Interference in the rights of sovereign states

It is nothing new that committees outside the nation state intervene in the internal affairs of states with their ideas of the ‘rule of law’. In contrast, it is part of the concept of a sovereign state that it determines its law autonomously. Of course, it must comply with the treaties it has concluded with other states, for example as a member state of the Council of Europe with the ‘European Convention on Human Rights’ (ECHR) or as an EU member state with the EU regulations. Some provisions of the ECHR are also binding international law, which is usually also contained in other decrees.
  But what happens when supranational bodies such as the European Court of Human Rights (ECtHR) or the EU Commission overstretch their treaty-based competences to the limit and interfere unduly in the internal affairs of a sovereign state?

Swiss Parliament defies the ECtHR

On 5 June, the Council of States sent a strong signal in favour of the primacy of democracy and domestic law over rulings by the European Court of Human Rights (ECtHR) that go beyond the scope of its jurisdiction.
  Recently, the ECtHR once again reprimanded Switzerland.¹ It actually interpreted the “right of respect for private and family life” to mean that Switzerland had to provide cleaner air for the complaining climate seniors. The climate judgement was not the first hair-raising decision by the Strasbourg court against Switzerland, but this time our parliamentarians finally burst with anger.
  On 5 June, the Council of States approved a Declaration of the Council of States by a clear majority of 31 yes to 11 no (with 2 abstentions), calling the judiciary in Strasbourg to order: “Effective protection of fundamental rights by international courts instead of judicial activism” is its demand. The motion was initiated by the ‘Legal Affairs Committee of the Council of States’ (LAC-CS).
  In its declaration, the Council of States ‘notes with concern’ that the Court ‘overstretches the limits of permissible legal development by an international court’ and thus ‘accepts that its legitimacy […] is called into question’. It calls on the Court to “respect the principle of subsidiarity enshrined in the Convention; to pay greater attention to the wording of the Convention and its historical origins; to give state sovereignty […] the importance it deserves; to respect the democratic processes of the contracting states.”²
  The Council of States calls on the Federal Council to inform the Committee of Ministers of the Council of Europe that Switzerland is complying with its international climate commitments and “therefore sees no reason to follow up on the Court’s ruling of 9 April 2024”.
  The National Council will vote on a declaration with the same wording on 12 June. Following the clear decision by the Council of States, the chances of a vote in favour are good, as the National Council’s Legal Affairs Committee voted 15 to 10 in favour of its sister committee.³
  This declaration by the Swiss parliament is a warning call to international committees that want to force sovereign states to change their democratically established law. It is to be hoped that the panel of judges in Strasbourg will take note of the signal sent by Switzerland (and other states) and in future devote itself to its sole task of punishing serious human rights violations committed by member states of the Council of Europe against individuals in their country.

Intervention of the
EU Commission in the legal
structure of the member states

“The European Commission has closed the rule of law procedure against Poland. The Commission had already concluded in its previous analysis of 6 May that there is no longer a clear risk of a serious breach of the rule of law within the meaning of Article 7(1) of the Treaty on European Union in Poland”.⁴
  Why did the EU Commission take this action against Poland? And why has it ended it now?
  When the EU Commission interferes in the national law of its member states, it is important for us Swiss to take a close look. Because, as we know, Switzerland would have to submit to the EU’s legal system with a Framework Agreement II. Switzerland is not a member of the EU and cannot be penalised by Brussels with the withdrawal of financial resources because we do not receive billions under the framework agreement, but on the contrary would have to pay billions. But it is of great interest to us voters – and also to the citizens of the EU member states – how the Brussels bureaucracy deals with ‘disobedient’ states.

Rule of law mechanism
versus democracy

In a nutshell: In 2014, the EU introduced a rule of law mechanism, ‘Upholding the values of the European Union’, to be used ‘when an EU Member State shows a tendency to violate the principles of the rule of law’.⁵ In plain language, this means that the Brussels bureaucracy snoops around in the legislation and application of the member states and draws up an annual ‘rule of law report’ on each state. Unbelievable! The sovereignty of the states and the associated legislation in accordance with national democratic rules are obviously not among the values that apply in the EU …
  To make the reprimands from Brussels more effective, the EU introduced a new regulation in 2021, according to which “payments from the EU budget for countries can be reduced or structural fund resources frozen”.
  The EU Commission used this financial leverage against Poland and Hungary in 2021 because of their ‘ongoing violations […] of the rule of law’. Without going into detail: The two governments received a letter ‘listing all the abuses and shortcomings in the rule of law, budget control and the fight against corruption.’ Both countries filed a lawsuit against this and were rejected by the European Court of Justice. As a result, the EU Commission withheld billions of euros that Poland and Hungary were rightfully entitled to.
  Why these two countries in particular? I cannot judge whether the legal deficiencies there give more cause for complaint than in all other EU states. But what is known is this: For years, their governments and parliaments have not said yes and amen to everything that comes from Brussels, but want to shape their laws and policies according to their own will.

