, P. Ostiguy (eds.), The Oxford Handbook of Populism, 2017, p. 490; For political science perspective, consult S. Rummens, K. Abts, Defending Democracy: The Concentric Containment of Political Extremism, 58 “Political Studies” 2010/58, p. 649; more recently, G. Badano, A. Nuti, Under Pressure: Political liberalism, the Rise of Unreasonableness, and the Complexity of Containment, “The Journal of Political Philosophy” 2017/1, Lawyers need to stand up to the plate as well..

Therefore, we should appreciate why the constitutional capture and the piecemeal undermining of the liberal democratic state poses new challenges for the rule of law and undercuts external constraints imposed on the domestic pouvoir constituantC. Dupré, The Unconstitutional Constitution: A Timely Concept (in:) A. von Bogdandy, P. Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania, Hart Publishing, Oxford–Portland 2015, p. 364–383; K.L. Scheppele, Unconstitutional constituent power, Paper prepared for the Penn Program on Democracy, Citizenship, and Constitutionalism, 2012–2013 Faculty Workshop Series (21.02.2013), https://www.sas.upenn.edu/andrea-mitchell-center/sites/www. sas.upenn.edu.dcc/files/uploads/Scheppele_unconstitutional%20constituent%20power.pdf; A. Barak, Unconstitutional constitutional amendments, “Israel Law Review” 2011/44, p. 321; R. Albert, The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada, “Queen’s Law Journal” 2016/41, p. 143, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1984&context=lsfp; R. Albert, Four Unconstitutional Constitutions and their Democratic Foundations, “Cornell International Law Journal” 2017/50, p. 169, https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2860442. For EU perspective see R. Passchier, M. Stremler, Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision, “Cambridge Journal of International and Comparative Law” 2016/5, p. 337, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561209.. It is a question not so much of substance, but rather of enforcementIt was eloquently argued by Carlos Closa, Dimitry Kochenov and Joseph H. H. Weiler that two sets of situations must be distinguished. On the one hand, there are what they call “problems amounting to nothing else but careless use of the law or abuses of political power – something that can and will be corrected with time through the functioning of the relevant Member States’ own democracies”. On the other hand, “there are problems of such a profound and fundamental nature, that the Member States’ own legal and political systems are overwhelmingly unlikely to be in the position to right the wrongs concerned in the near- to long-term future”. It is the latter group that calls for serious reconsideration of the existing framework and enforcement mechanisms. When national democracies fail to secure the essence of the rule of law, Europe should step in and reestablish respect for commonly-shared principles (e.g., rule of law). See C. Closa, D. Kochenov, J.H.H. Weiler, Reinforcing the rule of law oversight in the European Union, “Robert Schuman Centre for Advanced Studies Working Paper” 2014/25, p. 1–33, at 4, https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2404260. See also D. Kochenov and L. Pech, Upholding the rule of law in the EU: On the Commission’s ‘Pre-article 7 Procedure’ as a timid step in the right direction, “Robert Schuman Centre for Advanced Studies Working Paper” 2015/24, p. 1–16, http://cadmus.eui.eu/ bitstream/handle/1814/35437/RSCAS_2015_24.pdf (30.04.2020).. As forcefully argued by Kim Lane Scheppele and Laurent Pech, “consolidation of majoritarian autocracies (...) represents more of an existential threat to the EU’s existence and functioning than the exit of any of its Member StatesL. Pech, K.L. Scheppele, Poland and the European Commission, Part I: A Dialogue of the Deaf?, Verfassungsblog (3.01.2017), http://verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogueof- the-deaf/ (30.04.2020).. The constitutional capture plays a pivotal role in disabling checks and balances. Constitutional capture makes a sham of a constitutional document as it strips it of its limiting and constraining function‘Sham’ or ‘facade’ constitutions fail to constrain or even describe the powers of the state. On the concept, see D.S. Law, M. Versteeg, Sham Constitutions, “California Law Review” 2013/4, p. 863–952.. Separation of powers becomes illusory and opens the gate to unchecked arbitrariness. Yet constitutional capture is not a one-off aberration. It is a novel threat to the rule of law as it is not limited to one moment in time. It is a process of incremental taking over independent institutions and the liberal state. Hungary is a prototype of a ‘captured state’ and one would be right in assuming that the Commission should have learnt from its passivity and acquiescence toward Orbán’s tactics of capturing the stateM. Bankuti, G. Halmai, K.L. Scheppele, Hungary’s Illiberal Turn: Disabling the Constitution, “Journal of Democracy” 2012/23), p. 138–146; I. Pogany, The Crisis of Democracy in East Central Europe: The ‘New Constitutionalism’ in Europe, “European Public Law” 2013/2, p. 341–367.. The lesson was loud and clear and yet missed by the Commission, as the Polish case shows: the only way to derail constitutional capture, or to ‘constitutionally recapture unconstitutional capture’, is to act pre-emptively, before the capture is complete. Waiting on the sidelines, talking to the perpetrators and hoping for a change of heart, only emboldens and entrenches the regime. Constitutional capture as a process needs time, so it is the time factor that plays the pivotal role in striking back at capture. To thwart capture in the building, counter – action is necessary at the very beginning, not later. The regime knows that and will do anything to buy more time to entrench the capture and make recapture very unlikely. Poland and Hungary show how this has happened, with the EU extending time limits and engaging in a futile dialogue, all the while that constitutional capture has become ever more deeply entrenched and difficult to roll backOn the EU Commission’s inability to learn from the Hungarian debacle and Polish government ability to learn from Orbán’s tactics, see in depth L. Pech and K.L. Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, (2017) 19 “Cambridge Yearbook of European Legal Studies” 2017/19, p. 3.. Constitutional capture not only calls into question the commonality of values but entails the once startling proposition that constitutions today might be … unconstitutional within the EU.

Importantly, the politics of resentment transform our traditional understanding of political conflict.

While politicians and political parties in democracies routinely put forward competing visions for society and politics, they always stick to the language of probability in setting out their alternatives to the existing government. They are prepared to test their alternatives through procedures and elections and accept that the constitution is the stage that frames political contestationI draw here on J.W. Müller, Populist constitutionalism: A Contradiction in Terms? Draft paper, NYU Colloquium (on file with the Author). See also at https://verfassungsblog.de/populist-constitutions-acontradiction- in-terms/.. As liberal democrats, they share a commitment to the core values of freedom and equality and the formal acknowledgement that their political adversaries have as valid a claim to represent the people as they do. By contrast, resentment-driven populist politicians see their claims as settling most fundamental issues once and for all, and they do not allow room for dissent. Because of the moral dimension of resentment, they do not acknowledge that their claims can be judged as true or false. Rather, their claims are always the best, and not open to further contestationJ.W. Müller, Populist constitutionalism…. The emotions of fear, anger, and rejection, all under the umbrella of resentment, do not allow for pluralism and the multiplicity of representation and undermine the normative and institutional framework through which populist leaders initially express and advance these sentiments. ‘The other’ is no longer seen as a legitimate adversary. He becomes an enemy and, as a delegitimized political actor, is hounded and persecuted with the full strength of the law.

Gaining power does not soften animus of the resenters. Quite the contrary, once elected, populist leaders are ready to deliver on their promises and they do so through a constitutional doctrine that competes with the dominant liberal constitutionalismFor important clarifications, P. Blokker, Populist Constitutionalism, Verfassungsblog, 4.05. 2017, http:// verfassungsblog.de/populist-constitutionalism/.. This doctrine includes the following, often interrelated, elementsFor more in-depth reconstruction, consult T.T. Koncewicz, Ten Anti-Constitutional Commandments, https:// verfassungsblog.de/10-anti-constitutional-commandments/. In Polish, T.T. Koncewicz, J. Zajadło, Po co PiS-owi konstytucja? Po nic. Woli państwo bez prawdziwej Konstytucji, https://oko.press/koncewiczzajadlo- po-co-pis-owi-konstytucja-po-nic-woli-panstwo-bez-prawdziwej-konstytucji/.: (i) a new understanding of the role of the constitution, no longer as protecting against the state, but as safeguarding the uniqueness of the state; (ii) the constitution ceases to be the supreme law of the land; (iii) the constitutional court is not only incapacitated but also ‘weaponized’ to be used as a tool against political enemies; (iv) the political dominates the legal; (v) the rule of law is seen as an obstacle to protecting the collectivity; (vi) the rule of law is to facilitate the expression of the will of the people; (vii) political power is no longer subject to the checks and balances; (viii) supranational institutions are dismissed as enemies of the people; (ix) the collectivity is trumpeted above individual citizens; (x) human rights evolve from the dignitary conception to that of the communitarian reading.

Such systematization has been necessary as it helps to better understand the individual steps taken to disempower the institutions and checks and balances in Poland and to appreciate the extent to which the politics of resentment pose an existential challenge to the European project.

3. European Union and the democratic backsliding

3. 1. The constitutional design in error

While the discussion of the evolution of regimes and actors in response to social change (LGBT, euthanasia, abortion) is well documented, the evolution of supranational lawThe supranationality of the EU is taken as given here. For discussion, M. Everson, J. Eisner, The Making of European Constitution, “Judges and law Beyond Constitutive Power” 2007/41; A. Vauchez, The Transnational politics of judicialization. Van Gend en Loos and the making of EU polity, “European Law Journal” 2010/1; more recently, A. Vauchez, L’Union par le droit. L’invention d’un programme institutionelle pour l’Europe, 2013, in particular p. 181–223. Also E. Benvenisti, G.W. Downs, The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions, “European Journal of International Law” 2014/25, p. 85.and human rights with regard to political change (moves from one sort of government to another) is clearly neglected. The pertinent question is: When is the constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such critical juncture prevails when polity’s founding document (treaty, convention, constitution) protects against the dangers that no longer exist or do not protect against the dangers that were not contemplated by the Founders. Constitutions not only constitute – they should protect against deconstitution, too.

My claim here is that for the supranational legal order to avoid a deadlock of “being in error” in the above sense, the systemic threats coming from within the polity’s component parts must be recognized, and constitutional design be changed accordingly. To make the international order more responsive to the democratic threats, it is crucial to accept that all actors acknowledge their commitment to shared democratic aspirations, core values of dignity, equality and freedom, and their embrace of the project as their own. In the end, all actors are ready to read their local mandate through such commitment that tramples the momentary desires of the people and their representatives and puts forward a necessity for the effective enforcement.

The legal order of the EU has always been defined by openness and flexibility to accommodate the diversity of its components and the ever-changing socio-political circumstances. This diversity provide a background against which the EU law operates and strives for the attainment of its objectives. Change runs in the DNA of the EUFor classic analysis J.H.H. Weiler, The Transformation of Europe, “Yale Law Journal” 1991/100, p. 555, also R. Dehousse, The European Court of Justice. The Politics of Judicial Integration, Macmillan Press Ltd. 2008, in particular chapter 2.and different variables played their part in the process: from the incremental and context-sensitive nature of the integration processA. Arnull, The European Union and its Court of Justice, Oxford, 1999, p. 538–565.to open-ended character of the Treaties defined as Traité – cadreR. Lecourt, L’Europe des Juges, Bruxelles 1976, p. 235.to the constitutional design requiring the unanimity in changing the constitutional document. What has been dominant and well - rehearsed trope in the EU studies is how this change affected the institutionsAmong many analyses, consult, for example J.B. Cruz, The Changing Constitutional Role of the European Court of Justice, “International Journal of Legal Information” 2006/34, p. 223.and was reflected in their actionsM. Dawson, The Political Face of judicial activism: Europe’s law – politics imbalance (in:) M. Dawson, B. de Witte, E. Muir (eds.), Judicial Activism At the European Court of Justice, Edward Elgar 2013, pp. 11–31.. As important as these contributions are, they all deal with a change that is constitutional, the result of interplay of the political, legal, supranational and domestic forces and actorsIt was argued in the literature that the strides that the integration through law has made over the course of last 60 years helped develop material limitations on the discretion of the member states to modify the Treaties at will. R. Bieber famously spoke of ‘le noyau dur commun est constitué par deux valeurs fondamentales (...) d’une part des traditions constitutionnelles communes aux États membres en tant que principes généraux du droit communautaire et d’autre part de l’identité de l’Union sans cesse plus étroite entre les peoples de l’Europe’, Les limites matérielles et formelles á la révision des traités établissant la Communauté européenne, “Revue du Marche Commun et de l’Union européenne” 1993/4, p. 343, at p. 350. The Court of Justice has been credited with (or depending on one’s perspectives, accused of) changing the treaties by means of interpretation.. Such change has been a staple of the integration process since its inception. This analysis’ takes on a different aspect of a change in the polity’s fabric. The analysis deals with the pressing aspect of constitutional deficiency at the supranational level: a situation when backsliding creates a situation where not all member states of the European Union share the basic values on which the EU is supposed to be based.

