Tag: Democracy

Editorial of December 2018

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 by Sergio Maia, Managing Editor

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Multiannual financial framework, budgets and elections: is there room for convergence?

Current status of EU politics barely hides that convergence seems more and more dramatic, as the elections next May are rapidly approaching amidst uncertainty, Brexit and national populisms. Despite the signal Emmanuel Macron attempted to send recently by addressing the German Bundestag – the first French president to do so in 18 years – in favour of unity against chaos, there is little doubt that the moment is of euro-tension, somewhat of pre-storm. Italy is (literally) stepping on the European Commission’s budgetary recommendations; Brexit withdrawal agreement conclusion is an incognita on the British side (there is also the preliminary reference on its revocability under appreciation in CJEU); Steve Bannon is trying to fund extremist right-wing candidates for the European Parliament election; Poland is disguising its real commitment to implement CJEU interim measures; new migration rules are not settled, etc.

On top of that, there is an ongoing negotiation for the next multiannual financial framework (MFF) and in parallel proposals for a Eurozone specific budget as of 2021 – which was the underlying pretext for Macron’s speech at the Bundestag. The original idea of the French president was to equip the Eurozone with a separate budget to assist Member States experiencing instabilities in their economies. In other words, it would serve as a sort of debt mutualisation guarantee in critical times. This was only insidiously mentioned in the Meseberg Declaration, but it was mentioned nevertheless. The motivation for this tool was to provide an enhancement of the general balance between European economies so that the different levels of development in the EMU could be compensated for the benefit of Euro (stabilisation, prices) and trade flow in the internal market.
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Poland and the Crisis of Rule of Law: “Alea Jacta Est?”

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 by José Igreja Matos, President of the European Association of Judges
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October 19th 2018. The Vice-President of the Court of Justice ordered the Republic of Poland to immediately suspend provisions of the recent Polish law on the Supreme Court that lowered the retirement age for Supreme Court judges to 65 years, which would have the effect of removing nearly one-third of the Court’s judges.

One month has passed. Nothing happened.

Quite the opposite, in fact: on 9th November 2018 the new Polish National Council of Judiciary issued a resolution that concretely blocks the interim measure of October 19th. To be more precise, the resolution contains a threat of disciplinary responsibility for the reinstated Supreme Court Judges, if they perform official duties. Obviously this resolution may have a considerable negative impact on the way the order of the Vice-President of the CJEU is being carried out.

In this context, it must be underlined that, on 17th September 2018, the European Network of Councils for the Judiciary (ENCJ), after considering that an essential condition of ENCJ membership is “that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice” decided to suspend the membership of the Polish National Judicial Council, the KRS, in the ENCJ.
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Editorial of November 2018

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 by Alessandra Silveira, Editor

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In the face of globalised populism, European Union as a kind of “life insurance”

In case C-619/18, Commission v Poland, pending judgment by the Court of Justice of the European Union (ECJ), the European Commission has requested the Court, in the context of interim proceedings, to order Poland to suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges,[i] among other measures.

As the ECJ Press Release No 159/18 briefly explains, on 3 April 2018 the new Polish Law on the Supreme Court entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65. The new age limit applies as of the date of entry into force of that Law. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his/her duties and a certificate stating that his/her health conditions allow him/her to serve, and must be consented to by the President of the Republic of Poland. Thus, according to the Law, serving Supreme Court judges who reached the age of 65 before that Law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a statement and such a certificate by 3 May 2018 inclusive and the President of the Republic of Poland had granted them permission to continue in active service at the Supreme Court. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Furthermore, the Law on the Supreme Court gives the President of the Republic of Poland the power to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.

As we know, the Vice-President of the Court, Ms Rosario de Lapuerta, on 19 October 2018, provisionally granted all the Commission’s requests – and Poland must immediately suspend the application of the new Polish Law on the Supreme Court.[ii] The legal basis of such ruling, relying upon judicial independence as a general principle of EU law and as a fundamental right protected in its order, has been built in the recent ECJ case-law, especially in judgments Associação Sindical dos Juízes Portugueses (ASJP) and LM[iii].
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Editorial of March 2018

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 by Tiago Cabral, member of CEDU
▪

Homeopathic Democracy: The European Power Struggle over the Spitzenkandidaten

1. According to article 17(7), TEU “taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members”. There are several issues in this article, some of them we even had the opportunity to discuss before.

