How to exploit the Rule of Law Rush in Europe?
The political atmosphere for the protection of rule of law and other fundamental values of the European Union appears to be undergoing a cautious but positive change. Instead of rallying around the flag, European political groups started putting greater leverage on national member parties that are not complying with European values.
The Party of European Socialists (PES) declared in April that it is going to freeze its relations with the Romanian governing party PSD due to the latter’s growing disrespect for the rule of law. In the same month, the liberal ALDE group in the European Parliament excluded its Romanian member (also called ALDE) for supporting the PSD backed initiative to ease the persecution of high-level political corruption in Romania. Even if in a less straightforward manner, but the European People’s Party also suspended the membership of Prime Minister Orbán’s Hungarian Fidesz, although due to its internal cleavages and the power struggles around the candidacy of Manfred Weber and Michel Barnier, EPP’s approach toward Fidesz has been definitely less determined than the moves made by the progressive parties. However, the value-based concert of European political groups that has been so long desired for the better protection of rule of law and democracy became a sudden reality in the prelude of the EP elections.
The new, increasingly value based approach of the European party groups promptly started bearing its first political fruits, confirming the thesis that previous rule of law and democratic backsliding in Hungary, Poland and Romania was mostly allowed by the lack of appropriate political will to counter illiberal tendencies.
Following the backlash the Romanian PSD faced at the EP elections, Prime Minister Viorica Dăncilă announced the withdrawal of the controversial judicial reforms that previously prompted both strong European critics and mass protests on the streets of Bucharest. In the Hungarian case, the government led by Fidesz suspended the implementation of the country’s administrative court reform that otherwise would have seriously hampered the independence of justice in politically sensitive areas like electoral issues or public tendering. With this move Orbán intended to white wash his track record and sideline issues that fueled his conflict with the EPP before EPP’s three wise men unveil the results of their investigation in July and the EPP Congress in November decides about the future political fate of Fidesz. As the breakthrough of radical-right forces at the EP elections, long expected and desired by the Hungarian Prime Minister, ultimately did not materialize, Fidesz is apparently ready to make significant concessions in exchange for its future remaining in the conservative party family. Such retreats happened extremely seldomly during the nine years long history of Hungary’s autocratization that underlines the growing leverage of European politics over illiberal national elites.
Small boat on the ocean’s big waves – the Commission’s Rule of Law consultation
The long planed consultation of the European Commission on the ways how the rule of law could be further strengthened in Europe takes place exactly in the abovementioned favorable political environment that offers a unique window of opportunity for the Commission to formulate meaningful initiatives in its next rule of law communication at the end of June. The consultation that two months ago appeared to be a last minute, rather weightless exercise of an outgoing Commission to boost its rather controversial legacy, now it provides a real opportunity to exploit the political momentum and make progress in the field of rule of law protection that cannot be left unconsidered in the new European institutional setting either.
To reach this goal, the Commission should, at least theoretically, abandon some key features of its recent approach, or reduce them to the field of its official communication, and fit its actions to the realities and political perspectives of the rule of law crisis in Europe.
First, it should be acknowledged that most national governments that fail to comply with EU fundamental values don’t do that due to a lack of knowledge or know how about democracy, rule of law or fundamental rights. In the most emblematic cases (Hungary, Poland, Romania) the violation of rule of law and the hollowing out of liberal constitutionalism has been part of a conscious, largely authoritarian power grab strategy. Therefore the Commission’s current approach, which is largely built on the promotion of rule of law and apparently attaches the same importance to rule of law promotion than to prevention and enforcement, is partially out of touch with the realities of the rule of law crisis.
Strengthening the resilience of civil society and national institutions to the threats looming over rule of law is the right long-term strategy. However, the rule of law crisis in several Member States already developed further than where rule of law promotion could have any significant impact. In cases where the separation of powers is systemically overridden and the government consciously pursues an autocratizing agenda, a more powerful Commission toolkit is required to alter the cost-benefit calculations of national elites right away and put significant leverage over them. Therefore, by keeping rule of law promotion in its package, the Commission has to prioritize prevention and enforcement over promotion.
Second, although it obviously cannot be communicated openly, the Commission has to bear in mind that due to the abovementioned reasons member states are at least as much part of the problem than they are part of the solution when it comes to compliance with rule of law. Indeed, the Commission’s approach toward the member states should always be guided by the principle of sincere cooperation; however, the Commission may never presuppose that national governments involved in rule of law issues act in the very same spirit.
In contrary, non-complying member states mostly act in bad faith, and EU institutions determined to safeguard the rule of law should build their strategies accordingly. Based on the experiences gathered with Hungary and Poland the Commission should consider how it can react on various symbolic compliance or “maverick” strategies that are consciously deployed to defraud the “guardian of the treaties”.
Ultimately, there are some practical remarks that should be considered to enhance the promotion, prevention, and enforcement of rule of law in the European Union.
What national judiciaries could do better
National judiciaries, especially at lower levels, are still very weakly Europeanized. Therefore, once focusing on promotion, the EU should prioritize advanced training programs for justices and court clerks. Such programs should not only focus on the existing European standards, which are still rather vague, but primarily on the existing European mechanisms that can be effectively used in the protection of the rule of law and other constitutional goods, if they are triggered.
