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dear participants a very warm welcome to this lunch webinar I'm Professor Pascal Pisha from the University of freeor in Switzerland and as president of the European law Institute it is my great pleasure and privilege to welcome you all to this webinar on the Eli Charter of fundamental constitutional principles of a European democracy this was adopted by the Eli in February 2024 this very important output has been finalized in a time in which issues of fundamental constitutional principles are more important than never as today's discussion will undoubtedly make very clear for those of you who attended already the previous webinars on the topic you know that the Ali decided to organize a series of webinars to discuss the different parts of the Eli Charter of fundamental constitutional principles this webinar is the seventh and last one of the series we will focus on part seven of the charter dealing with constitutional Integrity the recordings of the six previous webinars are already available on Eli website so that you can go back to them at any time or even use them as a source of information for some lectures or teaching material that you may have may need today's topic constitutional Integrity is part seven which covers topics as large as principle 33 duty to uphold and respect constitutional values state of emergency prohibition of abuse of Rights and infringement of fundamental constitutional principles we will not be able to cover all of them in the same detailed analysis but Professor Takis tras will give a brief overview on all of them the two reporters of this project are Professor Elis mu and Professor Takis tridimas they have achieved a wonderful work under the chairmanship of Sir Francis Jacobs first president of the European law Institute and Sir Jeffrey jaer as for all projects run by the Eli this project has also benefited from the inputs of internal bodies of the Eli our scientific director Professor Christian Evander hor our executive committee and the Eli Council as well as the assessors advisors and membership consultative committee moreover the project has been presented on several occasions including at high level constitutional law conferences but before starting let me remind you that you will be able to ask questions through the Q&A function and we will answer those questions orally during the Q&A sessions after the first round of presentations so now let's start with our first panelist Professor Takis tras he's one of the two cor reporter he's the chair of European law at Dickinson pun School School of Law King's College London and director of the center of European law he's also professor at Penn State University and a barister in Matrix Chambers his interest include the Constitutional law of the EU judicial protection Banking and Financial law and comparative law he is the author of numerous Publications including Shen tras Oxford principles of European Union law volume one on the European Union legal order so he will now give us a brief introduction to the Charter and to part seven of this Charter Takis you have the floor thank you very much it is as always a great privilege to present these um seminars uh it has been a great privilege to take part in this project and I'm very grateful to the Eli in particular to to Professor P ponas to Pascal uh and everybody at the Eli for their support so uh let me if I may May um try to share my screen and and I think this yes it works this now works thank thank you thank you very much for bearing with me so um this is a project which essentially tries to encapsulate the the DNA of a European liberal democracy and what we mean by liberal democracy is not a partisan uh regime that supports one one or another political party rather what we are trying to encapsulate is what we believe is part of the common constitutional traditions of the European States as it has developed after the second world war in other words a political system which is founded on majoritarianism but it recognizes that there are limits which are a a imposed by the need to protect fundamental rights so um we came to this um Charter it is divided into seven Parts uh and contains a list of principles that pertain to governance on the one hand and a the protection of individual rights on the other hand we are not trying to replicate the European Convention of Human Rights or the EU Charter for the protection of fundamental rights uh rather we're trying to put together in a document a some foundamental principles accompanied by commentary which seek to um encapsulate the foundamentals uh of um the political system and it has both a descriptive and if you wish a prescriptive character the principles which are extrapolated from the national constitutions but which also set a standards that must be respect Ed by any political regime which wishes to call itself a um a liberal Democratic regime we are also trying to address contemporary issues for example the fight against disinformation they need to protect the environment H they need to fight corruption these are principles which one would not necessarily find in a constitutional text h today we are dealing with the last part constitutional integrity and essentially this tries to um lay down a number of horizontal transversal principles which underpin the specific principles included in the previous part and um imbue the sense that all these principles are part of a system they need to be understood as a whole rather than in olation so uh there are four principles the duty to uphold and respect Constitution values state of emergency principles the prohibition of abuse of Rights and the entrenchment of fundamental uh uh rights or um to put it differently really if you wish to put it more poetically a principle 33 makes the point that that constitutionalism is everyone's concern compliance with the Constitution cannot be outsourced it is the concern of um those who exercise political power those who aspire to exercise Pol to hold political office and also the citizens uh page 34 state of emergency how do you deal with the exception uh principle 35 a how to protect Freedom how do you ensure that an open Society has sufficient mechanisms to preserve itself and finally principle 36 what does it mean that the principle is foundamental so let me say one word about each of them principle 33 is the duty to uphold and respect constitutional values and essentially what the princip says is that all branches of government have that Duty uh but it extends really not only to those who uh exercise political power but to all political actors all those who wish to engage actively uh and wish to acquire political power and even private parties um have the same um a obligation so uh essentially what that means is that effective democracy presupposes that a political incumbents respect the ethos of democracy they must act with a view to complying with the Constitution and also in the honest belief that they actions respect the Constitution it's if you wish the principle wants to go uh Beyond written text and capture the fact of political life they con constitutionalism is not exhausted in written Norms but um one needs to uh make sure that in practice um observes the the the the the spirit of the principles um state of emergency this is uh of course a an issue that um both constitutions and international conventions such as the European convention for for for the protection of Human Rights try to Grapple with how do you ensure that in cases um that threaten the life of a Nation or in cases of emergency it is possible for the government to have sufficient power to uh cope but at the same time um intrude as little as possible on the principles of the Constitution a so ENT itially this is a number of limits which um are imposed on the government in cases of emergency um I would say just three things I think the fundamental Point here is to make sure that um the powers of the state in case of emergency do not lead to uncontrollable executive unilateral M to use the term that