1 Introduction

Over the past decade at least two EU Member States, Poland and Hungary, have taken a notable nosedive in democracy rankings.Footnote 1 A core aspect of this have been attacks on judicial independence. This is problematic at a normative and political level. The EU is premised on being and can only function as a club and political community consisting solely of liberal democracies. A construct that is at its heart a community of law cannot exist without independent judges all over the EU. But what is often less visible is that it is also problematic at a more personal level, in the sense of creating impossible choices for individual judges. Some of them have faced serious consequences when sticking to their oath to protect and uphold the law.

This short contribution highlights both normative and political aspects of illiberal tendencies within the EU and more personal consequences for those standing up to protect the rule of law (Sects. 2 and 3). It will then suggest three lessons to be drawn by EU institutions (Sect. 4). It argues that, perhaps paradoxically, protecting the rule of law in Europe may require focusing on fewer instruments than are currently applied but applying them comprehensively and more quickly. But it also argues that more practically supporting those who personally stand up to protect the rule of law is both fully possible and essential.

2 The Nature and Consequences of Backsliding of Judicial Independence in the EU: Anatomy of a Non-response and Legalised Undermining of the Rule of Law

The slide to illiberalism within the EU, and the EU’s response to it, has been well documented.Footnote 2 Ever since the situation in Hungary and Poland started spiralling downwards, the Commission and other EU institutions have been quite slow in responding. The Commission has not responded to all aspects of the attack on issues such as judicial independence, has not often used the possibility to request expedited proceedings, and has been slow in asking for financial penalties in cases of non-compliance with Court of Justice rulings. Other Member States share the blame, as they have so far refused to start infringement cases where the Commission refuses to do so. All of this is all the more surprising, because the Court of Justice has consistently ruled to strongly defend judicial independence. But it is dependent on “supply” of cases.

A good example of a resulting concrete dilemma for judges across Europe is how to go about applying the Framework Decision on the European Arrest Warrant. Particularly Dutch and German judges are visibly struggling with the question how they can guarantee fair trial for suspects or those convicted under their jurisdiction, when their transfer is requested by Polish judges. Is it possible to be sure that any person will receive fair treatment if the European Court of Justice has itself pointed out various fundamental problems with the highest courts in Poland due to political capture?Footnote 3 Even if the answer seems pretty clear legally – no – so far the Court of Justice has opted to save the instrumentFootnote 4, likely because the concept of mutual recognition is so fundamental to so many EU policy areas. This shows just how fundamentally the EU as a form of cooperation gets challenged when judicial independence is under pressure.

Instead of using this as a sign to double down on enforcement to protect judicial independence, EU institutions have largely focused on issuing more reports and inventing ever new tools and procedures.Footnote 5 A lot of attention has gone to the Article 7 TEU procedure, which has not led to any concrete result, most specifically because Hungary and Poland can support each other when needed to avoid a European Council decision to suspend voting rights. Moreover, a tremendous amount of policy energy has gone into producing the so-called rule of law reportFootnote 6, which has had very little discernible effect in changing the situation in the Member States where the problems are the biggest.

This has had a doubly detrimental effect. Not only has it failed to stop backsliding. It has lulled many into thinking we were addressing the problem. What amounted to collective European non-action has effectively created an open opportunity for governments, like the Polish and Hungarian, to push through a political agenda that is harming the EU’s foundations, including also judges specifically.

In this respect, an aspect that is not frequently called out in these terms is that part of the strategy of these Member States is to use Union law and procedures to their advantage. Much of this happens behind closed door, but not all of it. Hearings at the Luxembourg Court are public. What you hear the Polish and Hungarian government’s agents argue in that courtroom, away from cameras and diplomatic filters, is remarkable.Footnote 7 They are completely open in their disregard for the most basic concepts of EU law.

When it comes to judges specifically, and the Polish government’s agenda to suppress those who are independent and impartial, it even openly lies. Judge Waldemar Zurek has explained this well in the documentary Judges Under Pressure. Rather than him being a “communist element” needing to be expelled from the judiciary, he was actually part of the resistance against the illiberal regime before 1989.

Unsurprisingly, the Polish government has a 100% record in losing its cases in Luxembourg. But we would be very much mistaken to think this is a sign that EU institutions are intervening successfully. As was argued eloquently by Scheppele c.s.Footnote 8 the Polish government is, in fact, “winning by losing”. Its strategy is to play for time while abusing procedures and change facts on the ground. The Polish government, not the EU, controls the narrative and dynamics of the interaction.

