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Marcin Mrowicki, re:constitution Fellow 2024/25

The participants were divided into three thematic groups, each focusing on a different dimension of the restoration debate.

Group 1: Legal Restoration – The “Fifty Shades of Grey” Conundrum

The legal restoration group confronted what one participant aptly termed the “dark art of unscrambling eggs”. Their challenge: defining non-negotiable pillars of rule of law while acknowledging that reality rarely cooperates with neat categories. The group identified core principles - independent judiciary, separation of powers, constitutional conformity with EU law - but immediately stumbled into the philosophical quagmire of determining when restoration is “enough”.

The most revealing tension emerged around judicial legitimacy. If a court lacks fully independent judges, can it deliver fair trials? The purist answer – no! – collides awkwardly with the pragmatist's recognition that wholesale judicial replacement creates its own legitimacy problems. This “fifty shades of grey” dilemma transforms every restoration decision into an exercise of uncomfortable compromise. The group's implicit conclusion: perhaps the question isn't whether judges are perfectly independent, but rather how much imperfection democracy can tolerate before the entire system loses credibility. Not exactly the clear-cut legal framework one might hope for, but refreshingly honest about the mess restoration actually entails.

Group 2: Political Narrative – Democracy's Marketing Crisis

The narrative group diagnosed a spectacular communication failure: rule of law advocates have been trying to sell constitutional principles like they're explaining tax law. Their breakthrough insight? People need to understand why rule of law matters for their daily lives - not in abstract terms, but in concrete scenarios like not having to bribe judges or worry about arbitrary arrests.

The discussion revealed how thoroughly opponents have won the narrative war, dressing authoritarianism in patriotic clothing while painting rule of law as foreign imposition. The proposed counterstrategy involved voter segmentation, constructing targeted narratives, and - most ambitiously - making rule of law an emotional rather than intellectual commitment. The somewhat desperate suggestion of omnipresent rule of law symbols (tattoos included) underscores the group's recognition that winning hearts requires methods beyond policy papers. Their sobering conclusion: until defenders learn to communicate rule of law as viscerally as opponents communicate nationalism, restoration remains vulnerable to the next populist wave.

Group 3: Resilience – Building Fortresses on Quicksand

The resilience group tackled the ultimate question: how to make restoration stick in hostile environments? Their proposals ranged from protecting civil society against SLAPPs to fostering everyday dialogue that combats “us versus them” narratives. The vision: solidarity networks, parliamentary connections, and grassroots inclusion that embed rule of law so deeply it survives political transitions.

Yet the session's most powerful moment came with a participant's frank pessimism. Current European institutions, they argued, lack the competence to effectively intervene in democratic backsliding. The proposed remedy? Political consensus to grant institutions real power - including excluding non-compliant states from “the club”. This acknowledgment that legal mechanisms alone cannot ensure resilience represents a fundamental shift from technocratic optimism to hard-nosed political realism.

The three groups ultimately converged on an uncomfortable truth: sustainable restoration simultaneously requires perfecting legal frameworks, winning popular support, and building enforcement mechanisms - a triple challenge that explains why democratic repair and rule of law restoration remain democracy's most elusive projects.

Analyses and debates around the state of the rule of law in Europe often focus on its internal dimension, while its international dimension remains largely overlooked. The session adopted this broader perspective, highlighting how Europe’s relationship with the International Criminal Court (ICC) reveals deeper tensions in the current state of the international rule of law.

Established in 2002 as the world’s only permanent court to prosecute individuals for genocide, war crimes, crimes against humanity, and the crime of aggression, the ICC was founded on strong European (both political and financial) support. All EU member states have ratified its founding treaty, the Rome Statute. While Hungary’s recent withdrawal signals an explicit rejection of the ICC’s authority, other European states have weakened the Court more quietly through non-compliance and selective cooperation.

That is the case of Italy, exemplified in the Elmasry affair, in which Italy failed to comply with an ICC arrest warrant against Libyan national Osama Elmasry for alleged war crimes and crimes against humanity. Italian authorities arrested Elmasry in Turin, only for a domestic court to order his release on procedural grounds, allowing his repatriation to Libya. The decision was accompanied by questionable legal justifications from the Italian government, though the political motives behind it were hard to miss given Italy’s close cooperation with Libyan authorities on migration control.

Italy’s stance is part of a wider pattern. Earlier this year, Hungary openly defied the ICC’s arrest warrant against Israel’s Prime Minister Benjamin Netanyahu by hosting him for an official visit. Even countries often hailed as bastions of the rule of law within the EU, such as Germany and France, have hinted, more or less openly, that they would not enforce the warrant against Netanyahu. All this comes as the United States has imposed sanctions on senior ICC officials and NGOs cooperating with the Court to shield Israeli officials from accountability. The EU’s response to this blatant attack on the international legal order has been one of silence.

The ICC is not short of crimes to investigate: it currently has twelve ongoing open investigations, including in Palestine, Ukraine, Sudan, and Libya. Yet there are no new trials on the horizon, nor any new suspects on the dock. At least thirty fugitives remain at large, with an unknown number of other suspects under sealed warrants. Their arrest depends entirely on the willingness of States to cooperate with the ICC.

The discussion revealed a shared concern: lacking its own enforcement mechanism, the Court ultimately depends on states and their political will, a foundation that is increasingly unstable as states retreat from their international legal obligations. Panelists unanimously warned that non-cooperation by those who helped build the ICC threatens not only its effectiveness but the coherence of the international legal order itself. If those who claim to champion human rights and justice abandon accountability when it becomes politically inconvenient, who, then, will uphold the rule of law beyond The Hague?