Professor Rosen uh has coined in other words it doesn't mean that at a time of emergency there is no role uh for the legislature or no role for the for the Judiciary and there are essentially two guiding standards here one is the principle of proportionality H and the second is the availability of due process the availability of judicial review the idea is that judicial redress should be available not only retrospectively after the in other words the state of emergency has um been lifted but also in appropriate cases while it is still in force and again um state of emergency cannot be a an excuse for dispan the courts or dis Banning uh the parliament uh prohibition of abuse of Rights principle 35 a similar principle is included in the European Convention of Human Rights and also in the EU Charter for the protection of fundamental rights H and it tries to deal with a fundamental conundrum um liberalism thrives in pluralism and Freedom the the the starting point is how to safeguard the freedom of the individual rather than how to compel um it is a liberal democracy is an open system of government uh it places the individual at the heart of the political system but at the same time it cannot allow its self-destruction there must be sufficient mechanisms to ensure that rights are not used to undermine the democ ratic order by leading to a government which um does not respect the the fundamental anti pinnings of that order and intends to abolish its safeguards it's it's a very difficult um balance to be drawn and different courts in different countries have a tried to um to draw that balance sometimes in different ways uh but I think the underlying idea that rights cannot be used to undo the Constitution is one which ought to find its way in a a set of principles final uh principle in this part entrenchment of fundamental constitutional principles and essentially what it says is that a if if we are serious that certain rights or certain principles are fundamental then that must be reflected in the normative karchy what does it mean that a right is fundamental or that a a a principle of governance is fundamental um well it has enhanced interpretational value other a measures other Provisions uh should be interpreted in their light um to the extent that they are sufficiently specific they should be understood as rights that can be enforced before a court and finally they should benefit were appropriate from some degree of entrenchment in other words um it special rules should apply for their Amendment again t here between on the one hand preserving the fundamental character of certain principles and on the other hand um not over constraining future Generations because uh it is um the the the the in the constitution is a living instrument problems change a different Generations may wish to uh exercise different choices so how again how you draw that balance I think is is a very delicate exercise but the poetic analogy here is with ulyses who ordered his Sailors to tie him as he was going through the sirens um the idea was that a he needed to to to to to preserve um the security of his uh crew the security of his vessel um and a that needed some some some kind of self-restraint so entrenchment some set of rules that uh everyone should obey uh and the current majority cannot change simply by majority so these this is a b eye view of what we have put in the final part I know there's a lot of lot to to discuss I'm very happy to um provide any further their explanations thank thank you very much for for listening thank you very much Professor thas thank you Takis for this very insightful uh overview and we will continue IM immediately I wanted to say with Professor anahi uh she works at the department of international relations of the University of Malta she currently serves as its director for the paneuropean masters of Human Rights and democratizations and she's a Swedish national so she has been a consultant to several Swedish parliamentary and government committees most recently the Parliamentary constitutional committee and the government appointed committee overseeing constitutional emergency Provisions during covid-19 results of this work has been published in English and Swedish and this is not a wonder I wanted to say she will now uh give us some Reflections on principle 34 state of emergency anaki you have the floor thank you very much Pascal first of all I want to extend my sincere thanks to Ellie for the invitation uh to speak in this eminent series I also want to congratulate The Institute for this important and timely initiative to establish this Charter On Fun fundamental constitutional principles of a European democracy unfortunately as already noted by Pascal we live in a day AG when such a charter is becoming ever more uh fundamental so thank you for uh undertaking this large uh Endeavor which will have required an enormous amount of of work um so I will uh Focus specifically on principle uh 34 and my thoughts are based on as Pascal already mentioned two uh comparative reviews of the regulation of states of exception in European Constitution so I covered EU member states Iceland nor Norway and Switzerland and took the first one in 2007 2008 and then a followup report uh last year for the Swedish Parliament and government um and each of these reports run to over 28,000 Words which says something about the complexity of this issue so in these 10 minutes I will focus on on a few San points uh in reaction to the to the chter and I'm also basing myself on two documents that were issued in 2020 by the Venice Commission so on the one hand the compilation of Venice commission opinions and reports on states of emergency and the document entitled respect for democracy human rights and the rule of law during states of emergency Reflections which was also issued in 2020 so the the way I've organized the reflections is to look in turn at first the parliament elections the Judiciary and lastly the broader issue and the overarching issue of proportionality which s is already already mentioned uh in the context of states of exception so if we start with uh the parliament there is as mentioned in uh the commentary a strong recommendation across the board against any dissolution of Parliament and this is indeed a syono when it comes to parliaments and their role during a state of emergency but there are also uh some related issues that um need to be considered to make sure that Parliament is not Toothless during a a state of exception and the first one is and several constitutions in Europe have these type of Provisions um uh wording such that a parli the parliament should be reconvened if uh a state of exception uh either state of emergency state of alarm state of Siege state of war is proclaimed so that's the first one one the second one is that um there is often in European constitutions stipulations regarding parliamentary involvement in ratifying decisions on the proclamation of states of exception on the extension of them and of the ending of states of exception um and I will return to some of these wordings later on um here what I just wish to briefly not is that although most constitutions in Europe have wordings on this the con there are some exceptions so if we look at the Constitutions of Belgium France and Slovakia for example give a parliament a minimal role when it comes to decision making around whether to Proclaim um prolong or end a state of exception a third point is um the fact that the extended decree making that government is normally granted when there is a state of exception should be restricted and this is something that the Venice commission has come back to time and again so should be restricted to what is strictly necessary to come to terms with the situation which is at the basis of the state of exception so um yes there is extended decree making power but this power is should be really used with economy to just deal with the situation at hand um some constitutions also re rence certain laws saying that they cannot be changed by decree even uh during a state of