 So it's my pleasure to welcome you all to today's Center for European Legal Studies webinar webinar. My name is Kenneth Armstrong, and I hold the chair in European law at the University of Cambridge. And it's my particular delight to introduce to you our speaker for this evening, who's Professor Gronja de Berka. Gronja is the Florence Ellenwood Allen Professor of Law at NYU School of Law. She has previously held faculty positions at Harvard Law School, Fordham, UI Florence, and the University of Oxford. And she's, of course, well known for her scholarship in the field of European Legal Studies. And her more recent work lies at the intersection of international law, European law, and human rights. And next month, Oxford University Press will publish her much anticipated monograph entitled reframing human rights in a turbulent era. And today, Gronja will explore the turbulence that has been swirling around the slide towards a liberal liberalism in Europe. As she seeks to answer the question posed in the title of her talk, shoot Poland and hungry EU member states. At the end of her talk, we will work through some some questions. And so please use the Q&A function, not the chat function to pose your questions. And I will moderate the discussion with Gronja drawing on your questions. So on your behalf, let me welcome tonight speaker, Professor Gronja de Berka of Gronja. Thank you very much, Kenneth. Thanks for the introduction and for inviting me to to speak. It's given me a chance to work through some thoughts that have been rattling around in my head for a while. I gave the talk, you know, a deliberately, maybe provocative title, but you know it's not meant to be provocative in, you know, any sense other than provoking thoughts because Gronja is one that occurs, I think, to many when we think about what has happened in Hungary and in Poland and compare that to the values which are stated in the EU treaty as fundamental and foundational and compliance with which are a condition for membership. So let me just work through some of the thoughts that I've been wrestling with. I don't have a firm conclusion, but I have some thoughts that I'd be very happy to share. So starting with the basic values, this is something most of you I'm imagining who are listening in will be aware of that the EU treaties at the moment really enshrine and express the neutrality of a certain number of fundamental values to the EU founded on these. Their compliance with them and promoting them is a condition for accession to the EU and there is a procedure that has been created to suspend the rights of a state which seriously and persistently breaches those values. So article two sets out the values they include respect for human rights, democracy and the rule of law amongst others. So article 49 sets out the conditions for accession which includes respect for and promoting these values and article seven sets out the procedure for suspending the rights of a state that persistently reaches them. So there's little doubt about that. Those are, there's no ambiguity about the values there's no ambiguity about the language and they're in the very first article two is really the one of the first articles of the treaty. So where are we today, again, and this might be familiar to many of you but just to list some of the issues that have arisen in relation in the last number of years in Hungary and in Poland, and I haven't identified which, which some of these applied to both states some primarily to one rather than the other, but there's elements of them in both. So, most obviously and probably in relation to Poland, the issue that has drawn most attention is the gradual subjection of the judiciary to political control, the gradual removal of the independence of the judiciary through various means, in both member states using age limits to try to retire early judges from a previous era, which who are not considered to be sufficiently friendly to the ruling party, expanding the size of courts and replacing the retired early retired judges with political loyalists, establishing in Poland a disciplinary chambers of the Supreme Court to monitor and police judges for violations, such as making references to the Court of Justice and so on. In addition to those to the very clear undermining of judicial independence and it's been really systematic in both states. In terms of civil society, we see this particularly in Hungary with laws on the funding and registration of NGOs. Other kinds of attempts to to inhibit freedom of association, especially of groups that might challenge government policy, repression of media freedom and pluralism this is in the news again this week. It's been done more comprehensively in Hungary than in Poland but they're catching up fast in Poland. It's been done of LGBT rights and freedoms in Poland, well in both countries also by the promotion of traditional conceptions of the family also undermining gender equality reproductive rights with drawing from or challenging new international norms and violence against women. The actions in relation to asylum seekers and refugees on lawful under you law but also international law anti migrant rhetoric that inflames a liberal sentiment extension of executive control is particularly in Hungary through expansive COVID triggered laws, and even though Hungary ostensibly drew back from its initially very extensive blood it still has a introduced really expansive powers for the Prime Minister to declare states of medical emergency and so on, and to control further political health and all kinds of institutions and policies in the state. And these aren't just allegations. So, you know, we often lack adequate information and so on there's no