Further discrediting the rule of law: EU’s annual reports

The EU’s commission has released its annual rule of law reports for the various member states. And of course, Poland and Hungary still got singled out. While Poland is being praised across the world for an exceptionally humanitarian stance, it seems hard for Europhiles to let the narrative go that the rule of law is attacked in Poland cause the old judicial guard has lost its monopoly[1].

At least the report acknowledged that the fact that the members of a judicial council are appointed by parliament isn’t by itself enough to question its independence[2], otherwise they would have to go after Spain.

I decided to look at the report regarding the Netherlands for comparison. Apparently, the Dutch government looking into eventually instituting constitutional review so that the country will finally no longer be one of the only Western countries to prohibit constitutional review by judges (like North Korea) is enough. No hurry there. A prosecution system still linked to the ministry of justice is fine as well. Apparently, it does count as independent.

The report is positive about the government’s planned reforms to decrease parliamentary influence over the appointment of Supreme Court judges and to increase the influence of the sitting judges[3].

Instituting co-optation after your coalition has had a majority in parliament (which nominates judges under the old system) for more than 12 years, is merely a consolidation of your own political appointees.

And I would remind readers the co-optation process would start with a judiciary that has recently apologized for its horrendous role in the benefits scandal that resulted in more than a thousand state kidnappings of children which still haven’t been resolved.

Maybe amend the constitution so Supreme Court nominations by the lower house no longer require a mere ordinary majority but a supermajority 2/3 or 3/4 so that the opposition serving as a check would be a better idea?

Hungary got slammed again because while it has National Judicial Council consisting of judges elected by their peers, its supervisory role over judicial nominations by the President of the National Office for the Judiciary (NOJ) (also a judge politically appointed but by a 2/3 majority in parliament) it doesn’t have enough control over the president[4].

Meanwhile in the Netherlands the judicial council still consists of only 4 members of which half are judges (don’t worry, an extra judge will be added) all of which are appointed by the government and which has no binding involvement in the appointment of judges at all.

It really seems to me like Hungary comes out stronger than the Netherlands in terms of judicial independence (IT AT LEAST HAS CONSTITUTIONAL REVIEW) which might explain why it hasn’t had a benefits scandal with kidnappings of children.

The reports reference polls showing how the public and specifically business (I guess the Socialists were right and the EU is neo-Liberal oligarchy) perceive judicial independence and other matters in their country.

For reports to focus on perceptions in countries, completely ignore that: 1. Polls have proven to sometimes be incorrect in representing the people, specifically when contradicting mainstream; 2. The media shapes opinion to a significant extent; 3. That perception simply does not always translate to actual reality; 4. The level of self-fulfilling prophecy where attacks by the EU and NGO’s on judicial appointments by Eurosceptic government decrease trust within the judiciary amongst the people while EU indulgence towards pro-European states increases support.

While Sweden instituted a system where judicial appointments while still made by the government are based on nominations by the Judges’ Proposal Board which has only 2 out of 9 members chosen by parliament, its 5 judges members while nominated by the courts are also still appointed by parliament, and it only provides lists of 3 candidates which the government can still deviate from (though it rarely does but probably doesn’t need to since it got to directly nominate judges for centuries before this, again co-option is great for long time rulers).

Its (very restrained) constitutional review by the ordinary courts got praised as well as the parliamentary ombudsman (chosen by the unicameral parliament, Poland has one that needs to be approved by both houses of its bicameral parliament) and the Swedish National Institute for Human Rights established only recently of which it remains to be seen how it functions.

Hungary and Poland have judicial councils with a majority of actual judges, not appointed directly by the government and direct influence over judicial nominations. Both have a president who officially appoints the judges and is independent from parliament and the government. Both have constitutional review of laws.

Hungary’s system is far stronger than Poland’s, mainly because it requires 2/3 majorities for almost everything.

Meanwhile the EU is continuing to pursue infringement procedures against Poland because its Constitutional Tribunal rejected the primacy of the EU law and the EU didn’t like the tribunal’s decision (while it is supposed to be independent).[6]

The EU complaining (again) about the 3 so called double judges undermining the independence of the Constitutional Tribunal is not only stupid because the Tribunal itself hasn’t explicitly ruled their appointments unconstitutional (and doesn’t really have the authority to rule on that anyways) and because the disputed nature of their appointment was muddled by the complex situation and constitutional loopholes in play, but also because the 3 superseded nominees are nearly 7 years into their 9 terms. When these are over and when 3 new judges will be appointed to replace the ‘double judges’ after the next parliamentary elections, this whole issue will be moot.

They didn’t tie the Covid recovery fund to this and a CJEU case would likely drag on so that by the time it is finished new judges are sworn in and the terms of the old ones have expired.

The EU talks a lot but as radical groups like ruleoflawinpoland have pointed out, they rarely do anything to enforce it and the CJEU follows suit.

I am tired of constant selective use of facts and principles.

So I am afraid I am going to have to bore you with more outlines for proper constitutions, judiciaries and other checks and balances in the future.


Ramon Giralt


  1. https://www.euronews.com/my-europe/2022/07/13/poland-hungary-in-european-commissions-rule-of-law-spotlight-again
  2. 2022 Rule of Law Report Country Chapter on the rule of law situation in Poland
  3. 2022 Rule of Law Report Country Chapter on the rule of law situation in the Netherlands
  4. 2022 Rule of Law Report Country Chapter on the rule of law situation in Hungary
  5. 2022 Rule of Law ReportCountry Chapter on the rule of law situation in Sweden
  6. https://ec.europa.eu/commission/presscorner/detail/en/inf_22_3768

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