RULE OF LAW CRISIS
POTENTIAL DOMESTIC AND EUROPEAN REMEDIES
Rule of Law Crisis in Parliamentary Law-Making Potential Domestic and European Remedies
Viktor Kazai 1
Why bother?
In 2018, the European Commission rejected the Italian budget due to concerns about significant growth in public debt, leading to government procedural shortcuts in the parliamentary process that sparked outrage and resulted in a case being brought before the Italian Constitutional Court.2 In 2019, then Prime Minister Boris Johnson advised the Queen to prorogue Parliament in an attempt to achieve a ‘no-deal’ Brexit by silencing the legislature. However, the Supreme Court subsequently declared this move unlawful.3 The 2023 controversial pension reform in France was pushed through by the government of the day using several procedural mischiefs, including the notorious Article 49-3, despite facing opposition from parliamentary and societal actors and resulting in constitutional litigation.4
These examples illustrate the inherent tension between political actors’ ambitions to achieve their objectives and the limitations imposed on them by the laws governing the legislative process. This tension often results in the manipulation or even the violation of procedural rules, called irregularities.
Procedural irregularities are not simple technicalities. The rules of law-making are supposed to serve important constitutional goals. Firstly, they are designed to ensure that the legislature can effectively and efficiently address societal issues. Secondly, procedural rules give expression to certain constitutional principles5 to guarantee that important societal issues are regulated by parliament (separation of powers), as the most representative organ, in a transparent, inclusive, informed debate (democracy) conducted in accordance with the law (rule of law). Therefore, procedural irregularities not only hamper the ability of the political branches to find adequate solutions to societal problems, but also undermine the basic principles of constitutional democracy.
1. Viktor Kazai is a Post-doctoral researcher at Université libre de Bruxelles – Institute for European Studies and senior rule of law expert at Civil Liberties Union for Europe.
2. Italian budget law case, No. 17/2019 (Constitutional Court of Italy – 10 January 2019).
3. R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, UKSC 41 (United Kingdom Supreme Court 2019)
4. French pension reform case, 2023-849 DC (French Constitutional Council – 14 April 2023).
5. Jeremy Waldron, Political Political Theory: Essays on Institutions, Harvard University Press, 2016, pp. 125-166.
Procedural irregularities not only hamper the ability of the political branches
to find
adequate
solutions
to societal problems, but also undermine the basic principles of constitutional democracy
The issue of procedural irregularities has recently become a significant concern within the context of the European rule of law crisis. Both the PiS government in Poland (2015-2023)6 and the Fidesz government in Hungary (since 2010)7 have frequently breached the principle of legality when they enacted their illiberal legislative measures. However, this problem is not unique to these two countries. Unfortunately, disrespecting law-making rules is a widespread problem affecting many European jurisdictions, including well-established democracies.
This article aims to explain the link between rule of law decline and the legality principle and provide an overview of the relevant mechanisms that are either specifically mandated or can reasonably be expected to detect and remedy the infringement of the legal standards of domestic parliamentary law-making at both the national and European levels.8
Rule of law decline and the principle of legality
Democratic constitutionalism sets both substantive and formal/procedural requirements for the production and application of legal norms. This follows from the rule of law principle as it is interpreted in the European legal space. According to the Venice Commission’s Rule of Law Checklist, the parliamentary legislative process must be ‘transparent, accountable, inclusive and democratic’.9 More specifically, what the rule of law requires are (i) clear rules on the legislative procedure; (ii) supremacy of parliament in deciding on the content of the law; (iii) public deliberation and adequate justification of laws; (iv) public access to draft legislation and public participation in the legislative process; and (v) impact assessments. Similarly, the European Commission’s rule of law definition includes, among other things, ‘principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws…’.10
Disrespect for the principle of legality is one of the most obvious signs of a decline in the rule of law. Of course, occasional breaches of the rules on law-making happen from time to time, even in well-functioning democracies. If these instances remain rare and isolated and are remedied by domestic institutional actors, the rule of law can be preserved in fairly good shape. The real problem starts when certain procedural irregularities become common practice because they indicate that the operation of democratic law-making suffers from systemic defects.
6. Agnieszka Bień-Kacała, ‘Legislation in Illiberal Poland’, 3 Theory and Practice of Legislation 9, 2021, pp. 276-294.
7. Viktor Zoltán Kazai, ‘The misuse of the legislative process as part of the illiberal toolkit. The case of Hungary’, 3 Theory and Practice of Legislation 9, 2021, pp. 295-316.