lack of information or no lack of reporting and testament to what's happening in these states and they've been criticized by multiple observers so I've mentioned the external and international institutions and actors that have condemned developments towards authoritarianism and a liberalism in both states. The Venice Commission on Democracy through law of the Council of Europe, not an EU body but a Council of Europe body and very respected as a monitor of Democratic developments and backsliding these days. And more of international and regional human rights NGOs have issued statements condemnations letters, and so on. Multiple associations of the judiciary have expressed concern. The National, the Association of the Councils of the judiciary expelled the Polish National Judicial Council for lack of independence, but also there've been statements issued, including as recently as this week by various associations really setting off the issue of saying, this is a really fundamental attack on the rule of law and then attack on an independent judiciary and one state weakens the position of the judiciary is right across Europe for multiple reasons. And then we see also these declining rankings and these are all, you could say private rankings they're not government rankings they're not intergovernmental rankings, but organizations like the World Justice Project the economist intelligence House have various indicators and they rank states all over the world both Poland and Hungary have been declining sharply and those with Freedom House having declared hungry not to be any longer in democracy and Poland has lost its status as a consolidated democracy. So, these are real, the developments taking place. So the big question that I seem to be asking in the title why do they remain member states given that they really wouldn't qualify now to join if they were applying for membership. They wouldn't pass the requirements of article 49. And the simple legal answer the first answer I suppose is well, they can't be expelled right we don't have a power of expulsion in the EU treaties. So, what does that mean well. There is a power, not a power, yes a power of freedom to exit now we know that article 50 of the treaty on European Union was added by the Lisbon Treaty. And we also have a suspension mechanism as I mentioned in article seven of the treaty on European Union and both of those were one of those article 50 was added. The Lisbon Treaty article seven of it earlier in the Amsterdam treaty and it's been developed since then. But it's, is it the case that it wasn't considered that it was considered and rejected and so on. Well, it seemed that it was considered at the time these the article 50 provision was drafted so during the drafting of the constitutional treaty the precursor to the Lisbon Treaty which was kind of repackaged and adopted as the Lisbon Treaty. So there was an amendment put forward ironically by members of the EPP, the big grouping of Conservative parties in the European Parliament by members of that EPP, who are now considered have sheltered Hungary and Orban for a long time but they were concerned about rogue states and said well if there's going to be an exit provision there should be a corresponding expulsion provision. And that amendment was rejected. So in other words, the idea of an expulsion mechanism was considered but not included. And it might be interesting if any of you are interested in reflecting on why that might have been why they, why they rejected an expulsion mechanism that's interesting. There is an expulsion mechanism for example in the Council of Europe, which allows a state to be expelled after a year after a finding of similar violations. We could, of course, nuance that a bit and say well, the fact that there isn't, you know, an explicit power of expulsion and the fact that amendment was considered we don't really know why the amendment was rejected we don't really know what was meant and silence can be ambiguous. And this is right to expel a rogue state and a number of academics have suggested this Larry Halfer and Mita Gulati. It came up, not so much in relation to Poland and Hungary as in relation to Greece during the Euro crisis at one stage many people watching interested to know what could Greece be expelled and so on. And it has been suggested by various scholars that despite this absence in the treaty of a power of expulsion, there must be an implicit right in an international organization under, for example, Article 60 of the Vienna Convention on the Law of Treaties or corresponding for the remaining states parties to a treaty to to terminate the treaty for material breach against a rogue state and then to recreate their, their union amongst themselves. And even, you know, the Dutch Prime Minister Mark Rutte said something similar last year when Poland and Hungary were trying to veto the new the budget, which contain provisions on rule of law conditionality and he said, can we just create a new EU without Hungary and Poland. You know that was a major major suggestion but you know in other words, this isn't some fantasy this is something that occurs to observers political and academic observers, but it's a controversial argument to make. And it would be obviously argued rejected by many and so on particularly by the rogue states in question, and it would be difficult to implement. Just, I guess, suggestion here to this legal kind of question, couldn't it be expelled is there any power could it be imagined is well, they could be requested to leave right the fact that there isn't a formal power of expulsion doesn't mean that it could be made quite clear to member states that they kind of rejected the fundamental values of