The liberal democracy sees “we the people” as an open and inclusive concept where many voices stake their own claim to representation. There is not one people, but there are many peoples in need of voice and representation. A liberal constitution is seen as opening the competition among the reasonable democrats in the hope of finding the willing electorate to back up these claims with political support. Losing will not lead to a contestation of the winners, but rather to regrouping and trying again. Such constitution provides political stage and frames this never ending contestation and vying for political recognition. In this spirit, post-1945 liberal consensus has been built around the paradigm of “never again constitutionalism” and reinforced by the legal commitment to making sure that dictatorships would never arise out of constitutionalismC. Dupré, The Unconstitutional Constitution: A Timely Concept (in:) Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania, A. von Bogdandy, P. Sonnevend (eds.), Hart Publishing, Oxford–Portland 2015, p. 364–383..

The paradigm of this post war settlement saw political power at the domestic level subject to new international and supranational checks and balances with the legitimacy of the power depending on the continuous adherence to the core values of liberalism, values that transcend the desires of the moment. True institutions (e.g. courts) and human rights were given special place in this system of international and supranational checks and constraints imposed on the domestic pouvoir constituant. Yet, they were never meant to be alone. The states themselves have recognised that the human rights would work best alongside three complementary safeguards:

  • rule of law and the constitution as the supreme law of the land, binding on both the political power and the people;
  • mechanisms of supranational and international control whereby self-governing and sovereign states would hold each other to account according to principles of human rights, guarantees of democracy and openness to the world;
  • trust in the binding power of law that would commit the states to the discipline of communityK.L. Scheppele, Constitutional coups and judicial review: How transnational institutions can strengthen peak courts at times of crisis (with special reference to Hungary), “Transnational Law and Contemporary Problems” 2014/12, p. 51..

3.2. Democratic backsliding

The democratic backsliding (or retrogressionA. Huq, T. Ginsburg, How We Lost Constitutional Democracy (in:) C. Sunstein (ed.), Can It Happen Here. Authoritarianism in America, (2018), p. 135–156.) within any member state affects not just this stateJ.-W. Müller, On the side of democracy, Eurozine, http://www.eurozine.com/on-the-side-of-democracy/; J.-W. Müller, Should the EU protect democracy and the rule of law inside member states?, “European Law Journal” 2015/21, p. 141; J. Dawson, S. Hanley, What’s wrong with East-Central Europe?, “Journal of Democracy” 2016/27, p. 20; I. Krastev, What’s Wrong with East-Central Europe? Liberalism’s Failure to Deliver, “Journal of Democracy” 2016/27, p. 35; C. Walker, L. Way, The authoritarian threat, “Journal of Democracy” 2016/27, p. 46; J. Kornai, Hungary’s U-Turn: Retreating from Democracy, “Journal of Democracy” 2015/26, s. 34; A. Mungiu-Pippidi, The transformative power of Europe revisited, “Journal of Democracy” 2014/25, p. 20; Also special edition of “Journal of Democracy” 2007/18, Is East-Central Europe Backsliding? On the democratic backsliding T.T. Koncewicz, The Democratic Backsliding and the European constitutional design in error. When will HOW meet WHY?, https://reconnect-europe.eu/blog/ european-constitutional-design-error-koncewicz/.. When using the term ‘backsliding’ one has to be clear about the values and principles affected by such retrogressive move within any component unit of the EU legal orderOn the definition of the legal order, see K. Culver, M. Giudice, Not a system but an Order: an inter-institutional view of the European Union law (in:) J. Dickinson, P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law, Oxford University Press 2012, p. 54–76.: No less than liberal democracy, rule of law and human rights as the axiological triad of the EU are at stake. Given the interconnectedness and the interdependence of the member statesThe Editorial. Membership In Times of Crisis, “Common Market Law Review” 2014/51, p. 1., and highly integrated nature of the legal order of the EU, reneging by one member states on the core commitments that these states have undertaken to respect, impacts on the very foundations and values of the community. As rightly argued by K. L. Scheppele and D. Kelemen, the values announced in art. 2 Treaty on the European Union (hereinafter referred to as the ‘TEU’) allow the European Member States to trust each other’s governments – and in particular, their judiciaries – to apply EU law fairly and evenly. They add ‘much of the legal doctrine, built up around the treaties that unites the EU as a common legal space, cannot possibly work as announced if the assumptions underlying the system are shatteredK. L. Scheppele, D. Kelemen..., p. 11.. When one member state retreats from the basic values of the EU law, the constitutional profile of this state, and not mere the regulatory framework of this state, changes as a result.

While the duty of liberal democracy is rooted in the culture of political and legislative restraint, rule of law and human rights, democratic backsliding strikes at the heart of the commitments to live in a liberal democracy and adhere to the human rights and the international rule of law as the founding block of the order. The backsliding is not just another crisis of governance, rather it strikes at the very core of the order of human rights and their protection, both at the regional level (liberal democracy, liberty, equality, pluralism and the rule of law), EU law (art. 2 TEU and the EU Charter) and international law (UN human rights system). The backsliding comes with the constitutional narrative of capturing the domestic, and rejecting international and supranational, institutions. Crucially, the backsliding changes a constitutional profile of component parts of national legal orders. In the context of the EU, the democratic backsliding becomes much more than just an emotion-driven backlash against the elites and international legal order. It is a process with its own themes, characters and plots. It rejects rule of law as a constraint, undermines legal compliance as a condition of legality), puts forward illiberal narrative of ‘the dangerous Other’. It is impatient with procedures and institutions. It puts forward a competing understanding of the social reality in which politics take over law. Liberal human rights are viewed with suspicion as diluting the communication processes between the sovereign (‘the people’) and the institutions. Importantly, these anti-liberal and anti-institutional intermediaryN. Urbinati, A Revolt against Intermediary Bodies, “Constellations” 2015/22, p. 477.‘outside bodies’ are highly suspicious and incompetent to intervene in domestic affairs. More than that, they are the deadliest enemies because of their tainted pedigree that cannot be traced back to the people. Law must be applied by national courts and judges because they are people’s institutionsThe disdain for international bodies was first on full displayed in the ‘logging case’ (C-441/17R – release https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-11/cp170122en.pdf). The case opposed the European Commission and Poland in a dispute over the massive logging activities in the last ancient forest of Europe. The interim injunction of the Court of Justice has been flatly rejected by Poland (first such case in the history of the EU) which prompted the Court to threaten the recalcitrant state with massive penalty payment. For the analysis, see also infra and T.T. Koncewicz, The Politics of Resentment and First Principles in the European Court of Justice (in:) F. Bignami (ed.), The EU in populist times. Crises and prospects, Cambridge University Press 2020. On the continuing rejection by Poland of the Court of Justice, see also Editorial Comments. About Brexit negotiations and enforcement action against Poland: The EU’s own song of ice and fire, “Common Market Law Review” 2017/54, p. 1309, at p. 1313–1316 and, most recently, Editorial Comment. 2019 Shaping up as a challenging year for the Union, not least as a community of values, “Common Market Law Review” 2019/56, p. 1.. Such ‘exit in legality’ and attempt at capturing a system of international and supranational institutions only starts now and will intensify, posing an existential threat to the international system of human rights protection. The questions that arise are how such an exit in legality affects the constitutional and institutional setting of a polity that is proclaimed to defend the rule of law as one of the tenets of its legal order, and whether the design is ready to contain such exits in legality?

Building here on the introductory remarks, the backsliding member states not only fail to respect human rights but become ‘different states’ in terms of their constitutional fabric; the human rights become ‘different human rights’ and the liberal rule of law is looked at with contempt. While the global human rights regime stands for individual dignity, the new autocrats propound the idea of communal dignity of the people that must be protected and vindicated. The empowerment, being a staple of liberal constitutionalism, faces a challenge from a rival philosophy of human rights in which the collective wins over the individual. It stands for a systemic weakening of checks and balances and entrenching power by making future changes in power difficult.

The democratic backsliding goes beyond mere constitutional bad faithD.F. Posen, Constitutional Bad Faith, “Harvard Law Review” 2016/129, p. 885. and adopts relentless abuseOn the concept of abusive constitutionalism, see D. Landau, Abusive Constitutionalism, “University of California Davis Law Review” 2013/47, p. 189; M. Tushnet, Authoritarian..., p. 391.of constitutional arrangements and flat-out rejection of a constitutional document. Critique (the constitution seen as a vestige of the old regime) is a unifying factor for both approaches, and what distinguishes one from the other is how deep and far the constitutional humiliation goes. In the former case, given the lack of constitutional majority, the constitution is dispensed with per fas et nefas by disregarding its clear provisions or adopting regulations that fly in the face of a constitution. With constitutional review in tatters, such unconstitutional practice becomes business as usual.

Therefore, the democratic backsliding highlights the errors in the design of the supranational legal order – the European Union. Although the EU has faced many crises in recent years, including the ongoing BREXIT and the euro crisis, the democratic backsliding in some of its Member States is the most serious of all. The backsliders call into question the shared values of democracy, rule of law and human rights and have undermined the European project from withinArticle 2 TEU provides: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 7 of the TEU adds a sanctioning mechanism in the case when one of the member states does not respect the values. For discussion, see D. Kochenov, A. Jakab (eds.), The Enforcement of EU Law and Values. Ensuring Member States’ Compliance, Cambridge University Press 2017.. The trust has always been built on the convergence between the fundamental values of Member States and their legal orders on the one hand, and the foundations of the Union legal order, on the other.

3. 3. Understanding the European overlapping consensus

It becomes clear that the politics of resentment backed up by capture not only challenges the standard story of the origin of the EU – that it was founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies – but also puts forward a new and competing constitutional project and design. ‘Overlapping consensus’ recognizes that the European polity is composed of distinct peoples and respects other peoples’ lives and mores. Yet, for consensus to work at the same time, ‘We the European peoples’ should acknowledge certain fundamentals that bind and discipline us and that brought us together. As J. H. H. Weiler argues: “it is a remarkable instance of constitutional tolerance to accept to be bound by a decision not by ‘my people’ but by a majority among peoples which are precisely not mine – a people, if you wish, of ‘others’. I compromise my self-determination in this fashion as an expression of this kind of internal – towards myself and external – towards others – toleranceJ.H.H. Weiler, On the power of the word: Europe’s Constitutional Iconography, “International Journal of Constitutional Law” 2005/3, p. 173, at p. 188..

It is here that the politics of resentment as understood here deals a deadly blow to the entire European project. Resentment-driven constitutional capture fundamentally challenges European solidarity and mutual trust. It proposes to reverse “an ever-closer union among the peoples of Europe” and signals a dark turn inward. By showing that liberalism and democracy no longer animate national constitutions and politics, and by revealing that illiberal states can now flourish within the EU, the Polish experience poses an existential challenge to the EU. Can the EU mount a response to the challenge? Is the EU still able to foster respect for principled commitments that initially brought the Member States together? Does it have a safety valve by which it can deflate excessive nationalism and manifestly illiberal practices? Can it preserve the common values that launched the European project – supranationalism among them? More particularly, can domestic constitution-making be constrained from the outside? Thus far these questions have received deflating negative replies as the EU has been reduced to an idle bystander (see also analysis infra), extending deadlines and assurances of a dialogue, all this while Polish authoritarians laughed at the EU’s face and the capture marched on. These questions are vital as they force us to revisit the raison d’être of EuropeFor a thought-provoking analysis, G. de Búrca, Europe’s raison d’?tre, New York University School of Law Public Law and Legal Theory Research Paper Series Working Paper 9/13 (2013), https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2224310.. They challenge the standard story of the EU’s origin (see supra): that it has been founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies. I argue that the politics of resentment endanger the very basis of mutual trust between Member States that has been defining the European project ever since its inceptionEditorial Comments. Union membership in times of crisis, “Common Market Law Review” 2014/51, p. 1–12.. Mutual trust towards other states, and the community they had created together, has been the cornerstone of the ethos of EuropeOn the ethos of Europe, see Andrew J. Williams, The ethos of Europe. Values, Law and Justice in the EU, Cambridge University Press, Cambridge 2010.. Trust has always been built on convergence between the fundamental values of Member States and their legal orders on the one hand, and the foundations of the Union legal order, on the other.