Veronika Stockinger

Taking the moot court case as a starting point, the session turned into a lively discussion on the merits of militant democracy in general and candidate bans in particular. 

The participants quickly agreed that militant democracy, as such, is a neutral and sometimes even necessary tool in combatting anti-democratic movements, but vague concepts such as “constitutional identity” are open to abuse and carry the risk of double-standards. 

The first key point of discussion was on how to draw the fine line between “acceptable” and “problematic” uses of militant democracy. What separates the criminal prosecution of Ekrem İmamoğlu and Marine Le Pen or US attempts to support the opposition in Venezuela’s 2024 elections from Russia’s attempt to influence Romanian elections? While the group agreed that a distinction exists between (legitimate) prevention of actual threats to democracy and (illegitimate) elimination of political opposition, developing a clear legal provision proved difficult. Ideas for limiting the potential of abuse included legislation defining terms such as “free elections” and “threat to democracy”. That would allow courts to refer to clear criteria for banning candidates, thereby minimising legitimacy concerns over (unelected) judges interfering with public votes. Common European standards were suggested as a way to ensure such legislation would not be twisted to favour one party over another.

A second recurring theme was public acceptance of the use of militant democracy: Even if scholars develop a sound theoretical distinction between legitimate and illegitimate uses of militant democracy, the public will not necessarily agree on the application of those principles on particular parties or candidates.

One key observation was that militant democracy is far more likely to trigger opposition when used pre-emptively than when used reactively: (Trying to) ban the National Democratic Party of Germany or communist parties in post-soviet states is far less controversial than banning newer authoritarian populist parties. The former parties have already proven to be an actual threat to democracy, crucially also to public perception. The latter parties, in contrast, are seemingly “punished” based on predictions about their future behaviour, upon which people may easily disagree. Yet, a purely reactive militant democracy would be devoid of purpose, since it aims to prevent authoritarian regimes from coming into power in the first place. This temporal issue means that communicating the reasons for measures such as party bans to the public is key to the social acceptance of militant democracy. 

This conclusion tied into the observation that militant democracy does not answer the reasons for which people vote for authoritarian parties. It can fix “symptoms”, but not structural problems within a society. Thus, militant democracy alone can never be enough to safeguard democracy. Political and social engagement with the causes of the rise of anti-democratic parties is required.

Finally, the group observed by reference to the US that the efficiency of laws on militant democracy depends on independent judges applying them. The panel thus wrapped up with identifying legal education and rules on judicial appointments as keys for a functioning (militant) democracy.

Dániel G. Szabó, re:constitution Fellow 2022/23

With right-wing parties gaining ground across Europe, the urgency of the debate over protecting the rule of law is ever more critical. Pro-democracy forces are struggling to find appropriate measures to regain voters' trust. Introducing EU budget conditionality was inevitable because financing ruthless disruptors of the EU, with EU funds, had been permitted for too long in Poland and Hungary. The session analysed key elements of the debate over the success of budget conditionality and its possible future.

The framing and messaging in this debate reflect broader struggles over European identity and legitimacy. A division line lies between whether conditionality protects "taxpayer money" or "EU values." Is it merely a financial tool to protect the budget, or is it to enforce change and protect values? 

Next, the session revealed a tension between the EU's aspirational commitment to rule of law enforcement and the realities of political compromise. A striking insight was that conditionality regarding Poland has morphed from "conditionality of rule of law" to "conditionality of who is in government" – a profound critique suggesting that EU institutions prioritise political expedience over principled enforcement. The discussion exposed deep disagreements about the Commission's handling of Poland and Hungary. The characterisation of the Commission's decision to release funds to Poland following electoral changes as one of its worst decisions sparked considerable debate. Several participants argued that politicising the rule of law conditionality is a betrayal of core EU values. At the same time, some defended the Commission's decision as realistic and emphasised that the Commission is a political body, not a court. This debate highlighted a core tension: whilst celebrating democratic transitions, the EU simultaneously undermined its own leverage by rewarding mere governmental change rather than substantive legal reforms. 

The allegation raised during the session that Hungary effectively blackmailed the Commission through unanimity voting requirements further illustrated the structural weaknesses in current enforcement mechanisms. Hence, the Recovery and Resilience Facility's qualified majority structure appeared more effective than the unanimity-dependent Article 7 procedures. This has implications for future Multiannual Financial Framework negotiations, where several member states reportedly oppose conditionality mechanisms. 

Furthermore, participants discussed the tension between security imperatives (particularly regarding defence spending in countries like Poland) and rule of law enforcement which captures the EU's current geopolitical dilemmas. In this discussion, measurement challenges were emphasised and that corruption and democratic backsliding often occur through informal networks and patronage rather than explicit legal changes, making objective assessment extremely difficult. This connects to calls for more quantitative, scorecard-based approaches, though participants remained sceptical about reducing complex democratic processes to metrics and their practical impact.

The debate also addressed the specific circumstances of accession countries. After EU accession, aspiring populist governments received substantial subsidies from the EU, which were effectively used to support their political allies and strengthen their power. Meanwhile, funding for political parties is prohibited across the EU. This created a skewed playing field where, in effect, governing political forces benefited from EU subsidies, while EU-level political allies were unable to fund the opposition. This means that EU cohesion and other funds are distributed by potentially captured governments, while the opposition cannot seek funding from EU-level political groups or allied parties from other countries. A partial solution was discussed regarding alternative distribution mechanisms to avoid captured governments entirely – directing EU funds to islands of freedom, such as civil society organisations or opposition-controlled municipalities. This raises constitutional and sovereignty questions about the EU's relationship with member states versus their citizens.

