How do the two European Courts courts address the challenges posed by populism in today’s Europe? What strategies do they share, and where do they differ?

These were the central questions I explored in a presentation entitled “Populism: A Common Challenge for the European Courts”, delivered on 20 October at a conference organized by the Pompeu Fabra University of Barcelona on “Europe’s Constitutional Stress Test: Judicial Resilience in an Age of Populism” (see the programme below).

The presentation began from the premise that populist movements focus their attacks on both democratic values – such as the rule of law, human dignity, freedom of expression, the protection of minorities, and the prohibition of hate and violence – and democratic institutions, including national courts and parliaments.

Accordingly, the analysis compared the case law of the European Court of Human Rights and the Court of Justice of the European Union with respect to each of these “targets,” supported by numerous illustrative excerpts from relevant judgments.

The findings revealed that the two European Courts pursue similar strategies. When democratic values are challenged, their common approach is to reaffirm these values by emphasizing their essential role in preserving the democratic character of European societies. When national courts and parliaments come under attack, the Courts’ focus shifts to safeguarding their proper functioning as a means of fostering citizens’ trust in democratic institutions.

The main conclusions of the presentation can be summarized as follows:

• The ECtHR addresses a somewhat broader range of issues drawn from the democratic acquis.
• On matters of shared concern, there is substantial alignment between Strasbourg and Luxembourg, notwithstanding some differences in formulation (on these differences and their importance, see also The very essence or mere appearances?). Given divergences in other legal domains, this convergence is noteworthy and commendable.
• Judicial independence is the area of greatest convergence between the two Courts, which is unsurprising, as it is also the area most directly targeted by populist attacks.
• Three significant challenges remain: the execution of European judgments, the spread of fake news and disinformation, and the composition of the European Courts themselves.
• Finally, even acting in concert, the European Courts cannot ultimately succeed in defending democracy without the sustained support of a democratic majority among citizens.

Full details of the analysis, along with case law references and relevant excerpts, can be found in the accompanying PowerPoint presentation.