Is the European culture overrated

Constitutional courts are overrated

Great Britain and the Netherlands are EU countries. Both have no constitutional court. Why doesn't that bother anyone? - Because it has always been like that. In these countries it is part of the political culture that the parliament acts autonomously, i.e. without a strong supervisory authority.

Poland, on the other hand, has a constitutional court. However, the Polish parliament has now decided to restrict the top judges' ability to act:

First, the court can now only declare new laws unconstitutional with a two-thirds majority of the judges. The problem: The ruling party »Law and Justice« (PiS) has already occupied over a third of the constitutional court with party-affiliated judges and can be sure that they will not interpret the government laws as unconstitutional.

Second, judges will have to deal with cases in chronological order rather than priority. The quorum of the court was also made more difficult because at least 13 instead of nine judges (out of a total of 15) had to be present.

For these reasons, it is highly unlikely that the Constitutional Court will oppose a new law.

No arguments against Poland

The Foreign Minister of Luxembourg Jean Asselborn and the EU Commissioner for Better Regulation Frans Timmermans wanted to prevent the Polish constitutional amendment. That is understandable, especially because in the Polish case they are concerned about the renationalization of the country.

Both threatened the Polish government with consequences. Unfortunately, there is no legal basis whatsoever for such consequences. The EU cannot develop any logical arguments why Poland is acting inappropriately - especially not if other member states do not have any constitutional courts. In addition, the basic values ​​of the EU do not recognize any separation of powers; the existence of a constitutional court is not one of the guidelines of the EU.

Even if the EU had good arguments, it lacks the means of sanctions. In the case of Hungary, Manuel Barroso only had to find out recently. The Hungarian government has also restricted the constitutional court and the media. The EU wanted to intervene, but could not find a suitable means. Possible sanctions for renegade member states would be withdrawal of votes in the European Council and suspension of the treaties. They have never been used because they are perceived as too harsh or as a "nuclear option" and would amount to leaving the EU.

Which reforms violate EU fundamental values?

Whether a state prefers to use the judiciary to compare its new laws with the basic values ​​of a constitution or leave this interpretation to parliament alone is a fundamental decision.

The individual European states differ greatly from one another in this respect. Many have a specially created court that is only responsible for constitutional questions (independent constitutional court: specialized constitutional control). In other countries, every court may deal with constitutional issues, although there is always the possibility that the plaintiff will bring the case to the highest court (no independent constitutional court: diffuse constitutional control).

While judicial control over parliament is considered indispensable in Germany, such a regulation is considered undemocratic in other countries.

Not only Great Britain and the Netherlands, but also Sweden, Norway, Finland, Greece, Denmark, Switzerland and Cyprus attach more importance to being able to change the political system democratically at any time. Constitutional courts therefore do not exist there or have far fewer powers.

What is often problematic from a German perspective: Such "free" democracies are open to changes in the law by all democratic movements - including right-wing extremists. The Germans have had bad experiences with this and have therefore opted for a legalized, "defensive" democracy that forbids extreme positions.

If the Poles want to convert their defensive, constitutional democracy into a radical democracy, that is not unusual at first. But it becomes problematic if at the same time liberal basic values ​​are to be abolished.

The PiS has already announced that it wants to regulate the Polish media more, which would restrict freedom of expression. Only with the implementation of these planned reforms would Poland violate the fundamental values ​​of the EU.