8. For the theoretical bases of this analysis see Viktor Kazai, The Equilibrium of Parliamentary Law-making. Comparative Perspective on the Role of Courts in a Democracy, Routledge, 2024.
9. Venice Commission, Rule of Law Checklist, CDL-AD(2016)007, 2016, paras. 44-45.
10. Commission, ‘Communication from the Commission to the European Parliament, the European Council and the Council. Further strengthening the Rule of Law within the Union. State of play and possible next steps’ COM(2019) 163 final.
Based on the rule of law reports of the European Commission and European NGOs11 and the Venice Commission’s country-specific opinions, these are the most typical infringements of the legality principle in the EU and Council of Europe Member States:
• Lack of inclusive public participation
• Inadequate preparation of bills
• Use of accelerated procedures without legitimate reason
• Exclusion of the parliamentary opposition from decision-making
• Legislative riders and omnibus legislation
• Violation of qualified majority/special procedure requirements
• Rule by emergency ordinances
The most problematic scenario is when autocratic leaders begin deliberately manipulating or violating law-making rules to centralise and monopolise political decision-making processes. For example, this is what happened in Hungary, where the Orbán-government, based on a perverse interpretation of majoritarian democracy, wanted to implement its illiberal political agenda as quickly as possible without compromise. Due to this autocratic style of governance, serious procedural irregularities tainted the adoption of a large number of illiberal legislative measures, for example, the new Fundamental Law and its subsequent amendments, several acts on the judiciary, the periodic re-regulation of the electoral system, several laws targeting religious organisations, NGOs, higher education institutions, professional chambers, and laws weakening the protection of fundamental rights.12
11. See, for example, Civil Liberties Union for Europe, ‘Rule of Law Report’, 2024.
12. See the Venice Commission’s opinions on Hungarian laws since 2010.
Domestic mechanisms
Political decision-makers usually play by the rules of law-making in constitutional democracies. Several factors facilitate and incentivise rule-following behavior in political decision-making and discourage actors from breaching the law. However, the voluntary observance of all the requirements of the legislative process cannot be taken for granted. When self-compliance fails, respect for the law must be guaranteed through institutionalised mechanisms.
At the national level, several non-judicial mechanisms are specifically designed or can be easily used for this purpose, such as
• the preparation of bills by the executive;
• the preliminary check by the executive’s advisory or scrutiny organ(s), such as the council of state or the chancellor of justice;
• the parliamentary control of the legislative process by the presidium, a parliamentary committee, the plenary, or the upper chamber; and
• the exercise of (political) veto by the head of state.
Whether these non-judicial mechanisms do a good job of enforcing the requirements of law-making in a given jurisdiction is an empirical question. However, from a theoretical perspective, I argue that the integration of judicial review in the system of enforcement is desirable or even necessary.13 A significant advantage of judicial review is that courts (in strictly relative terms) show greater impartiality and independence from the ruling political forces that usually commit irregularities, focus primarily on legal/constitutional considerations instead of political ones, and have the possibility to scrutinise the legislative process and its evolution over time in its entirety. Courts are simply better placed institutionally than non-judicial mechanisms to enforce the requirements of law-making on political actors.
13. About how judicial review can serve democratic purposes, see Ittai Bar-Siman-Tov, ‘The Role of Courts in Improving the Legislative Process’, 3 Theory and Practice of Legislation 3, 2016, pp. 295-313, and Stephen Gardbaum, ‘Comparative Political Process Theory’, 4 International Journal of Constitutional Law 18, 2020, pp. 1429–57.
Apex courts exercising constitutional review can scrutinise the regulation and the practice of law-making in five main ways.
Firstly, there is an emerging trend of courts combining substantive and procedural review by assessing the substantive constitutionality of laws based (partly) on the quality of the enactment process. For instance, in the Hartz IV case, the German Federal Constitutional Court introduced a procedural test to determine whether standard social benefits for adults and children are evidently insufficient and therefore unconstitutional, requiring the legislature to assess all necessary expenditures transparently and disclose their methods and calculations for determining the subsistence minimum.14
Courts are simply better placed institutionally than non-judicial mechanisms to enforce the requirements of lawmaking on political actors
Secondly, the most straightforward way for courts to enforce the requirements of law-making is to review the constitutionality of the enactment process, irrespective of the substantive constitutionality of the adopted legislation. For example, in 2011 the Constitutional Court of Croatia decided that the Ombudsman Act should have been adopted as an organic law, but it fell one vote shy of being enacted by the constitutionally required absolute majority of representatives.15 Thirdly, courts may review the sub-constitutional (i.e. statutory or internal parliamentary) rules regulating the legislative procedure. This type of scrutiny is obligatory in some jurisdictions and exercised only upon request in others. For instance, in France, the rules of procedure of the two houses of Parliament and their amendments must be sent to the Constitutional Council for review automatically, while in Romania, the Constitutional Court has the competence, but an obligation to scrutinise the standing orders.
