’CJEU has been for a long time rather a rubber stamp for the European Commission than a real independent Court’ – an interview with Gaëtan Cliquennois

The Western type political system is the liberal democracy that consists of two major pillars, in balance with each other: democracy and liberalism. However, in recent times, the balance between the two components has been upset in favor of liberalism or the constraints on the will of the majority of the people. This is especially true in Europe where various international courts have an increasing role in shaping the law. How do you see the role of the European courts in this regard?

There is quite a scientific consensus to say and note that the European Courts have progressively been turned into constitutional courts (like the US Supreme Court). Those process of constitutionalisation has increased their influence and control over national policies through the lens of fundamental and human rights.

How do these Courts use their constitutional power? Which approach do they apply to solve legal and social issues?

In this regard and under the influence of private foundations and some NGOs founded by them, both Courts have applied an increasing liberal vision and approach to policies that promote individual freedoms in particular in the field of status of religion (religious pluralism and secularism rather than respect for Christian traditions and ecumenical superiority) status of women and gender sexuality (LGTB rights rather than a dominant heterosexual model, family (multi-model family rather than traditional nuclear family). These are examples of a widespread phenomenon.

Where did this so called liberal vision come from?

This specific conception reflects the main European policy and litigation areas invested by Open Society and the NGOs financed by private foundations which are : discrimination against certain minorities (including ethnic and cultural minorities, refugees and LGTB persons); specific protection of certain ethnic, sexual and religious minorities (migrants, Roma, Muslims and LGTB persons) who are victims of state oppression; political opponents (who fight nationalist states) and human rights activists; penal and immigration policies and detention; changes to the judiciary; counterterrorism policies; political cases and fights over territories; and free election and media. 

In your recently published book, the European Human Rights Justice and Privatisation – The Growing Influence of Foreign Private Funds, you examined the dilemma of external or outside influence on courts. Who, in your view, could influence the outcomes of the European courts' procedures that have increasingly shaped the most fundamental principles and rules of societies across Europe?

Private Foundations (including Open Society, Ford Foundation etc.) and NGOs that are funded by them have increased their influence over the ECtHR and the CJEU time since the end of the nineteens at least. 

Are we talking about a spontaneously evolving process, or is there any actual will in this regard?

This tendency is partly attributable to the economic recession. Budgetary cuts have resulted in declining levels of public funding. Less public funding for NGOs translates into more room for private donors turning funding into influence. With the decline of public funding (partly due to the economic crisis) and new strategies pursued by interest groups,

How did these organizations become capable of doing so?

Step by step. Through the creation of their own litigation teams, their increasing funding of NGOs and applications before the European Courts, and their contribution to the content, the evidences and supervision of the judgments delivered by these Courts, have some direct effects on the content and protection of human rights

Can these organizations directly affect the quality of European jurisdiction?

Yes. Private influence on the inputs, the outputs and the structures of the European Courts could orient the European jurisprudence towards certain countries and the promotion of private interests pursued by private foundations. Consequently, litigants which are not considered by private foundations to be a priority by private foundations might end up with no real access to the European Courts and or to judicial protection of their human rights.

What are these statements based on?

With regard to this private influence on the composition and the procedures of these courts, provide evidence of this trend, we rely in the book on internal and advocacy documents drafted by the European Courts, NGOs and private foundations about the successive reforms of the European human rights justice system.

So the human rights regime (system) is under permanent and systematic reform.

Yes. As a complement to litigation and to advocacy efforts oriented towards the ECtHR reform,

through regular meetings with officials including ministers, ambassadors and diplomats. At the same time that and the OSF provides information and expertise to the Committee through quarterly briefings. These meetings allow the OSF plenty of opportunities to advocate a better execution of the cases which the foundations characterise as a priority. The OSF also lobbies other CoE bodies, and the European Commission against Racism and Intolerance, the General Rapporteur on the Rights rights of the lesbian, gay, bisexual and transgender community with a view to putting pressure either on the European institutions or on member States states as responsible for executing ECtHR judgements at the national level. 

In comparison, which judicial body is more affected? Either the European Court of Justice or the EctHR?

In comparison, the influence of the OSF on the CJEU seems to be far less than the one exerted on the ECtHR and is exercised more via advocacy and pressure on the European Parliament and the European Council than via direct participation in reform of the CJEU. In this regard, it is worth noting that one judge at the CJEU and some current judges at the ECtHR have previously worked (before joining the ECtHR) either directly for private foundations (namely the OSF) or for the NGOs financed by private foundations.

For example?

