Is the EU Losing the Battle on the Rule of Law?
Simone Disegni 26 March 2021

“One of the fundamental values of the European Union is at stake: the Rule of Law. The destruction of this fundamental value in one EU Member State may result in the emergence and acceptance of such mechanisms in other Member States, which may eventually end in the collapse of the Union”. The bitter wording of a letter signed by the heads of almost all European Parliament political groups and sent yesterday to president of the Commission Ursula Von der Leyen sounds as a reminder that beyond the struggle for vaccines, there is another vital battle that the EU is in danger of losing; that of having the fundamental principles of the rule of law respected across its 27-States territory.

The almost obsessive concentration of the media’s attention on the pandemic’s daily bulletins – yesterday those of cases and victims, today (also) those of doses – seems indeed to have dimmed all other concerns in public opinion. Yet since the health crisis began to unfold, the brick-by-brick dismantling of democracy in Poland and Hungary – hence in Europe – has by no means stopped, on the contrary. Worse, the two nations leading the authoritarian faction have learned to exploit the loopholes in the EU’s verification system of the respect of those very fundamental criteria requested for its membership, such as judicial autonomy or political pluralism, refining a strategy of political-legal “resistance” that is proving to be incredibly effective. The most recent step, last March 11th, has been the referral to the Court of Justice of the mechanism linking new massive EU recovery funds to the respect for rule of law standards, thereby effectively neutralising it until a ruling is passed, which may happen as late as in eighteen months.

Once the virus has been tamed, will the EU reawaken with the juridical and moral foundations of its own political project in a state of erosion? To try and answer the question, rewrapping the tape is worth the effort.

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail,” states Article 2 of the Treaty on European Union, expressing the best universalist traditions and giving a voice to that promise of “never again” spoken in unison by European societies after 1945: never again war, never again authoritarian governments, never again intolerance of minorities.

Seven decades after European integration was embarked upon, that objective appears to be in serious danger. Once enthusiasm for enlargement had quickly evaporated – in “Old” Europe as well as the New – Poland and Hungary became the vanguard in central-eastern Europe for what has been termed as the antiliberal revolt: a recipe adaptable to the reality of each country, but consisting basically of obsessive references to tradition (white, Christian, patriarchal) and to the nation, disdain for those who are different such as gays, Roma and migrants, as well as the progressive dismantling of any independent watchdog of government activities such as the judiciary, the media and civil society organisations.

Having been tenaciously emptied of meaning and instruments for the past ten years (Viktor Orbán has been in power since May 2010), Hungary can already no longer be defined as a democracy, according to authoritative institutions and scholars. In the best of cases, it could be described as a rough draft; in the most disquieting one, as a young autocracy taking its first steps. As far as Poland is concerned, news reported over recent weeks speaks of fierce protests organised by thousands of women opposing the government’s plans to more or less totally forbid abortions, but also of so- called “LGBT-free” areas in all four corners of the country where activists and gay citizens, real or even just “suspected”, are exposed to violence and persecution.

In Budapest and Warsaw the situation has thus become month after month more dramatic, the atmosphere more intimidating for minorities and the opposition; yet the tendency has been well-known and explicit for some time. So what, in the name of the aforementioned principles, is the EU doing to oppose this backsliding?

For many long years, the Commission – which, it is always worth remembering, acts on political impulse provided by the Council and hence the ensemble of governments – has attempted to neutralise the threats to the democratic foundations of its member states using the tools of diplomacy: reprimands, warnings, dialogue with the respective governments, recommendations. An impact assessment? Laughable, good intentions aside, in the face of the illiberal determination of the “rebels”. Nor have the occasional infringement proceedings raised before the Court of Justice on specific aspects helped influence the situation more effectively.

Frustrated by all its vacuous efforts, in December 2017 the Commission (the Juncker-Timmermans one) finally took matters to the upper level, resorting to the most powerful weapon in the EU’s judicial arsenal. Faced with full frontal attacks on the independence of the Polish judiciary, including the Constitutional Court itself, the Brussels executive recommended triggering Article 7 of the EU Treaty, asking the Council to proceed with declaring the country as running “a clear risk of a serious breach of the values” on which the Union is founded. If fully applied, this procedure is de facto the only one in the EU institutional toolbox that implies concrete sanctions on a member state, such as a suspension from the right to vote in all EU gatherings.

Forty months later, however, that “loaded gun” on the table of the Brussels-Warsaw confrontation proved to be without ammunition. “The procedure started by the Commission requires the Council to hold hearings with the member State involved before proceeding,” explains Sonja Priebus, a post-doctoral researcher at Magdeburg University specialised in this subject, “but it does not specify how, when or how often those should be summoned.” The result was that the Council held a number of hearings with representatives from the Polish government in the course of 2018, then nothing more. Technicalities aside, Dr. Priebus explains, the basic obstacle is obviously political. To formally proclaim the “clear risk of a serious breach”, no matter how clear it already appears to everyone, a majority of four fifths of Member States is required; something which may today hardly be taken for granted. Poland and Hungary aside, there are quite a few countries in the former Soviet bloc that have increasingly borderline domestic situations regards to various aspects of the rule of law fundaments, and that would consider a future similar procedure against them as a smokescreen: from Czech Republic to Slovakia, from Bulgaria to Slovenia.

