 Good afternoon everybody and a most sincere welcome to the FIA headquarters here in Dublin. My name is Barry Colfer and I'm the director of research here. I'm really pleased to welcome you all here to this event in person and those who are joining online welcome. We're delighted to be joined today by Laham Pesh, who's professor of law and dean of law and head of school at the Southern School of Law at UCD. And Professor Pesh has been good enough to take his time out to be with us at a very busy time. I believe today is the last teaching day of term. So to grab a professor now at this time of year it really is greatly appreciated that you can take the time out. And of course UCD was my alma as well so it's really great to connect. As ever the online attendees will be able to participate in the discussion once Professor Pesh has finished his opening remarks and you can do so by using the Q&A function on Zoom. And a reminder that today's presentation and Q&A are both on the record. And please feel free to participate in the discussion using the handle on Twitter slash X at IIEA. So I'm going to briefly introduce Professor Pesh and also I haven't done so already all the discussion is on the record. Professor Pesh specializes in EU public law and is lectured in a variety of subjects including EU constitutional law, EU internal market law, EU competition law and European human rights law. Apart from his role as professor of law at UCD, Professor Pesh is a visiting professor of law at Bordeaux University, a senior research fellow at the CEU Democracy Institute in Budapest and the co-director of the Good Lobby Profs which he co-founded in 2021. From 2018 to 2022 Professor Pesh was a member of the Verizon 2020 funded four-year multidisciplinary research project on reconciling Europe with its citizens through democracy and the rule of law. He is currently a member of the editorial board of the Hague Journal of the Rule of Law, a member of the advisory board of Reclaim, the Human Rights NGO based in Brussels, and a member of the international advisory boards of GEM DMON which is another horizon funded project, Residio and many, many other things which I could mention. Is CEU still based out of Budapest? I'm incorrect to say that, right? It's been relocated so forgive me. Thank you very much to my team for preparing the notes and for setting up today as well. And apart from that minor oversight regarding the CEU and being in Budapest, I apologize and hand over to you Professor Pesh. Thank you everybody. Thank you very much and you're actually not wrong regarding the CEU. Actually part of what I'm going to talk about today when it comes to attacks on academic freedom but there was an attempt to expel the university from Budapest but it failed at least to some extent. All of the students have been relocated to Vienna but the building is still left in Budapest and we have some research aspects there but the building is 90% empty. It shows you actually that's a good example of the EU acting in a too little too late fashion because damage had been done and damage could not be remedied by the time the commission had won the litigation in Luxembourg. But I'll return to this dimension of litigation to protect the rule of law. So today I'm going to speak for about 20, possibly a bit more. There is a lot to be said sadly about the undermining of the rule of law in the EU for the past 10 years. So this is not going to be an uplifting talk I'm afraid so just bear with me. You can ask me essentially about potential solutions during the Q&A. What I'm going to do is give you another view at least my thinking on the topic of the undermining of the rule of law in the EU in the past 10 years. So let me begin essentially by drawing your attention to possibly what is the most important set of judgments from the court of justice regarding the rule of law and I'm talking about judgments issued in 2022 by the Court of Justice in response to two annulment actions lodged by the Polish and Nongaian governments in respect of the so-called EU rule of law conditionality regulation. If I'm being a bit too technical possibly just feel free to ask me a follow-up questions at the end. I'm going to assume a fair amount of legal knowledge possibly excessively so but I'll try to keep it as simple as possible. But why am I mentioning these two judgments in today's lecture or presentation? Because it's more important that the two judgments the arguments raised before the Court of Justice were quite unprecedented from a rule of law point of view. For the very first time in the history of EU law we had two EU national governments denying that the rule of law is a legal concept which can be enforced by the EU institutions. This was very unexpected very surprising because the rule of law has always been viewed as a legal concept in EU law at least which can be enforced can be the subject of legal actions. And why is it so surprising because these two countries joined the EU at a time where access to the EU and continuing membership of the EU were both formally conditioned on respect with the rule of law. So they were essentially backsliding on their prior treaty commitments not only in terms of challenging the concept of the rule of law they were essentially openly acting in defiance of their treaty commitments. The two judgments issued by the Court in response to these two legal actions are worth reading in full but it would take you, it took me about a day just to read the two of them and this is what I do on a day to day basis. It's worth it but it would take possibly an entire weekend to do so. As far as the concept of the rule of law is concerned the two judgments are very good from my point of view because the Court of Justice just as never before actually not in this way not as explicitly and not as powerfully the Court of Justice confirmed as expected that the rule of law is a legal concept is a legal concept which which can be the subject of legal actions. It does contain legally binding