The session revealed that technical fixes cannot resolve fundamentally political problems. As member states in the Council often prove to be stronger and more self-interested than the Commission, the EU faces an existential question about whether it can maintain its values-based identity whilst accommodating increasingly diverse and potentially hostile governmental approaches across its membership. 

Yann Lorans, re:constitution Fellow 2025/26

The session explored a provocative and unsettling question: could the European Union (EU) itself become vulnerable to authoritarian dynamics, rather than serving solely as a bulwark against democratic backsliding within its member states? This inversion of perspective – turning the analytical lens from national to supranational institutions – was perhaps the most striking and thought-provoking feature of the debate. It encouraged participants to consider how the current tendencies of rule of law backsliding in some member states might gradually permeate, transform, and destabilize the Union’s own institutional framework.

The discussion unfolded in three stages: identifying risks, assessing their probability and severity, and contemplating possible responses. Across these stages, several issues crystallized as both urgent and contested.

1. Risks of Authoritarian Spillover into EU Institutions

The starting point was Daniel Kelemen’s notion of the EU’s “authoritarian equilibrium” according to which structural features of the Union have historically shielded member state autocrats. Building on this, participants reflected on the possibility that the equilibrium could evolve into something more dangerous: a “spillover” of authoritarian practices into EU institutions themselves. Three vulnerabilities were highlighted. First, the European Parliament emerges as a critical locus of risk. The rise of far-right parties, coupled with the willingness of mainstream actors such as the European People’s Party to erode the cordon sanitaire, may allow authoritarian rhetoric and strategies to be normalized. Weaponizing the Parliament – using it as a platform to undermine pluralism and civil society – was assessed as both highly probable and highly risky. Second, the European Commission was seen as simultaneously a guardian of EU values and a potential site of politicization. Allegations that decisions on rule of law enforcement or funding conditionality have been strategically delayed for political reasons illustrate how executive centralization can erode transparency and legitimacy, even without overtly authoritarian intent. Third, the Court of Justice of the EU (CJEU) was identified as a more insulated but not immune institution. While Article 255 TFEU provides a filter for judicial appointments, authoritarian governments might still nominate partisan candidates, seek to block impartial ones, or attempt to capture the expert panel itself. The risk here is less immediate but raises profound questions about judicial legitimacy if the Court were perceived as politically tainted.

2. Critical Themes and Debated Issues

Several debates stood out. One was the tension between legalism and politics. Some participants criticized the Union’s reliance on judicial mechanisms as a substitute for political action, arguing that it reduces democracy protection to a technocratic exercise and displaces the broader public deliberation essential to democratic legitimacy. Others cautioned, however, that diminishing the role of courts risks leaving a vacuum precisely when they are most needed. Another debated theme was the role of migration and social policy. The normalization of far-right rhetoric often occurs around migration, welfare, and access to public goods. Yet the EU’s limited competences in these domains make it difficult to counter such narratives effectively, leaving space for authoritarian actors to frame exclusionary policies as both necessary and legitimate.

3. Implications for Policy, Law, and Research

The implications of these discussions are sobering. For policymakers, the most immediate concern is how to design institutional safeguards that prevent authoritarian co-optation without undermining democratic values. Strengthening transparency in the Commission, ensuring more diverse and representative participation in the Parliament, and reinforcing the independence of the CJEU are key priorities. For legal practice, the central question is how to balance judicial enforcement with democratic deliberation. Courts cannot and should not bear the sole responsibility for defending the Union’s foundational values. Yet, if left unsupported by political actors, they risk becoming scapegoats for unpopular but necessary decisions, thereby further fueling authoritarian backlash. For researchers, the session underscored the need to shift the focus from member state backsliding alone to the possibility of systemic autocratization at the EU level. This entails studying how mainstream parties cooperate with far-right actors, how executive centralization reshapes accountability, and how legal norms – such as transparency or crisis governance – can be weaponized in authoritarian ways.

4. Relation to Current Dynamics

The session’s themes resonate strongly with current EU debates. The rise of far-right actors in the European Parliament, the politicization of Commission leadership, and controversies around the upcoming Hungarian Council Presidency all illustrate that the risks identified are not hypothetical but unfolding. The broader shift from euroskepticism – seeking exit from the Union – to “occupying Brussels” and transforming it from within reflects a profound strategic evolution in authoritarian politics. The session thus illuminated both the fragility and the resilience of the Union. While its institutions remain anchored in democratic and rule-of-law values, the risk scenarios outlined demonstrate how authoritarian dynamics can exploit structural vulnerabilities. The analytical challenge ahead is not only to recognize these risks but to imagine political, legal, and institutional responses that strengthen democracy without reproducing authoritarian patterns.

Maria Skóra, re:constitution Fellow 2024/25

The session focused on scenario analysis as a method of resilience building, taking the Judicial Resilience Project of Verfassungsblog as a case study.

The topic of judicial resilience resonated in Germany as the recent case of choosing judges for the Constitutional Tribunal exposed its volatility to political pressure, and similar processes are also happening - or can potentially happen - in other countries. Hence, the project was not fully academic, but also practical, analysing judicial backsliding before it happens. This analytical approach is somewhat uncharted waters, based on scenario-building: historical, doctrinal, comparative analysis and qualitative work.