Why are the billions
flowing back to Poland today?

In Poland, there is ‘no longer a clear risk of a serious breach of the rule of law’, said the European Commission at the beginning of May. This ‘breakthrough’ was ‘the result’ of the ‘hard work’ of Donald Tusk’s new government and ‘its determined reform efforts’, explained Commissions’ President von der Leyen on 6 May.⁶ 
  It is certain that Donald Tusk’s Civic Platform suits the EU bodies better than the EU-sceptical Law and Justice Party (PiS), which was elected by the Polish people in December 2015. But how the new government managed to prove its ‘determined reform efforts’ practically overnight is a mystery. Tusk was elected in December 2023 and has been Prime Minister since 1 January 2024. Just under two months later, at the end of February 2024, the European Commission announced that it would be releasing 137 billion (!) euros in EU funds for Poland. A first instalment of 6.3 billion euros flowed to Warsaw in April. The otherwise extremely EU-friendly ‘Neue Zürcher Zeitung’ recently commented on this process as follows: “The EU believes that the rule of law in Poland is no longer under threat and is therefore dropping criminal proceedings. However, little has changed in Warsaw so far. This shows how strategic the Brussels Commission really is”. Title of the commentary: ‘The rehabilitation of Poland is a power-political decision’.⁷
  The assessment that the legal situation in Poland has changed little is confirmed by the EU Commission if you take a closer look. The Tusk government’s actions to date are summarised as follows: An action plan presented by Poland in February 2024; first concrete steps to implement the action plan; “Poland’s recognition that the rule of law issue needs to be addressed”; initiation of a “series of legislative and non-legislative measures […] to address concerns about the independence of the judiciary”; the promise to “implement all judgments of the Court of Justice of the European Union and the European Court of Human Rights relating to the rule of law”.⁸

Double standards

In plain language: many promises, little ‘meat on the bones’. Particularly striking is the ‘recognition that the issue of the rule of law must be addressed’ – addressing this issue has actually been the Commission’s request to the Polish government since the proceedings were opened in 2017. The ‘reasons’ for these proceedings are ‘not sorted out’, according to the ‘Neue Zürcher Zeitung’ of 31 May. In reality, von der Leyen has ‘strategic and power-political motives’ to ‘pretend that Poland is once again a constitutional state’. On the one hand, she needs Tusk’s vote in order to be re-elected in the summer, on the other hand, she wants to “reward an EU-friendly government and send a message to other member states where the rule of law is in danger of falling by the wayside”. A message to Hungary? The country’s President Viktor Orbán does not allow himself to be pulled over by the Brussels or transatlantic cart, but continues to delight critical minds with his incorruptible statements on the state of Europe and the world. A message for Slovakia? It has already received its shot across the bow with the attempted assassination of Prime Minister Robert Fico.
  Do people in the EU accept it when the EU Commission applies double standards to the rule of law in its member states? What gives this body the authority to intervene in the law of individual states? What gives it the right to raise or lower its thumb depending on a government’s good behaviour? Have the people of the EU been asked whether they want a more and more autocratic web of rules in Brussels? The rule of law? Democracy?  •

¹ See “What does climate protection have to do with the right for private life? ECtHR judgements getting out of hand". in: Current Concerns No 10 from 21 May 2024
² 24.053 Declaration of the Council of States. Judgement of the ECtHR “Verein KlimaSeniorinnen Schweiz u. a. vs Switzerland”
³ “EGMR-Urteil: auch der Nationalrat soll sich äussern” (ECtHR judgement: the National Council should also make a statement). Media release of the RK-N of 29 May 2024
⁴ European Commission, “"Commission decides to close the Article 7(1) TEU procedure for Poland". Press article of 29 May 2024
⁵ Landeszentrale für politische Bildung Baden-Württemberg lpb. “EU-Rechtsstaatsmechanismus und Artikel-7-Verfahren” (EU rule of law mechanism and Article 7 procedure). https://osteuropa.lpb-bw.de/rechtsstaatsmechanismus-artikel-7-verfahren#c67022
⁶ European Commission, "Commission intends to close Article 7(1) TEU procedure for Poland". Press release of 6 May 2024
⁷ Steinvorth, Daniel. “Die Rehabilitierung Polens ist eine machtpolitische Entscheidung“ (The rehabilitation of Poland is a power-political decision). In: Neue Zürcher Zeitung of 31 May 2024
⁸ European Commission, "Commission intends to close Article 7(1) TEU procedure for Poland". Press release of 6 May 2024