the or refusing to implement its basic policies, and they could be requested to leave. Again, not easy to enforce but it would change the political calculus somewhat. Okay, so that's that's the legal answer to why are they still member states there isn't a power expulsion. Of course the answer isn't really legal it's it's a political answer and we know that from the fact that the suspension mechanism that currently exists within the treaties the article seven mechanism has barely been activated the lesser mechanism that was included in the process to suspend the rights of a state that's seriously and persistently violates the founding values in article two hasn't really got any serious traction, or not traction but it just hasn't been activated. First of all there was significant delay in activating it against Hungary when hungry was really going far down the road towards an authoritarian system control of all the independent institutions courts undermining the opposition, funding, funding state funding to supportive actors and so on and squashing civil society and nothing was done for a long time in relation to Hungary not by the Commission and not by the European Parliament until I think 2018. And there was some delay but less against Poland where eventually the Commission did activate article seven against Poland for its actions in relation to the judiciary. When I say activate, there are three steps, three, three, three parts to article seven and only the first part of the first article has been triggered in other words the act of, you know, requesting that the article seven procedure be triggered there hasn't been a decision that was necessary under the first part article seven by the Council, you know the member states meeting in the Council member state representatives that there is even a risk of a serious breach of the values in article two so long after we have serious and persistent the Council has not even taken a decision that there's a risk of such. So there's no prospect in sight of moving beyond article seven one on to the actual decision of the heads of state to suspend the rights or and what would follow that there's been a breach and then under three to suspend the rights. The stage it's at as I put here is frozen in Council meetings there have been discussions, formal discussions on the rule of law issue under article seven one in the Council, but from descriptions that insiders have given of it, it involves mostly long PowerPoint presentations by Hungary and Poland very clever legal arguments separating out and giving an answer to each of the allegations. Questions being asked only by non Central and Eastern European states of silence on the part of one part of your questions on the part of Western European states, Western European member states and no movement of any kind no prospect of it. So the why question what what's to to explain the political unwillingness to confront Poland and Hungary. And one of the earlier explanations was that, in particular in relation to hungry the Fidesz Party was an important part of the grouping within the European Parliament and was given strong support by Manfred Weber in Germany in particular who's the head of that grouping at the time, and was not just tolerated but given significant support, nobody willing to turn on their ally very important to have that dominance in the European Parliament and so on so self interest. Also just the logic of intergovernmentalism because that has changed now Fidesz has been suspended. The straw that broke the camel's back was nasty posters of the then president of Junker of the Commission, along with the nasty posters of George Soros which hungry uses to to defend them and to ridicule them. But there are ongoing reasons why there is political reluctance to confront them the intergovernmental nature of the Council, each state preserving itself not wanting to make the allegation less an allegation be later made against it retaliation of some kind that couldn't be predicted and what's called this reciprocal deference described by Dan Kellerman and Kim Sheppler. So, the nature of the body that's called on to take the next step under Articles 71 the Council of Ministers is really not suited to taking that kind of challenging action there's too much self interest on the part of each of the states to overcome, and they have shown no interest in overcoming that. That's true but so intergovernmental action under article seven is not happening. But there has been some supernatural action action on the part of the EU supernatural institution so that's, it's not that nothing is happening in relation to Poland and hungry, but no political confrontation is taking place. The commission in its capacities garden of the treaties is using the dialogue rule of law tools which have proved absolutely without any traction or use unfortunately. It's like a deep politicized political diplomatic mechanism, and they keep introducing more of these, even as they're, absolutely no impact on what the governments of Hungary and Poland are doing, but more importantly then they've they've moved back to these legal proceedings infringement proceedings under the treaties against both Poland and hungry for multiple of the issues that I set out in the earlier slide on violation of refugee laws on the undermining independence of the judiciary the early retirement age the disciplinary chambers, the closing down of the center of the European University, the funding of NGOs. You know, a lot of these different, you know, liberal actions and autocratic authoritarian power consolidating actions have been challenged by the Commission by initiating infringement proceedings and there are many of those ongoing. There