We need to talk about the Rule of Law

As our podcast comes to an end, the year and the German presidency of the European Council do too. One of the foremost projects of the German presidency has been to link EU funding and compliance with rule of law standards. The mechanism is going to be a part of the next long-term budget of the Union, starting from 2021 – that is, if Hungary and Poland vote in favor of it, which is increasingly unclear at the moment. The connection of rule of law violations and EU money, the advantages and shortcomings of financial sanctions for member states as well as how things stand on the current proposal – that’s what we will discuss in this week’s episode of We Need to Talk About the Rule of Law that we will wrap up with an outlook on the current state of the Union, rule of law wise. Our fantastic guests for our final episode are: SERGEY LAGODINSKY, a Member of the European Parliament and Vice-Chair of the Parliament’s Committee on Legal Affairs. And KIM LANE SCHEPPELE, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University. This has been We Need to Talk About the Rule of Law, the podcast addressing the Rule of Law crisis in the European Union, brought to you by Verfassungsblog and the German Bar Association (Deutscher Anwaltverein). We Need to Talk About the Rule of Law has been hosted by Maximilian Steinbeis and Lennart Kokott. Thanks to Dorothee Wildt, Niklas Müller and Eva Schriever of the German Bar Association and to Isabella Falkner and Jochen Schlenk of Verfassungsblog.

The European Court of Justice has been in the middle of the European rule of law crisis for the last couple of years – and it has called out rule of law violations especially in Hungary and Poland multiple times. But the Court can’t defend the rule of law in the European Union on its own, and it needs institutional partners in this struggle. For example, it needs someone to file cases and to follow up on its orders. Does the European Commission do enough on their part? Who is the guardian of the Treaties – the Commission, the Court, none of the two? The European Council is able to decide on sanctions against member states using the procedure of Article 7 TEU. But that tool has not been effective so far. Do we witness the juridification of a political conflict that puts too much of a burden on the Court? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk about the Rule of Law with our distinguished guests: KATARINA BARLEY is Vice-President of the European Parliament. She has held several cabinet posts on the federal level in Germany, including a term as Minister of Justice. Before that, she has been an attorney and a judge. DIDIER REYNDERS is European Commissioner for Justice. He has held several cabinet posts on the federal level in Belgium, including a term as Minister of Foreign and European Affairs. LAURENT PECH is Professor of European Law and Head of the Law and Politics Department at Middlesex University London.

Europe is larger than the EU – and a European framework aiming at preserving basic rights and freedoms as well as rule of law safeguards has been in place for 70 years precisely this November: the European Convention on Human Rights. Today, we take a deeper look at the Convention and at the institutions that work to enforce it: The European Court of Human Rights and the Venice Commission of the Council of Europe. Are they capable of adding another layer of human rights and rule of law protection to the European legal framework? What kind of support do those institutions need in order to be able to fulfil their task? And how is their status today, 70 years after the European Convention on Human Rights has been signed? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk About the Rule of Law with our fantastic guests: BASAK ÇALI is Professor of International Law at the Hertie School of Governance in Berlin and Co-Director of the School's Centre for Fundamental Rights. ANGELIKA NUSSBERGER is Professor of Constitutional Law, International Law and Comparative Law at the University of Cologne, a Member of the Venice Commission, and has been a Judge at the European Court of Human Rights from 2011 to 2019 and the Court’s Vice President from 2017 to 2019. THOMAS MARKERT has until recently been Director and Secretary of the Council of Europe Venice Commission.

We need to talk about refugees and migration law. In discussions about these topics, refugees and migration policy are often being treated as the other of politics and policy. But the way states treat those seeking refuge and asylum on their territory is fundamentally a rule of law issue, and actually says a lot about the current state of the rule of law there: Are refugees able to enter a jurisdiction and apply for their right to asylum? Are due process obligations being observed? Do refugees have access to justice? Does the European migration law system work? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk About the Rule of Law with our distinguished guests: MÁRTA PARDAVI is a lawyer and co-chair of the Hungarian Helsinki Committee, a nongovernmental watchdog organization that protects human dignity and the rule of law. PHILIP WORTHINGTON is the Managing Director of European Lawyers in Lesvos, a NGO providing access to legal counselling in Lesvos. MARIA KALIN is a lawyer with expertise in migration law and member of the migration law committee of the German Bar Association. She teaches at the University of Passau.

We need to talk about the Penal System. In European Criminal Law, there largely is consensus that criminal law should be ultima ratio, that is, the last resort when the law is applied and executed. However, criminal law and the penal system at large have also proven to be an efficient way to silence political opponents and citizens turning against the government by literally barring them from raising their voice in public. We have seen examples for this in Europe, and we’ll have to talk about that today. But there are more aspects to this topic: How are prison systems being used as a tool by autocratic-leaning governments? And how is the relationship between the penal system and the rule of law in the Area of Freedom, Security and Justice that the European Union aspires to be? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk about the Rule of Law, brought to you by Verfassungsblog and the German Bar Association (Deutscher Anwaltverein), with our fantastic guests: LAURE BAUDRIHAYE-GÉRARD is a solicitor and the European legal director of Fair Trials, a worldwide criminal justice watchdog; JAMES MACGUILL is a solicitor working in public law, especially criminal law, former chair of the Criminal Law Committee of the Council of Bars and Law Societies of Europe and currently the Council’s vice president; KAROLY BÁRD is a professor at the Central European University, teaching human rights law and constitutional theory, and Chair of the University’s Human Rights Program.