by Kyriaki Topidi and Alexander H. E. Morawa (eds). Farnham, Surrey: Ashgate Press, 2010. 292pp. Hardback. £60.00/$114.95. ISBN: 9781409403272.
Reviewed by Iyiola Solanke, School of Law, University of Leeds. Email: i.solanke[at]leeds.ac.uk.
Freedom is not synonymous with autonomy. Especially in a polity such as the EU, freedom can be frustrated in the complications of multi-level governance, where tension accompanies many decisions. This volume is an attempt to air in a constructive manner some of these frustrations and tensions as experienced in the countries of central and eastern Europe (CEECs) as they prepared for and achieved membership of the European Union. It aims to give voice to a new generation of writers as they reflect on ‘post-enlargement constitutionalism’ – the period after transition from Soviet satellites into full member states of the European Union. The contributions suggest that joining the latter was not a simple case of renouncing the former: accession was delayed, drawn out and it seems disappointing.
In their introduction to the volume, the editors remark that “questions posed in Central and Eastern Europe about the benefits of EU membership have not stopped changing since the collapse of communism in 1989” (pp.1-2). That they continue to be asked in any form suggests a persistent disappointment in the EU – far from being some kind of panacea to all post- Communist ills, not only did the EU deliver little but it demanded much, and not all of the political, legal and economic reforms demanded by the EU were welcome. The simplicity of the Copenhagen Criteria belied the complex changes required under the accession process – in order to become EU member states these states had to practically make themselves anew. As the transition agenda was set out by the EU, the CEECs did not choose the new design. Likewise, the CEECs did not determine the pace of accession: it took the majority ten years to meet the accession criteria – Hungary, Poland, the Czech Republic, Bulgaria, Romania, Latvia, Lithuania, Slovakia, Slovenia and Estonia joined in 2004. Bulgaria and Romania needed three more years and joined in 2007. Croatia is now set to join in 2013.
The essays in this volume aim to help the reader understand the varying constitutional complexities faced in the different CEEC states. Some basic educational work is also undertaken – the individual historical contexts are designed to correct the misconception that the accession states are synonymous. In Section I we are therefore invited to think about communication between the EU and the Estonian and Romanian constitutions. Kerikmae urges Estonia to engage in constructive dialogue so as to contribute to ‘the process of building up a common EU legal space.’ For reasons relating to divisions in Romania on EU constitutionalism, however, Tanasescu urges caution – she concludes that the future will be bleak if the EU constitution claims to accommodate ‘two fundamentally different realities’ – a ‘quick, unreasonable and simplistic analogy’ to domestic law will not [*639] strengthen but undermine the EU. A third chapter in this section by Topidi discusses the role of fundamental rights in providing a common ethical language for this multi-level constitutional communication.
From Estonia and Romania, the reader is taken in Section II to the Czech Republic, Slovakia and Poland. Here the authors provide perspectives on the internal behaviour of domestic courts when confronting potential constitutional conflicts with EU law. The first two chapters, by Dumbrovsky and Mikuli respectively, are unequivocally critical of the lack of courage of the courts. Dumbrovsky argues that bargaining has usurped dialogue due to the “inability of new member states’ judiciaries to grasp the idea of constitutional pluralism and dialogue” (p.90). This is attributed to constitutional development under communist rule. Mikuli criticises the narrow practices of the Polish judiciary and proposes a reformulation of the doctrine of subordination to statute so that scholarly views can be considered in decision-making. However, the section moves to a more positive note when Zemanek identifies a new confidence in the decision of the Czech Constitutional Court on the Lisbon Treaty, describing this court as ”fairly 'fit' for the post-Lisbon European judicial dialogue” (p.156). Finally Morawa sets out a vision of interaction that fosters constitutionalism – the introduction of the European Citizens Initiative (Article 11 (4) Treaty on the Functioning of the European Union (TFEU)) may be a move towards his model of citizen-driven constitutionalism in Europe within which national constitutional courts are part of the solution, not the problem.