Scenario-building is as an interesting way of analysing reality. Unlike other sessions, the workshop focused on the method, which is based on juxtaposing plausibility and probability, not aiming to simply predict the future. This was a thought provoking, refreshing exercise. The most debated and contested issues during the session were limits and pitfalls of the scenario-building method. The main critical points referred to the limits of using this method.

Feedback from the groups revealed that the most intriguing analytical aspects of the method are distinguishing conditions based on the institutional frameworks vs actor-based choices and identifying weak spots in both dimensions; looking at provided/missing information in the scenario and considering the context; and managing abstract and concrete assumptions (cross-checking with reality if the scenario remains plausible). The key distinction between plausibility vs probability of a scenario - making it clear to the audience - presents the key challenge.

The most reflected cognitive challenge was self criticism: identifying the researcher’s own bias, looking at procedures and criteria in a way that make sure that the scenario is not projecting a political/ideological stance. Here, the tension between academia and activism emerged. How normatively biased can the researcher be to still remain credible? Can the research defend its normative stance through is high quality?

The most controversial ethical aspect was the risk of handing in the weapon into authoritarian hands by producing positive and negative scenarios - and manuals how to achieve them.

To sum up, the session provided food for thought for both researchers and activists, bringing some inspiring thoughts to the table about creating intersubjective perceptions of the reality in participatory research methods, controlling own bias, and clearly communicating if the scenarios produced are plausible or probable, to manage expectations about the research outcomes. 

Hubert Bekisz, re:constitution Fellow 2025/26

The side session reflected on how digitalization reshapes the labour market and influences the lived experiences of migrant workers. The presentations and discussion were of high relevance for policy and legal practice. Instead of addressing the rule of law in abstract terms, the session connected the rule of law directly to questions of precarity, accountability, and protection of workers during digital transformation.

One of the central questions was whether the law is proactive or reactive to digital transformation, particularly in the context of the Platform Work Directive. While extending social rights to ‘persons performing platform work’, the directive relies on national implementation and thus risks divergent outcomes, raising concerns about its practical effectiveness. The highlighted tension between harmonization and fragmentation reflects a more general uncertainty about whether European labour law can effectively control the power of private actors in the times of digitalization. 

Perhaps the most thought-provoking insights concerned the ambiguous role of private actors in the digital labour market. While providing access to work, they also reinforce an illusory formalization of employment relationships. As discussed in relation to examples of care work in the Netherlands and Poland, contractual certainty and social protection might end up illusory, resulting in the practical unenforceability of liability, taxation, social security, and other aspects related to platform work. Even though the rule of law most often focuses on preventing state power from being exercised arbitrarily, the threat in the digital labour market lies in the unaccountable power of private actors. It has been highlighted that private actors may, in fact, constitute a greater threat than public authorities when it comes to undermining workers’ rights.

The discussion has repeatedly returned to accountability challenges. How to ensure that private actors bear responsibility for working conditions, social security or taxation? How to safeguard effective judicial protection in relationships characterized by vague - and often unwritten - contractual terms, and platform workers often lacking the resources or awareness to litigate? These questions invite rethinking the rule of law as becoming more than a constraint on state power, through providing a framework for effectively identifying and reacting to practices of private actors in the digitalized labour market.

This session connected two dimensions often considered separately: the normative framework of the rule of law and the practical realities of digital transformation in the labour market. By bringing them together, it uncovered a novel perspective on the rule of law: what may contribute to its strengthening is the ability of the law to effectively protect workers during the labour market’s digital transformation.

Aravind Ganesh, re:constitution Fellow 2020/21

The panel brought together interdisciplinary perspectives on environmental law, corporate accountability, and eco-centric jurisprudence. The discussion revealed the profound tensions between conservation, development, and justice in forest governance across continents.

The session was opened by an artistic intervention on the politics of food with an incisive meditation on hidden infrastructures in palm oil production titled ‘What Haze and Pipe Reveal’. Tracing the industry’s origins to Dutch colonial times, it was explored how the palm oil industry systematically alienates consumers from events further down the supply chain, and even warps their very notion of ‘nature.’ The pictures included – of the 2015 Indonesian forest fires, vast stretches of former rainforest terraformed into endless rows of oil palms, massive palm oil processing plants against which the few humans they employed resembled ants – reminded me of the theme of the ‘industrial sublime’ explored in the landscape photographs of Edward Burtynsky. Industrial, because entirely man-made; sublime, because simultaneously beautiful and terrifying. The presentation was also legally insightful; regulatory loopholes in Singaporean sustainability standards enabling palm oil conglomerates like Wilmar to evade verification standards were emphasised, as well as the rampant use of ‘artwashing’ through cultural philanthropy. The involvement of Dutch banks like Rabobank in financing these operations raised urgent questions about ethical complicity. The imagery of pipelines emphasized how modern infrastructure conceals its contents and consequences, creating mutual and systematic alienation.

Beyond that,  the Congo Basin rainforest, the world’s second-largest, was examined, highlighting tensions between conservation and development across six nations. The evolution of forest laws from World Bank-modelled legislation in the 1990s introducing community forests, through second-generation reforms in the 2010s, to contemporary frameworks emphasizing forests’ multiple social functions were discussed. It leads to a provocative challenge: why should the Global South preserve forests when Western development was built on deforestation? This question exposed how sustainability discourse risks imprisoning developing nations in subordinate economic positions while forests are increasingly commodified.