Indeed, as P. Pescatore emphasizes, the supranationality was predicated on the idea of ‘an order determined by the existence of common values and interestsThe Law of Integration. Emergence of a new phenomenon in international relations based on the experience of the European Communities, Sijthoff, Leiden 1974.. At the heart of the European project has been a fundamental commitment to a set of First PrinciplesTerm borrowed from D. Edward, An Appeal to First Principles (unpublished manuscript on file with the Author).that the Member States, institutions, and civil society actors bound by the Treaties agree to respect, and live by, in their mutual dealings. The rule of law has been among the most essential of these First Principles essential to the post-war consensus as it started transforming ‘a political power’ into ‘political power constrained by law‘Constrained political power’ might be said to be the driving force behind the European consensus and one of the paradigms of the post-war constitutional settlement in Europe. Insistence on the element of constraint was in turn driven by distrust of popular sovereignty, and fear of backsliding into the authoritarianism. On this see J.-W. Müller, Beyond Militant Democracy, “New Left Review” 2012/73, p. 39. On democracy and the rule of law as the backbone of the European project, also K.L. Scheppele, D. Kelemen, Defending Democracy in EU Member State. Beyond Article 7 TEU (in:) F. Bignami (ed.), The European Union in Populist Times, Cambridge University Press 2020.. And yet, despite all this talk of hope and learning from the past, the EU constitutional system and design have always been in error of ‘normative asymmetry’: declarations and commitments have never been backed up with the sufficient enforcement tool-kit. Why?

Back in 1951 the authority to ensure that states remain liberal democracies has not been effectively translated into law, which might have been understandable given the fresh memories of horrors wrought upon the continent by the World War II. The Founding Fathers must have taken for granted that these memories would always act as a sufficient deterrent against any future backsliding into authoritarianism and that the newly-created communities would be nothing but a celebration of liberal democracies. History never stops, though, it always moves on and today the once unthinkable (an illiberal state within the Union) challenges the EU design. The failure of the EU enforcement in Hungary, and now in Poland, was clear on display: the EU has always been one step behind the events on the ground, lost in endless and ineffective diplomacy of indignation. The states which are the source of a distrust and fear have been called on to sit at trial over one of their fellow (and now backsliding) member states. The European institutions faced dangers they were not prepared for, and then also contributed to the crisis through their own incompetence and lack of political will. As a result, there was no coordinated systemic action. The capture marched on emboldened and strengthened by the lack of credible supranational counter-strategies.

My argument here is that the politics of resentment pose the ultimate challenge to the foundations behind EU integration, membership and post-war consensus: a commonality of liberal and democratic values and interests, the agreement that the Community is more than just the sum of its parts and loyalty to the community’s legal order as binding on all components to the same extent as the politics of resentment do nowToday we deal with the situation where not all member states share the core values on which the EU is supposed to be based. As rightly argued by C. Closa and D. Kochenov: “the very core of the constitutional system of the European Union is being put to the test through some of the Member States’ non-compliance with the basic principles and values of the Union (...) democracy, the Rule of Law and the protection of human rights on which the legal systems of the Union and its Member States alike are presumed to be founded” – C., Closa, D. Kochenov, Introduction: How to Save the EU’s Rule of Law and Should One Bother (in:) C. Closa, D. Kochenov, Reinforcing Rule of Law Oversight in the European Union, Cambridge University Press, 2016. This presumption must be now laid to rest, or at best, be approached as rebuttable.. Past European crises have been sources of galvanization, often pushing further EU integration. However, they never questioned the “European overlapping consensus” that brought together states through agreed-upon essentials. Overlapping consensus requires agreement on fundamental commitments of principleI draw here on the work of J. Rawls, Theory of Justice, Harvard University Press, Cambridge 1971; J. Rawls, The idea of an overlapping consensus, “Oxford Journal of Legal Studies” 1987/7; J. Rawls, Political liberalism, Columbia University Press, New York City 1993. On overlapping consensus, also J. Garthoff, The Idea of an Overlapping consensus revisited, “Journal of Value and Inquiry” 2012/46, p. 183.: It is these essentials that I require others to respect as the condition of my own deference to decisions by othersCh.F. Sabel, O. Gerstenberg, Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order, “European Law Journal” 2010/16, p. 511, at p. 513.. There will not be perfect agreement on these essentials – persistent differences between citizens living together in a constitutional regime create disagreement over the final shape of these constitutional essentials. “Citizens who affirm reasonable, but opposing comprehensive doctrines belong to an overlapping consensus: that is they generally endorse that conception of justice as giving the content of their political judgments on basic institutions; and second, unreasonable comprehensive doctrines … do not gain enough currency to undermine society’s essential justiceJ. Rawls, Political..., p. 38–39..

Consensus does not cancel diversity. Quite the contrary: it responds to, and acknowledges, that society is indeed built on diversity. Many disagreements among citizens in their understanding of justice can nevertheless lead to similar political judgments and these similar political judgments can lead to “overlapping rather than strict consensusJ. Rawls, Theory... and that different premises can yield the same conclusionJ. Rawls, Theory.... However, parties to the consensus agree that these disagreements will be ironed out and spelt out within the discursive framework. Excluding actors with unreasonable and irrational doctrines is not only justified, but necessary to achieve the overlapping consensus. At its heart, European overlapping consensus has constitutional tolerance and an agreement on a fundamental commitment to first principle(s) or adherence to a certain core (essence) of principles and concepts that bind us together, and that parties to the consensus require others to respectFor an application in the context of European constitutional courts, also consult T.T. Koncewicz, Constitutional courts as frontier institutions in the European constitutional space. On the road towards “Van Gend en Loos 2?”, 2018/ 2 “Indian Journal of Constitutional and Administrative Law” at p. 1.. Time factor is important, as overlapping consensus is subject to never-ending adjustment and mutual learning. In the words of Sabel and Gerstenberg, consensus arises from “an ongoing historical interaction between the emergent, common political view and the comprehensive views underlying itCh. F. Sabel, O. Gerstenberg, Constitutionalising..., p. 544.. “We”, in the shape of the peoples of Europe, agreed to respect others’ way of life, provided their lives and decisions respect mutually agreed-upon essentials and fundamental values. Constitutional tolerance subjected European peoples to the discipline of democracy, even though the European polity is composed of distinct peoples. The “politics of resentment” calls this narrative into question by proposing a competing one, that of fundamental disagreements over values and the inability of today’s European Union to keep fostering mutual trust. Given the fundamental disagreements over values that the politics of resentment brings to the fore, the pressing question that has emerged is whether “We” exists at all. Overlapping consensus relies on the acknowledgment by the members of multiple societies with their persistent differences that they understand and respect the essentials that bind them together, while simultaneously honouring the influence of others on the interpretation of shared commitments.

Rule of law provides a good example of the situation where a fragile consensus driven by commonality is now being replaced by difference. The forces behind the politics of resentment put forward a proposition that the concept of common values is too ephemeral and far from crystallized. The Polish right-wing government claims to be respecting the rule of law, but at the same time argues, first, that it should be interpreted differently from what was hitherto accepted as a dominant understanding of what the rule of law stands for; and second and even more dangerously, that there is no agreement on what the rule of law entails in practice (application). This argument brings to mind what C. Sunstein called “incompletely theorized arguments”. He argues that under the conditions of serious disagreements, constitution-making can only become possible where people agree on certain practices, rather than on any abstract principles or grounds justifying these practices. Alternatively, incompletely theorized agreements might as well occur where people agree on abstract principles, but not necessarily on what these principles entail in practiceDesigning Democracy: What Constitutions do, Oxford 2001, pp. 50–56.. Modern constitutionalism accepts that, in the absence of the rule of law, contemporary constitutional democracy would be impossibleM. Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, “Southern California Law Review” 2001/74, p. 1307, 1313.. At a minimum, the rule of law requires fairly generalized rule through law; substantial amount of predictability; a significant separation between the legislative and the adjudicative function; widespread adherence to the principle that no one is above the lawM. Rosenfeld, The Rule of Law…. In the EU context, we could argue the rule of law is either a practice that is shared, but there is no agreement on what abstract principles underlie it and justify these practices, or that the rule of law is a principle on which all parties agree and then define a practice that could be shared by all. In the analysis that follows, rule of law is a fundamental principle and has clear, non-negotiable minimum. The authority that binds together the Community is the law and the respect for the law. That was the principle that underpinned the original consensus back in 1951U. Everling, Zur Begründung der Urteile des Gerichtshofs der Europäischen Gemeinschaften, (1994) 29 EuR 127, at p. 143.and continues soA. Magen, Cracks in the foundation: Understanding the Great Rule of Law Debate in the EU, “Journal of Common Market Studies” 2016/54, p. 1050.. Rule of law must be seen as an essential commitment to the consensus. It is a fully theorized argument with minimum content, both at the level of practice and principle.

The case law of the Court of Justice has always contained strong arguments in favour of interpreting the rule of law as one of the meta-principles of the entire constitutional framework of the EUIn similar vein, recent analysis by V. Roeben, Judicial Protection as the Meta-norm in the EU Judicial Architecture, “Hague Journal on the Rule of Law” 2020/12, p. 29.. It is the interpretation that might change, but the hard core of the principle remains: separation of powers, effective application of law, judicial review, right to an effective remedy, principle of legal certainty and legitimate expectations and the principle of proportionalityL. Pech, A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law, “European Journal of Constitutional Law” 2010/6, p. 359, p. 373–374; For a direct link between the effective application of law and the rule of law as a foundational value, see C-441/17 R, Commission v. Poland, at para 102.. For the analysis here, rule of law is one of the foundations of the consensus in the sense that the Court’s spoke in Simmenthal judgment of the supremacy of EU law as the forming the very basics of the EU legal orderThe centrality of the rule of law (“very basics of the EU legal order”) is corroborated by the fact that the Commission frames its more recent infringement action against Poland in terms of art. 19 TEU (“the Court of Justice ensures the observance of the law in the interpretation and application of the Treaties”) and art. 47 of the EU Charter of Fundamental Rights (“right to an effective remedy”). For detailed discussion, T. T. Koncewicz, Filozofia unijnego wymiaru sprawiedliwości…. Without the commitment to the rule of law, parties to the consensus would have never been able to defer to each other. There must be trust in the legal systems and practices of all participants in the consensus. Importantly, European consensus must not be seen as cancelling out the pertinence of the constitutional disagreement. Any attempt to remove the disagreement from the European politics would be counter-factual: disagreement must be part of the European common enterprise and must work as a desired check on the natural centralizing push of the centre (EU). The essence of the consensus is procedural and speaks to the plural character of the EU legal orderFor tone-setting analysis N. MacCormick, Beyond the Sovereign State, “Modern Law Review” 1993/56, p. 1; N. MacCormick, The Maastricht-Urteil: Sovereignty Now, “European Law Journal” 1995/1, p. 259.. Evolution of EU law is seen as the product of a dialogue between all parties to the consensus and comity. Consensus and commitment to the comity are renewed through never-ending process of bargaining. The bargaining manages the legal and factual interactions of the EU and national legal orders and gives voice to national concerns. It makes sure that every party to the consensus sees itself as an actor in, and architect of, the constitutional narrative. As such, bargaining over the final shape of the consensus both reinforces and frames the pluralism that has always defined European peoples.