exception so for example estonia's article 110 uh states that parliamentary approval during a state of exception is required for um for example the budget so this is not something that can be given as a decisionmaking power to the government then we have the extension of uh the the extension of of parliamentary terms in case it's not possible to hold a free and fair elections this issue arises what will happen to Parliament if its term comes to an end and we're in a situation of exception and here the issue of of or the the possibility or a de facto extension of parliamentary terms is is very common so we see it in the Bulgarian Constitution the Estonian the Greek the Polish the Slovenian um the Italian the Croatian and more T Constitution have some similar Provisions as well just to give a few examples then lastly some constitutions have also been looking at the issue of what happens if the full Parliament cannot be con convened because of the situation of emergency um and here some Constitution constitutions in Europe have looked at alternative uh procedures the most well known is undoubtedly uh the G g g Aus um the the German joint committee which would comprise members of both the bundes talk and the bundes and would take decisions if the bundes talk and the bundes cannot convene and function normally Sweden uh has a somewhat similar regulation the socalled uh War delegation or in Swedish CRI um and the war delegation is a kind of minimum minim mini parliament of 30 no sorry of 50 MPS and it's supposed to replace Parliament when there is a threat of War um the Portuguese Constitution has found an interesting um uh alternative solution which is that it is the standing committee of Parliament that will take over in an emerging situ situation if Parliament is not in session and can't uh be convened so these are some of the issues reg regarding safeguarding Parliament uh during uh times of exception and when there when there is a state of exception uh having been proclaimed um then turning to the second issue that I wanted to cover which is the the this the issue of Elections um there are in a number of constitutions regulations regarding the holding of Elections during war time or in emergency sit situation and some European constitutions state that elections should not be held in such circumstances and this is also something that the Venice commission has been looking into and it recommends that the opposition should always be consulted when there is a decision taken or if uh the government feels that a decision should be taken to postpone elections um and obviously this is a situation that Ukraine is current currently facing um as it is uh in the state of of war and at the same time um there are elections uh coming up so um third point I wanted to raise is the Judiciary um and one question that has been tackled in some although not all European Constitution is that of extraordinary courts and Military courts so courts courts Marshal um if we look at the courts Marshal military courts first um the main question that arises is the extent of uh their jurisdiction during states of war or states of exception more generally and in particular whether such military courts can try civilian cases um and what should be stated at the outset here is that there is no consensus in Europe in European constitutions when it comes to this so if we look at the German basic law um it allows Federal military courts to try civilian criminal cases during a state of Defense um in other cases such as the Portuguese this is expressly ruled out so we see that there is a contradiction here in in European between different European constitutions um there are some Express prohibitions of temporary or extraordinary courts in for example the Danish the Estonian the Luxembourg and the Swiss constitutions but but on the other hand um temporary or extraordinary courts are allowed in other Constitution such as the Greek the Lithuanian or the Polish uh Constitution so this is obviously a tricky issue because military and extraordinary courts do not as a rule allow the same types of of safeguards when it comes to the defendant so then proportionality which is the last issue I wanted to cover so proportionality in in principle um 34 is is importantly discussed and I'm reciting what tak's already cited here which is um the balance between enhanced powers of the government and uncontrollable executive unilateralism um there are other aspects of proportionality that um that have been noted so if we look at temporality first of all uh emergency Powers should not last longer than the emergency and also Extraordinary Measures that have been decided upon dur ing the emergency should end with the emergency and this is something important because um say for instance Switzerland after the end of the second world war the federal Council was quite comfortable with continuing with the new powers it had go gotten during the second world war and it was actually if I'm not mistaken through a popular referendum that the emergency uh Provisions were finally withdrawn several years after the end of the second world war so that's the issue of temporality then we have have geographical extension which should also be proportional so if only parts of a territory is struck other parts of the state territory should be governed as much as possible uh along normal constitutional lines um proportionality of Extraordinary Measures should obviously be compared to the emergency at hand so obviously an industrial accident or an earthquake requires a different set of of provisions and a set of restrictions to uh individual rights than an attempted Keta or a serious terrorist attack or an imminent war and here what is very interesting uh is that quite a few uh European constitutions um especially the more recent ones include several types of states of exception so if we look for example at Estonia they have a state of War um in the Constitution uh a state of emergency uh which is when there's a threat against the Constitutional order and they have what they call an emergency situation that can be proclaimed in the case of a natural disaster a catastrophe or to prevent the spread of an infectious disease um Poland and the Czech Republic's constitutional Provisions are quite similar to those of Estonia so there's an interesting sort of emulation perhaps after the uh end of the Cold War Spain also has three different types of of uh Emer Powers regulated in articles 55 116 and 169 then on the other hand so we have some constitutions that will have only one some have two such as the French and and the German and the ones that have three which I just mentioned and then we have Hungary which is an outlier with at least six different uh states of exception um and that to my mind makes it quite difficult to distinguish them and uh poses a certain uh problem perhaps of of legal Clarity um and this leads me to a final aspect of the issue of proportionality um and that is in terms of how stringent the rules for the proclamation are and that ties in which was discussed um which I discussed um in the beginning of the presentation so if we look at the Spanish uh Constitution uh again it stipulates increasing parliamentary involvement depending on the seriousness of the Emer Mercy po sought so when it comes to the lowest level of of emergency a state of alarm that's decided by the government by decree but then Congress shall be informed and it shall convene immediately for a state of emergency it's the Congress that has to approve uh before a a proclamation by the government then when we have the most serious level of emergency a state of siege for it to be proclaimed it has to be proposed by the government but but it has to be uh accepted or approved by an absolute majority of the members of Congress and other European uh constitutions have similar proportionality rules so the last issue that I wanted to mention very briefly before I wrap up is that there are obviously some laws that cannot be changed during a state of exception neither by decree nor by Parliament