Health emergency and the rule of law

Health emergency and the rule of law


Pier Virgilio Dastoli, President of Italian Movimento Europeo, explains the last updates after the end of the European Citizens Initiative for the respect of the rule of law in the European Union and invites all citizens and organisations who want to join efforts in a European mobilization to a general assembly on the 24th of April from 9.30 to 11.00 during the 2nd Meeting of the Council on Participatory Democracy

On an article on The Guardian dated March 27
th 2020, the Dutch political scientist Cass Mudde warns us: “Will the coronavirus kill populism? Don't count on it”.

Cass Mudde's warning must not be ignored given States' late and disorganized response to the COVID19 emergency. States have adopted emergency measures which drastically affected human rights in already totalitarian regimes or which strengthened the powers of governments in liberal democracies, thus limiting legal certainty in favour of the right to health safety, also relying on citizens' own sense of responsibility.

Our democratic constitutions are not well-equipped to deal with systemic emergencies, they only provide for the attribution of the “necessary powers” to the government in case of war, meaning “extraterritorial conflicts between States”, not social disruption or popular uprisings.

The health, economic and social implications of COVID19 caught us unprepared and led governments to adopt emergency legislative measures which affect Parliaments' powers and, where constitutions provide for multi-level systems, regions and cities' competences, thus causing controversies and inefficiency.

The Hungarian situation, where premier Viktor Orban made Parliament adopt a law indefinitely giving him full authority, represents a dangerous precedent both because the health emergency in Hungary is way less critical than in the majority of European States, and because Viktor Orban has been passing liberticide laws undermining the Rule of Law since 2012.

Faced to the establishment by law of an authoritarian regime, European institutions, Member States' governments and political parties - starting with the EPP where Orban's party belongs to -  either reacted with unacceptable “diplomatic prudence” - like the Von der Leyen Commission which, scrambling to strike a balance between emergency measures and respect of fundamental rights, declared it was “monitoring” the situation – or didn't reacted at all.

The Hungarian Parliament's vote on March 30th was not a bolt from the blue, in fact the assembly already rejected the law on March 23rd when the majority of 4/5 seats was not attained, thus making it clear that Viktor Orban would have reached the necessary qualified majority with the second vote.

The European Commission had the right, and the duty – between the 23rd and the 30th of March – to “express a motivated opinion” based on art. 258 TFUE, asking the Hungarian government to urgently “present its observations”, and thus resorting to appeal to the Court of Justice in the event Hungary does not comply.

At the same time, the European Commission could have asked the Council – based on art. 7.1 TUE – to observe, on a 4/5 majority basis (22 Member States), that “upon approval by the European Parliament, it exists a clear risk of serious violation…of the values referred to in art. 2 TUE”. 

We would have expected an urgent resolution by the legal commission of the European Parliament, given that art. 7.1 TUE can be activated also at the request of the assembly, as well as by nine Member States, and that the treaty provides for the intervention of a third Council.

We would have also expected the immediate expulsion of FIDESZ from the EPP, however the group failed to reach the majority.

Furthermore, the Committee of Ministers of the Council of Europe could have activated art. 8 of the Statute, which provides for the expulsion of a Member State violating the principle of the Rule of Law. We could not expect the same from the Council of Europe though, which on 31st January 2020 restored powers to Russian representatives after their suspension in 2016 for the annexation of Crimea.

In order to avoid that the Hungarian authoritarian virus spreads to other countries, we urgently need a legal sanitization of Hungary, using all the tools provided for in the treaties.

By drawing from Cass Mudde's warning, we would like to underline that the COVID19 experience and the constitutional shortcomings in dealing with systemic emergencies should inspire us to open – after the health emergency – the building site of our European democracy and the defense of the Rule of Law.

For this reason, in April 2019 we launched the European Citizens' Initiative (ECI) “Act for my rights” addressed to the European Commission, and in April 2020 we submitted a petition to the European Parliament asking these institutions to exercise their rights and to perform their duties.

On April 6th the collection of signatures for the ECI “Act for our rights” was closed, and we did not attain the amount of 1 million signatures needed to have the European Commission consider our initiative. However, in the meantime, the Commission already committed to creating a new juridical instrument to evaluate the respect of the rule of law in the EU member states.

Therefore, the members of the Committee of the European Citizens Initiative "Act for our rights" put in place two initiatives:

1) Submitted a specific Petition to the European Parliament on the respect of the European values, specifically addressing the Rule of Law

2) Submitted #EuCanDoIt, the petition to the European Parliament to address COVID19, social, economic, and climate crisis, including a proposal for a system to guarantee the respect of the Rule of Law during the state of emergency due to the Coronavirus outbreak

The petition calls on European Institutions to implement these necessary and urgent measures based on 5 pillars:

1 - Giving a systemic and common response of the European Union to the Covid-19 crisis;

2 - Enhancing the EU healthcare and civic protection instruments and competences to respond to outbreaks;

3 - Implementing all economic, financial and monetary policy measures to allow the EU to unlock resources and common measures to support citizens with the consequences of the pandemic, including measures for the mutualization of public debts, own resources for the EU budget, according to a radical ecological reform of European taxation;

4 - Turning the first stages of the Conference on the Future of Europe into a public online assembly and reshape its goals;

5 - Contributing to a global mechanism to prevent and face epidemics and Pandemics.

We will discuss this and more actions to protect the Rule of Law at the 2nd Meeting of the Council on Participatory Democracy, in the session “CITIZENS FOR THE RULE OF LAW. THE TIME IS NOW”, on Friday 24th April from 9h30 to 11h00.


Associazione Luca Coscioni per la libertà di ricerca scientifica

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