Fourthly, courts may serve as umpires in institutional disputes between constitutional organs in the context of law-making. For example, upon the petition of six Länder, the German Federal Constitutional Court found that the enactment process of the Immigration Act was contrary to Article 78 of the Basic Law regulating the passage of federal laws because the President of the Bundesrat calculated the votes cast by the delegates of Brandenburg unconstitutionally.16
Lastly, institutional actors may request the courts to give an abstract interpretation of the constitutional provisions regulating the law-making process, often to solve an existing political conflict. For instance, in 2007, upon the petition of fifty-one MPs, the Constitutional Court of Ukraine interpreted Article 94(4) of the Constitution and concluded that in the case of the President’s inaction, the legislative procedure must be completed by the Speaker and the promulgation must take place immediately.17
14. Hartz IV case, No. 1 BvL 1/09 (German Federal Constitutional Court – 9 February 2010).
15. Croatian Ombudsman Act case, No. U-I-5654/2011 (Constitutional Court of Croatia – 15 February 2012).
16. German Immigration Law case, No. 2 BvF 1/02 (Federal Constitutional Court of Germany – 18 December 2002).
17. Ukrainian presidential veto case, Decision no. 7-rp/2007 (Constitutional Court of Ukraine – 9 October 2007).
When the national apex courts are captured, the European rule of law mechanisms must compensate for the shortcomings of the domestic system of checks and balances
In summary, theoretically, apex courts exercising constitutional review have the possibility to enforce the legal requirements of parliamentary law-making in one way or another. The problem is that, in countries experiencing a serious rule of law decline, the judiciary is among the very first targets of autocratic leaders. The manipulation of the courts’ composition by playing with the rules on eligibility, judicial appointments, number of seats on the bench, early retirements, length of mandates and so on, can turn even the strongest courts into loyal servants of the ruling political forces. This is the lesson we can draw from the fate of the Hungarian Constitutional Court and the Polish Constitutional Tribunal.
When the national apex courts are captured, the European rule of law mechanisms must compensate for the shortcomings of the domestic system of checks and balances.
Council of Europe mechanisms
In the Council of Europe, two bodies can exercise some control over domestic legislative processes, namely the Venice Commission and the European Court of Human Rights (ECtHR).
Venice Commission
In its country-specific opinions, the Venice Commission regularly evaluates not only the content of the legislation under scrutiny but also the legislative process related to its adoption. Recently, for example, the Commission expressed deep concern about the rushed law-making process, limited parliamentary discussions, and absence of public consultations regarding the Law on Transparency of Foreign Influence enacted by the Georgian Parliament.18 The Commission had similar objections to the adoption of laws (allegedly) aimed to ensure the transparency of CSOs’ funding in, among others, Bosnia and Herzegovina, Hungary, and Azerbaijan. Of course, this problem is not specific to certain countries or legislative areas, but the Venice Commission has so far not provided an exhaustive compilation of the requirements of domestic law-making drawn from a selection of country-specific opinions.
18. Venice Commission, ‘Urgent Opinion on the Law of Georgia on Transparency of Foreign Influence’ CDL-AD(2024)020, paras. 42-47.
European Court of Human Rights
The ECtHR can oversee domestic legislative processes in three ways.
Firstly, if the interference with the applicant’s rights stems from a legislative measure, the ECtHR sometimes examines the quality of the procedure in which the law was adopted.19 The general measure doctrine, articulated in Animal Defenders International v. the United Kingdom, essentially holds that the quality of the review of (draft) legislation, not only a posteriori by the judiciary, but also a priori by the legislature, has an impact on the justifiability of the interference with fundamental right(s).20 Unlike traditional constitutional adjudication, the Court does not evaluate the defects of the legislative process independently of the law’s substantive compliance with the Convention. Instead, it assesses the procedure’s circumstances to determine the proportionality of the interference. This combination of procedural and substantive scrutiny is known as semi-procedural or rationality review.
An excellent example is the Court’s judgment in the case of L.B. v. Hungary, 21 in which the Court found that the State violated the applicant taxpayer’s right to private life (Article 8) by mandating the publication of their personal data on the tax authority’s website for failing to fulfil their obligations. The Court looked into the legislative history and emphasised the lack of parliamentary consideration of the necessity of publishing all the data, including the taxpayer’s home address, in order to achieve the original purpose of collecting the information. Due to the defective legislative process, the ECtHR was not convinced that the interference complained of was necessary in a democratic society.