obligations which Member States must comply with if they don't they can be sanctioned by EU institutions. According to the Court of Justice and this is a phrasing which is worth noting the rule of law forms part of the very foundation of the EU and its legal order. For the very first time the Court of Justice also use a verb which he had never used in this context before the verb to defend. According to the Court of Justice, EU institutions have a duty and obligation to defend the rule of law within of course the limits of the powers allocated to the EU by its Member States. At the end of the day it's important to remember that the EU duty to defend the rule of law is a duty given to the EU by the Member States themselves so the Member States can hardly complain if the EU actually does defend the rule of law. This is the mandate it got from the Member States themselves. These judgments were issued in a broader relatively I would say from a lawyer's point of view keen on the rule of law as a legal principle in a relatively I mean not relatively very worrying context. In the EU in the past 10 years as I will outline we have faced we have seen increasing authoritarian developments so it's not simply that the rule of law was challenged by two authoritarian governments. From a conceptual point of view, we have seen a number of governments essentially engaging or implementing authoritarian policies. The President of the Court of Justice himself referred to authoritarian drafts in an article published this year in the Columbia Journal of European Law. This is the first time as far as I know that the sitting president of the Court of Justice of the EU, President Lenard's, referred to authoritarian developments in some EU Member States which he did mention for obvious reasons. This is not the first time President Lenard's essentially rang the alarm or raised the alarm rather. In 2021 in an extrajudicial intervention, something which was aimed at the other EU institutions, the President made an unprecedented warning or issued an unprecedented warning. He said I'm stating here that the foundations of the EU as a union based on the rule of law are under threat. So that was 2021 and he had it in the same speech. The very survival of the European project in its current form is at stake. So this was never been stated as such. This was a very blunt warning aimed at EU institutions. A few months before an unprecedented phrasing was also used by another judge or an advocate general of the Court of Justice, advocate general Bobak. This time in the context of a formal case originating from Poland, I'm not going to mention the details of the case. What is particularly worth noting is the expression he used in his formal opinion in this case. The advocate general Bobak warned about the emergence of legal black holes within the EU legal order. This was, I mean, it's a very strong blunt phrasing very rare to see in the context of a formal case. These worries about rule of law backsliding, authoritarian drifts are not simply peculiar to EU judges. In fact, in 2019, before these warnings originating from EU senior judges, the presidents of three European judicial networks wrote to the president of the European Commission, Ursula von der Leyen. In the letter to the president of the European Commission, they alerted her to the dismantlement of the principle of separation of powers between the judiciary and the executive in several member states. They stated in the letter that judicial independence was being dismantled as we speak. This was also unprecedented in terms of the blunt language being used about authoritarian developments happening in a number of member states. Looking beyond the EU, I can also refer to two extrajudicial interventions by the last two presidents of the European Court of Human Rights. In 2022, President Spano spoke of a Europe in which the rule of law is at risk of disappearing. In the speech by Robert Spano, then president of European Court of Human Rights. There were multiple references to the situation in Poland, especially. Earlier this year, President Schiffrauer-Leary, a UCD law graduate, if I may add in passing, explained that, again in a public statement, explained that some of the fundamental values enshrined in the Convention are under threat. And she referred in this context to instances of democratic erosion in transitional and consolidated democracies. And she mentioned also rule of law backsliding in a number of EU countries. More recently, in fact, just last month, I saw a draft report from the European Parliament. So it's not yet adopted, but most likely due to be adopted in the next few months. This is the first time I've seen potentially official reports from the European Parliament warning about the EU possibly becoming a lawless zone due to increasing unashamed violation of EU law by some member states in a number of fields such as EU asylum law, EU sanctions law and EU human rights law. So as you can see, this is a rather bleak diagnosis, which is widely shared across many judges, or in fact, I would say that's the consensual diagnosis as far as I can see from the most senior judges in Europe, both within the EU and within the Council of Europe framework. The problem is that these repeated warnings have been mostly ignored by the two most powerful institutions, and I'm in here the European Commission and the Council of the EU. This is deeply problematic because this is not simply the diagnosis of judges. There is now increasing evidence. If you look at multiple rule of law and democracy indexes, I'm not going to name them all. I don't have time. But there is accumulating evidence that democratic and rule of law backsliding in the EU is not simply gaining an intensity, but it's also spreading beyond the usual suspects, meaning Poland and Hungary. This was a bit unexpected if you take 2012 as your departing point, because in 2012 not many people remember this, but the EU won the Nobel Prize, the Nobel Prize for advancing and