In Section III the reader travels to Hungary and Bulgaria. Somody evaluates human rights standards in Hungary and the tension that exists because levels of protection in the Hungarian constitution are often higher than those in the European Convention of Human Rights and the EU. She explores the Hungarian response to this trend via two cases studies focusing on data protection and racist speech. Smilov focuses on the problems of populism in Bulgaria, a rising trend against which the courts have not acted firmly. Like Dumbrovsky and Mikuli, he concludes that the judiciary has on the whole failed to protect liberal constitutional values – on the contrary they have sometimes themselves adopted ‘paranoid and illiberal strategies’. The exploration of the role of the media in Eastern Europe by Nyman-Metcalf suggests a way to address these problems. An independent media, she argues, “is an important ingredient in the reform process in countries in transition” (p.231). The media not only transmit ideas on the EU but more importantly set public expectations on the rule of law, institutions and rights. It therefore plays a key role in constitutionalisation and must enjoy freedom of expression to do this effectively. Media legislation should be used to secure this and ensure that journalists are free to transmit more than institutional views.
Overall, the book gives the impression of the CEECs asserting their autonomy through unity. Despite the tone of resignation in the opening quote from Nietzsche, this is not a collection of essays by Euro-phobes but of authors positioning their nations as co-creators of the EU. This is not surprising – Poland is after all the sixth largest member state. Nietzsche’s quote suggests that as in Waiting for Godot, the CEECs will continue to wait; yet unlike Vladimir and Estragon, we are left with the clear [*640] impression that simultaneously they will act, or as said by the editors, be policy-makers not just ‘policy-takers.’ The contributions demonstrate this – they often contain practical solutions to the problems articulated which might be useful to their own leaders as well as the EU.
In terms of structure, the book has a nice symmetry, with each section containing at least one paper written from a general rather than country-specific perspective. The papers also relate to each other well across the sections. All contributions share a positive expectation of liberal democratic institutions, in particular the courts. However, bearing the experiences in mature democracies in mind, this faith in the role of the judiciary is questionable. It may be wise for commentators from the region to pay attention to issues such as recruitment, diversity and transparency, which, as the confirmation of Sonia Sotomayor in the USA demonstrated, are heated topics of debate elsewhere in the world. In addition, such expectations may lead to further disappointment: the courts in the region may be untainted by the politics of the past (Yusuf, 2010), but judges are not prone to pioneering – courts are reactive institutions and judicial entrepreneurship is an exception rather than a norm. If there is one problem shared by the CEECs it is that this leaves a vacuum where no institution acts as pioneer of social change: this vacuum is easily exploited by populists.
The regional focus raises the questions of whether the issues covered are particular to countries in central and eastern Europe. A number of the challenges highlighted may have arisen in southern Europe, where transitions were also made from authoritarian regimes. Are there any parallels? If so, scholars from central and eastern Europe are in an advantageous position to conduct new research on meta-tensions endemic in the process of European enlargement and integration.
The strength of the volume is its introduction of new voices and perspectives to issues arising from integration in Europe – the majority of the authors are scholars (researchers and professors) rather than policy-makers or practitioners. Whilst a useful corrective, the collection does not of course exhaust the problems or the perspectives in the region: many questions remain and there is scope for future work exposing new voices from countries such as Latvia, Lithuania and Slovenia. Taken together, the contributions serve as a reminder that freedom is a practice; a verb rather than a noun. Whilst leaders in central and eastern European countries seek freedom by trying to build national “trust and faith in the idea that Europe makes sense – that the EU is truly a worthwhile invention” (Tusk, 2011), the European Union must recognise such efforts by demonstrating that it is listening to them.
Tusk, Donald, Polish Prime Minister. 2011. “Polish Solidarity.” Editorial, Financial Times, Friday July 1st, p.12.
Yusuf, Hakeem O. 2010. Transitional Justice, Judicial Accountability and the Rule of Law. Abingdon: Routledge.
© Copyright 2011 by the author, Iyiola Solanke.