Secondly, applicants can also draw the attention of the ECtHR to the circumstances of the legislative process to show the illegitimate political motives behind the interference with their rights. A good example of such context-sensitive analysis is the Baka v. Hungary case, which involved the premature termination of the mandate of the Chief Justice by law in 2011. The Court examined the explanatory memorandum of the bill, as well as the parliamentary debate, and concluded that the early termination of the Chief Justice’s mandate soon after the entry into office of the Orbán-government was prompted by the views and criticisms he had publicly expressed in his professional capacity.22
19. See for example Judgment of the ECtHR of 8 July 2023, Hatton v. the United Kingdom (application no. 36022/97, CE:ECHR:2003:0708JUD003602297, para. 128.); Judgment of the ECtHR of 6 October 2005, Hirst (No. 2) v. the United Kingdom (application no. 74025/01, CE:ECHR:2005:1006JUD007402501, para. 79); Judgment of the ECtHR of 10 April 2007, Evans v. the United Kingdom (application no. 6339/05, CE:ECHR:2007:0410JUD000633905, para. 64).
20. Judgment of the ECtHR of 22 April 2013, Animal Defenders International v. the United Kingdom (application no. 48876/08, CE:ECHR:2013:0422JUD004887608, paras. 108-109).
21. Judgment of the ECtHR of 9 March 2023, L.B. V Hungary (application no. 36345/16, CE:ECHR:2023:0309JUD003634516, para. 137).
22. Judgment of the ECtHR of 23 June 2016, Baka v. Hungary (application no. 20261/12, paras. 149-151).
Finally, opposition MPs may file an application with the Court alleging the violation of their freedom of expression. In the case of Karácsony and Others v. Hungary, 23 the Grand Chamber reviewed the situation in which fines were imposed on opposition MPs by the Speaker for using unconventional methods of expression during the final vote on bills related to the tobacco market and agricultural land. The ECtHR found a violation of Article 10 of the ECHR because there was no significant reason for the interference, as the functioning of the parliament and order were not seriously affected, and it was not demonstrated that these interests outweighed the opposition’s right to freedom of expression. Unfortunately, the ECtHR later significantly relaxed the strictness of its test,24 but it is still not hopeless for MPs to win a case on the grounds that they have been disproportionately restricted in their freedom of expression during the parliamentary procedure.
European Union mechanisms
There seem to be two main mechanisms in the EU to exercise some control over domestic parliamentary law-making. The European Commission’s rule of law reports monitor the process of preparing and enacting laws in Member States. Moreover, the EU has been increasingly reliant on budgetary instruments to enforce respect for the rule of law and fundamental rights within its Member States.
European Commission’s rule of law reports
The process for preparing and enacting laws is one of the topics that the Commission monitors in the fourth pillar of its Annual Rule of Law Report dedicated to ‘other institutional issues related to checks and balances’. It focuses primarily on the regulation and practice of consultations and impact assessments, and the use of accelerated procedures.25 The Commission often finds defects in domestic parliamentary law-making and sometimes formulates recommendations to the Member States. In its 2024 Rule of Law Report, for example, the Commission noted some progress in Greece’s stakeholder consultation process but recommended further improvements in effectiveness, timeliness, and access to legislation. In the case of Hungary, however, the Commission noted that the quality of law-making and the frequent changes in legislation remained a significant cause for concern but did not consider it necessary to provide any recommendation.
23. Judgment of the ECtHR of 17 May 2016, Karácsony and Others v. Hungary (application nos. 42461/13 and 44357/13, CE:ECHR:2016:0623JUD002026112)
24. Judgment of the ECtHR of 5 October 2023, Ikotity and Others v. Hungary (application no. 50012/17, CE:ECHR:2023:1005JUD005001217).
25. If we understand law-making broadly, we could include the monitoring of the regulation and practice of lobbying as well.