Most importantly, it shifts the emphasis from the dominant and antagonistic narrative of “who has the last word” over the values (this is the preferred vantage point of the politics of resentment) to more discursive and other-regarding “who should have the first word” in the spirit of comity. While the former is reactive and deals with the conflict as fait accompli, the latter is pre-emptive and aims at diffusing the tension and framing the disagreement before it escalates into an all-out conflict that might endanger the consensus. This new approach to framing the constitutional disagreement as integral part of the consensus is inclusive. It caters to the pride and ambition of all participants in, and signatories of, the original consensus – the member states, citizens and EU. This is because they are all made partners in the common enterprise. It is pragmatic, because it recognizes the insoluble conflict of “either … or” and pitfalls of the claim that the question of ultimate authority might be resolved once and for all.

Where does this all leave us today? Does the law really have to be on the bad guys’ side?C. Closa, D. Kochenov, expressed doubt that it does not have to be so. See their impressive catalogue of remedies and counter-strategies in C. Closa, D. Kochenov, Reinforcing rule of law oversight in the European Union, “Cambridge University Press” 2016, at p. 3; and my book review published in “Common Market Law Review” 2018/55 at p. 953. Also P. Bard, D. Kochenov, Rule of Law Crisis in the New Member States of the EU: The Pitfalls of Overemphasising Enforcement, “RECONNECT Working Paper” 2018/1, https://reconnect- europe.eu/wp-content/uploads/2018/07/RECONNECT-KochenovBard-WP_27072018b.pdf. How to explain the relative ease with which unconstitutional capture took root and succeeded in spreading so quickly?

These are all difficult questions with multi-layered responses. While the remedial question is getting more and more attention, as evidenced by important academic contributions to the fieldSee, in particular, K.L. Scheppele, D. Kelemen, Defending Democracy in EU Member State. Beyond Article 7 TEU, (on file with the Author)., it is the emerging “rule-of-law jurisprudence” that deserves our utmost attention. And then, this case law must be placed in more systemic context. Part 4 and 5 of the paper will deal with these accordingly.

4. Defending the European overlapping consensus. On the promise and the limits of the courtroomThis section draws on my chapter The existential jurisprudence... (in:) K. Szczepanowska-Koz³owska (ed.), Profesor Marek Safjan..., as well as earlier writings on the subject published on Verfassunsgblog. Mores specific references are provided in the footnotes that follow

In the realm of judicial behaviour, what judges say, what rules they announce

and/or threaten to announce, is often a more significant aspect of their behaviour

than how they vote.

M. Shapiro, Can Judges Deliberate?M. Shapiro, Can Judges Deliberate? (29.04.2003) (unpublished paper) (on file with the author), at p. 3.

Every constitutional court passes through what F. Ost called imaginatively “un moment de non-droit”. The place of “no-law” is defined here as a situation where there is no definitive indication in the relevant law as to how the case should be resolved. “Un moment de non-droit” redefines a court in fundamental ways as it will weigh heavily on its image, self-perception, and role in the future. Such a situation is not about good adjudication here and now, but calls on a court to exhibit the craft of anticipation, reconciliation of divergent interests and true constitutional synthesis in the days to come. For a court to respond and move forward, it must become a tactician – and as such, calculate, anticipate, plan ahead, make choices, and speak to various audiences, all at the same time. Most importantly, a court-tactician must know the limits of how far it can take its own constitutional vision, and how much it can add to an incomplete legal textFor seminal analysis, see M. Shapiro, Political Jurisprudence, “Kentucky Law Journal” 1963/52, p. 294 which foreshadowed his book Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence, Free Press 1964..

“The rule of law crisis” in the European Union has seen the Court of Justice venture into un-chartered waters of non-droit and expand its jurisdictional reach into spheres once thought of as the domain of national sovereignty. Undoubtedly, each and every decision rendered between 2017 and 2019 deserves close attention: from “the Portuguese judges” case, to Polish “logging case”, to the European Arrest Warrant judgment (EAW), and, more recently, the Polish Supreme Court case and the suspension of the Disciplinary ChamberOn this case law, comprehensive contributions in EU Law in F. Bignami (ed.), Populist Times. Crises and Prospects, Cambridge University Press 2020.. And yet, trying to understand how the Court fills in the blank spaces opened by the encounter with “non-droit”, requires to not only focus on the individual decisions (“boats”), but to appreciate the adjudicatory chain-novel (“journey”) as well. The Court has been telling us important stories of how it perceives and understands itself, while unearthing new layers of the EU legal order.

Professor Koen Lenaerts has argued that in order to honour the constitutional mandate in a self-referential, and in that sense, autonomous legal order, the Court could not have limited itself to a formalistic understanding of the rule of lawK. Lenaerts, How the ECJ Thinks: A Study on Judicial Legitimacy, “Fordham International Law Journal”2013/36, p. 1303, at p. 1307–1309.. Accordingly, it had no choice but to complete the constitutional lacunae left by the authors of the Treaties. He distinguished three historical strands in the Court’s jurisprudence:

  1. defining the law and escaping formalistic understanding of the rule of law;
  2. safeguarding the core of European integration;
  3. upholding the checks and balances.

It is argued here that “existential jurisprudence” of the Court builds on, and adds a new chapter to, the jurisprudential tradition. It is called “existential” because the Court aims at defending the integrity and viability of the EU legal system. The Court is not simply deciding cases referred by Polish courts or brought by the Commission. Instead, it is in the business of saving the EU from what Pierre Pescatore once called “a disaster”. With the rule of law crisis, the Court is moving into a new paradigm. On the one hand, it looks over its shoulder and marches on along Lenaert’s jurisprudential strand number 1. On the other, however, it does more than that: it forges ahead with the new elements of, and the justificatory framework for, its constitutional jurisprudence. In 2019, the Court finds itself in the unenviable situation of being trapped between what is now clearly a counter-factual assertion (“values are shared”) on the one hand, and the pragmatic judicial path and the mandate that binds the Court to the rule of law mast, on the other. The Court is trying to bridge the gap between the real world and reality by insisting on trust and commonality of the values. This trust has always been built on the convergence between both the fundamental values of Member States and their legal orders and the foundations of the EU legal order. For European consensus over the core values to work, there must be agreement on fundamental commitments of First Principles. Existential jurisprudence enforces these essentials in the name of the EU legal order and the original consensus.

4.1. The Method

A critical observer of the judicial dynamics must not limit himself to studying the “ground-breaking” case(s) but should also read the relevant previous and subsequent case-law. In accordance with the incremental approach, though, it does not only matter what the Court has decided, but equally so what the Court has left open and untouched. It is through this chain-novel that the final contours of the doctrine will emerge. The path of this case-law is incrementalism and the analysis must be holistic and global. As famously laid out by M. Shapiro some 50 years ago: “The core of incremental doctrine is respect for the status quo and movement from the status quo only in short, marginal steps, carefully designed to allow for further modifications in the light of further development. Incrementalism is a theory of freedom and limitationM. Shapiro, Stability and Change in Judicial Decision-Making: Incrementalism or stare decisis, “Law in Transition Quarterly” 1965/3, p. 156–157 (emphasis in the original)..

Shapiro’s incrementalism thesis is crucial for understanding how the Court of Justice, when faced with the systemic rejection of the First Principles of the European legal order by Member States, has been gradually uncovering, at times discovering, and defending these Principles. The Court proceeds incrementally, aware of both the opportunities and limitations that the new constitutional politics in Europe entail. From small-step balancing develops a large-scale change. Evolution must always follow revolution, and conversely, a revolutionary change might evolve over time before its final shape comes into full view. New argumentative frameworks are built around some general precepts enunciated in the first decision. When the time is right, the case will be built and reconstructed, so as to set off and frame the chain-novel. Evolution will follow revolution, even though at the time of the events not too many may realise that the groundwork for the latter is being laid down before their eyes.

Stage One is waiting for the right case. Stage two lays down a principle. However, simple enunciation of the principle will never suffice. The Court must calibrate and recalibrate “a principle” before it becomes “the principle”. Thus, stage Three unveils the consequences and delimits the scope of a principle which will eventually determine the content of the principle. Stage Three slides then seamlessly into stage Four of case-by-case application. In the end, we meet the new doctrine of fully-fledged principle. This is where we are at right now. By proceeding step-by-step, the Court neither limits itself to the questions asked, nor refuses to engage with the arguments that prima facie seem unnecessary for the resolution of a controversy at hand. Rather, the Court is responsible for framing the argument and the terms of engagement. The “Portuguese judges’ case illustrates this revolutionary mood where it was not necessary for the Court to answer the questions it was asked in such broad constitutional brushes. The specific result took backstage to abstract constitutional doctrine. While the result was subsumed by the case and the decision, the contours of the doctrine were, on purpose, far from clear. In line with the incremental approach, the Court was just embarking on a journey in search of a right balance between the status quo and the necessary change. It was in full control of where and how it wanted to take the incipient doctrine further and start building on a principle before it becomes the principle.

The incrementalism is nowhere better seen than in the subtle interaction between two leading judgments in the Court’s rule of law chain-novel: the Portuguese judges caseOn the case, M. Bonnelli, M. Claes, Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary, “European Constitutional Law Review” 2018/14, p. 622; L. Pech, S. Platon, Judicial independence under threat: the Court of Justice to the rescue in the ASJP case, “Common Market Law Review” 2018/55, p. 1827., and the European Arrest Warrant (EAW) caseJudgment of the CJUE, 25.7.2018, C-216/18 PPU – Minister for Justice and Equality https://curia.europa. eu/juris/liste.jsf?language=en&td=ALL&num=C-216/18%25252525252520PPU.. The former (and earlier) provides a solid jurisprudential ground for the latter, and when read together, both create an inescapable logic in the Court’s reasoning: First step: the independence of the judiciary is an essence of the fundamental right to a fair trial (par. 48 EAW). The right to a fair trial, in turn, serves as a guarantor that all rights of individuals stemming from EU law are protected and that the values common to Member States set out in Art. 2 TEU – in particular the value of the rule of law – will be safeguarded. Second step: the very existence of effective judicial review designed to ensure compliance with EU law is essential for the rule of law (par. 36 of the Portuguese judges’ case and par. 51 EAW). Third step: the duty of every Member State to ensure that the courts meet the requirements essential to effective judicial protection in accordance with Art. 19 TEU (par. 40 of the Portuguese judges case and par. 53–54 of the EAW case). Fourth step: for judicial protection to be effective, maintaining independence of national courts is essential (par. 41 of the Portuguese judges’ case and par. 53 of EAW). Fifth case: ensuring essential freedom from external interventions or pressures on the judiciary that would impair independent judgment and influence the decisions taken by members of the court (par. 44 of the Portuguese judges case and developed in par. 63–64 of EAW).

By introducing, and then repeating over and over, the novel terms “essence” and “essential”, the Court speaks the meta-language of identity and specificity of the EU legal order. Judicial independence as such is not an intrinsic value, rather it is instrumental to ensure the observance of a first-order right, that is the right to a fair trial. The link between that right and “all other rights” clearly refers to the most cherished of all doctrines – direct effect. By putting this procedural right at the service of protecting the direct effect of the EU, the Court draws on the constitutional language of Van Gend en Loos (without mentioning it). And last but not least: the critical conclusions of the interaction just sketched out have been drawn in the Court’s order of 19 October 2018, (C-619/18, Commission v Poland, and since then confirmed by the Grand Chamber on 17 December 2018)See curia.europa.eu/juris/document/document.jsf?text=&docid=209302&pageIndex=0&doclang= EN&mode=req&dir=&occ=first&part=1&cid=4919513 (29.04.2020). where the Court, ruling in favour of the Commission, referred to paragraph 48 of the EAW case.