promoting human rights and democracy in the world. Ten years later, 2022, the two countries in the world which had dismantled checks and balances the most rapidly in the world were Poland and Hungary. So within the space of ten years, the EU became a place where the EU was seen as promoting human rights to a place where democracy, human rights and the rule of law were quickly dismantled. This process of dismantlement of checks and balances was so intense. The breadth of it and the intensity was such that in 2022, for the very first time in the history of the EU, one of the main EU political institutions, the European Parliament, described one EU member state as no longer being a democracy. This is deeply problematical, not only for those living in this country, but also from a legal point of view because technically, if you read the treaties, only democratically elected governments can participate to the EU's decision-making processes. We have a formal resolution of the European Parliament describing Hungary as an electoral autocracy. So no longer a democracy. And technically, if you're not a democracy, you cannot belong to the EU. I could multiply the number of examples where we have seen patterns of backsliding in other EU member states, less, I suppose, intense, less breadth. But sadly, there has been an increasing number of EU countries facing the same kind of pattern, the same type of blueprint being attempted by a number of elected authorities. In a recent report by known as the VDM annual democracy report, six member states are identified as being subject to backsliding patterns. Taking 2019 as a departing point, it has been identified as one of the worst backsliders in the world in terms of dismantling democracy, human rights and the rule of law. So for the period 2019-2022. I could also mention the situation in Romania and Bulgaria, but essentially here there is less backsliding, simply lack of improvement, even though Romania was actually subject to intense backsliding between 2019 and 2022. So as you can see, backsliding is happening in an increasing number of countries. Now, what do I mean in more concrete terms by backsliding? Essentially, I cannot really give you the full picture because it's a multifaceted issue or trend or pattern. One of the most concrete manifestations and something which is actually quite new and deeply worrying for a lawyer. One of the most concrete manifestations these days of backsliding or aka autocratization is increasing non-compliance with judgments from both the Court of Justice and judgments of the European Court of Human Rights. This is quite new. It was not as bad 10 years ago. What is new as well is not simply that the judgments from both courts are openly ignored, is that in some cases, in some extreme cases, the violation of the rule of law judgments of both courts are legalized under domestic law by local authorities. So it's not simply that they're violating without telling anyone about it. They're actually formalizing the violation and argue, just to give you an example, that they do not have to recognize rule of law judgments from European courts as binding because it would allegedly not be compatible with their understanding of their country's constitutional identity. That's one of the regular arguments you can hear now. So the concept of constitutional identity is being misused by those violating the rule of law. You can have more countries, sadly, if you look at the violation of judgments from both courts beyond the area of the rule of law. But I'm only focusing on rule of law judgments from both courts because essentially this is a systemic dimension. Once the independent courts have been dismantled, then you can essentially transform your country into a soft dictatorship without any constraints. So this is why lawyers tend to focus on the rule of law because essentially that's a safety net in every democratic system. You remove the rule of law, then the safety net is gone. I'm also focusing on violation of judgments from both the Luxembourg and the Strasbourg courts, but usually those violating judgments from both courts also disregard or violate judgments from domestic courts. And what they tend to do as well is while they're violating domestic judgments, they're also attempting to replace lawful judges with what I have described. It's not a very nice expression, but I think there's no better way to describe them as fake judges or kangaroo courts. Even though I'm telling you about non-compliance with judgments, rule of law backsliding actually goes beyond simply attacks on judges and courts, either in a formal way or in informal way. In fact, what we have seen is that those undermining or engaged in autocratization processes tend to also target very quickly not only judges, but also prosecutors, lawyers, academics, civil society groups, and journalists and media organizations. Once they have targeted or bullied into submission these groups, then what they tend to do is organize the capture of all the regulatory bodies, including electoral bodies. The long-term aim is to neutralize, to make sure that by the time you have elections in the relevant country, they're no longer fair. So essentially the electoral framework has been structurally rigged, so it's impossible to lose the next elections. This is why rule of law backsliding has to happen at a very fast pace. You want to make sure that you have captured the system by the time elections have to take place. This is also taking place usually in a context where the ruling party or the ruling coalition of the relevant country will attempt to misappropriate a state and EU funding with the view of creating a local oligarchy and using the support of this oligarchy essentially to maintain what is the facto and autocratic system of government. So when you view in this light, I think it's difficult to be difficult to disagree with the diagnosis or at least not pay sufficient attention to the warning expressed by the President of the European