is a suggestion also that you know the Commission has some silencio used a kind of a rule of law conditionality in the structural funds silent ways of, you know, penalizing hungry more than other states in relation to infractions of those funding regulations which don't have explicit rule of law conditionality but have other kinds that could be used in that way. But also the Court of Justice is working alongside the Commission when those infringement proceedings come to it the court has condemned both Poland and Hungary on multiple of these infractions and also is hearing preliminary references from courts in Hungary and Poland courts which don't want to be captured politically and are worried for their independence, but also from other member states, which are worried about the capture of the judiciary in Poland and Hungary so I'll come on to that in a moment. So it's not that nothing is happening, as I said, but that the intergovernmental act actors within the EU are relatively silent and standing back. Are there future additional tools and strategies that might be used or contemplated well Kim Shepula who's been very active in writing on these topics has suggested that the Commission has other tools at its disposal and the court, which is that the Commission could bring not just these individual infringement proceedings picking up this law and that law, the law on the Supreme Court on the disciplinary chambers on the closure of the sea, the Central European University in Budapest, but actually gather the picture of autocratic takeover or authoritarian takeover that's going on because you know one of the ways in which these governments defend themselves is to say well this one is no different from what they've done in Germany or that is no any kind of nomination of judges by a government and that rather than looking at the whole package and saying this is right, serious undermining of the values in article two. So, Shepula and others have really tried to urge the Commission to take this seriously there's a kind of a precedent for it. There are also environmental cases that the Commission used before to put a package of different infractions infringements together and bring a case. And, and she and others are arguing they could easily do that in relation to human rights rule of law and democracy backsliding. The other future tool hopefully won't be too far off is a pecuniary penalty. So once an infringement cases brought a follow up infringement case can be brought to say you haven't complied with that judgment, which found you in violation of article two and other values. You know, to slap a really big penalty on on these states would hit them where it hurts because really, what many people feel props up the government in Hungary and in Poland is the flow of EU funds which enabled them to keep strong support amongst parts of the population that benefit from, you know, the social policies and the welfare policies, or in Hungary's case also corrupt siphoning of funds to allies and so on that that props up the regimes. The other future strategy or tool might be the actual use of the new regulation that was adopted late last year, despite the attempted veto by Hungary and Poland. It's containing a rule of law conditionality provision that's hedged around with restrictions and it's been watered down a bit in a compromise and there's a delay and so on, but nonetheless, that offers the possibility for the future of another financial tool to to address the purses of these governments. So the actions that I mentioned that are taking place kind of decentralized pushback not of a political nature but of a judicial nature from courts around the member states. So recently, beginning last summer then with a reference to the Court of Justice, then just this week I think or last week, reacting to the Court of Justice is ruling a court in Amsterdam refused to surrender a suspect to a Polish court under the arrest warrant. The one regional court in Karlsruhe did similarly, there was the more famous Irish Selmer case where ultimately the judge didn't refuse to surrender because she was told she would have to find a link between the lack of independence of the Polish judiciary, and the particular person's trial, but nonetheless it raised put on the table, the question of, can we really keep going with a with a single area of a single judicial space across the EU the area of freedom of security and justice, where one or two member states are really their independence has been very significantly undermined, and their questions were also put in a Spanish court in was 2018 to a Polish court which have requested surrender under the arrest warrant. So these various possibilities are other strategies that might increase pressure on Poland and Hungary. But what I want to do is to come back to the big question about the political stalemate again so we have supper national action and we could say subnational action from national judiciaries and various other kinds of activities trying to increase the pressure on the Polish and Hungarian governments but there is this bigger political stalemate nothing happening in the Council or the European pencil. And what does that mean. What do we deduce from that from the status quo. So the question is article two meaningless. Is it just rhetoric, you know is it just window dressing. There's just cynical hypocrisy that the member states of the pretend they're committed to democracy and don't really care. I don't actually think that's the case. I'm going to put my cards on the table here. I think there's a risk of that becoming the case but that's not the case I think it's not the reason for political inaction, and I think there are some