there is the Constitution and I'm sure we will discuss that later on uh uh but that's me mentioned also in principle 34 but it might may also um involve particularly important laws such such as electoral laws so that's the case for example in the Polish constitutions and also Cardinal laws uh organic laws or ordinary laws that regulate emergency Powers themselves which will also be ring fenced for from any change during uh times of emergency to conclude I must say that I do not envy the drafters of of principles 34 because um the state of exception is a very complex issue indeed and moreover and very importantly European constitutions diverge greatly on this issue so that makes the tasks even task even harder um we have constitutions that hardly regulate uh states of emergency at all some that do to a certain extent and some that do to a great extent but even if we take two cases Hungary and Germany which regulate states of Amer emergency very um thoroughly the way they do that is is very very different so although we may wish to salute the many constitutional drafters in Europe for their Ingenuity in regulating states of exception getting to an overview picture remains hard thank you for your attention thank you very much Professor haki for for this uh very interesting presentations uh presentation including the fact that in indeed it has been an incredible work by the drafters to try to bring all these different levels all these different ideas into a couple of uh lines and indeed a commentary but uh some write books just on the state of emergency so it is always a hard task to decide what to say and what to uh um not to say in order to keep it in in a manageable way and and you enlighted a lot of these aspects which I'm sure we will deal again in the Q&A section and of course people attending this webinar can always ask questions in the Q&A section already now of course we will now continue with principal 35 and principal 36 on prohibition of abuse of Rights and entrenchment of fundamental constitutional principles and we have with us Professor thas tush kerit uh he's professor of Law and director of the Department of of European and compartive law at the faculty of Law and administration of the University of Gans he's a member of the editorial board of the ex Oxford Encyclopedia of EU law an elected member of the Council of the Jean foundation for Po in Loan in Switzerland and he's an as an attorney he's specializing in strategic litigation before supranational court he has taught across the world among others at UC California Princeton University and European University Institute and I'm thrilled to uh listen to to him to see what he has to say about principal 20 uh 35 and 36 Professor T you have the floor uh thank you thank you very much can you hear me yes okay so first of all uh thank you very much for this uh uh invitation which came to me while I was Trav in but when I uh when I uh uh read the the charter and when I saw uh who's behind the idea uh The Institute itself uh and then two people whom I uh appreciate and respect greatly uh and this is personal part of my uh of my uh introduction uh Professor Takis 3as and uh Francis Jacobs uh Francis Jacobs was the first Advocate General whom I interviewed in 1998 when and I was writing my llm thesis on the office of Advocate General in the court of justice and Taki 3D Mass article in common market law review on The Advocate Journal of the court of justice was one of the first that I read in English on the office of advocate Journal so uh uh 20 some years later having this opportunity to uh share with you my Reflections on the document uh uh that was prepared by those two gentlemen is uh is a uh uh uh so important that we words can tell can can trly express so uh when I got the invitation I was fresh of the uh uh talk that I gave in G to uh a delegation of German judges and one of the things of my presentation for the German judges was this uh never again they were fresh for themselves uh uh from the visit at Vester Plata in gr where the Second World War started and there is a very symbolic place in Vester Plata that reads never again war and those German judges sitting in soot listening to a lecture by a Polish Professor about the importance of never again this was very this was very powerful and very symbolic and I want to read those two very technical on its face Provisions against this more General background and context never again and what I really uh appreciate about uh this part of the charter is the title constitutional integrity and this is my zero level analysis why constitutional Integrity is such a powerful term that captures so many themes and so many ideas that go beyond those two principles that are put into uh into the charter first of all when you use the term constitutional Integrity you underscore how the law itself around us have changed how the law has been used in order to not simply attack human rights but to change constitutional profiles of member states of the Council of Europe and of the European Union so this perspective of a constitutional profile of a state that needs to be protected against those who are attacking it uh is absolutely is absolutely crucial and that's why I call this zero level because zero level uh asks the question why constitutional Integrity as a concept must be uh deployed today in order to track down the attempts to undermine the Constitutional profiles of European States and democracy as such is one of the Constitutional features that Define the profile of a member State we might uh differ about the particular solutions to how we govern ourselves but the duty to maintain democracy is one of the meta principles uh and one of the principles that defines the Constitutional profile of a member state of a European state that is worthy of the name so this is uh this is absolutely crucial and the zero level uh uh about constitutional integrity is also important for one more uh one more reason the law itself and we have seen this in Hungary and Poland the law itself has been pitted against the law the law has been used to disembowel the liberal ingredients of our respective legal orders making them less constitutional uh uh uh integral less honest in terms of constitutional uh Integrity so this uh uh this uh Paradox of law against the law the majoritarian majoritarian politics by way of statutes against the law is absolutely crucial because there is no equivalence between the majoritarian politics and the law because when I read constitutional Integrity I think of the spirit of the law as as as Takis mentioned the EOS the EOS of the law what is so important that makes us Europeans well liberal democracy liberal democracy that goes beyond the politics of the day so this is by way uh by way of an introduction and to explained the importance of the Constitutional Integrity that in itself is a novel term we have never before the uh uh capture of the Polish rule of law we in Europe never talked explicitly about the Constitutional Integrity of our respective legal orders and thanks to Poland and Hungary this discussion is now part of the European discourse this discourse that has this uh axiological Dimension this Mega politics who we as Europeans are and why we still want to be together and what we do when we govern ourselves those are meta questions that constitutional integrity deals with then uh uh how to frame then constitutional Integrity the charter uses principles but I would say that those uh sometimes very technical principles reflect more general principles that uh former Justice of the ecj judge Edward called first principles of the European legal order and I read the charter against this uh more broader uh context defined by the first principles of the European legal order on which constitutional principles as developed in in the charter are then uh flashed out what are the four first principles that those two principles in the charter develop well first of all never again constitutionalism and both abuse of Rights and the dream of entrenching certain core elements of our