It continues this, as we saw pronounced through the politically captured Polish Constitutional Court in October 2021, which stated that the primacy of Union law is at odds with the Polish Constitution. The building that used to house a court is now completely barricaded off, protected by police. This is the reality where Polish judges, NGOs and soon perhaps the media, are basically running out of options and time to protect the rule of law relying on EU law without much outside help. In Hungary the situation is even worse.

3 Defending the Rule of Law: The Importance of Considering the Personal

On 25 April 2002, when still a student, I learned perhaps my most important lesson about what it takes to defend democracy and the rule of law. With a group of other students from all over Europe I spent that day with António Marques Júnior. He was one of the low-ranking military officers involved in the carnation revolution on 25 April 1974. Later he served in the Council of the Revolution and eight consecutive terms in Portuguese parliament: an iconic figure for Portugal’s transition towards a democracy.Footnote 9 He invited students to join him for the yearly parade on Lisbon’s Avenida de Liberdade. I still remember the faces of those standing along that magnificent boulevard as they shouted the slogan “25 April forever: fascism never again”: 28 years after the revolution they came to pay tribute to those who had changed their lives.

Over dinner, at his home (and after glasses of symbolic 1974 port wine were poured), Mr. Marques Junior gave a short and quite simple speech that became a very formative moment – and deeply informed how I study today’s rule of law crisis. He insisted that, rather than something essentially normative or even political, fighting for democracy and the rule of law is above all very practical. It is an endeavour that is often against the tide, sometimes at personal risk. He cautioned that you will usually hear more arguments against action than for speaking and acting up. This requires that rule of law defenders remain persistent and creative in hammering home the basics of their beliefs. The rule of law, he taught me, is a verb.

In the here and now, this also applies to judges. Some have had to make stark choices that should be unimaginable in an EU based on the rule of law, and sadly have remained largely hidden from decision-makers. They have had to pick between honouring their oath and putting their career and livelihood on the line. Polish Judge Igor Tuleya is a notable example. In the documentary Judges Under Pressure he recently explained why he took this course:

“If I weren’t doing this, I would feel as though I ran away at the crucial moment

The energy I use up to mobilise, to force myself to act comes at less of a cost

Than a sense of worthlessness I would otherwise feel the rest of my life”

Should we really be basing our community of values on such a principled stance only few will dare?

Shortly afterwards the illegal Disciplinary Chamber of the Supreme Court lifted his immunity. After watching this on a livestream, Judge Tuleya opened his email and scrambled to send a reference for a preliminary ruling to the Luxembourg Court before he would be cut off from the internet by the judicial authorities. Asked why he wanted to do this, he answered: “Because it is the last thing I can do”. Do we need a better illustration of how ineffective the EU’s response has been? Do we have a better illustration of how important the EU could be to those fighting to protect the rule of law – if only it got its act together?

4 Courses of Action: Less is More, but the Personal Should also be More Political

So what should EU institutions do first at this stage to walk their talk about the importance of protecting the rule of law? There are essentially three elements, which will be discussed in turn. They are easy enough to formulate. But since we are in a situation where action has been too late, they will require some immediate choices that would be disruptive in the short term, and clear leadership to follow through on.

The first thing is to acknowledge the urgency and nature of the problem and call it by its name. EU institutions continue to talk about constructive dialogue. This is misguided because a dialogue takes good faith partners on both sides. It is also increasingly hard to justify now that the European Parliament, in a recent resolution, has declared Hungary is no longer a liberal democracy.Footnote 10 It only takes one morning of listening in at a hearing at the European Court of Justice in Luxembourg to realise that this is simply not where we are today.

We need to be aware that we therefore currently have not one, but two rule of law debates.

One between liberal democratic Member States and others, quite another amongst Member States that are liberal democracies. The first debate is much more important and urgent – and should take priority.

Second, EU institutions, and therefore not only the Commission but also Member States composing the Council, must act accordingly. It may sound paradoxical and counterintuitive, but their biggest challenge may be to discontinue a lot of rule of law activities. It is reasonable to have a dim view of the use of the rule of law report when it comes to where the problem is. Neither is there much reason to think that more more resolutions or conclusions adopted by the European Parliament or the Council of Ministers will change matters. It is a drain on resources, sends the wrong signals, and sets us up to continue what has been rightly called “losing by winning”.

