The lost honour of the EU Court of Justice

Koen Lenaerts, the all-powerful President of the Court of Justice of the European Union (CJEU), has just distinguished himself with statements that call into question the most fundamental characteristic of any court, its impartiality. Worse still, by targeting the Hungarian government with barely veiled insinuations, Lenaerts has only confirmed the suspicions that have hovered for years: The political drift of an arrogant court that no longer even bothers with appearances, and the Orwellian instrumentalisation of the notion of the “rule of law” for purely political ends. 

For when it comes to the rule of law, this court is in a very poor position to lecture anyone. The CJEU stands alone – very alone, far too alone – and from this derives an exorbitant degree of power. Whereas at the national level supreme judicial authority is divided among several judicial bodies, this court enjoys an absolute monopoly at the European level. It is at once a supreme court, a constitutional court, an administrative court, and an international court, while also being the sole and exclusive jurisdiction with the final say on European law, without any counterweight whatsoever. 

Isolated to the point of being the only court on the continent to escape the jurisdiction of the European Court of Human Rights because it prevented the EU from joining it in 2014, even though the Treaty-required accession and the negotiations had been completed. It was a straightforward act of sabotage intended to preserve its privilege as an untouchable court, all the while lecturing Member States about the rule of law and human rights. The hypocrisy is all the more scandalous given the CJEU’s shameless conflicts of interest. Is it normal for former senior officials who built their careers in the Commission, who have served as chiefs of staff to Presidents or Vice-Presidents, or as director-generals, to be appointed as judges and, inevitably, to rule on cases arising from their former departments? Or for the president of this court to launch frontal attacks on a state while it is still deliberating on crucial cases concerning that very state? Does the notion of a “right to a fair trial” still mean anything on the Kirchberg plateau? Is this court still credible? 

This question is worth asking, because Lenaerts’ explosive outburst comes in the troubling context of an EU that has turned the rule of law into a political and financial weapon aimed exclusively (yes, exclusively) at conservative governments. The best proof is Poland: Funds confiscated from the Morawiecki government for years – under a thousand solemnly justified pretexts – were calmly transferred to the Tusk government three months after his election, even as he persecuted dissidents and sent police to besiege the national television broadcaster. And while Lenaerts declaims into a microphone, Spaniards look on in shock as their country descends into democratic hell where the Attorney General’s office has become a political branch of the ruling party to the point of being judged by the Supreme Court, where the Prime Minister relentlessly attacks judges and journalists investigating the endemic corruption surrounding him, and where the penal code is rewritten à la carte without anyone in Brussels (or Luxembourg!) batting an eye. And what about Belgium, whose own judges say it is becoming a narco-state? Any views about your country, Lenaerts? 

This shameless laxity stands in stark contrast with the EU’s sadistic and arbitrary treatment of Hungary. Let us recall that 204,000 Hungarian students and 20,000 professors remain excluded from the Erasmus programme for entirely imaginary rule-of-law violations, even as the Commission has just decided to extend the programme to Algeria, Syria, Tunisia, and the Palestinian territories. Let us also recall that Lenaerts’ Court imposed a daily fine of one million euros on Hungary after multiplying by 62 the amount proposed by the Commission. And above all, let us recall that Hungary is entering the pre-election period, and that the entire European establishment, which demands Orbán’s scalp “dead or alive,” seems ready to intervene as it did in Poland: To forget the so-called rule-of-law violations and release the frozen billions if the “right” candidate wins. 

Koen Lenaerts’s statements are therefore a symptom, yet another, of a Union in free fall, one that no longer tolerates political disagreement and has grown accustomed to subduing “deviants” through legal and financial means in the name of democracy. A deadly autocratic impulse that shows that, behind the barricades of the cordon sanitaire, panic is reaching its peak.