This is a textbook path of how a principle becomes the principleMore recently, judgment of the Court in joined cases, C-585/18, C-624/18, C-625/18) seems to indicate that the threshold where the principle is already firmly established has been now passed. In this light, the interim order of the Court in C-791/19R, Commission v. Poland only applies what is already forming part and parcel of the established case law. For an interpretation corroborating such reading of the case law, consult T.T. Koncewicz, Czy Polska jest gotowa na wspólnotowe myślenie, “Rzeczpospolita” 15.04.2020, https://archiwum.rp.pl/artykul/1426269-Czy-Polska-jest-gotowa--nawspolnotowe- myslenie.html and Unijny sąd nad Izbą Dyscyplinarną. O wspólnocie prawa i unijnej filozofii sądzenia, http://konstytucyjny.pl/tt-koncewicz-unijny-sad-nad-izba-dyscyplinarna-o-wspolnocie- prawa-i-unijnej-filozofii-sadzenia/..

4. 2. The Theme: “Union of law”

La Cour, chaque fois quel est saisie dans le cadre de sa compétence, a l’obligation

de se prononcer, l’obligation de dire le droit conformément a la mission générale

qui lui est assigné par l’article 164

P. PescatoreP. Pescatore, La carence du legislateur communautaire et le devoir du juge (in:) G. Lüke, G. Ress, M.R. Will (eds.), Rechtsvergleihung, Europarecht and Staatintegration. Gedächtnisschrift für Léontin-Jean Constantinesco, Köln–Berlin–Bonn–München 1991.

Art. 19 TEUArt. 19(1) reads: “The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.”is the heart and soul of this existential jurisprudence. The case law shows that Art. 19 TEU plays many, and often at the same time, systemic functions. Six should be mentioned here.

First, it moves the Union from power-oriented to rule-oriented politics. Second, it stands for “the Union legality”, understood as an idea of law within the Union legal order. Third, it empowers the Court, and delimits its jurisdiction at the same time or, using P. Pescatore’s terms, it defines normative space within which the Court exercises its judicial power. The normative space of Art. 19 TEU is defined as ensuring the observance of law in the interpretation and application of the Treaty. While this language is extremely open-ended, the element of constraint is nonetheless clearly there. Four, it expresses the fundamental idea of judicial protection which allows the Court to interpret the jurisdictional clauses in a manner that is coherent and constructive. Five, it underscores that the courts of the Union are courts of law and that the Union is governed by the rule of law. Art. 19 TEU does more than just define, though. Therefore, and six, it describes the mission of the Court within the framework of the separation of powers set up by Art. 5(2) TEU, according to which each institution acts within the limits of the powers conferred on it. In that sense, Art. 19 TEU forms part of the Treaty competence framework. Even though Art. 19(1) is not read as a jurisdictional clause (in the sense of jurisdiction-conferring), its role is much more important and goes beyond this aspectOn Art. 19 TEU, and its predecessors Art. 220 Treaty on the European Community and Art. 164 of the Treaty on the European Economic Community, see exhaustively T.T. Koncewicz, Zasada jurysdykcji powierzonej Trybunału Sprawiedliwości Wspólnot Europejskich: o jurysdykcyjnych granicach i wyborach w dynamicznej “wspólnocie prawa”, Warsaw 2009 and more recently Filozofia unijnego wymiaru sprawiedliwości. O ewolucji podstaw unijnego porządku prawnego, Warsaw, 2020..

Art. 19 TEU serves as an independent, albeit of particular nature, head of jurisdiction of the Court. The task of ensuring the observance of the law contains the fundamental and basic feature, namely that the Union is based on the rule of law. The law must be observed by both Member States and institutions, and the Court is there to make sure that this is more than just an elegant exhortation. To this end, it has conferred jurisdiction (starting with Art. 258 TFEU) and implied jurisdiction at its disposal. The latter is reserved for exceptional situations and used as a tool to complement the former. One would be wrong to assume, though, that resorting to implied jurisdiction as expressed in Art. 19 TEU becomes a daily occurrence. The fact that the Union is based on the rule of law constitutes the premise on which the Court is ready to modify (Court’s critics view) or enrich (Court’s proponents view) its jurisdiction in order to make sure that there exists a complete system of legal remedies and procedures within the Union. The identification of a gap in a system is not enough for the Court to fill it by relying on its implied jurisdiction. In each and every case, the Court will evaluate whether the need to fill a gap is justified by some pressing interests and principles worthy of protection (respect for institutional balance, effective cooperation with national courts, coherent system of legal protection, and now the rule of law, effective judicial review whose essence is the rule of law, independence of the judges). If the scales fall in favour of such judicial intervention, implied jurisdiction will come into play.

Former Judge of the Court C. Kakouris spoke of the judge’s mission by which he understood bringing coherence to the principles and rules and establishing an order of preference among them. Such an exercise contributes to the reconstruction of the normative system instead of its deconstruction. The Court is choosing a superior principle in the light of which it decides to resolve the case. The internal differentiation that follows establishes a hierarchy between constitutional norms and values. As a result, not all the Treaty provisions are at the same level of normativity. Some are technical, others play a fundamental (existential) role. In case of conflict, the most important provision, the principal rule, has to be followed. The ensuing super-constitutionality becomes a governing mechanism for ordaining the norms and values within the Treaty framework. Among such fundamental principles, effective judicial protection and review, rule of law, and judicial independence play a primary role and have the potential to trump others in case of conflict. The Court’s existential jurisprudence brings them under one umbrella of Art. 19 TEU. This provision glues the Court’s cases into a coherent doctrine and helps the Court move on to a new paradigm: the existential jurisprudence. Therefore, the most crucial point is to see and understand that adjudicating the jurisdictional issues is not a purely automatic process. The Court’s jurisdictional choice is always preceded by a difficult trade-off between competing interests and principles.

Knowing the methods and the main themes that drive the Court invites us to consider the most crucial question: what next for the Court and its judicial forays into the sphere of “non-droit”?

4. 3. Judicial method: how far? On promises, and limits, too

While the dangers of over-politicization of the judiciary are duly noted here, the times of the constitutional crisis call for a more robust approach to institutions and their respective spheres of competence and expertise. Courts of law are in the business of enforcing the rule of law. This is what they do, and this is what they do best. Of course, it does not mean that they are the only players in the rule of law domain. There are other institutions having their own distinct mandates and competences. Sometimes for an action by one player to be fully effective, a follow-up will be needed. In other situations, a judicial actor will be able to bring about a change through its own actions only.

In its capacity to de-block the political stalemate by offering alternative legal avenues, the Court of Justice must continue to tread cautiously. In the evocatively entitled paper “The European Court of Justice: Do all roads lead to Luxembourg?A. Rosas, The European Court of Justice: Do all roads lead to Luxembourg?, “CEPS Policy Insights” 2019/3., Judge A. Rosas argues forcefully that the Court’s role, important as it might be, must be seen as part of the overall institutional structure of the Union. He points out that the Court is not in charge of deciding what will come before it and the cases that do come before the Court concern specific questions that do not “solve” the problems facing the Union. This must mean that existential jurisprudence as understood here must be seen as an exercise of balancing three elements and as such, posing a formidable conceptual challenge for the Court.

Firstly, judges must at all times be aware of the political context in which they operate and which in the end will impact on how jurisprudence will operate. Jurisprudence which misconstrues the context and fails to tailor its message to the environment will be short-lived. The margin for error in highly sensitive cases is thin. It takes a judicial diplomat to draw the principled line and avoid alienating the political environment in which the Court operates.

Secondly, judges must never stray too far from the consequences of their decisions. Given the ever-growing shadow of the case-law, this consideration is of utmost importance. The consequentialist element in the reasoning must not only be determined by “here and now”, but to a larger extent by “what next”. The Court and its incremental policy-making must anticipate the future consequences of its rulings and possible constellations in which they will be applied. This is not an easy task and requires a combination of judicial diplomacy, institutional awareness, political finesse and judicial self-restraint. In other words, the Court-tactician must have a long-term plan for its constitutional document.

Thirdly, the Court is bound by Art. 19 TEU and then some more. Unless it wants to be guilty of committing per non est, it must at all times adhere to the basic values expressed in Art. 2 TEU and translate them judicially and judiciously into enforceable doctrines. This is where the challenge of converting a legal text (constitution) into principled and non-opportunistic case-law comes to the fore and to the Court poses the biggest challenge of all: one of constitutional imagination and self-understanding. Art. 2 TEU forms part of the EU law sensu largo in the same way the Court has interpreted the term “law” in Art. 19 TEU, once called the most important legal provision of the Treaties. In the light of acquis jurisprudentiel of fifty years, there is still untapped remedial potential in Art. 19 TEU. The Court of the 1960s and 1970s always spoke of the law’s authority that binds together the union of “states, institutions, and individuals”. Writing with his usual farsightedness and lucidness, Professor John A. Usher commented on the ways the Court had been using Art. 164 (precursor of what is now Art. 19 TEU) of the original EEC Treaty: “In fact, (…) the Court would appear to have granted a new remedy not expressly foreseen in the Treaties, by virtue of two general provisions of the Treaty, Art. 5 and 164… The door appears to have been opened to the exercise of new sorts of judicial control in the complex relationship between Community institutions and Member States, going beyond the broad interpretation which the Court had already given under the TreatiesJ.A. Usher, General Course: The Continuing Development of Law and Institutions (in:) F. Emmert, Collected Course of the Academy of European Law, “European Community Law” 1991/1, Martinus Nijhoff Publishers 1992 and, in particular, Part V, “The European Court of Justice and its Jurisdiction”, p. 122–135 and his How limited is the jurisdiction of European Court of Justice’, in Procedure and the European Court, J. Dine, S. Douglas-Scott, I. Persaud (eds.), Chancery Law Publishing 1991, at p. 77..

With existential jurisprudence on the rise and with the Court growing more and more confident, the door has been indeed thrown wide open to a new brave world of enforcing constitutional essentials of the EU legal order and to reminding Member States of their core commitments accepted on the Accession Day.

4. 4. Taking stock and moving forward: What is essential about the EU law?

The “Essential characteristics of the EU law” (term used by the Court of Justice in its Opinion 2/13)See para 167 of the opinion. For full text http://curia.europa.eu/juris/document/document. jsf?docid=160882&doclang=EN. must go today beyond traditional “First Principles” of supremacy and direct effect, and instead to embrace the rule of law, separation of powers, independence of the judiciary and enforceability of these principles as integral part of the ever – evolving EU legality. Together, these essential characteristics of EU law have given rise to what the Court has imaginatively called: “a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe”. The rule of law, integrity of the legal system and judicial independence are the core principles of the original consensus that brought member states together. The novel part of the argument is to interpret art. 19 TEU in conjunction with art. 2 TEU (enumerating the values on which the EU is based) as the cornerstones of the EU legality. While the “existential jurisprudence” at the service of the EU legality calls for the imaginative and engaged interpretation from the courts, it would never work in isolation. The courtroom alone might achieve only so much. Its full impact will only be realised when the political institutions exhibit the readiness to complement the existential jurisprudence with their own expertise and enforcement of the First Principles. For the Court to effectively exert its judicialization effect on the EU governance, it must be backed up by the political branches of the EU. As a result, the litigation strategies of the European Commission must now respond to the ongoing shift in the court-room by framing arguments against the background of “the law” (art. 19 TEU) and the existential jurisprudence.

Contrary to fears expressed here and there, art. 2 TEU is not to be enforced against the Member States in the abstract and the Union would not claim an unfettered competence. Granted the rule of law enforcement must involve all the actors and not just the Court, but the EU political institutions have not been ready to defend the rule of law as vigorously as it deserves. All too often political calculations led to embarrassing silence and short-term bargaining. The issue of great practical importance is what happens when the EU institutions fail in their loyalties to the Union legal order and simply look the other way. This is exactly when the Court, and not other institutions, as has often been the case in the past, stands as a last resort in the way of the Union falling apart. Judge T. Koopmans was quite right when he remarked that “the Court of Justice is aware that lack of judicial interference may very well mean that nothing will happen at all”. While specific manifestations of the rule of law are always subjective and a matter of choice, it is argued that the “traditional” catalogue and recap of the rule of law-inspired general principles have been good for the times where the narrative was driven by “business as usual”. Yet, integration A.D. 2019 is anything but. While the projection of the rule of law through an amalgam of principles has been a staple of the field, much more is needed today. The EU needs to break from the status quo and build its own rule of law discourse. The rule of law must be seen as a meta principle that settles the most fundamental question of belonging and identity of meta politics. Instead, what we get is fairly conventional and uncontroversial recap of the state of art, while the times of the rule of law crisis invite academia to move beyond such traditional incantations. Today the role of the rule of law must go beyond mere instrumentalization. It defines and determines the legal standards that are then implemented through principles. The rule of law dictates commands and has a life if its own, rather than being simply expressed through principles.