There are two things that should be upped, though: hard law and real support. Both are the likeliest tools to blow a hole in the story illiberal governments tell at home. First, applying hard law. Infringement actions, combined with interim measures, and followed by enforcement are still underused. E.g., why is there still no action directed at the captured Council of the Judiciary/neo-KRS in Poland? How can the EU expect to halt the problem without closing the tap of illegal judicial appointments? We can also immediately apply the rule of law conditionality regulation, in force since 1 January 2021, not only with regard to Hungary but also with regard to Poland.

Not guaranteeing judicial independence is a rule of law problem that justifies blocking EU funding, because it is a risk affecting the sound financial management of EU funds in a sufficiently direct way. Why? It is practically and logically impossible for judges to be independent on a part-time basis or within a specific sector only. As a side-note, the rule of law conditionality regulation also necessitates that rule of law defenders learn the dull language of budgetary experts to make a difference where a real difference can be made.

It is also essential for EU institutions to be proactive for once. Clearly, the next battleground in Poland and Hungary will the media and the elections. The Commission has seen this, and has proposed new legislation, a media freedom act. This is not the right way to go, both in substance and strategically. After all, one does not need a crystal ball to predict it will first take a while to develop, then be watered down by the illiberal governments it aims to target, and then be challenged in front of the European Court of Justice.Footnote 11

Instead, as this author has argued with Prof BodnarFootnote 12, the Commission can immediately protect media pluralism and elections by basing a legal action on EU citizens’ existing active right to vote. The argument is that such a right, which is fully covered by Union law, is meaningless without access to a plurality of information sources – and effet utile is a basic notion of Union law.

But apart from hard law, and I want to stress this, there is also practical support measures. Polish judges have often told me they do not feel taken seriously by EU institutions. I can understand why. We live in a Europe where Polish judges need to crowdfund to financially support their illegally suspended colleagues whose salaries have been cut to set an example.

Why has the Commission not issued a public statement that it will the 1 million euro/day fine, imposed to stop activities of the same Disciplinary Chamber that illegally suspended these judges, to support them? Why does no Member of European Parliament or Member State jump in at this open invitation to make a difference?

The last point is simple too: prioritise this above all else. Even if we often get a sense that the different silos within EU institutions have a life and logic of their own, the rule of law is not an isolated, self-contained policy area, on par with others. It is foundational and conditional for anything that can be sustainably achieved in each and every one of the Commission’s policy priorities, e.g. environment, digital affairs, migration. Put differently, any perceived progress in any of these policies will actually be worthless without more stringent rule of law enforcement – after all, who will check compliance? Perhaps this is a point we should be making more often, and more creatively.

Because of the EU’s past failure, we now have to work on this while 2 Member States are no longer liberal democracies, are no longer fully applying Union law but do still have their voting rights. Make no mistake, true rule of law enforcement action may be incredibly disruptive in the short term. Things will have to get worse before they can get better. But there is no middle ground. To protect the rule of law, EU institutions need to protect judges unconditionally. There cannot be meaningful EU cooperation without independent judges.

5 Conclusion: The Connection Between António Marques Júnior and Igor Tuleya

In January 2020 I met Judge Igor Tuleya for the first time, in Warsaw. On that occasion I gave him a note to thank him for taking the time to talk to me and to express my personal admiration for his fight on behalf of all of us. It was inspired by Antonio Marques Junior’s 2002 speech and read:

“Protecting the rule of law in Europe is always practical and concrete

Benefiting from the EU’s free movement I first learned this in Portugal

There the carnation became a symbol of peaceful transition

From autocracy to democracy on 25 April 1974

Shorthand too for personal courage in the face of adversity and risk

The Dutch are famous both for flowers and for being stingy

Producing wooden Portuguese carnations sums us up quite well

In this case that European cooperation has a powerful silver lining

It illustrates that the carnation cannot, and will never go bad”

In November 2021, just before the screening of the documentary Judges under Pressure in Amsterdam, Judge Tuleya pulled me aside. He wanted to show me something. What came from his wallet was the back image to the text I had given him almost three years earlier: an iconic image of 1974 Portuguese soldiers with carnations in their riffles - https://portugaltravelguide.com/carnation-revolution/. This brave Polish and European judge had been carrying it with him for almost three years. Is there a better way to illustrate how António Marques Júnior’s lesson still resonates across Europe, and how is fight is a pan-European one?