legal systems reflect this idea of never again constitutionalism secondly the first principles that those two principles reflect is the preponderance of the law over the politics thirdly political power in Europe post war was supposed to be the political power constrained by the law we came together in 1951 because we believed in the power of Institutions and the power of the law to rebuild democracies and fourthly and uh paradoxically there is this uneasy Dynamics between trust and distrust if you look at the uh convention on on human rights the convention on human rights distrust the element uh expresses excuse me the element of distrust with article 17 and the abuse of Rights Clause as does the charter with its own abuse uh uh clause whereas on the other hand the founding treaties of the European communities were silent on the abuse of rights were silent on fundamental rights were silent on the rule of law why because there there was an an implicit assumption that it will never ever happen again that we Europeans have learned from the past so this this Dynamics between the trust and the distrust is uh very important to understand the various techniques that those two documents and now the charter on on top of it uh follow in order to deliver on the promise of never uh never again uh what about what about the entrenchment uh I believe the entrenchment as an idea should be understood from two perspectives uh from constitutional perspective and making certain core ideas of our lead legal orders entrenched and Beyond the politics of the day that is the Constitutional aspect which is well rehearsed well cover in the academic literature but what is trly missing in our in our discussion is this supranational aspect of entrenchment if you look at the most recent case law of the court of justice there is a developing tendency to stratify internally the treaties not all provisions of the treaties on the on the European Union and on the functioning of the European Union are equal there are certain core provisions of the treaties that are entrenched and that are beyond the amending power of the member states while on its face it might be very controversial because member states are masters of the treaties but it makes all sense if you look from this uh uh uh promise and dream of never again that those two provisions of the charter deliver deliver on and and and and then from the supranational perspective you have this Dynamics between what the court has said in the past about the foundations of the European legal order fundamental rights rule of law judicial review and now article two of the treaty on the European Union that uses the term being founded on shared values so the foundations from the Court's case law and now the values that are the founding values of the European Union stand and make a perfect match uh what are then what are then uh important elements that we should take into account when we look into the entrenchment as an institution because the entrenchment itself must be anchored the entrenchment itself must be understood but not just by lawmakers by policy makers but this by but by the society in general why we are doing what we are doing when we entrench certain core elements and what are the important elements that ancore the entrench the entrenchment and let me just go over a few elements that I have uh listed well first of all the membership and the accession to the European Union as an entrenchment we have locked ourselves in the European Union because we don't want to repeat what has happened to us in the past never again so the the the accession and the membership as a mechanism of entrenchment uh entrenchment understood as an absorption of the domestic PIR in the never again you domestic power has only limited choice in choosing political regimes if you are part of the European Union because certain political choices will be disqualified as a result of this this core of the European uh uh European uh European law that that is entrenched explicitly or implicitly into the Constitution into the common constitutional traditions and into uh into the treaties and thirdly and most importantly what what I am really struck uh when I look at the case law of the Court uh as it stands right now is the uh I would call European benchmarks of European constitutionality there are certain core elements that defines us as European States rule of law separation of powers judicial Independence that is the core we might differ on the margins but the core must be respected and defended using the Court's word at all times so we academics face a very uneasy question of possibly having an unconstitutional Constitution within the European Union when using the external uh criteria benchmarks of European uh constitutionality so this is this is an aspect of entrenchment that must be U uh absolutely looked at and uh uh studied carefully and and and and and finally uh this social aspect of the entrenchment because entrenchment as an as a legal device uh must go hand in hand with with what I call the Social embeddedness of the principles of the charter we have seen in Poland and in Hungary firsthand what happens to a liberal democracy that is perfectly organized at the level of Institutions and procedures but what happens to this uh uh top- down construct when those institutions concept and and procedures are not backed up by the social understanding of why we need those in the first place so the social embeddedness of principles as developed in the charter is absolutely crucial and I understand that it's a marathon for us uh uh engag Europeans to try to translate uh those principles in the charter for our our fellow citizens so that at some point we arrived at this uh desired destination of having a discussion not how the integration proceeds but why we Europeans are still together despite all all our uh differences and let me let me finish by asking four four simple questions that indeed those four four questions in my understanding undergeared this uh uh section of the charter on constitutional Integrity so first of all when how we meet why why we are together because we want to live in a liberal democracy that is governed by certain core principles that makes us who we are Europeans secondly who betrays the European consensus of democratic uh uh liberal regimes those who reject the core understanding of certain principles as developed in the charter they don't belong and that's the language of meta meta identity meta belonging if if you if you respect principles you belong if you don't you don't belong this is something uh we we we did not talk about uh uh pray rule of raw crisis and thirdly why the rule of law and more broadly why constitutional principles in the first place and finally in the name of whom and my answer in the name of the European citizens thank you for your attention thank you very much Professor tados kevich for for this fascinating presentation also on this never again constitutionalism I like indeed this uh uh catch word so to say and also what it contains and I think it has been very interesting to see how the two presentations uh followed once the on the one hand the entrenchment and and what it means in terms of ethos and and identity of the Europeans but at the same time the need for some temporary changes in case of eer emergency status though not losing of course the ethos and the importance of what makes Europeans Europeans in terms of con constitutional perspective so um uh we have already a couple of questions but maybe I I I would prefer first to go back to professor tras and ask him whether he wants to react and say a couple of things because I think it might be interesting to have your reaction uh Takis thank you very much and I'm very grateful to the commentators I think these were brilliant comments just to pick up on a couple of issues uh and first of all starting with what Anna said uh the importance of proportionality in the context of states of emergency it is is sometimes overlooked if there is a state of emergency after all there is a fundamental