Court of Justice about autoita and drifts. And he said, and I think I have decided to agree, we are now at a point where essentially we could see the rule of law being replaced by the rule of lawlessness to borrow the expression he used earlier this year. It did not have to be that way. And now I'm going to tell you about EU's action, or should I say inaction, or procrastination. As early as 2013, the European Parliament issued a very important report regarding Hungary already in relation to then the consolidation of power by Mr Orbán already in those days. If you read the report from this report in 2023 and you can see that in fact the European Parliament diagnosed the situation very well. Everything the Parliament predicted did happen. Sadly, every single recommendation made by the Parliament to the Commission and the Council were simply ignored. There were some few legal actions initiated by the Commission resulting in legal wins. But essentially this were just at the margin of the consolidation of power process undertaken by Mr Orbán. So they did not in any way slow down this consolidation of power. In 2015 the Parliament again warned the Commission and Council that their inaction or procrastination would lead to backsliding, spreading to other member states beyond Hungary. By the end of 2015 the Parliament was proven right with Poland essentially implementing exactly the same autocratic playbook first implemented in Hungary. This was in no way surprising. You just had to read the public statements of Poland's de facto leader. In 2011 he used the famous expression. He said the day will come when we will succeed and we will have Budapest in Warsaw. That was 2011. So I mean there was nothing surprising about him implementing Orbán's autocratic playbook at the end of 2015. And yet nothing was done by the Council and the Commission. For almost 10 years there was little meaningful action from the two powerful EU institutions I've just mentioned. Only last winter for the very first time we saw meaningful action in the form of EU funds being suspended to a large extent in direction as far as Poland and Hungary were concerned. However, it was only a matter of time before this new resolve would be subject to be tested. And you just have to read the news. Actually I was reading the news this morning about the suspension of funding. Essentially what we are seeing now is Mr Orbán engaging in extortion tactics and using or threatening to use his veto regarding Ukraine. Should he not regain or regain access to the funds which have been suspended on a rule of law grounds. Sadly, everything seems to indicate that the Commission will positively answer this extortion tactic. By pretending that some of the changes being made in terms of compliance with the rule of law are meaningful when all the experts would tell you they are not. They are what I used to describe as Potemkin-style legal reforms in order to unlock EU funding. Also what is also weighing and worth noting in a way is that both the Commission and the Council have refused to acknowledge the official diagnosis of the European Parliament made in September 2022 to this date. Both institutions are refusing to recognize that Hungary is no longer a democracy. I can understand the legal and political reasons for refusing to engage with the Parliament on this front. But I think it's interesting to see that we have a fundamental disagreement between the most important EU institutions regarding whether a member state is a democracy or not. As far as Poland is concerned, EU Commission was at least a bit more proactive and started suing or bringing legal action more quickly than they did in the case of Hungary and focusing on the rule of law. But still, after we have no more than five legal actions in a total of eight years of rule of law backsliding in Poland. So less than one legal action per year, which is nowhere near enough if you ask me. The problem with this kind of a too little too late attitude of the Commission is now because the rule of law situation in Poland has essentially evolved into a complete breakdown mode, regardless of the latest electoral results. The EU's inaction has led to the ECHR system being increasingly suffocated with applications originating from Polish citizens. Currently, we have more than 500 complaints lodged with the European Court of Human Rights about Poland's rule of law crisis slash breakdown. So five infringement actions from the European Commission to compare to 500 plus number of complaints from Polish citizens about judicial independent violations of the right to an independent tribunal established by law. And 500 is actually the conservative estimate. In fact, if you include all the complaints where judicial independence related matters are raised in the context of Poland, you can easily go beyond a thousand. The problem is the ECHR does not have the resources to cope with this kind of case load. The inaction is problematic not only because he has not an impact beyond the EU institutional framework, but he has also and possibly from a more general perspective. This has undermined the credibility and authority of the EU as a rule of law based organization. I spend a lot of time criticizing the Commission because not because I have anything of a personal nature against the Commission because according to the treaty framework, the Commission is supposed to act as a guardian of the treaty. So if the guardian of the treaty does fail to do the job, then we are in deep trouble. And sadly, I have to remind everyone perhaps of some inconvenient facts as regards to the current Commission. Despite the rhetoric coming from this Commission about the importance of the rule of law and the importance of defending the rule of law when the rule of law is under systemic threat. This is the first Commission ever in the history of the EU to have been sued by the European Parliament for failing to act in a rule of law context. The only Commission whose procrastination on the rule of