2. In fact, when talking about the President of the European Commission (EC) it is quite a stretch to state that there is an “election” by the European Parliament (EP). Politically inspired wording notwithstanding, the truth is that the European Council (ECON) holds most of the cards in the selection of EC’s President and the balance of power tends to favour this institution. There are also some notorious similarities between the position of the EP in relation to the ECON in the selection of the President of the EC and the position of the EP in relation to the Council in the consent legislative procedure. While it is possible to argue that there is an “indirectly-indirect election”[i], we believe that it would be more accurate to state that the Parliament approves and has veto power over the ECON’s choice.

3. However, the 2014 elections to the EP brought with them a rather interesting innovation: the Spitzenkandidaten (leading candidate). This procedure aims to give “direct” or at least “quasi-direct” democratic legitimacy to the President of the EC by tying the nomination to the EP’s elections. First the political parties choose their leading candidate, then the people vote, then the ECON and EP obey their will by confirming candidate chosen by the citizens[ii]. There is some debate on who should be nominated by the ECON and approved by the EP, the candidate from the party who won the most seats in the elections or the candidate from the coalition best placed to guarantee a passing majority. Under the current Spitzenkandidaten rules the second choice seems to make the most sense. Nevertheless, it seems likely that in the current European political climate the candidate from the biggest party will also be the best positioned to achieve a solid majority.
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On the Catalan separatism and the political comprehension: democracy is (must be) more than voting…

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 by Alessandra Silveira, Editor

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On October 1st, we watched stupefied and live the events around the unilateral declaration of the independence of Catalonia. The European Commission has resisted the persevering attempt of the Catalan separatists of converting the Catalan question into a European question.  President Juncker considers that is an internal issue of Spain and the decisions of the Spanish courts and of the Spanish Parliament should be respected. Unpleased, the separatists spread on social medias messages claiming the application of article 7, Treaty on the European Union, i. e., calling on the suspension of the rights of a Member State due to the use of military force against its population.

We shall then make a brief exercise to test the conformity of such argument and try to understand why the EU has resisted taking parting in this imbroglio. What were the Spanish police doing in the voting pools? They were assuring the execution of judicial decisions – of the Spanish Constitutional Court and the Supreme Court of Catalonia itself – aimed at preventing the realization of an unconstitutional and illegal referendum, organised in clear violation of the rule of law. Or, more concretely, the policemen were apprehending documents and instruments destined to facilitate the voting, especially ballot boxes, computer equipment, ballot papers and propaganda papers – and reacted against the ones who were trying to hinder their action.

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Editorial of May 2017

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by Pedro Madeira Froufe, Editor
▪

Europe: “Ceci c’est pas une pipe!”

Populism has manifested itself not only in the form of public (or at least published) streams of public opinion, but also through the result of (naturally) democratic and legitimate electoral acts. And such cases of populisms materialised in the exercise of representative democracy, generated in the democratic institutional functioning in the context of the rule of law, begin to not be unusual. Deep down, we have seen expressions of populism that acquire power and influence (sometimes determining), with an anti-democratic tendency, created by democracy itself.

Populism appears nowadays as especially adjusted, attractive and intellectually comfortable for a considerable part of the European and American population (in other words, for a large amount of the electorate). There are, as I see it, several reasons, mostly articulated, that cause this relative outbreak now with direct political consequences – that considerably surpass the juridical-constitutional dimension. Those causes are not exclusively attributable to dysfunctions in the dynamics of the democratic institutions.

Such reasons are rooted also in something deeper and concrete than the legal abstraction or the political activity and representation: it has to do, to a great extent, with our current way of life and cosmovision in the context of the technical societies of information and – why not say it – abundance. It should be noted that the intention is not to disregard the existence of reasons attributable to the bad juridical architecture and the bad political functioning (or even the bad performance of politicians); but they are not the only explanatory causes for populist phenomena that disturb democracy….

