Core Subject: Important Challenges in European Governance

This course will engage with the so-called ‘constitutionalization’ of Europe and how it continues to transform but also challenge the Union and the member states. After the 2WW the EU established itself as an aspiring constitutional order with a strong supranational court and EU law primacy over national law. After the war and due to the atrocities committed by the nazi-regime, both the EU and most member states adopted a version of democracy where courts played a much stronger role than previously due to the need to protect the minority from the potential tyranny of the majority. As member states joined the Union, in particular, the Nordic countries and the UK were tacitly critical of this arrangement where courts could set aside decisions of the national parliaments. The course will look into this but go one step further and dig into the rule of law crisis in Central and Eastern Europe from the 2010s onwards.

In many ways the Hungarian and Polish populist right’s “illiberal” projects not only involved the centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society – but equally rejected EU law supremacy. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is mixed due both to limited tools and lack of political will. The course will address all these issues and also try to understand how the European institutions have reacted and even pushed back.

The so-called ‘constitutionalization’ of Europe continues to both transform and challenge the Union and the member states. Constitutionalisation is defined as the process which after the 2WW established the EU as an aspiring constitutional order with a strong supranational court and EU law primacy over national law. Due to the atrocities committed by the nazi-regime, most European states also adopted a new version of democracy where courts play a much stronger role than previously due to the need to protect the minority from the potential tyranny of the majority. This made ‘judicial review’ a ‘natural’ part of modern democracy both at the EU and the national level. Not all member states agreed to this model however. In particular the Nordic countries and the UK continued to see democracy as primarily based on elections and forming of majorities with a very weak role for courts. The course will address these diverse developments and look into what consequences it has had for the Europeanization process.

A specific focus in the second part of the seminar (after the fall break) will be to take the theoretical perspectives developed in the first part and apply it to how the constitutionalization process has played into the rule of law crisis from the 2010s onwards. Democratic backsliding in particular in Poland and Hungary will take centre stage but we will also draw on new literature that sees backsliding as an almost ‘legitimate’ or at least understandable reaction to the ongoing constitutionalization of European politics. Democratic backsliding in European Union (EU) member states is however not only a legal and a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes too drastic action, it may split the EU as well. In the final part, the course will therefore also look at the political reactions (rule of law rapports, Art. 7, infringement cases, rule of law mechanism). We will also dwell on the legal and political strategies coming from below at the member state level where legal mobilization is used by activist judges and civil society, to challenge backsliding using new alliances with EU courts. Finally, we will discuss whether the fact that the European court is increasingly forced to deal with more and more national cases on democratic backsliding, will specify European constitutional democracy even further. The question is whether this - in the long run – may challenge also majoritarian democracies and push them in a more constitutional direction.