“Die Gemeinschaft ist Rechtsgemeinschaft und wird nur durch die Autorität des Rechts zusammengehalten.”

Everling, Zur Begründung der Urteile des Gerichtshofs der Europäischen Gemeinschaften, (1994) 29 EuR 127

With the Irish judge referring questions to the Court of Justice and asking how the capture of the Polish judiciary affects her duties under the European Arrest Warrant regime has dramatically changed the landscape of the European rule of law crisis. With national judges stepping into the breach, a new legal channel is opened through which to address the crisis. We are witnessing a switch from the classic paradigm of EU law of «judges asking judges» (dialogue via preliminary rulings) to a more demanding « judges monitoring the judges ». This is crucial given the ineffectiveness and misguided calculations of the political institutions of the EU. With the questions posed, and concerns raised, about the systemic damage done to the Polish justice system, the Irish judge acting in her capacity as the EU judge of general jurisdiction, has elevated the discourse about the EU rule of law crisis to another level. We are now moving away from the political arena marred by cynicism and rotten compromises to the courtroom with its own logic and principles. Judges own their loyalties to the Treaties and the law that they are supposed to uphold (art. 19 TEU). The constitutional stakes could not be higher. Yet to fully grasp the constitutional importance of what has happened in the Irish High Court, the referral must be placed in more systemic and temporal context.

The «Overlapping Consensus »: The Concept   

Rawls has argued that “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 justice”. Consensus does not cancel diversity, quite the contrary: It responds to, and acknowledges, that society is built on diversity. Overlapping consensus requires agreement on fundamental commitments of principle: It is these essentials that I require others to respect as the condition of my own deference to decisions taken by others. In order to achieve the overlapping consensus, excluding from the consensus actors with unreasonable and irrational doctrines is not only justified, but necessary. Importantly there will never be a perfect agreement on the constitutional essentials that define the consensus as denying the disagreement would be counterfactual: persistent differences between citizens living together in a constitutional regime do create a disagreement over the final shape of the essentials. Rawls claimed that many disagreements among citizens in their understanding of justice can nevertheless lead to similar political judgments and these similar political judgments can then lead to “overlapping rather than strict consensus”. What matters, though, is that parties to the consensus agree that these disagreements will be ironed out, and spelled out within the discursive framework.

How does this matter to the EU?

 The “European Overlapping Consensus” and the Power of Bargaining

At its heart, the European overlapping consensus has the constitutional tolerance and an agreement on fundamental commitment to First Principles that parties to the consensus expect and require others to uphold. The overlapping consensus relies on the acknowledgment by the members of multiple societies that they understand the essentials that bind them together and are ready to honour the influence of others on the interpretation of shared commitments. We might be different, yet we decide to paddle and look to the future together. Any attempt to remove the disagreement and difference from the European politics would be futile given the diversity of the states. Disagreement must be part of the European common enterprise and must work as a desired check on the natural centralizing push of the center (EU). The time factor is important here: 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 it”. “We”, in the shape of the peoples of Europe, have agreed to respect others’ way of life, provided that their lives and decisions respect mutually agreed-upon essentials and fundamental values.

The essence of the consensus is procedural and speaks to the plural character of the EU legal order. 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 himself 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 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 divisive 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 preemptive and aims at diffusing the tension and framing the disagreement before it escalates into 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. Consensus lasts as long as there is a bona fide desire to strike the reasonable balance between European unity and national diversity. It recognizes that the result must be always a function of two sides talking to each other. Bargaining is a less diplomatic form of dialogue (“good-mannered dialogue will sort it out somehow”) because it faces up to the reality that sometimes a conflict will indeed require one party to the disagreement to step back and defer. However, this will never cancel out the validity of the consensus because disagreement and deferral are not seen through antagonistic lenses, and commonality of the core values continues despite occasional frictions. If anything, the contours of the original consensus might even evolve in response to the repeated calls for re-examination of the original deal, without however calling into question its very identity built around rule of law, democracy and human rights.