I won’t reflect or develop, at this occasion, the issue of the causes non-directly juridical, or institutional, of populism. They might also be sociological and cultural tendencies; they could be as well a reaction to extremisms, relativisms and the loss of collective references resulting from the erosion of gregarious institutions, social and natural. That erosion has a lot to do with the overvaluing and a revival of tendencies (neo)hedonist and (neo)utilitarianist which have been potentialized particularly well with the economic growth, modernity (especially in the post-war) and, lately, with the immediacy (created by technology and consequent globalisation). From the legal perspective, such relativism makes it difficult to understand normatively the basic principle of equality, turning it into a principle of the existential relativism: everything is equal to its opposite, blurring and even disabling normative senses, decisions and value options, as everything is equivalent.

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Editorial of February 2017

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by Alessandra Silveira, Editor
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On the Southern EU countries summit – challenges of democracy in times of austerity and dismay

Last Saturday, 28 January 2017, seven Member States from the south of Europe (Cyprus, France, Greece, Italy, Malta, Portugal and Spain) gathered in Lisbon to send the message of their national public opinions to the public opinions of the other Member States of the Union: surely the EU has to fight terrorism and to adopt a cohesive migration policy but such issues cannot bypass the attention towards the economic problem. It is a clamour of the Southern Europe in the regard that economic convergence becomes priority in the EU’s strategy through policies that create financial capacity in the euro zone and the development of European programmes to support investment. In the horizon, there would be solutions which involve a larger risk sharing – as the adoption of common taxes, an European system of bank deposit guarantee, common debt issue (eurobonds) as well as policies of positive discrimination in favour of indebted Member States that fulfil the adjustment rules.

The message of the citizens from the south of Europe holds that they advanced in the structural reforms and budgetary consolidation as much as it was possible (and the results in Spain and Portugal, mostly, are clear). But under the current circumstances of strong indebtedness and high unemployment it’s impossible to carry on without some relief from the financing constraints. Otherwise the Mediterranean societies will be driven to a situation of social rupture with unpredictable consequences, considering the populisms that lurk around. All that is inserted in a broader debate that the European institutions are facing on how to produce more jobs and better economic performance so that the European citizens can again see the European integration as an asset in their lives. It wasn’t for a different reason that in the first session of January the European Parliament approved a report on the Social Pillar (here). In the same regard, in March the European Commission will submit proposals aiming at reinforcing the social rights – that is, the access to minimum wage and minimum insertion allowances, access to a compulsory health insurance, extinction of unpaid internships, etc. In a year in which there are elections in several Member States, the strengthening of social protection means a European strategy to hinder the adhesion to populist movements.

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Editorial of September 2016

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Pepper Police @ Dresden Nazi Frei

by Mariana Canotilho, Editor
 ▪

Democracy at the crossroads

A little over one month ago, the European Commission advanced its disciplinary procedure against Poland, after accusing Warsaw of failing to address concerns over democracy and the rule of law in the country. The Polish government reacted harshly, stating that this is not the kind of presence in the EU they have agreed on, and affirming that the procedure goes beyond the Treaties and the Commission’s competences.

The situation in Poland is serious but it is not unique. Hungary was the precursor in the authoritarian drift. The Tavares report on the country, published in 2013, denounces the weakening of checks and balances, especially the actions against the Constitutional Court, the Parliament and the Data Protection Authority, the undermining of the independence of the judiciary, the restrictions to the rights of persons belonging to minorities and the interference with the media and the right to freedom of opinion and expression.

The Union has strong reasons to fear the dissolution of the rule of law in the East. But the process of re-engagement with it is long, difficult and complex. One of the more obvious difficulties, from a constitutional law point of view, is that the EU’s own track record concerning democracy and the rule of law during the last ‘crisis years’ is at least fuzzy.

The ongoing crisis has been used to contest the steps taken during the last 15 years towards the parliamentarisation of the EU. In fact, there is a remarkable institutional change within the Union – both at national and European levels – promoted in the framework of an ‘emergency politics’ that tends to enhance the powers of executive authorities and of informal, non-accountable, decision mechanisms, in detriment of democratic representative institutions.

Furthermore, the EU has promoted necessity over democratic consent and effectiveness over deliberative reason as decision’s criteria. It has allowed, justified and sometimes even actively furthered the weakening of constitutional mechanisms that control and limit the exercise of power. This has clearly limited the space for well-minded critics, for alternative proposals, for self-reflection and correction of mistakes. Paradoxically, it has also, as the cases of Hungary and Poland sadly demonstrate, opened the floor for the true enemies of European integration and European democratic values. Will the Union still be able – and willing – to save them?

