Tag: populism

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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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 February 2018

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 by José Igreja Matos, President of the European Association of Judges/Vice-President of the International Association of Judges
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Populism and Judiciary

Judicial independence faces today, particularly in Europe, new threats emerging from populist political regimes.

Accepting the fundamental axiom that in a State based upon the Rule of Law, it is always up to the Courts to guarantee the effectiveness of human rights, and there is a strong operative connexion between the exercise of human rights – or the correspondent imposition of duties – and the mission conducted by the judicial systems.

This detected closeness explains the present decline of judicial independence in different regions, particularly within EU geographical space.

One the most interesting findings when analysing those countries deriving to populist and authoritarian policies is the immediate option, since the very early stages, for an vigorous attack on the independence of the judiciary propelled by surgical legislative reforms in the area of Justice. Recently in Poland, for instance, three different laws discussed in Parliament focused in nuclear foundations of judicial careers – Supreme Court, High Judicial Council and Presidents of First Instance Courts.
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Rose-tinted glasses might prove fatal: populists and their performances after the 2017 Dutch general election

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by Rita Costa and Tiago Cabral, members of CEDU
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Seven months have passed since our submission to the 2017’s edition of the Professor Paulo de Pitta e Cunha Award regarding the European Union’s existential crisis. In our paper, we stressed that the year of 2016 was marked by a rise of populism and isolationism around the world, and addressed that the European Union must reform itself in order to regain the citizens’ trust and reinforce democracy, even if doing so entails a revision of European Constitutional law.

In one of the paper’s final remarks, we wrote:

“On May 2017, the French go to the polls in the Presidential elections. The eurosceptic candidate Marine Le Pen is an almost certain lock for disputing the second round of the elections. Even if it is unlikely that she will ultimately achieve victory, the same was said of Donald Trump. In the Netherlands, Geert Wilders’ PVV might become the largest political party in the Tweede Kamer (lower chamber of the Dutch parliament). While it is almost certain that PVV will not be able to form a government because they will not achieve the required majority and do not have the support of other parties, such a result should be cautiously noted. In Germany, the dispute will be between Merkel’s CDU and Schulz SPD, none of them being an immediate risk to European integrity. Even so, AfD’s evolution in recent years is worrisome . (…) The political forces that wish for the disintegration of the EU have a lot of defects, but no one needs to tell them ‘di qualcosa, reagisci!’”

Now it is time to draw up the second chapter with an update on the 2017 European political landscape.

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Editorial of May 2017

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by Pedro Madeira Froufe, Editor
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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 July 2016

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by Professor Alessandra Silveira, Editor
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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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