EU Conditionality Mechanisms
Since the beginning of the current Multiannual Financial Framework (2021-2027), the EU has been increasingly relying on budgetary instruments, namely the Common Provisions Regulation,26 the RRF Regulation,27 and the Conditionality Regulation,28 to ensure respect for the rule of law and fundamental rights in its Member States.29 Conditions related to domestic parliamentary law-making were also included in this package. For example, the Council Implementing Decisions approving both the Polish and the Hungarian recovery and resilience plan contained several milestones obliging the national governments to improve the quality of law-making.30
Furthermore, the Council of the EU specifically required the Hungarian government to organise a stakeholder consultation before the adoption of the judicial reform act allowing at least the top judicial organs, the bar association, and CSOs to give comments within no less than 15 days. In reality, there was limited consultation on the draft proposal. Even more concerning is that the judicial reform act was added as an amendment to a bill on asset declarations (i.e. as a legislative rider), bore little resemblance to the version published for consultation, and was adopted in three days.31
Evaluation and Recommendations
This short analysis shows that there are numerous domestic and European mechanisms that are either specifically designed or can reasonably be expected to detect procedural irregularities and enforce compliance with the legal requirements of parliamentary law-making. However, despite the existence of these mechanisms, systemic defects in parliamentary law-making within the Member States of the Council of Europe and the European Union persist. This suggests that there may be fundamental issues with the system of enforcement itself. What are the most noticeable weaknesses of the European enforcement system and how can they be addressed?
26. Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy, OJ 2021 L 231, p. 159.
27. Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, OJ 2021 L 57, p. 17.
28. Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ 2020 L 433I, p. 1.
29. Saskia Hollander, ‘Economic Governance and the Rule of Law in the European Union’, RED-Spinel Project Working Paper, 2024.
30. Council of the European Union, Annex to the Proposal for a Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Poland, 2022/0181 (NLE); Council of the European Union, Annex to the Proposal for a Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Hungary, 2022/0414 (NLE).
31. Erika Farkas and András Kádár, ‘Restoring the Rule of Law By Breaching It’ , Verfassungsblog, 10 July 2023.
Systemic defects in parliamentary law-making within the Member States of the Council of Europe and the European Union persist. This suggests
that there may
be fundamental issues with the system of enforcement itself
Clarity of standards
The various monitoring and enforcement mechanisms of the Council of Europe and the European Union have produced a large number of legal materials on domestic parliamentary law-making. However, the European minimum standards of the legislative process are currently scattered across hundreds of legal sources. An exhaustive and comprehensive set of legal requirements would greatly facilitate both voluntary compliance and detecting, as well as remedying infringements.32
Link between monitoring and enforcement mechanisms
The monitoring mechanisms in place, such as the Annual Rule of Law Reports of the European Commission and the countryspecific opinions of the Venice Commission, are suitable to identify some systemic deficiencies in domestic parliamentary law-making. However, these mechanisms are primarily based on dialogue and cooperation, which are not effective in dealing with autocratic leaders who deliberately undermine constitutional democracy. In such cases, these reports and recommendations remain ineffective unless they are linked to enforcement mechanisms. Civil society organisations have long urged the Commission to establish a link between its annual reports and other rule of law mechanisms, such as the infringement procedure and the conditionality instruments.33
Inconsistent approach and deference of enforcement mechanisms
The semi-procedural or rationality review enables the ECtHR to exercise control over domestic parliamentary law-making. However, the jurisprudence of the Court is inconsistent because it is used or, conversely, is avoided in fundamentally different ways.34 This judicial inconsistency makes the case law unpredictable and, thus, litigation less useful for strategic purposes.
32. Similarly to the Guidelines on Democratic Law-making for Better Laws by OSCE ODIHR. Tímea Drinóczi, ‘The OSCE ODIHR guideline on democratic law-making for better laws: a source of inspiration for strengthening democracy’, 3 Theory and Practice of Legislation 12, 2024.
33. Civil Liberties Unions for Europe, Gap Analysis of the European Commission’s Rule of Law Report, 2023.
34. Patricipa Popelier, ‘What’s Cooking? General Measures in the Case Law of the European Court of Human Rights’, 1 European Convention on Human Rights Law Review 5, 2024.
The Commission and the Court of Justice failed to enforce the formal requirements of the rule of law because they ignored that the adoption of the problematic laws was tainted by serious procedural irregularities in each and every case
Even though the CJEU has no explicit competence to scrutinise domestic parliamentary law-making, it could, similarly to the ECtHR, consider the circumstances of the enactment of a piece of national legislation to draw conclusions about the Member State’s intention to comply with EU law in the first place. In our analysis of Hungarian ‘rule of law infringement cases,’ Petra Bárd and I argued that the Commission and the Court of Justice failed to enforce the formal requirements of the rule of law because they ignored that the adoption of the problematic laws was tainted by serious procedural irregularities in each and every case.35
35. Petra Bárd and Viktor Zoltán Kazai, ’Enforcement of a Formal Conception of the Rule of Law as a Potential Way Forward to Address Backsliding: Hungary as a Case Study’, 2-3 Hague Journal on the Rule of Law 14, 2022, pp. 165-193