Transformative Constitutionalism in Luxembourg: How the Court Can Support Democratic Transitions

For more than a decade, the illiberal developments in Hungary and Poland pose an ever-growing challenge to the European Union and the very idea of liberal democracy. Though the European legislature has eventually adopted the rule of law conditionality regulation, the political processes seem hardly capable of meeting the challenge alone. So again, the Court of Justice has stood up for the European integration agenda – this time by mobilizing the Union’s common values. Pushed by the developments in Poland and Hungary, the Court’s jurisprudence has evolved with unprecedented speed.
We suggest reframing this jurisprudence as an expression of transformative constitutionalism. At its heart, this concept addresses the question of how constitutional adjudication can propel societal transformation (Section I). What is the added value of such a framing? First, it provides a better understanding of the problem. There is no quick fix for Hungary and Poland. Even if the respective governments change, it will take time, effort and support to overcome entrenched, systemic deficiencies and restore democracy. Transformative constitutionalism sheds a light on such processes and provides insights from other jurisdictions facing similar challenges. Second, the concept may justify a court’s active involvement in such transformative processes. The CJEU’s interventions are criticized as yet another power-grab from Luxembourg, not only by recalcitrant Member State governments, but also by constitutional courts and scholars. Framing the decisions in terms of transformative constitutionalism provides a constructive attitude towards court-driven transformations.
Liberal democracy cannot be externally imposed. Ultimately, it must emerge from within a society, especially by electing a new government. However, external forces can support such processes. Against this backdrop, we will demonstrate how the CJEU has mobilized the Union’s values and assess the grounds that justify this extensive interpretation of its mandate (Section II). We then develop the potential of this jurisprudence for democratic transitions (Section III). Over the past years, the Court has focused on defending European values in reaction to illiberal challenges in the Member States. We suggest expanding the Court’s horizon by taking a more forward-looking perspective. Judicial decisions can support democratic transitions both before and after elections. Before election day, the Court can aim at safeguarding the preconditions for democratic processes. Once elections have taken place, it can support new governments in restoring their legal systems in line with the Union’s common values.