other reasons that we might go through. And I'll mention a few of those before I make the counter arguments and draw to a close. Some of the arguments going back to the reciprocal deference argument mentioned earlier. This idea of weak intergovernmental enforcement is a kind of endemic or it's a it's a fundamental problem of international organizations. So I wanted to make the example of the European Convention and human rights. The EU's interstate complaint system is incredibly rare by comparison with the individual complaint system. Human rights don't get enforced by states against each other. They're incredibly reluctant to do that it's not just a deformity of the EU or cynicism of the EU or window dressing of the EU. It is the fact that the interests are not aligned in that way so in the ECHR. And secondly, we've been getting more interstate cases because of literally armed conflict between Russia and Georgia or other parts of the former Soviet Union but you know it's rare to see interstate enforcement things like Ireland in the UK over Northern Ireland. There can be really kind of tense interstate disputes which can't be diplomatically resolved and they tend to come to interstate enforcement but it's very rare. So that kind of explains to us why maybe the lack of action within the EU council is not such a surprising thing, even if it's regrettable. And is maybe a belief that the tough confrontation that I may seem to be calling for will backfire, you know that it just won't work and so that then you lose face you confront you say you can't you know there's a real political confrontation. There's no real way of backing it up. And a belief that maybe the long slow game of waiting, nudging, encouraging, etc. speaking behind the scenes is more effective. Maybe there's a hope that things will work their way through within these systems within Poland, Hungary let the people somehow, somehow mobilise even under this authoritarian increasingly authoritarian system and bring about electoral defeat so recently for the Allied opposition in Hungary for the first time showed you know a slight majority over Fidesz. That doesn't mean much because it would still be very hard for an opposition to win and to be able to rule with all the constitutional changes that have been brought in and hungry but nonetheless. That's the hope that there would be change will come about without tough confrontation. The reason for reluctance maybe would be that you know the population of these states, the sense is, they're divided, you know, there's, you support and there's, you know, people are indifferent to the EU and very much support the authoritarian ruling parties, and that confronting those states and activating really activating the suspension mechanism would hurt or undermine the pro you part of the population again it's allied to the previous point I made about the hope that, you know, within these states have to work themselves through not through this kind of crude this political pressure from without. Then there's the post Brexit fears, you know the fears of fracturing the EU, we've already lost one state and, you know, for all the bravado has not been good for the EU any more than for the UK you know it's been a loss. In the EU situation, Brexit and that fracturing risking another exit risking another fracture of that kind where we can the EU further weaken its domestic status weaken its global status. And finally the fear of driving a state like Russia further into the embrace of other external actors and very much more liberal than not soft authoritarian systems but harder authoritarian systems like Russia. And then maybe China through financing and so on that that the EU would do better, you know, to keep them within them to push them out or to challenge them too much so. So these are some of the, the arguments other than just cynicism or don't care about democracy that might explain the failure to confront Poland and Hungary politically. The question I went to ask you know before ending is whether that long game gamble as I call it is actually a mistake or not. Not an easy question. So again I don't want to suggest there's anything easy about this issue I don't think there is I think that's party. The answer to my question of why are hungry in Poland still in your member states it's not just there isn't an expulsion mechanism but it's very complicated and difficult. There's a calculated gamble going on as I've explained it I think that things will get better eventually that if we just just let things be maybe tinker here and there that in the absence of strong political confrontation of going on hungry things will And member states, you know as I explained don't confront them currently also partly because there aren't many externalities for the states themselves or that I think is what they believe, but like the interstate human rights enforcement in the country where states don't suffer particularly when there are human rights violations against the population of another state they might not like it it might not be good, but they don't bear the costs the costs are mostly born by the domestic population of the offending states, or at least by those parts of the population that don't support and capitulate to the dictates of the ruling parties. And here's the counter argument I think there is damage to the EU in non confrontation. And I think that damage needs to be made more clear, I think it's important to highlight emphasize the damage that is done through long to non confrontation and indirectly the damage to the EU will be damaged to the member states, the other member states of the EU, apart from the backsliding member states. So the first kind of damage is damaged