In this regard, at the ECtHR, the current Bulgarian judge and new Vice-President of section was formerly member of the Board board at of the OSJI. The Romanian judge has a similar carreer: he was a member of the board of International Commission of Jurists before joining the EctHR. But I can mention Hungarian and Polish examples as well. The same trend applies for to the former Hungarian Judge judge who worked for the Central European University, which that is fully financed by the OSF, and received an academic grant and fellowship from Soros. At the CJEU, the Polish judge was a member of the Polish Helsinki Committee before joining the Luxembourg Court.

The principal innovator of the European law has long been the Court of Justice of the EU rather than the Parliament or the Council. How did private funds influence the path of the European integration and what could be their future aspirations? 

I did not study this aspect in the book. However, what I can say is that the CJEU has been for a long time and until recently rather a rubber stamp for the European Commission (notably due to a continual process of revolving doors) than a real independent Court. In this regard, as said above, private foundations lobby in priority the European Commission and the European Parliament to get more influence on the process of European integration favoring their neo-liberal agenda and western vision.

Can we say, that private funding prioritize Eastern and Central Europe when it comes to litigation?

Yes. The analysis of the European case law in the book tends to shows an overrepresentation of Eastern countries and Russia among the countries that are condemned by the ECtHR through litigation efforts made by private foundations and the NGOs. The roster of key litigants against Eastern countries and Russia in particular allows us to assert that one private foundation (OSF) and a limited number of NGOs have played a key role in defining the input of the ECtHR case law against these countries. 

How is this possible for them?

These NGOs have been able to play such role thanks to generous funding from a limited number of private donors. The influence exerted by donors is not only purely informal, but it is also formalised through the calls for proposals, projects and grants explicitly aimed at ‘enhancing’ litigation and execution of judgements concerning so called nationalist regimes.

Does this mean that these particular organizations cherrypick from a pool of cases?

Indeed, dependence on a limited number of private sources of funding may well result in a selection bias. For instance, the legal cases in which the OSF intervenes either as direct litigant or through third party interventions are notably selected through for their potential political and legal impacts on specific countries. In this regard, the complaints which are brought by the OSF (but also by the NGOs more generally) mainly involve Eastern countries (Romania, Poland, Hungary, Slovenia). Countries which have been targeted by 27 judgments out of forty-seven obtained by the OSJI between 2004 and 2018.

What are the actual effects of these anomalies?

As it is written in my book, in contrast to the focus by private foundations (on Eastern countries and on specific issues) some areas and fields are neglected or even ignored by private foundations and the NGOs in their litigation and advocacy. In this respect, the book highlights the effects of the increased dependency of NGOs on economic finance and on some Member member States. In this regard, there are significant issues that are ignored by private litigation.

although victims of such offences are protected by several conventions that offer solid legal grounds for litigation.

Does it lead to functional deficiencies?

Yes it does. For instance, the protection of Muslims’ rights leads to a clash of rights between the rights of Muslims and those of women and of LGBT people. Generally, in their litigation activities the OSF and the NGOs do not represent European people who are vulnerable, poor and affected by economic and social policies. Social and economic rights seem to be ignored by donors and litigators. For instance, although austerity policies deeply impact the economic and social rights of the most vulnerable citizens, they have never been litigated by private foundations. By highlighting this phenomenon can really be shown, how the right to litigation of vulnerable people is really curtailed; they just cannot really access to CJEU and EctHR whenever their economic or social rights are endangered.

How would you suggest addressing this problem?

In my view, there is a crucial need and room for regulation of the European human rights justice and a democratic control over the nomination of Judges, over potential conflict of economic and judicial interests and over the way private funds are affected to litigation and advocacy, and so forth.

Contrary to what they pretend, NGOs and private foundations do not represent the whole society as they defend their private interests.

On 12 September 2018, on the basis of the so called Sargentini report, the European Parliament adopted a resolution on a proposal calling on the Council to determine, pursuant to Article 7(1) TEU. The issue is disputed by Hungary before the ECJ. Is it possible, that when it comes to ECJ, political factors can decide, when the legal situation sways?

Of course, political factors play a significant role (see my previous responses to your questions in particular my response to question 7) especially when considering the fight between the dominant western vision and a more traditional christian conception (that characterises what the western vision calls “populism” and “populist States”).

Professor Gaëtan Cliquennois has been interviewed with respect to his newest book titled European Human Rights Justice and Privatisation - The Growing Influence of Foreign Private Funds (Cambridge University Press, 2020.).

Interviewed by Gergely Dobozi