In addition, the French Loi de Vigilance was analysed through the Envol Vert v. Casino case, involving Amazon deforestation linked to Brazilian beef sourcing. Originally conceived to provide justice for Global South plaintiffs, the law has generated reports but little substantive change. The case illustrated multiple barriers to effective enforcement: misalignment between French and Brazilian NGO demands, temporal disjuncture between capital flows and legal processes, inadequate resources for monitoring vast quantities of evidence, and geopolitical constraints on EU willingness to challenge major economies like Brazil and Indonesia. Casino’s sale of its Brazilian subsidiary rendered injunctive relief moot, leaving only reparations as possible remedies.

The session also explored eco-centric normativity through visual methods, asking what it meant to live in a place where rivers and forests possessed legal rights. Again, the images deployed were compelling: it included a picture of an Amazon River tributary, uncharacteristically without any boats normally crowding it that transport timber for export to Europe. It connects the various experiments by Ecuador, Colombia, and Brazil with rights-of-nature frameworks. One question these experiments presented, was the extent to which the state remains a ‘tutor’ to, or representative of natural entities, despite them supposedly having been given rights and personality. Attention was also drawn to the tensions between indigenous rights and river rights, questioning how conflicts between these frameworks might be resolved and how concepts of indigeneity apply to climate refugees.

Andrii Nekoliak, re:constitution Fellow 2025/26

The panel explored the intersection between authoritarian politics and economic governance, a dimension often overlooked in the studies of democratic erosion. While the political playbook of autocrats—capturing courts, media, and weakening checks and balances—is well mapped, the economic strategies through which power is entrenched remain less systematically examined. The discussion shed light on these strategies, drawing on comparative political economy, case studies, and legal analysis.

One central insight was that authoritarian regimes do not simply dismantle democracy through overt repression; they also manipulate markets to secure political survival. It was argued that varieties of capitalism in Central and Eastern Europe have long coexisted with fragile democracies. Dependent capitalisms, shaped by foreign investment and EU accession, created vulnerabilities. The global financial crisis of 2008 revealed these weaknesses, opening opportunities for leaders such as Viktor Orbán to politicize economic grievances, consolidate power, and restructure social coalitions. This interpretation challenged the assumption that authoritarian backsliding is purely political, instead situating it within economic conditions.

The discussion also offered a more granular account of Hungary, describing the Orbán regime as a prime case of state capture and systemic corruption. This analysis underscored three dynamics: the use of public procurement and private equity funds to redistribute resources to cronies; the blurring of public and private interests through politicized state-business relations; and the emergence of a crony-dominated economic segment, heavily subsidized and protected by regulation. The Hungarian case illustrated how corruption ceases to be a byproduct of authoritarianism and instead becomes its central mechanism, embedding loyalty and wealth redistribution within the regime’s survival strategy.

Beyond that, the discussion expanded into the realm of law, particularly EU competition law. The authoritarian manipulation of markets undermines not only democratic institutions but also the economic rule of law: equal treatment, predictability, and stability of the regulatory environment. The erosion of undistorted competition creates an uneven playing field where politically connected firms operate above the law. However, there are certain potentials of EU law—particularly competition, merger control, and state aid rules—as powerful, if underused, tools to curb authoritarian market practices. Yet, the European Commission is politically and institutionally reluctant to deploy these instruments creatively and forcefully.

What stood out in this session was the idea that de-democratization cannot be separated from economic governance. The most thought-provoking element was the recognition that markets themselves can be weaponized: rather than neutral arenas of exchange, they become tools for patronage, coercion, and legitimacy-building. This reframing pushes both scholarship and policy debates beyond narrow understandings of corruption.

The panel also raised unresolved questions. How resilient are crony economic systems in the face of external shocks? To what extent can international actors—especially the EU—intervene effectively when market distortions are politically entrenched? And how can civil society and independent businesses survive in economies where loyalty to the ruling elite determines access to resources? These challenges suggest directions for future research, particularly comparative studies that link varieties of capitalism with trajectories of democratic backsliding. 

From a policy perspective, the panel’s insights underline the importance of addressing authoritarian practices through economic regulation. Strengthening competition authorities, enhancing transparency in public procurement, and enforcing EU competition rules are not merely technocratic measures—they are strategies for defending democracy itself. 

Olga Ceran, re:constitution Fellow 2023/24; Maciej Krogel, re:constitution Fellow 2022/23; Katarzyna Krzyżanowska, reconstitution Fellow 2023/24; Max Steuer, re:constitution Fellow 2024/25

Given the diverse background of its participants, the European Rule of Law Conference offered a fitting venue to revisit the controversies surrounding scholactivism – broadly understood as the merging of scholarly research and advocacy. To what extent should scholars engage in advocacy, and what concessions does this entail? Does aligning scholarship with advocacy undermine its credibility? And has such public engagement become inevitable – whether due to authoritarian threats or funders’ pressure for ‘real-world impact’? With a full audience and an excellent panel of speakers, the session showed that no single answer suffices: what matters is rather ongoing awareness of one’s own positionality and its implications. 