Often-heard criticism is that the rule of law is always tailored to the objectives of the legal order and the continuation of the EU project, rather than the objectives of the Treaties being interpreted with the rule of law as a stand-alone and overarching meta principle. The challenge thus is flipping this dominant discourse and to break free from the cherished paradigms of understanding the rule of law only through the operation of principlesFor such a traditional reading see T. Konstadinides, The Rule of Law in the European Union. The Internal Dimension, Hart Publishing, 2017. For criticism of this traditional approach see my counter - argument espoused in “Common Market Law Review” 2020/57 (forthcoming).. This analysis changes tack and argues that the rule of law has become a meta principle that dictates certain principles rather than simply being channelled and expressed through them. In 2020 and beyond, the EU needs rule of law manifestations that would have teeth and bite the dark forces behind the rule of law crisis. This is exactly where art. 19 TEU offers a rescue path. It is clear that art. 19 TEU plays a special role and builds around the effective judicial protection by independent courts as the undisputable core of the European rule of law. As the opening quotation by C. Kakouris emphasizes, the untapped remedial potential of art. 19 TEU (“The Court shall ensure that in the interpretation and application of the Treaty the law is observed”), 2019 saw the Court following up on this powerful idea (and a dream) of the “unwritten law” that underpins the special ethos of membership in the “Community based on the rule of law”.

As interpreted by the Court in the Polish cases, art. 19 TEU emerges as the complete and stand-alone one in that it dictates its own sphere of application and builds the legal discipline to which it subjects the Member StatesI build here on T.T. Koncewicz, On the Rule of Law Turn on Kirchberg – Part I. What and How has the Court of Justice Been Telling Us About the EU Constitutional Essentials? https://verfassungsblog.de/on-the-ruleof- law-turn-on-kirchberg-part-i/ and On the Rule of Law Turn on Kirchberg – Part II https://verfassungsblog. de/on-the-rule-of-law-turn-on-kirchberg-part-ii/.. Often heard arguments that it is impossible to establish a unitary conception of the rule of law at the EU level, should be qualified today by the emerging tendency to spell out exactly this: core constitutional elements that distinguish the EU rule of law. By introducing and then repeating over and over the novel terms “essence” and “essential”, the Court speaks the meta-language of identity and specificity of the EU legal order. Judicial independence as such is not an intrinsic value, rather it is instrumental in ensuring the observance of a first-order right – that is, the right to a fair trial. The very existence of effective judicial review designed to ensure compliance with EU law is essential for the rule of law, and it is the duty of every Member State to ensure that the courts meet the requirements essential to effective judicial protection in accordance with art. 19 TEU. These dicta clearly show that the rule of law is no longer simply an objective, value, etc., but rather that the right to a fair trial, effective judicial protection and independence of the judiciary are becoming First Principles of the EU rule of law. They command very specific duties in the European public space. Art. 19 TEU starts playing two fundamental roles in this process: it provides a normative and axiological anchoring for the rule of law, and it serves as the jurisdictional trigger to enforce and protect the values of art. 2 TEU.

Writing in 2020, it must be clear that art. 7 TEU is not a viable political option at all. However, the Treaties do contain legal mechanisms to enforce the rule of law against the member states. Art. 7 TEU neither is nor has to be the centre of the rule of law world in the EU. Rather than spending too much time on unproductive considerations about the need for a new quasi-judicial body that would avoid the criticism of politicization or a new rule of law-mechanism, the effort should have been put on making sure that the Court’s decisions are complied with, that the Court keeps getting the right cases, that these cases are framed in the right way and that any non-enforcement of the judgments is met with stern and unqualified sanction. After all, Poland’s refusal to obey the Court’s judgments and its readiness to do everything possible to circumvent it strike at the very heart of the EU rule of law. The challenge is to use what is legally available, rather than keep finding excuses for not applying the mechanisms already in place. Given the contestation of the rule of law by the member states, one theme that will deserve an in-depth treatment is studying to what extent the promise of the rule of law could have been read into the European project since the inception. Judge U. Everling was right when he said: “Legal texts are never clear and complete. Gaps must be closed by the courts following the principles laid down in legislation, and new developments must be taken into consideration. Such a jurisprudence is not understood as being ‘judicial activism’ but as Richterrecht or richterliche Rechtsfortbildung which means judge made lawOn the judge-made law of the European Community’s Courts (in:) D. O’Keeffe, A. Bavasso (eds.), Judicial Review in European Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Kluwer Law International 2000..

5. Rule of law as an implicit First Principle of the European legal order

The European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the TreatyCase 294/83, Parti écologiste “Les Verts” v. European Parliament, para 23.

In this vein, in 2019 and 2020 the Court has been unearthing and making explicit what was always implicitly embedded in the legal order of the first Communities. If we want to understand the rule of law in the EU in times of constitutional upheavals, we must start engaging more with such meta-level language of identity and belonging. Again, it is here that the role of art. 19 TEU must be and will be front and center of the analysis of the emerging transnational understanding of the rule of law. The existential challenge before the EU’s discourse on the rule of law is to embark on, and build a case for, a novel trajectory that would take us from a rights-based constitutional regime (already in place in Europe) to a more ambitious democracy-based transnational rule of law order. The latter would see “the transnational rule of law” to be figuring prominently as one of the essential benchmarks for belonging and identity. It would serve as a novel source of legitimacy for all governance arrangements within the supranational legal order. It would aim to defend the constitutional features/profiles and democratic cores of the units that made up the fabric of the Union. In 2019, the rule of law’s primary function is not to act as a brake against the arbitrariness of European institutions, but rather against member states’ blatant rejection of the core commitment to the rule of law. The latter, and not the former, is undermining the rule of law as a shared value in ways hitherto unseen. For the Union to survive, it must not only be able to define (happening now), but also to defend the core that binds all the parties to the consensus and that brought them together. Otherwise, the political community is dealt a deadly blow and comes apart at the seams. Agreeing on the essentials is not about pitting one version of the rule of law (“the state”) against another (“the Union”), but rather about enforcing these essentials that make this Union a community based on the rule of law. There is simply no middle ground here.

M. Foley argues that a written constitution is not all that it documents and the “written” part of the constitution may be its least important partM. Foley, The Silence of Constitutions. Gap, ‘abeyances’ and political temperament in the maintenance of government, Routledge 2011.. He locates a third profoundly fundamental dimension that goes beyond the “written-unwritten” distinction. This dimension rests upon the recognition that in both written and unwritten constitutions there remains an undisclosed component, upon which the stability of a constitution’s meaning and authority depends. Such a component remains obscure and compulsively unwritten – no matter how elaborate the rest of the constitution may be. Its significance lies not just in the fact of it being unwritten, but in its need to remain unexpressed and unfathomable, in order for it to maintain its “essential characterM. Foley, The Silence…, pp. 7–8.. The intermediate layer of obscurity represents not just a difference in scale to the other two layers, but a difference in kind. The layer “(...) accommodates those implicit understandings and tacit agreements that could never survive the journey into print without compromising their capacious meanings and ruining their effect as a functional form of genuine and valued ambiguity.” Such “understandings” only remain understood as long as they remain sufficiently obscure to allow them to retain an approximate appearance of internal coherence and clarity, while at the same time accommodating several potentially conflicting and unresolved points of issue. The resolution of conflict in such cases is that of suspended irresolution – either consciously secured or, which is far more probable, unconsciously and unintentionally acquiredM. Foley, The Silence…, p. 9.. Such understandings are referred to by the term “constitutional abeyance”, which reflects the dormant suspension implicit in what appears to be quite explicit constitutional arrangementsM. Foley, The Silence…, p. 9..

Foley’s conceptualization of constitutional abeyances is helpful in understanding the constitutional stakes behind, and risks hidden in, existential jurisprudence of the Court of Justice. The decision to set up the European Communities, back in the 1950’s, was based on the implicit consent to abide by certain constitutional essentials. The rule of law was always embedded in the legal order of the EU and thought of as a break with the lawless past and a move away from the power politics of nation states. It meant to frame and civilise. The consent in turn flowed from shared understanding that such implicitness indeed existed. No one questioned this. Tacit agreement sufficed as there was expectation that the implicit would never be questioned in principle. The system would be best served by the existence of implicit “hanging” between the written and unwritten. It was believed that integration would be best served by such an approach.

“The Rule of Law Crisis” calls for “the implicit” to be elucidated, developed and ultimately protected – to be spelt out explicitly. Such spelling-out is an uneasy process of expressing what has been always taken for granted at the level of the unwritten. While this does not call into question the shared value of implicit understanding, it changes the level of specificity as the contours of “the implicit-explicit divide” are now to be mapped out and defined for all. Filling out the implicitOn the implicit embeddedness of the rule of law in the legal order of the Community from its inception, A. Magen, L. Pech, The rule of law and the European Union (in:) Ch. May, A. Winchester (eds.), Handbook on the Rule of Law, Edward Elgar 2018, p. 237–238. understanding with its explicit content has now begun and it might disturb the delicate balance of the constitutional document: either the shared element, now elevated to the explicit core, will prevail as part of the consensus, or disruptive forces will continue to call into question the shared element of our union and in the end they will bring the consensus down.

Treaty objectives and design explicitly drew on the implicit understanding of the law and legal order that was to be put in place. The implicitness deferred the discussion of the core and content. All parties involved assumed that the rule of law was an essential part of the original consensus that was never to be called into question. The rule of law crisis exposes the volatility of the implicit understanding(s). The journey within the implicit understood as the shared understanding of essentials was present in the past but as the Community grew, evolved and differentiated, “the shared” became contestable. Seen from that perspective, the rule of law crisis brings to light the misunderstandings and calls into question the avowed shared dimension of the implicit core of the Union. The rule of law crisis has the potential to play both an explicatory and revealing role. It might bring to the surface essential elements of the constitutional bargain and open the discussion on the final contours of what was presumed as fundamental, yet implicit in the parties’ decision to join the Communities back in 1951. The crisis is elevating constitutional abeyances to the mainstream constitutional discourse and testing the limits of acceptance. The ambiguity and obscurity that defined constitutional abeyances is now replaced by open and critical bargaining over the explicit and the states’ limits of acceptance. Tacit understandings are turned into loud misunderstandings and the Court of Justice finds itself caught in the middle of this critical axiological juncture.

The Court has always been recognized as a powerful political player that is capable of casting its judicial shadow on all actors in the governance structure. The imagination and courage the Court showed in the string of cases starting with the logging caseT.T. Koncewicz, The Białowieża case. A Tragedy in Six Acts, https://verfassungsblog.de/the-bialowiezacase- a-tragedy-in-six-acts/; D. Sarmiento, Provisional (And Extraordinary) Measures in the Name of the Rule of Law, http://verfassungsblog.de/provisional-and-extraordinary-measures-in-the-name-ofthe- rule-of-law/. Editorial. Winter is coming. The Polish Woodworm games, “European Papers” 2017/2, p. 797; L. Coutron, La Cour de justice au secours de la forêt de Białowieska, “Revue Trimestrielle de droit européen” 2018/4–6, p. 321; T. Martin, Le large pouvoir d’appréciation du juge des référés au service de l’efficacité du droit de l’Union européenne, “Cahiers de droit européen” 2018/54, p. 495; P. Wennerås, Saving a forest and the rule of law: Commission v. Poland. Case C-441/17 R, Commission v. Poland, Order of the Court (Grand Chamber) of 20 November 2017, EU:C:2017:877, “Common Market Law Review” 2019/56, p. 541.and the Portuguese judges caseJudgment CJUE, 27.2.2018, C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, https://curia.europa.eu/juris/document/document.jsf?text=&docid=199682&pageIndex=0&do clang=EN&mode=lst&dir=&occ=first&part=1&cid=5411432. On the case, consult M. Bonelli, M. Claes, Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary, “European Constitutional Law Review” 2018/14, p. 622; L. Pech, S. Platon, Judicial independence under threat: the Court of Justice to the rescue in the ASJP case, “Common Market Law Review” 2018/55, p. 1827., and more recently in the Polish Supreme Court controversyL. Pech, S. Platon, The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case), https://reconnect-europe.eu/blog/ pech-platon-poland-ecj-rule-of-law-reform/., reminds us what Niamh N. Shuibhne called “responsibilities of constitutional courtsN.N. Shuibhne, The Coherence of EU Free Movement Law. Constitutional Responsibility and the Court of Justice, Oxford University Press 2013.. She argued that a constitutional court has a responsibility to protect and to further the objectives and values enshrined in the constitution to ensure that the rights and protections promised by the constitution are realized.

