Democracy under pressure in Europe – proposal for a solution - Publixphere (de)

Democracy under pressure in Europe – proposal for a solution

Some EU member states, such as Poland, are currently accused of breaking european principles of democracy. David Krappitz Mitglied JEB proposal: citizens, parties and government bodies should be able to claim their constitutionally guaranteed rights in front of the European Court of Justice...

A post by David Krappitz Mitglied JEB (german version). This proposal was first published on thenewfederalist.eu, webzine of Young European Federalists.

The democratic and legal aberrations in Hungary and Poland have been analyzed in detail. I want to propose a pragmatic and democratic solution. It is of a legal kind and tackles a structural problem of the EU. It does not, however, deal with the growth of populist movements across Europe, which without doubt is a matter of society, not of law.

Key norms of the German Basic Law The Basic Law (BL) of the Federal Republic of Germany contain some essential norms which, did they exist on the European level, would make developments as we see them in Hungary or Poland impossible or at least limit them significantly.

Key for that is the simple wording of article 31 BL: “Federal law shall override Land law.” On the German federal level exists the rule of absolute priority according to which conflicting Land law is void. The European level, instead, knows the rule of supremacy according to which national law which conflicts with Union law is not void but simply does not get applied. It remains in force in case Union law changes or national law applies to a purely national case. These different systems do not pose a problem to my proposal.

Additionally, the Basic Law contains fundamental rights (articles 1-19 BL) which do not only apply to the government bodies of the "Bund" but without restriction also to "Länder" and municipalities. These fundamental rights do not only protect the private behavior of individuals but contain political rights too such as the “communication rights” in article 5 (freedom of speech, freedom of information, freedom of the press), article 8 (freedom of assembly) and article 9 (freedom of association). Additionally, article 12 protects free entrepreneurship which can be of political relevance and article 14 protects property.

A far more detailed list of fundamental rights exists in the Charter of Fundamental Rights of the European Union. Since the entering into effect of the Lisbon Treaty, the Charter is part of European constitutional law and applies hence to all acts of organs of the European Union. The big flaw of the Charter is, however, that it only applies to member states “when they are implementing Union law”. The exact interpretation of this restriction is subject to debate among lawyers. It is for sure, however, that the Charter does not apply to purely national acts of member state government bodies. A Union citizen could hence not claim his Union fundamental rights in the case of a prohibition to work as a journalist whereas the same would be possible under the Basic Law.

The importance of state principles

Besides fundamental rights, further norms guarantees the functioning of the liberal-democratic order: These norms are called “state principles” and are less well-known than the rather famous fundamental rights.

In the Basic Law, these principles can be found in article 20 und contain, among others, the principle of democracy and the principle of the rule of law. Both principles seem abstract at first sight, however, have very concrete legal implications: The principle of democracy, for example, protects the free forming of a political will; the principle of the rule of law protects, inter alia, against arbitrariness of state actors. These principles are protected against constitutional amendments by the so-called “eternity clause” in article 79 §3 BL. According to this clause, not even a majority with the power to amend the constitution could abolish these principles. Instead, there are a variety of procedures through which citizens, parties and government bodies of the state can claim infringements of these principles in front of the Federal Constitutional Court.

The European level lacks both: Article 2 TEU lists the “values” on which the EU is founded, among others democracy and the rule of law. These are, however, of a declaratory kind and non-binding. A guarantee of state principle as described above would be an instrument to prevent national governments from abusing their power to consolidate their rule against democratic freedoms.

The solution lies with the people

With the above-described system, the solution lies in the hand of the people: Citizens, parties and government bodies of the state can claim their constitutionally guaranteed rights in front of the European Court of Justice. Instead of a repressive system as implied by infringement procedures according to article 258 TFEU, source and motivation of a functioning democracy lie with the people itself. The acceptance of this approach is not least reflected in the great trust that German citizens have in their Constitutional Court.

From a federalist perspective it is crucial to make the citizen the center of political power. Instruments like fundamental rights and state principles can make Union citizens the guards of European democracy. This is the approach the Young European Federalists have to follow.

What do you think?

With Poland on my mind the Publixphere network is starting something of an experiment. Is it possible to have a trans-national debate on 'Poland in Europe'? Can we get to know each other and connect as a European public - with citizens from Poland and potentially all other EU countries? More...

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