During the debate, it was argued that scholars struggle with a gap between professional distance and disciplinary rigor on the one hand, or responsiveness to current issues and measurable impact on the other. While universities should be spaces for ‘slow thinking’, overt politicisation risks undermining their legitimacy. Furthermore, against the backdrop of a distinction between Europe and the US, the discussion evolved around a tradition whereby legal scientists are explicitly reflective when they reach beyond ‘pure science’. From a judicial perspective, judges do read scholarship, however, typically shy away from explicit engagement to avoid charges of bias. It was criticised that European scholarship is overly positivistic, urging more critical and imaginative engagement that could enhance its impact. Practitioners additionally saw value in scholarship as supportive evidence for judges, particularly when based on transparent methodological choices. It was also stressed that advocacy-driven research in the civil society faces its own constraints, but shares much with academic work as well – holding potential for further collaboration between the spheres. 

Audience interventions showed that the line between scholarship and advocacy is difficult to draw. In polarised contexts, even neutrality may be perceived as opposition, making disengagement illusory. How should scholars react when academic freedom is threatened, and with whom should they align, if at all? Current debates, including those around the situation in Gaza, highlight both how powerful and how fragile scholarly engagement can be. Funders or universities might themselves promote particular forms of engagement, perhaps inadeptly incentivising public visibility over scholarly depth. Ultimately, the core dilemma might be how to distinguish principled engagement from opportunistic performativity. The session also mapped scholars’ roles in consulting, shadow work, collaboration with civil society, individual advocacy, and legal clinics, many with long traditions in legal academia. Whatever their stance, participants left with inspiration for how engagement might take shape in their own work. 

The debate ultimately showed that the line between duty and overreach cannot be clearly drawn. Scholactivism should be seen in the context of broader transformations in the relationship between knowledge, politics, and academic institutions. The task ahead is not to decide collectively whether scholarship should be activist, but to reflect on the conditions under which engagement strengthens, rather than undermines, both academia and the causes it seeks to advance.

Mária Žuffová, re:constitution Fellow 2025/26

Do you have a cause that you care about – where you’d like to challenge the status quo? Have your rights, or those of your fellow citizens, been infringed, and you’re seeking a remedy? What approach would help you to make your message resonate and achieve the desired outcomes? What tools can you use to create an impact? 

The session provided answers to the questions above and many others. The session conveners successfully introduced us to a range of formal and informal strategies and tools that everyone can utilize to engage in public life, influence decision-making at the EU level, and hold institutions accountable. The decision to exploit access to information regimes, resort to the European Ombudsperson, initiate a petition to the European Parliament, or attempt to gather one million signatures across at least seven EU member states for a formal European Citizens’ Initiative ultimately depends on what one hopes to achieve and how: by working through institutional channels or by mobilizing public pressure. Thinking strategically about a cause – knowing which levers to pull, when, and with what voice often distinguishes effective lobbying from efforts that fall short. At the end of the session, we had the opportunity to put new knowledge into practice and analyze a scenario of backsliding in EU digital policy. Together, we reflected on the principles of the rule of law at stake, the power dynamics involved, and which actions could be effectively challenged using the tools and strategies outlined above.

During this session, another thought process was going on in the background for me. How is this related to my work as an academic? What is the role of universities in the interconnected world facing fast-paced technological changes and complex challenges, including wars and conflicts, shifting geopolitical positions, declining protection of human rights, and eroding social norms? I am a civic activist-turned-academic. I recently realised that, instead of growing together and complementing each other, my identities as an academic and as a civic activist had stopped interacting. They were no longer in dialogue. This session reminded me that to successfully navigate the changes, address the challenges, and contribute to shaping more equitable and sustainable societies, closer collaboration across sectors, including governments, academia, civil society, and citizens, is essential. In times when universities are increasingly under pressure, depicted by some as elitist institutions disconnected from everyday politics and realities, we need to counter this view. There is a case for scholarly activism. Demonstrating the values we bring beyond the academic community, explaining how our findings matter can lead to very concrete actions, and caring about the issues we study, does not diminish the rigor and integrity of our research. In fact, having privileged access to information and time to study comes with the responsibility to think about the implications of our research beyond the academic context. The session was a useful reminder for me personally that putting on my academic hat does not mean I have to give up my activist one. Quite the opposite, sometimes one might not be enough to protect the head. Relatedly, all the powerful tools and mechanisms presented at the session are not intended for someone else with a particular job title to use. They are available to everyone.

Francesco Luigi Gatta, re:constitution Fellow 2020/21

The panel focused on the EU’s annual rule of law reporting process, debating its impact and effectiveness. The panelists pointed out the significant expectations that surrounded this approach to tackling rule of law backsliding when it was first launched. They thus prompted the debate as whether these expectations have been actually met. One of the most interesting points of the debate was the multi-actor framework in which the rule of law is being debated, ranging from academia, to NGOs, from media to institutions and civil society associations at domestic level. Another significant issue that was discussed is how the rule of law debate is channeled towards the public opinion, i.e., with what language and terminology, means of communication, and what communication tools work better to help raising awareness in the public at large. The follow-up to the rule of law reporting mechanism was also examined and debated: whether and how the European Commission’s evaluations are received and treated at domestic level. It was particularly interesting to see the different kind of reactions that might be triggered, such as replies by the government, parliamentary debates, preparation of comments and counterarguments. Finally, the issue of equal treatment was also touched upon, i.e., whether the European Commission can be considered as a third, impartial evaluator or whether it actually resorts to double standards when evaluating member states (especially those which joined the EU more recently than others). Interventions and comments from the audience suggested that in some countries there is a sense of frustration and a feeling of being not equally assessed by the EU institutions. The discussion also pointed to the fact that other players are also involved in the rule of law reporting process, such as, notably, the Venice Commission, which evaluates a broader group of countries than just the EU member states. In conclusion, the Panel offered very thought-provoking considerations, sparked the debated among participants, who, all in all, seemed to agree on a general point: the need for independence, since only institutions that are fully and genuinely independent and committed to the principle of rule of law can actually contribute to its safeguard.