Duty and over riding Duty on the government to protect citizens we as Citizens we give away a lot we pay taxes we give to the government the Monopoly to um exercise physical force over us as Citizens but the least we expect from it is to keep us safe so absolutely I don't think there is any question question that in cases of emergency um the the government that is to say the executive should have the powers necessary to protect citizens but I think this idea of avoiding excessive uh reaction is is absolutely key and it is absolutely key for two reasons first of all because it it it seeks to prevent Auto Cy they um change essentially of the regime in the name of taking action to cope with an emergency but more than that because it protects us from complacency um I think politicians want to govern for good they want to help um but they're driven by um they result driven they're efficiency driven they want to take decisions uh and they will use any power which is available to them uh some years ago there was a financial crisis in Iceland this um po Financial Risk in the United Kingdom uh and the government ended up using anti-terrorist legislation a to cope with the to take measures uh against the subsidiaries of Finnish Banks of of I'm sorry of Icelandic Banks and it's quite interesting because what we see here is the use of anti-terrorism legislation for an entirely different purpose from the purpose for which it was designed so it the the the idea of um respecting proportionality is not only to protect us from autocracy it is also to avoid this kind of complacency that that may uh it it it has a corrosive effect I think on constitutional values um two points in relation to what Thomas presented uh yes Integrity I think is is I think what we trying what we try to C capture by the word integrity is this idea that um it doesn't it is important to to turn constitutional principles into living truths you can you can have a system of governance which is impeccable in terms of in in the statute book in terms of of how it organizes government in terms of how it upholds citizens rights uh but it is no good if those who use it if the users of the system ER and and and those who um are in a position to exercise power uh do not respect it and wish to undermine it so Integrity yes is the the idea is that democracy operates at different levels it is not only a set of political rules it is not only a normative framework but it is also political culture um final point of on entrenchment I I I think we need to be careful here we don't there was and that was debated during the drafting of the charter um there are many different ways of providing for entrenchment and there is absolutely no suggestion that uh the United Kingdom which is a system that does not have a written Constitution is out of bounds it it entrenches fundamental rights in its own way through through the common law and if one goes through carefully through the the the defining judgments the Supreme Court in the earli years of the House of Lords uh I think one does get this idea of of ranking and I can um a look at many judgments where the European court of justice upheld fundamental rights uh and and I believe that the outcome would have been the same if one were were to apply the common law including the the Judgment in CAD in a very different way but but I think it is important to emphasize that entrenchment is not a straight jacket there are many ways of ensuring that but it brings to the fall this question what does it mean that something is fundamental it cannot be an empty word it it must be backed up um by by some legal consequences I I leave it here and then perhaps I can come come back thank you thank you very much uh very useful and interesting as well uh we we have a question on principle 33 and another on the um uh on the application maybe I I take the other one first because it's related to what we have just discussed now uh because someone asked whether there is an institution at European level to verify the European legislation whether or not it is constitutional after its application of course the question could have also been is there uh and I don't think there is a constitutional um scrutiny before any application and also after so maybe because I don't know if those who attend this uh webinar all understand the functioning of the institution maybe Takis you could just briefly uh say a couple of points how in a way this abuse of Rights idea also could be checked and and and uh put into into law in practice uh yes certainly um how is the the constitutionality of EU legislation ensured after it applies um mostly through judicial review the European court of justice has jurisdiction to declare EU legislation void if it fails to comply with the treaties or if it fails to comply with the charter or general principles of EU law which include the protection of fundamental rights so in in in in a way the system because the European Union is an organization of limited powers an organization to which the member states have um conferred certain powers there is a system of checks and balances mostly based on the powers of the European court of justice to ensure that the EU institutions do not act beyond the the the the the powers given to them under the treaty um now of course that raises many consequential issues about standing who can bring an action how the court of justice exercises this power and so on so forth but the the fundamentals of the system are there H and and and and the court of justice has this kind of power uh how does one ensure um compatibility with with fundamental rights and the treaties before the legislation comes into the statute book I think that that's an extremely interesting point um the commission the legal service of the commission does play an important role there but I think this is something which is often underestimated by uh academics um it's certainly underestimated by me as it were because as a as academic Lawes or indeed practitioners we tend to focus on judicial review We tend to focus on the powers of the court but the courts cannot remedy every EV and every wrong and it is indeed very important H to carry out exante review of compatibility of of legislation or administrative measures with constitutional standards and general principles and it is here perhaps where I would say that that many common law systems precisely because they do not necessarily recognize a review of constitutionality um have a very very Advanced systems for the control of um compatibility of bills before they before they become laws with fundamental rights so I think we I think as as EU lawyers we could perhaps take a leaf from the a common law constitutional setup in I'm not referring only to the United Kingdom but other common conss where this kind of exan view is very developed and I think it is extremely valuable it does does require expertise at the level of the lawmaking uh and it it also requires a a bipartisan approach if you wish the where where the lawmakers or or technical teams that help them uh want to make sure that the legislation the the the goal of the the policy goal is done uh within the the parameters of of legality thank you very much this may therefore lead us uh to a question uh put To Us by Oliver Professor mder on principle 36 he says it appears plausible that the method of infringement is up to each legal order as a suitable element of conservation yet is it possible to describe the minimum of constitutional content that must be entrenched in a liberal democracy principle 36 refers to the constitutional principles stated in this Charter uh which would be a very wide range in view of this are there also risk of an over constitutionalization when requiring a WID span entrenchment there liberal democracy maybe on the other hand require a minimum of guaranteed social choices and openness as to constitutional developments and and and Professor kerich you you spoke about some some uh fundamental rights that are more important than others and maybe that's a way to answer that questions but