law front led the national parliament, the Dutch parliament, to ask the Dutch government to bring legal action to defend the rule of law in Poland. Never seen before. The only Commission to have been sued not once, but soon twice by associations of judges for disregarding or ignoring violations of rule of law judgments of the Court of Justice and at the Strasbourg Court. In conclusion, I'm involved in both types of these two types of litigation. The second litigation, by the way, is not official yet, but I'm telling you it's happening in the next. The application has been lodged with the court by judges from another country than Poland. The country I'm talking about is Romania. So it'll be in the news. So I'm giving you some breaking news or confidential news. This is the first time the Commission not once but twice sued by judges, national judges, I mean, think about it for a minute, and the guardian of the rule of law is being sued by the national guardians of the rule of law. So something is deeply wrong. On top of this, and just to mention something which was in the news recently, the European Parliament has repeatedly asked the President of the European Commission to look at the actions of the Hungarian Commissioner within the Commission because of increasing allegations that he has been directly complicit in attempts to doctor, so to change, to interfere with rule of law reports drafted by civil servants. So this is professional misconduct of the highest importance. The Parliament has asked for the President of the Commission to take actions. No action was taken. And I could go on and on. In fact, I have seen also something I had never seen before, misleading information being provided to the European Parliament by the Commission. We have seen the Commission also disregarding the case law of the Court of Justice for political reasons or reasons of a geopolitical nature. So essentially, the situation is quite dire. And sadly, it gets even worse when you look beyond Poland and Hungary to the extent that what I'm seeing and what is something new as well is that there is increasingly a more nonchalant attitude towards breaking the rule of law on an ad hoc basis, even in consolidated democracies. So even though obviously we should prioritize, we should address as a matter of priority systemic threats and systemic violations of the rule of law, what we can see in an increasing number of countries is that there is an ad hoc regard for the rule of law whenever it's politically convenient. And then at the same time, we're seeing institutions looking the other way in these situations because they cannot even cope with the systemic violations of the rule of law. So just to give you a concrete example, just think or if you have not heard, just look at what's happening in relation to this spyware Pegasus scandal. Nothing's been done. And I could go on and on and EU institutions themselves increasingly essentially tend to set aside rule of law concerns whenever politically convenient for short term political problems. There was an interesting editorial in a German legal blog last week. I thought the phrasing used by the author of this editorial was spot on. So let me just cite from this editorial. The author mentioned that the laws regulating and restraining role appears to be viewed increasingly as an obstacle to good government and not a necessary and indispensable ingredients thereof. So an increasing number of national governments arts seem to be inclined of viewing the rule of law as something annoying rather than the legitimate constraint on the exercise of public power. This is a very deeply troubling trend, which is quite new as well. This is also particularly unhealthy because it does provide cover to those engaged in the systemic undermining of the rule of law because they can say look at what's happening in Brussels, Berlin, Paris, Madrid, Rome. If they can get away with rule of law violations, why are you seeking to enforce the rule of law against us so then it gives a bit credence to the double standard argument. But to return to the specific EU dimension and to conclude because I think my time is up. What is particularly striking if I had to summarize all of my talk in one sentence is the gap between the rule of law rhetoric and the lack of rule of law enforcement at the EU level. In 2022, the President of the European Commission spoke of the Commission's duty and most noble role to protect the rule of law. Yet the reality is strikingly different. The same person who said it is our most noble role to protect the rule of law has been sued not once but twice for violating disregarding the rule of law judgments of the Court of Justice. Maybe these two legal actions have no foundations, but I could go on in terms of examples showing a lack of consistency and a lack of urgency when it comes to manifest violations of the rule of law in the EU member states which are not leading to any sort of enforcement action. Now the Commission and the Council's willingness to treat the rule of law as a bargaining chip or pretend that the rule of law is complied with or pretend that the previous systemic violations have been remedied when they are not for mostly reasons of political expediency. Now this is a clear and present danger to the credibility and authority of the EU as a union based on the rule of law, but you can also have dramatic practical consequences on the day to day functioning of the EU as a legal order. Because the EU legal order is premised on a number of principles such as mutual trust and mutual recognition. And we cannot have mutual trust and mutual recognition if the union stops being a union of democracy based on the rule of law and currently we have at least one member state which is no longer a democracy, which is an electoral autocracy according to the European Parliament itself. This is bound to create unsustainable pressures on the functioning of the EU legal order and you only ignore this danger at your own peril. So thank you.