Deciding Polish cases, the Court is not only rediscovering old precedents, but first and foremost building on what Judge Kakouris called “the mission of the CourtC.N. Kakouris, La Mission de la Cour de Justice des Communautés Européennes et l’ethos du Juge, “Revue des Affaires Européennes” 1994/4, p. 35.. Respect for, and trust in the rule of law are existential components of the original consensus on which all other commitments of the parties are built. The moment these principles start to crumble, so will fragile European consensus. When read in the light of Van Gend en Loos and Simmenthal, “existential jurisprudence” is firmly anchored in and tailors it to the rule of law crisis. Although the courtroom must not be seen as the place to solve all problems, it offers one powerful mechanism against “exit” dynamics. As more and more rule of law cases make their way to the Court, existential jurisprudence must be seen as a an exercise in constitutional balancing that will be shaped by the context (the Court’s institutional and political awareness in reading the political consensus), consequences (judicial diplomacy), mandate (adherence to the basic values and defending Union legality as expressed in Art. 19 TEU) and, finally, the interaction as the mandate keeps reinforcing and informing the interpretation of the competences. Such balancing will in the end determine the success (or failure) of the Court. A blind court decoupled from political reality, will harm its own legitimacy, as politics will increasingly oppose its rulings.

With the First Principles slowly taking shape, the Court will be faced with the equally difficult challenge of smoothing the rough edges of these principles. The Court must be aware of both the opportunities and limitations that the new constitutional politics in Europe entail. One can clearly see the various trajectories and risks involved in the existential jurisprudence. The trajectory which might be conveniently called “Back then” was built on the First Principles as constitutional abeyances. The “Here and Now” trajectory moves us now from implicit understanding to explicit expression. The possible trajectory of “Tomorrow” will reconstruct and enforce the rule of law as an essential precondition for all parties’ deferral to one another and to the Union they had created. Rule of law, separation of powers, judicial review, and judicial independence are slowly emerging from the shadows of constitutional abeyances and start operating as procedural benchmarks of European constitutionality. Even though the contours of existential jurisprudence are still in the process of being rediscovered, this jurisprudence has already started playing its important systemic role. It determines the rules of the game and enforces them against the foul players. These essential principles ordain the game that is played on the integration field under the watchful eye of the Court.

“Existential jurisprudence” challenges us to make a bold conceptual shift from the EU as a market-driven entity to a democracy-enforcing supranational community of states that are equal and committed to the common project. The approach must be holistic, straddling the political and the legal, with each side knowing what and how the other is doing in pursuance of their own loyalties to the system. The states must speak with one voice and reaffirm their commitment to the EU values that underpin the community. Only such commitment could then translate into a more technical aspect of the tools (“how”). The catalogue of such First Principles (understood as an uneasy combination of the myriad of texts, precedents, policies, competences) would operate as a counterweight to the “non-droit”.

At the heart of the European project and governance lies a fundamental commitment to the set of First Principles that the Member States, institutions, and civil society actors, all bound by the Treaties, expect and trust that others will uphold. The rule of law is but one of these First Principles as it transformed “political power” into “political power constrained by law” – as I have already argued elsewhereOn this, see my Pogarda dla sądów to POLEXIT, “Gazeta Wyborcza” at http://wyborcza.pl/magazyn/7,1 24059,25134071,pogarda-dla-sadow-to-polexit.html and more recently POLEXIT? Quo Vadis Polonia?, “Dialog” 2020/131.. The process of unearthing, reconstructing and operationalising the catalogue of First Principles would provide a reference point for the political leaders’ own itinerary and focalise their efforts. Maximizing the remedial framework here and now is the most fundamental challenge, as evidenced by the growing number of rule of law casesRequest for a Preliminary Ruling Under Article 267 TEU from the Supremo Tribunal Administrativo, (Associação Sindical dos Juízes Portugueses v. Tribunal de Contas), Judgment, 2018 I.C.J. 117; see, e.g., M. Ovadek, Has the CJEU just Reconfigured the EU Constitutional Order?, https://verfassungsblog.de/ has-the-cjeu-just-reconfigured-the-eu-constitutional-order/; M. Taborowski, CJEU Opens the Door for the Commission to Reconsider Charges Against Poland, https://verfassungsblog.de/cjeu-opens-the-doorfor- the-commission-to-reconsider-charges-against-poland/; L. Pech, S. Platon, Rule of Law Backsliding in the EU: The Court of Justice to the Rescue? Some Thoughts on the ECJ Ruling in Associação Sindical dos Juízes Portugueses, http://eulawanalysis.blogspot.fr/2018/03/rule-of-law-backsliding-in-eu-court-of. html.. More importantly, as dozen more cases line up, the Court will have plenty of opportunities to spell out in more detail the consequences of the emerging doctrineCase C-522/18, DŚ v. Zakład Ubezpieczeń Społecznych Oddział w Jaśle (Request for a preliminary ruling from the Supreme Court (Poland) lodged on 9 August 2018); Case C-537/18, YV, lodged on 17 August 2018 (Supreme Court); Case C-558/18, Request for a preliminary ruling from the Regional Court in Lodz (Poland) lodged on 3 September 2018, City of Łowicz v. State Treasury – Governor of Łódź Province; Case C-563/18, Request for a preliminary ruling from the Regional Court in Warsaw (Poland) lodged on 5 September 2018, Criminal proceedings against VX, WW and XV; Case C-668/18, Request for a preliminary ruling from the Supreme Court (Poland) lodged on 26 October 2018, BP v UNIPARTS S.?.r.l., having its registered office in Nyon; March 19 hearing in the joined cases C-585/18 and C-624/18, C-625/18; The Law of 8 December 2017 on the Supreme Court.. For the Court, stakes could not be higher, because it might be the engine of integration indeed, but at the end of the day, it is the independent national courts that generate energyD.A.O. Edward, National Courts – The Powerhouse of Community Law, “The Cambridge Yearbook of European Legal Studies” 2002–2003/5, p. 1..

The resort to art. 19 as a jurisdictional trigger, and to art. 2 TEU as a benchmark, is nothing short of revolutionary and deserved to be analysed as such. As a result, we have a novel understanding of EU legality which embraces not only the traditional understanding of the EU law (rules and norms), but also justiciable values enforced through courts. Such a broad reading of the legality is necessary to close off the exit in legality and lessen the adverse impact of the European design in error. The case law (as an instance of the social practice) of the Court of Justice shows how the Court, despite the errors in constitutional design (see supra), has been closing off the exit strategies for the rogue member states. As a result, we are facing a paradigmatic shift where the values (e.g. Rule of law) are becoming fully justiciable concepts in their own right. Article 2 TEU is not only political, but it imposes legal duties which are enforceable by the Court through Article 19 TEU.

We know today that art. 2 TEU is not declaratory but has a substantive dimensionFor most recent in-depth analysis see working papers published as part of the H2020 RECONNECT consortium: Meaning and Scope of the EU Rule of Law and Unity and Diversity in National Understandings of the Rule of Law in the EU, https://reconnect-europe.eu/publications/deliverables/. The Court has clearly embraced it as the hard core of EU law and made it justiciable. Crucially, this existential jurisprudence explains that the jurisdiction of the Court is triggered irrespective of any link to substantive EU law other than Article 2 TEU and the duty to respect the values spelt out therein. “Rule of law” is a legal term and as such, within the purview of the Union courts. Member States are under a legal duty to have independent courts as a general matter of State organization. A general obligation to guarantee judicial independence of national courts is directly grounded in the Treaties (Art. 2 TEU as a rationale and Art. 19 TEU as a jurisdictional trigger). The importance of this jurisprudential shift must not be downplayedSee supra. For more detailed analysis, consult also L. Pech, S. Platon, The beginning of the end for Poland’s so-called “judicial reforms”...; L. Pech, S. Platon, Rule of Law Backsliding in the EU: The Court of Justice to the Rescue? Some Thoughts on the ECJ Ruling in Associação Sindical dos Juízes Portugueses, at http://eulawanalysis. blogspot.fr/2018/03/rule-of-law-backsliding-in-eu-court-of.html; A. Rosas, The European Court of Justice: Do all roads lead to Luxembourg?, “CEPS Policy Insights” 2019/3; Editorial. Winter is coming. The Polish Woodworm games, “European Papers” 2017/2, p. 797; P. Wennerås, Saving a forest and the rule of law: Commission v. Poland. Case C-441/17 R, Commission v. Poland, Order of the Court (Grand Chamber) of 20 November 2017, “Common Market Law Review” 2019/56, 541; T.T. Koncewicz, The Existential Jurisprudence of the Court of Justice Moving Beyond the Boats, Embracing the Journey at https://reconnect-europe.eu/ blog/existential-jurisprudence-koncewicz/; T.T. Koncewicz, On the Rule of Law Turn on Kirchberg – What and How has the Court of Justice Been Telling Us About the EU Constitutional Essentials? Part I at https:// verfassungsblog.de/on-the-rule-of-law-turn-on-kirchberg-part-i/; T.T. Koncewicz, On the Rule of Law Turn on Kirchberg – How the Court of Justice is Spelling out the Constitution’s Unwritten Understanding(s) Part II at https://verfassungsblog.de/on-the-rule-of-law-turn-on-kirchberg-part-ii/..

As existential jurisprudence recognizes this systemic function of domestic courts and brings to the surface step by step the components of the European rule of law, the journey has only started. President Lenaerts poignantly argues: “Cases which put courts at distress provide good evidence from which one may determine whether the judiciary enjoys legitimacy. Indeed, it is in complex cases that courts often prove what they are (and are not) capable ofK. Lenaerts, How the ECJ Thinks: A Study on Judicial Legitimacy, “Fordham International Law Journal” 2013/36, p. 1303, 1369–1370..

While the uneasy questions “how far” always remain, the Court’s trajectory has already been set. This is only the beginning, though,. As Polish populist authoritarians are here to stay, so is the constitutional challenge of judicial demarcation and line - drawing in front of the Court. No doubt, then, that the journey, and many jurisprudential tests the Court will be put to, will continue. This must be so, because after all the Court is a court of law, and the Union is a community of law and, as eloquently expressed by Advocate General F. Mancini, in Les VertsCase 294/83, Parti écologiste “Les Verts” v European Parliament https://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=CELEX:61983CJ0294.: “[T]he obligation to observe the law takes precedence over the strict terms of the written law. Whenever required in the interests of judicial protection, the Court is prepared to correct or complete rules which limit its powers in the name of the principle which defines its mission”.

With this the time of mega-politicsFor the term R. Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts, “Annual Review of Political Science” 2008/11 at p. 93.has indeed arrived. However, to stop here, would be to paint only half of the picture.

6. Epilogue... or a new Prologue: Looking beyond the court – room. Meet the journey

I believe that our endless discussion of HOW has caused us to lose sight of WHY

David A. O. EdwardD. Edward, Luxembourg in Retrospect: A New Europe in Prospect, “European Business Journal” 2004/120, at p. 126.

Thanks to the Court, the EU legal order seems to be past the conceptual haziness that has always marked the debate about the rule of law. It is ready to settle on some essential characteristics that form its non-negotiable core binding on all parties and defining their commitment to the European project. If there is one general take-away from the rule of law crisis, it is the gradual emergence of First Principles. The catalogue of such principles goes beyond the sacrosanct direct effect and supremacy, and extends to the rule of law as the catalogue’s conceptual and moral heart. We must be honest and explicit that when we say that the rule of law has become an entrenched, overarching and enforceable value and First Principle of the EU legal system, we expound the very basic premise of the political community that the Union no longer aspires to, but undoubtedly is.