Picture credits: Pepper Police  by MonteCruz Foto.

Editorial of July 2016

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by Professor Alessandra Silveira, Editor
▪

Every cloud has a silver lining. On the referendum able to push forward the unity of the Europe and the disunity of the Kingdom

Modern democracy, with which the West has lived since the liberal revolutions, is representative – exceptionally accompanied by moments of semi-direct democracy through referenda or popular consultations. Such exceptionality is based on the very survival of democracy as referenda hardly ever manage to escape high doses of manipulation and abuse. When Hans Kelsen was asked once about the rightfulness of popular consultation, he allegedly answered that, despite they make sense in certain situations, it should not be forgotten that an uninformed population preferred Barabbas over Jesus Christ. This metaphor illustrates one of the main assumptions of the democratic theory (which no one described as brilliantly as Norberto Bobbio): the excess of democracy may kill it.

This becomes crystal clear in the referenda (supposedly) on European issues, tendentiously instrumentalized by national political elites that convert them in arenas to internal disputes. The day the world awaked in astonishment with the results of the British referendum, the top questions at the social networks and search engines in the United Kingdom on the European Union since the Brexit result was officially announced were: “What is the European Union? What does it mean to leave the European Union?” That reveals that many British have voted without really knowing what the EU is or what it stands for in their daily life.

And so 17 million British, deceived by the most despicable demagogy, decided about the destinies of 500 million European, subverting the most elementary democratic rule of a polity – the one of majority will. They did so openly for the worst reasons – fear, hostility, xenophobia, all wrapped in the sovereignty narrative –, offering weapons for the Leftist and Rightist populisms all over Europe to wield a speech against the Brussels’ technocracy. The same technocracy that will stop paying grants to British agriculturists, that will cease supporting research in the British universities, that will discontinue the stimulation for the movement of British Erasmus students, that will interrupt law-making towards promoting equality and non-discrimination among the British.
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General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 1]

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[This is the introductory part of a comment on the Portuguese elections aftermath, the author will provide further updated analysis on the topic.]
by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho
▪

Before the third and final beep sounds – which is in theatrical and operistic traditions the last notice for the foyer to be vacated and for seats to be taken – I must briefly point out that my goals with these contributions and this category are not properly rigorous from a scholar vantage point. Academically strict writings are to be found on Reviews and Essays. What we are looking for here on News and Comments is inter alias to encourage free and open debate, a reflection start-up so to speak. So… take your seats and take part!

i) As in every premiere, it seems only suitable to meta-analyse what lies before us. UNIO Blog comes to stage at just the right time to promote academic discussions involving the European Union and its legal/political system throughout society. In the path of the finest European tradition, the Centre of Studies in European Law of University of Minho (CEDU) deserves a project of this kind due to its acclaimed reputation. Research centres of European DNA are known for their critical autonomy and for spreading ideas, for scientific freedom and for intercultural pluralism. Concerning both their agents and their contents. Know this, all readers, authors, partners and critics, such values are in the core of this blog. They move it.
Some of the greatest journals and reviews of the world keep a platform like this one in order to enhance more informal, open and free considerations amongst their collaborators. Unlike the American experience in which it is absolutely and placidly accepted the express and public defence of a certain line, stream or current of thought as well as its interests´ protection to which the think tank adheres, this space is the respectful democratic house of the most diverse scientific-academic theoretical orientations.

ii) Let´s move to the substantial matter of this comment.
The subject has been on the news. Portugal has been seeing a complex election afterwards situation. Not only politically, but also historically and legally/constitutionally. For the first time in 40 years, – that is since democracy was re-established with the dissolution of the Salazarista regime – the winning party is not able to present a stable government proposal. The coalition between right-wing PSD (89 elected members) and CDS (18) does not hold majority in the Parliament and it has failed to accomplish some sort of agreement (by abstention, for instance) with the Socialists (86) and Leftists (19 + 15 + 2). Altogether the latter group can compound an absolute majority to form the government.
Apart from questions concerning the legitimacy of an alliance shaped only after the elections and the anti-EU agenda of leftist parties, the issue that interests us here is the formation of a new government.

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