Dukagjin Abdyli, re:constitution Fellow 2025/26

This session explored the dilemmas of principled resistance to democratic backsliding, emphasizing the tension between preserving institutional legitimacy and taking decisive action in moments of crisis. A recurring theme was the cost of inaction: panelists highlighted that democratic erosion often begins subtly, yet once state capture deepens, the space for legal and civic resistance narrows dramatically. The strongest analytical insight was that early, coordinated action—by lawyers, journalists, civil society, and international actors—is crucial to preventing irreversible decline.

A particularly striking and thought-provoking contribution illustrated how authoritarian governments neutralize dissent not only through direct repression but by capturing media ecosystems, thereby reshaping public narratives. One example explored Turkey’s transformation into a “Putin-style” state underscoring the speed with which pluralism can be extinguished when control of information and judiciary coincide. A different reflection on Hungary revealed a more legalistic form of erosion: the gradual tightening of funding restrictions and regulatory barriers against civil society. Together, these contributions highlighted that authoritarianism today is often a “slow burn,” requiring early recognition and mobilization.

The most contested issue in discussion was how to strike a balance between principle and pragmatism—how judges, lawyers, and academics can defend democratic norms without appearing partisan or undermining public confidence in their neutrality. Several speakers stressed that acting too late is more dangerous than acting too soon, suggesting that neutrality should not mean passivity.

Policy implications were also evident: the session made clear that transnational legal and advocacy networks play an essential role when domestic checks and balances fail. The Hungarian Helsinki Committee’s coalition work, including rapid press releases and international outreach, was cited as a model for mobilizing cross-border solidarity. However, concerns were raised about shrinking donor space in Europe, which may weaken the capacity of NGOs precisely when they are most needed.

The session’s relevance to current debates is direct. Democratic decline is no longer a problem “elsewhere” but a shared European and global challenge, with echoes in the United States, Brazil, and beyond. The discussion suggested that legal scholars and practitioners must not only document erosion but also build “advocacy capacity before the house is burning.” This forward-looking stance frames democratic resilience as requiring institutional preparedness, public communication strategies, and robust alliances across sectors.

Ultimately, the session conveyed a sense of urgency but also of agency: while democratic decline is real and accelerating in some contexts, there are tools—litigation, media collaboration, civic education—that can still shape outcomes. The rapporteur’s key takeaway is that defending democracy is less about isolated heroism and more about systematic, networked responses that are principled, timely, and transnational.

Pola Cebulak, re:constitution Fellow 2020/21; Aleksandra Kustra-Rogotka, re:constitution Fellow 2019/20; Karolina Kocemba, re:constitution Fellow 2023/24; Katarzyna Krzyżanowska, re:constitution Fellow 2023/24; Zuzanna Nowicka; Ezgi Özlü, re:constitution Fellow 2024/25

The panel responded to the increasing challenges posed by the legal mobilisation that subverts liberal values and principles of the rule of law. The speakers elaborated on the practical counter-strategies that could minimise the consequences of misappropriation of law by illiberal legal actors. The session gathered speakers with diverse professional backgrounds — academics and practitioners — who, together with the audience, discussed three broad questions that structured the workshop. What is the definition of lawfare? What strategies do lawfare actors use to restrict rights and capture the legal field? What possibilities and tools exist for resisting lawfare and countering right-wing legal mobilization? 

Lawfare is diversely defined, but most approaches understand lawfare mainly as the use of law for nefarious purposes. Historically lawfare has connotations with using law during war in the USand the independent origins of the concept is connected with mobilization around the status of Palestine. Even though, no consensus regarding the meaning of ‘lawfare’ exists, what unites these scattered approaches is the idea that law is used to restrict the rights rather than protect them. The metaphor of the “Trojan horse use of law” underscores the appropriation of liberal ideas employed to achieve illiberal ends. Accordingly, lawfare is advanced by “illiberal authoritarian actors” who use the same legal provisions and mechanisms as pro-human rights actors but are driven by illegitimate aims. The blurred line between legitimate and illegitimate uses of law brings up the following question: conservative legal mobilisation can be legitimate, but when does it become a danger to the human rights system? Another key point emphasized the temporal dimension of lawfare, describing it as a long-term process. It begins with smear campaigns that prepare civil society to accept the lawfare’s methods, such as fast-track procedures.

Lawfare can be advanced not only by underprivileged actors, but also by governments or influential NGOs. Furthermore, the context matters, since the US lawfare is exercised before and by the Supreme Court, while in Europe, these are national parliaments. Beyond that, the repertoire of lawfare is broad, as it includes targeted legal changes that restrict the transparency of public life and SLAPPs, or challenge whole branches of law like the tax system, while providing no legal remedies. In the discussion, the strategy of case-hunting is added whereby NGOs produce amicus briefs for the court in which the law is deliberately misrepresented to advance policy issues. In addition, lawfare relies on collaboration between the actors: networks transfer ideology and know-how about strategic litigation, mimic human rights defenders, and instrumentalize public institutions.