to the moral authority and global leadership of the EU. It's, it's, it's desired to be something on the global stage of different kind of regional authority, not like in various ways economically like the US not like China, not like Russia, not like other regions. But it's own distinctive kind of regional organization that is committed to democracy, human rights and the rule of law and that thing can be well done in in a system and organization that's built on these kinds of political systems. There's a lot of damage to the internal market and to the area of freedom, security and justice as I've already mentioned, and that's becoming increasingly evident and I hope I have to say it will become more evident that other national courts will begin to follow the other national courts in the Netherlands, Germany, Ireland, Spain and so on. In questioning whether there is a functioning judiciary anymore in Poland or in Hungary and refusing to maybe enforce judgments refusing to surrender suspects under the arrest warrant and so on, but that damage to the internal market damages everyone damages all of the member states and what they hope to gain from the EU. And all in a way I think is the damage through the continued spread of authoritarianism, a liberalism and democratic rot elsewhere in the EU and there's plenty of it, it's not just I pick Poland, Hungary as those where it's most advanced and so on but there's problems in many other member states, Slovenia is in the news again this week where an ally of organs is busy undermining media freedom amongst other things. And that damage, you know, is very serious, I think the damage through the long game waiting could backfire as the character of the EU might begin to change. So, the future. So I start by saying there isn't an easy answer to the gamble question I think that's right it's like trying to predict the future. The expectation to assume things will gradually improve without political pressure and with these other mechanisms that I mentioned rule of law conditionality and cases before DCJ and so on. But that will require a lot of things to line up and I think many people are skeptical about how robust and effective the new rule of law conditionality is likely to be and how soon it's likely even if it is effective to be put into effect. What's likely is that the continued deterioration in Poland, Hungary and other member states will spread. Look at the popularity of Le Pen in France, the alternative for Deutschland in Germany, the Dutch form for democracy and many others. Many of you are familiar with other member states will know of what's happening there with with growing support for a liberal parties and other kinds of moves towards liberalism. And I think the equal if not greater risk is that the character of the EU as a political regional integration project is fundamentally if slowly changing will continue fundamentally to change. If the gamble of standing back and non confrontation is followed through or continues. So, this is my last slide and slightly confrontational, which is that it's up to you. What do I mean by that, especially saying that here in, when I say here I mean in the UK, which has exited the EU, maybe for those of you listening who are UK nationals don't foresee yourselves as being a part of the EU or even closely associated enough for the EU to care this is less important, but for those who do live in want to live in and see themselves as being allied to and maybe part of the future. Do you want the to be part of an EU, which could become little more than a big regional market with little to distinguish it from other regional trade associations around the world which are more dominated by authoritarianism than Europe has traditionally been. And why do I say you will because member states won't care will not act or not acting we can see that at the moment, and they won't act if there's no political pressure on them to act. And what brings political pressure on states to act. Well, it's sometimes depends on public and popular pressure mobilization agitation demand for people to care. If people cared about what's happening around other parts of the EU and in many of the member states themselves. If this became a, you know, important enough. And there were pressure on governments, all the different ways in which we as citizens can bring pressure I think it might have I don't know if it would but it might have some chance. And it's the, it's the only thing that could work because they think that we've seen that nothing else so far has brought pressure on member states themselves to pressurize Poland and hungry. So I'm a great believer in democratic mobilization. I'm a great believer that actually getting citizens people together to create pressure can work in a democracy to work to bring and actually it's true to say in non democracies to just the cost for people mobilizing in non democracies just so much higher costs of violence and imprisonment and so on. But nonetheless, I think if people don't care. If we don't care, then the future for the EU is very much this rather grim one that I'm painting, where the EU becomes a market, a market where authoritarian government is spreading democratic decay is spreading. Maybe the internal market will continue on with, you know, some impediments but but missing those foundational values, which for many, made the European project, it's economic project it's political project security project worthwhile in the first place. So I'm going to finish there. I think we've just under 20 minutes left and hand over to Ken up. Grania thanks very much for a really fascinating talk and it's already generated quite a lot of interest and discussion and questions.