By Suzanne Rowe
Article 2 of the TEU states that the EU 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”. It is considered that these values are common to all Member States and that any erosion of them threatens the very functioning of the Union itself (Lane Scheppele and Kelemen, 2020).
Over the last decade, the European Union has seen significant rule of law backsliding in several Member States, most notably Hungary and Poland, where concerns have been raised about the independence of the judiciary, freedom of expression and other rule of law issues. In this blog, it will be argued that the mechanisms used to date in attempting to deal with these matters have been largely ineffective and why the addition of rule of law conditionality is therefore crucial in addressing the slide in core EU values.
The EU has at its disposal a rule of law toolbox which it uses to ensure that the rule of law is respected by its Member States. In its Communication to the European Parliament, the European Council and the Council in April 2019, the Commission outlined the instruments available; Article 7 and the Rule of Law Framework, infringement procedures and other mechanisms and frameworks (European Commission, April 2019). It stated that the effective enforcement of rule of law in the Union is based on three pillars – promotion, prevention, and response.
In 2014 the Commission introduced the Rule of Law Framework, which it hoped would make the preventative mechanism of Article 7(1) TEU more effective, by allowing a dialogue to be opened with the offending state to address rule of law issues before the formal Article 7 mechanism was triggered. For political reasons it was never used against Hungary and proved to be ineffective against Poland when recommendations made by the Commission were duly disregarded by the Polish government (Halmai, 2019). The actual triggering of what was considered to be the ‘nuclear option’ of the Article 7 procedure itself, against both Hungary and Poland, has proven to be equally ineffective with little to no progress being made, although following a recent meeting of the General Affairs Council it was announced that the procedure will continue against both countries (Blenkinsop & Strupczewski, 2020). However, because of the procedural requirements that the Council must act with unanimity to determine the existence of a ‘serious and persistent breach’ (Article 7(2)TEU) before imposing sanctions (Article 7(3)TEU) against an offending state, it is unlikely that Hungary or Poland will ever face sanctions under the mechanism, with each country expected to use its veto in support of the other in such a scenario
On several occasions, the Commission has initiated infringement proceedings, under Article 258 TFEU, to address violations of the rule of law where there has been a related breach of a specific rule of EU law (Halmai, 2019). In cases where the Court finds against the offending state, the result is a legally binding determination, possibly leading to interim measures and significant financial penalties. It is often considered, however, that such infringement proceedings are insufficient when it comes to dealing with violations of EU fundamental values (Blauberger & van Hullen, 2020).
Other mechanisms and frameworks in the rule of law toolbox include the European Semester, the EU Justice Scoreboard, and the Commission’s Structural Reform Support Mechanism. While these mechanisms help address rule of law issues in Member States, they merely have an early warning and preventative role (European Commission, 2019). In October 2020, the Commission published its first Rule of Law Report as part of the new European Rule of Law Mechanism. The aim of this report is to look at positive and negative developments in the 27 Member States and to identify possible problems in relation to the rule of law as early as possible. Again, however, this is not a sanctioning tool and only has a preventative role (European Commission, 2020).
It would therefore appear that while there are sufficient mechanisms available for the promotion and prevention of rule of law issues within the Union, a deficit exists regarding instruments that can be used to sanction Member States where there are persistent breaches of rule of law principles. Consequently, it is argued that the introduction of a rule of law conditionality on EU funds is an important addition to measures that can be currently used against offending states, as such a mechanism would allow for swift and decisive action.
A proposal for rule of law conditionality on EU funds was first submitted by the Commission in May 2018, and in July of this year, such conditionality was agreed in principle by the European Council. The wording of the Council Conclusions was unsurprisingly vague and ambiguous, and it has been left to the Parliament and Council to reach agreement on the mechanism as part of the EU budget negotiations. At present tensions are running high after a majority of the Parliament dismissed the EU German Presidency’s compromise proposal, expressing the view that it sets the bar too high and will result in it being impossible to ever trigger the mechanism. The Parliament is demanding that the Reverse Qualified Majority voting system originally proposed by the Commission be reinstated (European Parliament, 2020). Hungary and Poland on the other hand are upset by the Council’s proposal, viewing it as too strict and as a result are threatening to block the EU budget if Brussels imposes rule of law conditions (Wanat, 2020).
Whatever the outcome of the current negotiations, rule of law conditionality is now firmly on the agenda and, in the absence of Treaty change, it is too important a mechanism to walk away from if the core values, and thus the very functioning of the EU, is to be adequately protected.
European Commission (2019) Further strengthening the Rule of Law within the Union State of play and possible next steps. Brussels. Available at: https://ec.europa.eu/info/sites/info/files/rule_of_law_communication_en.pdf (Accessed 28 October 2020)
European Commission (2020) Report on the Rule of Law – Questions and Answers. Brussels. Available at: https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1757 (Accessed 28 October 2020)
European Council (2020) Special meeting of the European Council (17-21 July, 2020) – Conclusions. Brussels. Available at: https://www.consilium.europa.eu/media/45109/210720-euco-final-conclusions-en.pdf (Accessed 28 October 2020)
European Parliament (2020) Rule of law: MEPs demand protection of EU budget and values. Brussels. Available at: https://www.europarl.europa.eu/news/en/headlines/eu-affairs/20201001STO88311/rule-of-law-meps-demand-protection-of-eu-budget-and-values (Accessed 28 October 2020)
Blauberger, M. & van Hullen, V. (2020) ‘Conditionality of EU funds: an instrument to enforce EU fundamental values?’, Journal of European Integration
Blenkinsop, P & Strupczewski, J., ‘EU rule of law action against Hungary, Poland to continue: Germany’, Reuters, 22 September 2020. Available at: https://www.reuters.com/article/us-eu-democracy-hungary-poland-idUSKCN26D29B (Accessed 28 October 2020)
Halmai, G. (2019), ‘The possibility and desirability of rule of law conditionality’, The Hague Journal on the Rule of Law, Vol. 11 (Issue 1), pp. 171-188
Lane Scheppele, K. & Kelemen, D. (2019), ‘Defending Democracy in EU Member States’, in Bignami, F. (ed.) EU Law in Populist Times: Crisis and Prospects. Cambridge University Press, pp. 413 – 456
Wanat, Z., ‘Poland threatens to veto EU budget over rule of law’, Politico, 13 October 2020, Available at: https://www.politico.eu/article/poland-threatens-a-budget-veto-over-rule-of-law/ (Accessed 30 October 2020)
This blog post was written as part of the coursework for INRL20160 – Introduction to EU Politics.