This pragmatism recognizes the validity and relevance of the original position of all participants in the bargaining. It holds out a hope that the discursive opening will allow the participants to co-exist and make the system work. Importantly, the latter’s survival will depend more on the factual, rather than the normative. The factual is front and center, because both legal orders have an equal right to win from their own unique perspective. While each order claims the authority, it does not entail the automatic rejection of the claim made by the other. What matters is how these legal orders, each autonomous in its own right, enforce their application and respect. The bargaining placed at the service of the overlapping consensus is based on the most basic commitment of all the constitutional actors: to ensure the functionality, and the coherence of the system while at the same time searching for a compromise to accommodate all plural voices within it. There is an overarching duty to strive for such maximization of the conformity given what is possible in the factual and legal registers. However, acceptance of pluralism as part of the consensus is double-edged sword. It spells the duties for all parties to the consensus. On the one hand, as was rightly pointed out by Professor K. Lenaerts, it „means that each national society remains free to evolve differently to its own scale of values. Value diversity must, where possible, be respected and preserved by the EU”. On the other hand, given the fact that pluralism is not an absolute value, national legal order must be other-regarding in that it must comply with any constitutional consensus that exists at EU level.

The Rule of Law as the “Heart of the European Consensus”

The Polish constitutional debacle provides an unfortunate example of how the European consensus built around the rule of law is being eroded from within. The Polish populist government claims to be respecting the rule of law, but 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 more dangerously, that there is no agreement on what the rule of law entails in practice (application). This argument brings to mind what Cass Sunstein called “incompletely theorized arguments”. He has argued that under the conditions of serious disagreements, constitution-making can only become possible if people agree on certain practices rather than on abstract principles or grounds justifying these practices. Alternatively, incompletely theorized agreements might as well obtain when people agree on abstract principles , but not necessarily on what these principles entail in practice.

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, 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, however, the rule of law is understood as a fundamental principle with a clear non-negotiable minimum. Modern constitutionalism accepts that in the absence of the rule of law, contemporary constitutional democracy would be impossible. At a minimum, the rule of law requires fairly generalized rule through law; a 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 law. The authority that binds together the Community (Union) is the law and the respect for the law. That was the principle that underpinned the original consensus in 1951 and continues to do so now. The rule of law in the EU has a clear core and must be seen as an essential part of the consensus. It is a fully theorized argument with minimum content, both at the level of practice and principle. Independent and impartial courts and effective judicial review are at the heart, not at the margins, of the EU rule of law. Similarly, the case law of the Court of Justice provides strong arguments in favour of interpreting the rule of law as one of the meta-principles of the entire constitutional framework of the EU. It is the interpretation that might change, but the hard core of the principle stays: separation of powers, effective application of law, judicial review, right to an effective remedy, principle of legal certainty, legitimate expectations and the principle of proportionality. The rule of law must be recognised to be one of the foundations of the consensus in the sense that the Court’s spoke in case 106/77 Simmenthal of the supremacy of EU law as forming “the very basics of the EU legal order”.

How does this matter for the consensus? Without the commitment to the rule of law and the continuing confidence that parties to the consensus will guarantee the independence of their courts, parties would have never been able to come together, and to defer to each other, in the first place. This is exactly where the European consensus faces an existential challenge.

A Crumbling European Consensus ?

The politics of resentment call the original narrative built around the rule of law 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. The politics of resentment poses an existential threat to the consensus because the commonality of values and interests is replaced with unbridgeable difference. The values that brought together the parties to the consensus are now given distinctively national interpretation without regard to others and the EU legal system. An argument is made that the concept of common values is too ephemeral and far from crystalized. Given the fundamental and persistent disagreements over basic (not just any) values that the politics of resentment bring to the fore, the pressing question is whether “we” exist at all. With different conceptions of the rule of law (no independent judiciary, checks and balances and judicial review) and human rights, the consensus is coming apart at the seams. These concepts were thought of as the basic minimum that all the parties to the consensus agreed to respect when they decided to join. The consensus loses its discursive value when Poland rejects bargaining and, rather than “voicing” its concerns within the pre-agreed framework that consensus offers, choses to “exit” unilaterally.