Resisting lawfare, so neutralizing the conservative agenda, is not the same as advancing a progressive agenda. So, how can we resist lawfare and counter illiberal mobilization? An audience member suggested denying third-party interventions to illiberal actors, but this caused much controversy: if a tool is restricted to liberal groups, then it undermines the tool. Instead, strategies should document and uncover how lawfare works, building alliances between liberal actors, and applying the litigation more effectively, e.g., by the use of preliminary references or bold application of interim measures in human rights cases. 

Victor Ellenbroek, re:constitution Fellow 2025/26

This session underscored how defenders of rights can no longer rely on institutions as they once did. Where legal and constitutional systems are weakened, the courtroom is not a final safeguard but one tool among many. Sometimes even counterproductive. What stood out was the resilience of practitioners who continue to work under such conditions, alongside the creativity and recalibration required when institutions themselves become contested terrain.

A central insight was that Europe can no longer be treated as a model of institutional independence. Developments in several countries now place parts of Europe under the same scrutiny once directed at fragile democracies. This reversal not only represents a symbolic loss but also undermines Europe’s credibility when promoting the rule of law abroad.

The discussion returned frequently to dilemmas of litigation strategy in compromised systems. With courts losing independence, lawyers face the question of whether pursuing cases is meaningful or whether it simply legitimises captured institutions. Even flawed judgments can raise awareness and document abuses, but the space for genuine legal redress is shrinking. A recurring theme was how strategies such as issuing warnings or suspending cases can offer limited workarounds, while still highlighting the erosion of institutional safeguards.

The debate also centred on penal populism and the criminalisation of marginalised groups. If supranational courts strike down such measures, do they provide genuine relief, or do they risk reinforcing government narratives of foreign interference? This paradox illustrates how external rulings, though valuable, can unintentionally strengthen authoritarian positions.

Another provocative theme was the appropriation of rights language. Rights once associated with social protection or democratic participation are increasingly reframed to serve restrictive agendas. The “right to work” is invoked to weaken unions, while the “right to life” is deployed to limit reproductive freedoms. Such inversions blur public understanding of rights and push defenders to rethink communication strategies alongside legal tactics.

The discussion on funding crises for civil society was equally sobering. Advocacy organisations are now expected to master communication, coalition-building, and risk assessment, even as donors retreat from sensitive areas such as rule of law, anti-corruption, and minority rights. The likely outcome is more resource-sharing, mergers, or reinvention of organisations. The sustainability of civil society itself emerged as a pressing rights issue.

Overall, the session suggested that defending rights through weakened institutions requires hybrid strategies. Legal expertise remains vital, but it must be embedded in broader efforts to amplify community voices, shape persuasive narratives, and sustain organizational capacity. For policymakers and researchers, two implications stand out: interventions must be carefully designed to avoid backfiring, and support for civil society infrastructure is as urgent as defending rights in courtrooms.

Franziska Michel

The session, examined the ongoing erosion of asylum standards and their interaction with the broader decline in the rule of law within the European Union (EU). The speakers identified three deeply concerning trends: the growing securitisation of migration, the normalisation of pushbacks, and the increasing prominence of the instrumentalisation narrative at the EU’s eastern borders.

At the internal level, the discussion highlighted that EU law is increasingly used to legitimise restrictive national practices. Article 72 Treaty on the Functioning of the EU (TFEU), which allows for derogations from certain obligations in the name of public security, is frequently invoked by Member States, often beyond its intended scope, to circumvent binding EU asylum and migration rules. Although the Court of Justice of the EU (CJEU) has made clear that Article 72 should apply only in narrowly defined and exceptional circumstances, states continue to rely on it broadly. According to the speakers, this undermines the uniform application of EU law and contributes to the securitisation of migration, framing it as a threat to public order rather than a matter of legal and humanitarian responsibility. The European Commission’s growing tolerance of such derogations was viewed as further weakening the normative authority of EU asylum law. Participants therefore emphasised the need for judicial counterstrategies to safeguard the rule of law and ensure effective access to protection. 

At the external borders, the situation was described as equally alarming. A major concern raised by the speakers was the widespread practice of pushbacks by certain Member States, preventing asylum seekers from physically entering EU territory. These practices effectively deny access to asylum procedures and fundamental rights, as various legal safeguards are only triggered upon entry. Consequently, the right to asylum risks being reduced to a mere formality within "Fortress Europe". At the same time, the European Court of Human Rights (ECtHR) has taken a more restrictive approach in recent jurisprudence. This shift was viewed by many observers as effectively weakening procedural safeguards and narrowing the scope of protection under the European Convention on Human Rights (ECHR). The speakers observed that this restrictive shift, combined with the ongoing practice of pushbacks even as related cases remain pending before the Court, highlights persistent deficiencies in the protection of human rights at Europe’s external borders.

Since 2021, Poland, Lithuania, and Latvia have introduced far-reaching legal reforms that effectively formalise pushbacks and restrict access to asylum procedures, particularly in response to people arriving via Belarus and Russia. The speakers highlighted that these measures were justified through the concept of migrant instrumentalisation, which distinguishes between “artificial” and “natural” migration flows. This concept proved to be highly contested during the session, as it was criticised for dehumanising asylum seekers and denying them agency, while arguably overlooking structural factors that drive individuals to seek protection through irregular routes, such as global passport inequality and the lack of safe and legal pathways to asylum.

In conclusion, the discussion emphasised that Europe’s borders are increasingly operating as grey zones where fundamental rights are frequently disregarded, representing a clear manifestation of the ongoing backsliding of the rule of law in Europe.