One of the recurrent themes in the analysis has been the fact that the democratic backsliding in Poland has painfully showed that EU constitutional system and design have been in error of “normative asymmetry”. Back in 1951, the authority to ensure that states remain liberal democracies has not been effectively translated into law, which was understandable given the fresh memories of horrors wrought upon the continent by the World War II, so the Founding Fathers believed that these memories would be enough to stave off any backsliding into authoritarianism. History never stops, though, it always moves on and today the once unthinkable democratic backsliding within the EU challenges the original hopes of the European project and tests its design. The Council of Europe’s role was limited to a hopeless spectator, at best sending letters of outrage and empty threats. OSCE did not even try to play a role and kept silence throughout the capture of liberal democracies. Venice Commission’s expertise and advice have never been translated into tangible actions and integrated into systemic response. EU has been always one step behind the events on the ground and it became clear that the system suffers from the existential drawback: the states which are the source of a distrust and fear are called on to sit at trial over one of their fellow member states. As a result, there was no coordinated systemic action and the capture marched on emboldened and strengthened by the lack of credible international and supranational counter-strategies.

This is where the challenge of thinking globally and out of the box comes to the fore. Thinking globally means moving beyond “the populism talk” and instead focusing on the constitutional features of the emerging counter-narrative in Europe. Thinking globally requires rethinking the narrative of the European Union or what G. de Búrca evocatively calls its raison d’être. Thinking globally requires revisiting the substance of the EU membership by engaging with new kind of regimes within the EU. Thinking globally calls on reimagining the constitutional design and critically re-evaluating some of the basic underpinnings of the liberal constitutionalism. Thinking globally goes beyond nebulous notion of “democratic backsliding” and towards the new constitutional doctrine that challenges the standard origin of the EU and undermines the post-1945 liberal consensus. The contours of this new doctrine/tradition revolve around few basic tenets. The politics, rather than being tamed and constrained by law, are increasingly seen as the threat to the constitution. The constitutions are no longer seen as shields against the state, rather they protect the uniqueness of the state and nation understood in ethno-cultural terms. Constitutional courts are transformed from counter-majoritarian institutions to government enablers; rule of law becomes rule by law, checks and balances. Responses from the supranational to violations of democracy and the rule of law must be holistic, straddling political and legal, with each side knowing what and how the other is doing in pursuance of their own fidelities to the system.

In these changed circumstances European decision-makers need to have an access to generalist expertise and advising that show the signs of deterioration in the functioning in the democratic system before the collapse happens. This new-age advising should be able to tell them when and where the trouble is brewing, and what the benchmarks for the enforcement should be. Experts must move beyond the traditional sectoral and fragmented analysis of checklists, and instead look for the signs of systemic deterioration in the right places. Rather than looking at pieces, they must learn how to disentangle the interaction and effect of the parts on the whole. International and supranational courts must be able to deter the systemic deficiencies in the functioning of the liberal democracies by enforcing the commitment to maintain self-sustaining democracy with checks and balances. Unless such recalibration of methods, perspectives and benchmarks happens on the part of supranational community, the new autocrats will be able to continue to hide under the legalistic and constitutional cover while hollowing out the essence of liberal constitutionalism, once thought to be the driving force behind European integration.

However, with the politics of resentment staring right into EU’s face, the ever – closer union is being challenged in ways that require more than retooling the legal register and the imaginative Court. When dealing with the democratic backsliding, one has to avoid danger of being trapped in the world of legal expertise and arcane legalistic approaches to the current crisis. The question “how” the EU constitutional design should be adapted (analysis supra) must go hand in hand with revisiting “why” question. In other words: changing the ailing constitutional design of the EU in the name of WhomEditorial. Enforcing the Rule of Law in the EU. In the Name of Whom?, http://www.europeanpapers.eu/ it/e-journal/enforcing-the-rule-of-law-in-the-eu-in-the-name-of-whom.?

Properly understood, the democratic backsliding brings about the challenge of rethinking the constitutional design of the EU (see supra). Rethinking requires revisiting the substance of the EU membership by engaging with the new kind of regimes within the EU and asking what it means to be a member state of the EU in the 21st Century. The language, and perspectives through which the EU looks at its Member States, must be challenged, and changed. Member States must be invested in the legal order and the integration project by repeated acknowledgement that they want to respect the understanding of the EU legality and its First Principles that brought them together. The states must speak with one voice that they are ready to defer to the common institutions enforcing these Principles in the name of the community. This commitment would then translate into more technical aspect of the tools (“how”) and build a remedial framework for the systemic and holistic response to the democratic backsliding.

In 2020 and beyond, the EU faces a challenge of mega-politics centred around questions of belonging and identity. By belonging to the supranational legal order, its actors limit their choices by committing to the order’s practice and its understanding of legality. What must be appreciated and studied more is the critical interaction between the legal dimension of the integration (search for optimal tools and enforcement competences to safeguard the integrity of the EU order) and its ethical face (narrative and justification that would explain in the name of whom the EU acts to defend its First Principles). This is where the “EU rule of law discourse” faces its true constitutional challenge before it can lay claim to a rule of law becoming Our Rule of Law. One question that must be addressed head-on is whether it is possible to interpret the rule of law in a way that would move beyond its traditional understanding as merely circumscribed principles geared up to the attainment of the objectives of the Treaties. While we might not yet be in the position to proclaim that we know what exactly the EU rule of law means, it is certainly no longer the case that the rule of law means “different things to different people”.

It is proposed here that there are 4 major and interconnected challenges as we move forward. These challenges both empower, and constrain, the dynamics within the court-room that were touched upon here.

Firstly, the EU must rethink EU membership and the lenses through which it looks at its member states: this requires a bold conceptual shift from the EU as a market-driven entity to a democracy-enforcing supranational community of equal states invested in the supranational legal order and committed to the common project and its systemic and organisational principles. The standard legal framework of enforcement and monitoring dominated by the perspective of rights must also embrace constitutional essentials and structures that make up the fabric of the legal order. The supranational legal discipline sets out the acceptable limits for the use of state power.

Secondly, the EU must critically retool its own legal apparatus, mechanisms and approaches in response to the changing political and legal environment. This calls for the holistic approach that would straddle the political and the legal with each side knowing what and how the other is doing in pursuance of their own fidelities to the system.

Thirdly, the EU must refocus its own narrative which should concentrate around the catalogue of fundamental First Principles of transnational governance: The challenge that the EU is facing boils down to not so much the lack of common points of reference, but rather to the lack of understanding among the Peoples of Europe why and how the quality of democracy and the rule of law in one of the member states should matter to them.

Fourthly, all of us writing on the rule of law must pay more attention to tracking down, understanding, and explaining “the social life” and the practice of what I call “supranational legality”. The challenge before us lies in moving beyond the text and to reconstruct “the social life” or, using the transnational equivalent, practice of the Treaties. As the EU supranational governance and law are not only about the (imperfect) text(s), but equally about the actors’ actions on the basis of these text(s), the terms “social life” and practice have the potential to explain how the document and the institutions serve the citizens of the EU. They would bring together the normative (text), empirical (institutions) and sociological. The question how “the Treaty”, understood as an imaginary reference point for our European fidelity, expresses (or not) aspirations of the European citizens, and how it helps (or not) them change their lives for better, is still neglectedEditorial. EU law as a way of life, “Common Market Law Review” 2017/54, p. 357.. As things stand right now, domestic rule of law and politics in the (backsliding) member states are of no concern to the Dutch, French, etc. people. Simply put, they are not seen as forming part of the supranational legalityEnforcing the Rule of Law in the EU. In the Name of Whom?, “European Papers” 2017/1, p. 711, http://www. europeanpapers.eu/en/e-journal/enforcing-the-rule-of-law-in-the-eu-in-the-name-of-whom..

Where does it all leave us now?

The winds of constitutional change and of new openings have been blowing in 2019 and beyond. Given the radicalization of the domestic politics of resentment (new Polish draft law on the judiciary has disciplinary proceedings in store for these judges that will refuse to apply the statutes incompatible with the EU law without first asking the fake constitutional court and, make no mistake, that is only one of many legal shenanigans designed to … fix the judiciary and … implement the Court’s case law)L. Pech, P. Wachowiec, 1460 Days Later: Rule of Law in Poland R.I.P. (Part I), https://verfassungsblog. de/1460-days-later-rule-of-law-in-poland-r-i-p-part-i/; 1460 Days Later: Rule of Law in Poland R.I.P. (Part II), https://verfassungsblog.de/1460-days-later-rule-of-law-in-poland-r-i-p-part-ii; T.T. Koncewicz, QUO Vadis Polonia…, the challenge before the EU cannot be clearer: either learn from the past mistakes in dealing with untrustworthy and disloyal states like Poland and show readiness to look critically in the mirror, … or lose all credibility and moral high ground and, ultimately, perishAt the time of writing, it became clear that the situation gets worse and worse by the day. See most recent interim injunction of the Court in case C-791/19, Commission v Poland. In this case, the Court has suspended the operation of the Disciplinary Chamber in the Polish Supreme Court. On the Podkrecase, see Press Release 47/20 at https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-04/ cp200047en.pdf and analysis by L. Pech, Protecting Polish Judges from the Ruling Party’s “Star Chamber” at https://verfassungsblog.de/protecting-polish-judges-from-the-ruling-partys-star-chamber/. The government has made it clear that it will not comply with the interim order. For first reactions, consult https://oko.press/poploch-w-rzadzie-po-decyzji-tsue-w-sprawie-izby-dyscyplinarnej-premier- kieruje-wniosek-do-tk/ For my own take, see (in Polish) Czy Polska jest gotowa na wspólnotowe myślenie, “Rzeczpospolita” 15.04.2020, https://archiwum.rp.pl/artykul/1426269-Czy-Polska-jestgotowa-- na-wspolnotowe-myslenie.html and Unijny sąd nad Izbą Dyscyplinarną. O wspólnocie prawa i unijnej filozofii sądzenia, http://konstytucyjny.pl/tt-koncewicz-unijny-sad-nad-izba-dyscyplinarnao- wspolnocie-prawa-i-unijnej-filozofii-sadzenia/.

In 2020, the EU technocratic body will no longer be able carry on without the principled soul. While in 2019 the Court of Justice might have started chartering and framing a trajectory for 2020 and beyond in bold terms as envidaged by P. Pescatore, it will no doubt need full and unwavering commitment and fidelity to the common project from the political. The EU has entered 2020 bruised and hesitant, at times even lost and on the defensiveMore recently, Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”, https://verfassungsblog.de/open-letter-to-the-president-of-the-european-commission-regardingpolands- muzzle-law/.. Whether the faceless, visionless and spineless politics will follow the Court’s lead and will be up to the challenge of defending the most precious of European founding values, that of trust in the law and respect for the courts, is anything but certain.

This unbearable uncertainty stands as the ultimate proof of the critical juncture that the European project and its dream of creating of an ever - closer union among peoples of Europe finds itself at.

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In English

The Supranat ional Rule of Law as First Principle of the European Public Spa ce – On the journey in ever closer union among the peoples of Europe in flux

This analysis argues that the so-called reform of the Polish judicial system has sparked a paradigmatic shift in the case law of the Court of Justice. Responding to the referrals from Polish courts and deciding the infringement actions brought by the Commission, the Court of Justice has been taken to task and has stayed true to its mandate, or in the words of former Judge of the Court C. Kakouris, “its mission”, of ensuring “the supranational legality” within the sphere of application and interpretation of EU law. By insisting on the rule of law as the shared value of the European legal space and by explaining the components that make up the supranational rule of law, the Court has been enforcing the commitments of the Member States that have been always implicit in the constitutional design of the European legal order. However, while this emerging rule-of-law case law adds novel constitutional layers to the community of law, the queries as to its reformative potential, reach and significance go clearly beyond the courtroom and bring to the fore existential questions of mega – politics, identity and belonging

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