We should be clear about the kind of challenges the European consensus is facing right now. With the politics of resentment on the rise, „the European consensus” might be just minutes away from a most fundamental challenge of “mega-politics” of identity and self-survival. Why? The „overlapping consensus” recognized that the European polity is composed of distinct peoples and respects other peoples’ ways of lives. Yet, for a consensus to work, „we” the European peoples’ should acknowledge certain fundamentals that bind and discipline us and that brought us together. Part of the deal behind the overlapping consensus has always been the acknowledgment that parties are ready to enter into a bargaining process in order to find similar grounds of understanding of the fundamental commitments. Bargaining presupposes managing the disagreement over time in order to build a common understanding of the basic principles.

However, parties with unreasonable and irrational doctrines that question the liberal democracy as a form of government must be excluded from the consensus. This is so because the disagreement must not undermine all parties’ commitment to support liberal democratic principles under a democratic constitutional regime. The emerging constitutional doctrine of the politics of resentment is anything but reasonable and rational within the meaning of the consensus that brought parties together. Resentment-driven constitutional capture in Poland undermines the very idea of Europe, together with the principles of liberalism, tolerance, ‘living together’, and ‘never again constitutionalism’. It replaces these founding principles with zero-sum politics, a vision of ‘us vs. them’ and a competing constitutional narrative of fundamental disagreement over values. It proclaims that “we, the European peoples” are not ready to live together in one pluralistic constitutional regime. 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.

The Consensus in the Court-Room: Enforced or … Lost

For the EU to have a chance against the rising politics of resentment, the language, and perspectives through which the EU looks at the member states, must be challenged and change. “Essential characteristics of EU law” (term used by the Court of Justice in its Opinion 2/13, para 167), must go today beyond traditional “First Principles” of supremacy and direct effect, to embrace the rule of law, separation of powers, independence of the judiciary and enforceability of these principles as part of the ever-evolving consensus. 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 ». When it comes to fundamentals, there is no place for bargaining. „First Principles” (I borrow the term from Sir D. Edward’s An Appeal to First Principles; on file with the author) demand fidelity and action and call for reexamination in the light of a rebuttable presumption that values like rule of law are … no longer shared.

When faced for the first time with the politics of resentment in the logging case, the Court, by imposing a penalty payment on Poland, not only defended itself in the spirit of judicial self-defence, but also spoke on behalf of the consensus and its cohesiveness. The Court we saw in the Commission v Poland was the „Court of old”; guardian of the „Community integrity” and effectiveness. Art. 2 TEU forms part of the EU law senso largo in the same way the Court has interpreted the term „law” in what once was called the most important legal provision of the Treaties (art. 220 of the former Treaty on the European Community, now art. 19 TEU). In the light of 50-year strong acquis jurisprudentiel there is still untapped remedial potential in art. 19 TEU („the law”, « le droit » « des Rechts », « prawo »). The First Court of 60’s and 70’s always spoke of the authority of the law that binds together the Union of “states, institutions and individuals”.

The rediscovery of these old precedents and building on the spirit of what former Judge of the Court C. Kakouris called „the mission of the Court”, might be happening in Luxembourg right now. „The effective application of EU law as an essential component of the rule of law(C – 441/17R), the „existence of effective judicial review as the essence of the rule of law” (Case C – 72/15), „the guarantee of judicial independence as inherent in the adjudication” and a prerequisite for ensuring the effective judicial protection (Case C – 64/16), and now also „mutual trust” in the performance and status of the courts in the member states – parties to the consensus, are all essential elements of the „European First Principles”. Respect for the rule law and trust in 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 the consensus. At long last, the politics of resentment faced a powerful enemy: European courts with their own fidelities and loyalties. From the way Poland has rejected the Court’s order in the logging case and ridiculed the Court’s judges, it is clear that the constitutional stakes could not be higher: survival and long-term viability of the consensus, the parties’ continuing desire to belong to the consensus and to be bound by its First Principles.

With this, the time of „mega-politics” has indeed arrived …

Tomasz Tadeusz Koncewiczprofesor prawa, 2017-2018 Crane Fellow, Program in Law and Public Affairs (LAPA), Princeton University; 2017 Visiting Professor Radzyner Law School w Herzliyi w Izraelu; adwokat, Kierownik Katedry Prawa Europejskiego i Komparatystyki Prawniczej Uniwersytetu Gdańskiego. Członek Rady Programowej Archiwum Osiatyńskiego.

Artykuł ukazał się w dwóch częściach na portalu https://verfassungsblog.de. Publikujemy za zgodą Autora.

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