I don't know whether you want to to uh uh to try to give us a a PA yes very shortly thank you for the question I believe uh to to answer this question in a uh uh uh both concrete and Abstract way you have to conceptualize first what we uh mean when we say European consensus uh and I believe that uh overlapping consensus as developed by John rolls can help us here because European consensus among the principles as developed in the charter will never be perfect why because member states themselves are not per so overlapping consensus around core principles as developed in the charter assume that there is indeed a certain core understanding of those principles that will Define us Europeans even though we we are different we pray to a different God there is a certain core that makes European Union a political community and political Community it is no no doubt is European Union right now so I believe before before uh before we uh dissect in detail the those core elements of uh uh uh constitutional Integrity we have to accept that certain core elements must exist and we might even differ ing to roles how to interpret those but in good faith we agree to enter into this NeverEnding bargaining on the content and the meaning of those principles and one fin the understanding and they assume and they enter into the consensus building with bad faith and I understand uh Francis and Takis preoccupation uh uh in developing those principles with the good faith assumption that must drive our initial approach to how we want to govern ourselves if we want to Circ vent the principles by all means possible we will do it but then the good faith is lacking from the start and those who lack in good faith are excluded from the consensus and from as a result the application of those principles and I think after eight years of what has happened in Poland we have to be very serious about how we frame the belong belonging aspect of our uh European uh end thank you thank you very much Takis about the uh wide span of minimal uh entrenchment thank you very much let me also take this opportunity to thank Professor Mada because his observations are always extremely acute and pertinent um and and we we have been very privileged to receive his input through the process so in some respects I think Oliver I think you're a shadow author of this because you've made us think um very much about about a number of principles so a wholehearted thank you for for your contribution on behalf of all the drafting committee um yes entrenchment is difficult and there is a risk um as Oliver States in his question risk of over constitutionalizing ation because if everything is constitutional everything is elevated to this a group of rules that are higher ranking and deserve a a a heightened level of protection then that leads essentially to the horific of the legal system nothing can change uh so I I entirely appreciate the and um I don't think the the chter can can resolve it I think all all we can do is is pinpoint it as it were uh I me I have views about specific judgments by the European court of justice but but I think these are beyond the um the remit of this of this meeting if I can say one word about the first question that Oliver asked this relates to princip 23 um um princip 33 I'm sorry and princip 33 just a reminder to the audience is about the duty to uphold and respect constitutional values which is extended to private parties um we say private parties have a duty to respect the Constitution and uphold the values of liberal democracy and I think Oliver says well what does that mean is it really binding obligation is it an interpretational principle um now principle 33 has not been easy to draft and I think we there were strong Divergent views in the drafting committee precisely on this point uh and I think different constitutions take different views and certainly is not intended to give permission to any group um to take the law on its own hands under the pretext of protecting the Constitution it certainly this is certainly not the intention um and I think the consensus that emerged and I and I I I hope it comes through the commentary and the principle is that it is not a uh a strict legal Duty it is it is rather one of these underlying principles that that that that that should imbue the Constitution it's what I said at the beginning that that constitutionalism is everyone's concern it is not something that that an a politically alert citizen can Outsource to the government because or to those who be who want to be the government because um then we get into this idea of complacency or to put it differently um a lord judge um who who was a distinguished member of the Supreme Court in the United Kingdom said that the the principles of the Magna Carta are not to be taken for granted they they are um they are to be kept alive and enforced by everyone if the risk of complacency um is in some respects the greatest threat to threat to democracy so in an naturell to answer Oliver's question I think the intention was not to create some kind of General obligation on the citizen to resist because that would lead to chaos Anarchy and anine the Very principles you're trying to protect the idea was rather to um emphasize this the the the that the on the basis of of a democratic regime is that that the Vigilant Citizen the it is Citizens that also have a stake um in in in in in in the system be becoming operational thank you thank you very much I I saw Professor haki Anna you wanted to uh take the floor at least you were moving in such a way so you're welcome either to add something on these points or otherwise I have also a further question for you well what from now I'm speaking from the point of view of of a political scientist which is obviously at the basis what what my speciality is and I always found it in these discussions around absolute entrenchment interesting because at the end of the day and here I sort of concur absolutely with with Takis at the end of the day it is up to the citizens it was to go back to that example of Switzerland after the second World War it was the citizens and the wisdom of the citizens that reestablished full democracy in wiland after the second world war and there is nothing having looked for so long at emergency provisions and they are often where uh these issues come to the four uh it's clear that there are no emergency Provisions in the world that can Safeguard a democracy unless there is a Vigilant citizenry that want to make it survive so in that sense the absolute entrenchment is obviously a set of safeguards that can be also very well con written into the Constitution but a constitution can be completely transformed so in that sense it remains a discussion which from political scientist discussion Viewpoint um will depend on on a series of of of of issues so we have for example if we look at the German Constitution we have some rules including um the kite which is fundamentally entrenched and considered to be inviable and cannot be changed but we will have to see going forward uh depending on um the how power evolves in in in Germany there is a continued advancement of alternative for Dand they are clearly not for some of these fundamental values so it's a political process as well so that's important for yeah thank you very much and also for mentioning the Swiss example because of course the referendum was part of the institutional constitutional framework so it is not by way of at least so far as I Remember by way of a revolution of people walking in the street they use the Constitutional mechanism to get back to the Constitutional fundament so in a way it's still the Constitution that was uh uh put uh in in place thanks to the people and and and to continue on the example of Switzerland and the emergency aspect uh which was what was really interesting was to see that the uh executive had the power through the Legislation during the covid pandemic to take a number of measures but then and that was also foreseen by by the emergency uh measure framework uh at the end of the pandemic the