Second Webinar of the ELI Charter of Fundamental Constitutional Principles Series

25.03.2024

On 25 March 2024, experts convened in the ELI Webinar to discuss key features of the rule of law and how to prevent democracy backsliding.

Pascal Pichonnaz (ELI President, Professor, University of Fribourg) opened the webinar by welcoming speakers and attendees. He referred to Webinar I on Liberal Democracy, which took place on 11 March 2024 and marked the commencement of this series dedicated to ELI’s Charter of Fundamental Constitutional Principles of a European Democracy.

Following Pichonnaz’s introduction, Elise Muir (Professor, KU Leuven, Project Co-Reporter) delved into the origins of the ELI Project. Amidst growing challenges to constitutional liberal democracies, the project aimed at reaffirming European constitutional principles. The resulting ELI Charter, drawing from rich sources including constitutions, case law and academic contributions, underscores Europe’s origins, while incorporating insights from other legal systems such as the United States. Although not serving as a constitution per se, the ELI Charter proposes horizontal features recognised across European legal systems. It seeks to balance the descriptive and prescriptive approaches, acknowledging its dynamic and non-exhaustive nature. Muir emphasised the Charter’s proactive stance in addressing contemporary democratic challenges through reflective analysis and innovative solutions. She went on to present Part II of the Charter, on the Rule of Law, and its seven foundational Principles.

Sir Jeffrey Jowell (Professor; Barrister, Blackstone Chambers; Project Co-Chair) brought attention to the historical lack of consensus on what is meant by the rule of law. He shared his experience in forging consensus from various legal systems on what is meant by the rul of law, drawing inspiration from the influential writing of Tom Bingham. Bingham emphasised the ingredients or principles that all hang together as part of the rule of law, a notion Jowell endorsed, emphasising its multifaceted nature. Jowell summed them up, providing a concise glimpse into the principles under Part II of the Charter: Rule of Law, Legality, Legal Certainty, Right to a Fair Trial and an Effective Remedy, Proportionality, Respect for International Law and Review of Constitutionality.

Claire Bazy Malaurie (President of the Venice Commission) offered valuable insights into the Venice Commission’s stance on the rule of law, emphasising the Commission’s role as the Council of Europe’s body in charge of constitutional matters. She highlighted key documents like the 2011 Report of the Rule of Law, the 2016 Rule of Law Checklist and the 2023 Reykjavik Principles of Democracies, which serve as guiding beacons in upholding democratic principles and are endorsed by the Council of Europe. Malaurie also stressed the Commission's ongoing commitment to refining the Rule of Law Checklist, particularly in addressing instances of democratic backsliding across Europe. Drawing parallels between the ELI Chater and the Venice Commission's work, she explored nuanced aspects of legality and legal certainty. Malaurie concluded optimistically, expressing confidence in ELI’s contribution to the future endeavors of both the Council of Europe and of the Venice Commission, particularly in implementing the transformative vision set forth in the Reykjavik Declaration. 

Gareth Davies (Professor, Vrije Universiteit Amsterdam) echoed the challenges raised by others in crafting a balanced set of principles. While common principles can foster unity and facilitate cross-border learning, they may also reveal cultural and constitutional disparities among states. Davies particularly highlighted the intricate nature of interpreting the right to a fair trial, noting the varied interpretations of ‘fair’ within liberal democracies. He underscored the crucial importance of legal aid, often overlooked by governments, in ensuring access to justice for all. On the principle of proportionality, Davies acknowledged its controversial and multifaceted nature, advocating a diverse range of judicial review approaches rather than a one-size-fits-all approach. He emphasised the complexity of harmonising principles, pointing to the need for flexibility and careful consideration of differences.

Kim Lane Sheppele (Professor, Princeton University) emphasised the urgency of  a comprehensive set of principles for constitutional democracies, especially in light of threats posed by aspiring autocrats. She underscored the importance of respecting international law as a beacon for European democracies and their values. She warned against violations of Council of Europe and EU principles, which serve as pillars that uphold national constitutional democracies. Such violations, she said, also signal a departure from the European consensus on democracy. Sheppele reiterated the vital role played by courts in reviewing constitutionality, highlighting how national and transnational courts form a web of protection in Europe, offering flexibility while ensuring that deviations from democratic principles remain recognisable.

Florian Geyer (Head of the Unit Rule of Law, DG JUST) then discussed the EU Rule of Law Conditionality Regulation, highlighting its significance in reinforcing the rule of law within EU Member States. He referenced the Court of Justice of the European Union, which affirms the rule of law as an integral component of each Member State’s national constitutional identity. Geyer emphasised the unprecedented level of debate surrounding the rule of law within the EU over the past two years underscoring the evolving capacities and systems of European actors in addressing rule of law-related challenges. He cautioned against complacency, noting that the rule of law cannot be taken for granted. Gayer concluded by stressing the critical importance and timeliness of the ELI Charter, especially in light of the impending changes in the leadership of the EU.

The interventions were followed by lively discussions.

More information about the project is available here.

The recording of the webinar is available below.

Other webinars in the series:

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