While the EU wastes its efforts, due to a lack of legal instruments and political determination, otherwise said, the illiberal virus is spreading like wildfire.

Faced with the threat of such a broad democratic backsliding, in truth, the Commission has tried to take further steps, launching a new strategy in 2019 to strengthen the culture of the rule of law; that is grounded on the one hand on programmes and financing to support civil society and independent institutions across the Member States; on the other one, the so-called Rule of Law Review Cycle, designed to raise the level of public attention and hopefully political pressure on violations, especially with the annual Rule of Law Report, published for the first time in autumn 2020. A useful tool for evaluation and monitoring, it does not however provide for any sanctioning mechanisms. And in widely compromised mediatic systems, the resulting recommendations can even hardly reach the desired addresses.

In order to try and turn the tide, the last weapon left in the hands of EU institutions therefore seems (seemed) to be economic leverage, considering that European funds have been a fundamental driver for both Polish and Hungarian growth. In Warsaw, in 2015-2019 alone, almost 50 billion euros of funding were provided by various EU programmes, in Budapest almost 22 billion; as much as 5% of public spending in the Polish case and 7.2% in the Hungarian case. It is hard to imagine that their respective governments would wish to give up such a windfall, which the Next Generation EU programme and the next seven-year budget promise to replicate. Hence the idea of linking the use of future funds to strict criteria involving respect for the rule of law.

Pity, the well-trained astuteness of Central-Eastern leaders in lodging themselves into the weaknesses of European decision-making architecture now risks neutralising even this last trump card. As is well known, empowered by the unanimity required to pass any new budget allocation, last autumn Orbán and Morawiecki obstructed the adoption of the post-Covid EU recovery package consisting of extraordinary funds (Next Generation EU) and ordinary ones (2021-27 multiannual framework), threatening to ruin the whole plan were a conditionality clause to be attached. What prevented a failure that nobody wanted, was the last-minute compromise brokered last December by the German presidency: yes to the funds and yes to the constraint, but with the possibility of referring the matter to the Court of Justice to verify its legitimacy.

That is exactly what happened. On March 11th the two ‘rebel’ governments appealed to the Court, effectively blocking the application of democratic verification mechanisms. Game, set, match?  “Technically, no,” says Dr. Priebus. “It is difficult to imagine the Court will agree with them on the merit of the appeal. But they have certainly achieved their primary objective, which was to gain more time”. According to European observers, the Court could in fact pass a decision on this controversy no earlier than mid-2022. In the meantime, the dismantling of democratic guarantees in Poland, Hungary and perhaps elsewhere will be able to proceed without excessive external interference.

Well-aware of the risk, the European Parliament raised its voice yesterday by adopting an unusually harsh resolution, threatening to bring the Commission itself in front of the Court should it fail to implement the funding conditionality as soon as possible, and in any case no later than next June 1st. The EP holds in fact that the compromise adopted by the Council last December is legally void, and Poland and Hungary’s appeal to the Court has therefore no suspensive effect whatsoever. Should the message not be clear enough, the resolution adoption was accompanied by the personal letter to Ms. Von der Leyen quoted earlier.

So the political temperature in Brussels is (finally) rising on to the risk of a ‘shipwreck’ on fundamental European values. Yet placing all responsibility on the Commission – as has happened in many other cases – seems excessive and somewhat hypocritical. “Review Cycle, conditionalities, and even the article 7 itself, have ultimately proved to be blunt weapons because they are technical instruments,” reflects another expert on such matters, Cristian Surubaru from Maastricht University. “What is needed to try and really change things is politics: first of all in the countries themselves, of course, with opposition forces; secondly, from the exterior, with leaders such as Angela Merkel making direct efforts, engaging in bilateral meetings, exerting pressure, using the full weight of economic leverage available to them.”

If safeguarding the very foundations of the European edifice is not a political exercise, it is hard infeed to imagine what else does, especially in the weeks in which the EU seems to want to relaunch its role as the “global guarantor” of democracy and human rights by imposing sanctions on all foreign regimes guilty of serious violations of the rule of law. How hard it is to do this credibly when small and medium-sized autocrats are running around undisturbed in one’s own home.


Cover Photo: (L-R) Slovakia’s Prime Minister Igor Matovic, Poland’s Prime Minister Mateusz Morawiecki, Hungary’s Prime Minister Viktor Orbán and Czech Republic’s Prime Minister Andrej Babis attend a joint press conference after a Visegrad Group (V4) meeting in Lublin, September 11, 2020. (Wojtek RADWANSKI / AFP).

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