parliament had to confirm or modify or infirm uh um through a legislative process what was taken by ordinances and again uh there was the possibility and it was taken of an of a referendum by the People by 50,000 people saying okay we want this to be decided by the people so again you have this uh uh balance check and balances in a way between Parliament and executive and in Switzerland which is of course a bit specific uh uh through the referendum and the people yeah I I don't know if you want to react on that that's more personal comment yes that was perfect okay uh uh we are getting slowly to the end of this webinar so I I maybe I would just uh uh beginning with Professor kerich I I will just make a LGE last uh round table so to say so that you can maybe add a few last sentences and then I will I will close so maybe uh thas can say yes uh thank you thank you very much again for the invitation it was an honor uh as I emphasized let me just uh uh finish by uh saying few short words uh uh first uh I really appreciate what uh Takis has said as and emphasized in his uh uh introductory remarks and then his uh clarification ation about this uh uh Beyond textual element of the principles and I would add those principles that you have developed will uh win the day at the end of the day if there exists something that I would call social lives of the Constitutions when the principles become lived experience when the citizens themselves think that those Constitutions are my way of life that I breing and I leave those principles every day but again this aspect of uh uh what I'm talking about this is this has nothing to do with the textual uh Dimension but with the contextual uh analysis because when do we deal with a document that we might call a good Constitution a good Constitution is a document that moves along the trajectory from text to to context and builds this context builds and nourishes the habits of Hearts of the citizens but building a context of the good Constitution calls for so much more than just uh uh coming up with a very well-drafted text because the text must be lived must be uh practiced uh those principles must become our way of life and this is something that uh we have been neglecting in in my part of Europe but I would say that the treaties have never developed their own way of life what does it mean to live under the treaties the European treaties for an average citizen I'm I'm not sure whether our our feedback or our analysis would be very positive on that on that front so uh moving beyond the textual and embracing the contextual of law in society not law and Society is something that must inform our discussion moving moving forward and and last last point I I really urge you to understand the gravity of the context in which Takis and his uh uh his colleagues drafted this document because this document as important as it is must be always read with one caveat in mind the limit of law if you have if you have a political party bent on the destruction of the Constitutional legal order and they come to the Constitutional table with baseball bats and just trash the Constitutional framework there is not much even the best drafted constitutions can do and this is what has happened in Poland we have all those guarantees all those safety nets in our document but when there is no political character and to the to the contrary when there is a drive to destroy the Constitution the text itself will not do the trick and I believe that's something that we have to remember and that's something that we have to teach ourselves as lawyers as a lesson of humility at some point we lawyers must move Beyond lawyers heads thank you thank you very much Professor Anna sh haki sorry khaki actually Ki um so yes I wanted to also uh take up of uh what Takis said earlier in his uh commentary uh both uh when he talked about ODS and the siren song so we know that ODS was a hero uh but yet though he was a hero he tied himself he had himself tied to the mask because he knew that he would be lured otherwise by the siren song so we know it's expressed in other ways that pow power corrupts and power ex or absolute power corrupts absolutely um and this is something that will happen even to an odive so even to a heroic figure so this is not to say anything bad about any particular political leader but it's in the very nature of power and that's where the Constitutional Provisions come in and this issue of proportionality that Takis mentioned earlier so constitutional regulations around uh proportionality and around states of emergency more generally should protect States uh checks and balances on the one hand so that checks and balances whether it's from the Judiciary the parliament um other institutions remain in place even if it's slightly altered and also allows for a return to normal afterwards and that's where Pascal's comment regarding the Swiss Constitution and the fact that it allowed for this mechanism of of a referendum was important so that's what um I would end up with uh this issue that states of emergency regulations are there to allow for continued checks and balances even at an altered uh level and making sure to the extent that that's possible that there is a return to normal after the emergency thanks a lot thank you very much and and now Takis you have the floor as well thank you very much I don't think I um want to add anything really I mean I agree with all the comments it is and what Thomas said about the limits of the law um is reassuring is in a way depressingly reassuring because it shows how little we can do as lawyers but it is absolutely correct and I think sometimes I think that applies to all institutional Actos as it were sometimes we we tend to exaggerate the importance of certain controls uh for example judicial control because we so immersed into them um and the truth is that it's it doesn't matter how well the Constitution is drafted what matters is uh whether there is the the anping um willingness to willingness to observe it I think that that that's a very salutary concluding remark thank you again very much thank you very very much Takis and and really thank you very much to all three of you it has been a a fascinating uh debate or at least discussions and Reflections around these couple of principles I think that enlighted really all so the various webinars we had before so thank you very much and I I would like also to express my thanks uh at the end of this series of webinars uh to of course the two co- reporters of this Charter Takis tras from Kings College London and Professor Elis Muer from KU Loven under the co-chair of Sir Francis Jacob and Jeffrey Dell uh but more specifically even to Takis tras and Elis mu for their AV availability to join all these webinars it has been seven webinars a whole series that was the first time that the El launched a series of webinars and it was interesting to see how many people joined interacted and again the end result to have a whole series of one and a half hours recorded webinars that can be used I think that will be really interesting also for the future of course all this is available on the EU not EU but not yet but on the Eli website and on our YouTube channel uh uh I I I can also say that the uh edited version of the charter will be published in the coming days on the Eli website couple of days next week maybe and so you will all have the opportunity then really to go back to what will what is then the final edited version and uh last but not least I would like to invite everyone also to join the next webinar which will be next Monday again at lunchtime at 12:30 uh Continental European time uh on the impact of CLA Senor inan case the uh European Court of Human Rights case on CLA Senor it will take place on the 24th of June from 12:30 to 2:00 and of course further details of this is just now published in the chat that is also to be found on the Eli website so thank you very much also to the participants uh to all three of you it has been very interesting and I wish you a wonderful week thank you bye-bye thank you