Considering the role of national courts in the field, preliminary rulings can be powerful tools of safeguarding the rule of law and liberal constitutionalism in member states where national institutions of checks and balances, like Constitutional Courts are occupied and thus neutralized by autocratizing national governments. Obviously, requests for preliminary ruling require the application of European law in the given cases, while several issues of national law that may imply the violation or hollowing out of the rule of law principle indeed often lack references to EU law. However, in such cases, ultimately, references to the fundamental values of the European Union enshrined in Article 2 TEU could substitute the references to the primary and secondary EU “hard law” and thus enable (and push) the Court of Justice of the European Union (CJEU) to develop its case-law on the basis of Article 2 TEU.
The statistics of preliminary ruling requests show large differences among the EU Members; the tool appears to be especially rarely applied in some Central and Eastern European Member States. However, its more frequent use could provide a large impetus for the development of European case law in the field of the rule of law and would contribute to a more systemic and converging functioning of the European legal system. The “promotion” of EU mechanisms like preliminary ruling for national judiciary staffs should be included therefore in initiatives of the European Commission, like the Rights and Values Program or the EU Justice Program.
How monitoring could be done better
During the previous years the prevention of rule of law breaches in Member States has suffered mainly from the biased approach of the European Commission that showed a high-level of margin of appreciation and political discretion. Unfortunately, the lack of consequent approach in some regard also undermined the credibility of measures deployed by the European Commission. To overcome this situation, the Commission has to adopt a “straightforward” approach. The high margin of appreciation and political discretion are well placed at the level of enforcement, when the Commission shall find the most effective tools and ways to assert the compliance of Member States. But they should be systemically eliminated from the monitoring phase, as they only undermine the monitoring exercise’s credibility.
To reduce the Commission’s high margin of appreciation and political discretion in the preventive phase, the EU has to establish a comprehensive mechanism to monitor the systemic compliance of all member states with the rule of law. Using Council of Europe’s (Venice Commission) know-how would obviously be desirable in the practical monitoring work, but the task of systemic monitoring cannot be outsourced to non-EU institutions that are neither bound by nor part of the EU legal order.
Dozens of various proposal and blueprints of such monitoring mechanisms were suggested during the past years. Earlier I recommended that the EU’s Fundamental Rights Agency (FRA) should be empowered (on the basis of Article 352 TFEU) to provide a systemic rule of law monitoring of member states on an annual basis. However, if no interinstitutional agreement can be reached between the Commission, the Parliament and the Council on the extended mandate of the FRA, the Commission still could act alone and introduce a systemic rule of law monitoring through the extension of the “Judicial Scoreboard” exercise of the European Semester.
Considering the Council’s weak track record in this field and member states’ well known sensitivities about interfering in their domestic, “sovereign” issues, peer review among member states can only play a subordinated, supplementary role besides a comprehensive monitoring mechanisms.
How the enforcement of rule of law compliance could be done better
Concerning the issue of enforcement, a number of building blocks can be identified that could contribute to the creation of a political and legal environment that facilitates the assertion of rule of law standards in EU Member States.
First, in its infringement procedures and infringement referrals the Commission should more frequently use legal arguments that could allow the Court of Justice to unfold a progressive interpretation of the treaties and the development of EU law by its case-law.
Second, in case of national measures that pose an irreversible threat to the rule of law, democracy and fundamental rights in member states, like the dismantling or occupation of institutions via legislation, the Commission should automatically ask for the suspension of implementation at the start of the infringement procedure, until the dispute between the Commission and the member state is solved. In case of non-compliance with the demand of suspension, the Commission shall refer the case to the CJEU and shall ask for interim ruling that orders the suspension.
Third, bearing in mind the slow progress of the Article 7 hearings in the Council with regard to Poland and Hungary, the Commission should initiate an interinstitutional agreement to determine the procedural rules of Article 7 TEU, and to introduce schedules and time tables for the different stages of Article 7 procedure, including the Council hearings.
Fourth, the lack of rule of law and the presence of high level, strategic corruption frequently form an entangled complex of problems in several Member States. Bearing this entanglement in mind, not only the introduction of rule of law conditionality measures is highly necessary in the new Multiannual Financial Framework (MFF), but the enhancement of the EU’s anti-corruption capabilities as well. As the mandate of the newly established European Public Prosecutor’s Office (EPPO) does not cover the member states that refused to join the EPPO, like Hungary, EU institutions should also strive for a mandate extension for the European Anti-Fraud Office (OLAF) that could guarantee the full publicity of OLAF reports at least.
Fifth, concerning the role of European political groups, the Commission should take advantage of the current “rule of law rush” of the S&D, EPP and ALDE and make steps to maintain their engagement for compliance of their national members with rule of law and other European values. The Commission should provide impetus for European political groups to establish and assert internal codes of good conduct on democracy, rule of law and fundamental rights (DRF) that may guide the approach of national member parties to DRF issues.
The European Commission shall not miss the current window of opportunity that opened up in European politics for an enhanced protection of rule of law and other European values in member states. The Commission should propose avant-garde institutional and legal solutions that represent a significant leap forward and should secure the support of the main European political groups in advance. Preferring a cautious approach and thus leaving the political momentum and the opportunities provided by the current European political synergies unexploited would not just be a significant political failure. It could further undermine the credibility of Commission efforts in this field and would made the whole rule of law consultation effort hypocritical and irrelevant.
Daniel Hegedüs is Rethink.CEE fellow at the German Marshall Fund of the United States