Constitutions, EU Law and Judicial Strategies in the Czech Republic, Hungary and Poland

Abstract

Given far-reaching changes in the legal systems of East Central Europe since the mid-s, one might expect administrative court judges to have modified the way in which they decide cases, in particular by embracing less formalistic adjudication strategies. Relying on an original dataset of over one thousand business-related cases from the Czech Republic, Hungary and Poland, this article shows that -despite some variation across countries and time -judges have largely failed to respond to the incentives contained in the new constitutional frameworks. They continue to adopt the most-locally-applicable-rule approach and are reluctant to apply general principles of law or to rely on Dworkinian 'policies' in deciding hard cases. The analysis links these weak institutional effects to the role of constitutional courts, case overload and educational legacies.

Burning the Rechtsstaat: legal institutions and protection of the rule of law

“…While the next section explores the longer-term effects of these differing strategies, an immediate result could be seen from the Polish incremental policy versus the Estonian rapid transition, namely the lingering legal Soviet "mentality" across legal institutions, most prominently displayed in overt formalism in adjudication (Mańko 2013). Matczak et al (2010) name two reasons why a formalist approach flourished under communism: first, the impossibility of applying legal acts of higher order in the adjudication process drastically limited the need to refer to the fundamental principles, such as equality or liberty. Second, the literal approach to the law (and treating the law in the narrow sense as a mere "set of rules") allowed the judges to avoid incorporating "public values" into the adjudication process, to some extent shielding them from the accusations of direct support for an authoritarian regime (Matczak et al 2010: 83).…”

“…Second, the literal approach to the law (and treating the law in the narrow sense as a mere "set of rules") allowed the judges to avoid incorporating "public values" into the adjudication process, to some extent shielding them from the accusations of direct support for an authoritarian regime (Matczak et al 2010: 83). 24 This reliance on formalism has continued post-1989 and indeed remained pervasive: surveying 500 administrative court judgements from the period 1999-2004, Matczak et al (2010) note that Polish judges used "internal values of law" (the proxy for the formalist approach) 81.5% of the time, with "values external to the law" and "constitutional law topics" referred to only in 10.2% and 7.4% of cases respectively. As the administrative court is supposed to protect the people (with entrepreneurs to the fore) from the arbitrary and unjust acts of the government and bureaucracy, the lack of a frequent reference to the general principles such as the importance ("sacredness") of property rights, as well as the concept of proportionality, is rather telling.…”

Discourses on Judicial Formalism in Central and Eastern Europe: Symptom of an Inferiority Complex?

“…The few empirical writings on this alleged formalism suffer from conceptual and/or methodological difficulties (Matczak et al 2010). Much of the literature is 'theoretical' in the sense of non-empirical or quasi-empirical, relying on intuitions and anecdotes, rather than solid data.…”

“…As a matter of policy, the formalism-as-bad-heritage narrative leads to a reformist agenda. The diagnosis of historical continuity and the critical normative stance are usually combined with a positive appreciation of the educative or transformative effect of EU law and national Constitutional/Supreme Courts on the (ordinary/lower echelons of the) judiciary (Matczak et al 2010). The implications for institutional reform seem obvious: for a thoroughgoing change to happen, (re-)codification and constitutionalization should be accompanied by a re-organization of judicial procedures and practices.…”

Institutional Performance and Compliance with EU Law: Czech Republic, Hungary, Slovakia and Slovenia

“…The Czech legal culture and its relationship to the appropriate implementation of EU law is the subject of debate. Experts hold that a case-law tradition as in the EU’s legal approach is missing (Kühn 2005; see also Matczak et al 2010). At least the higher courts of the Czech Republic are seen to be dedicated to the sound application of EU law.…”