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Rule of law: ‘grassroots support for democratic values’ needed alongside EU action

Polly BotsfordThursday 13 June 2024

Civil society engagement is a key component in combatting the increased challenges to the rule of law in the EU. That’s according to the 2024 report from the Civil Liberties Union for Europe (Liberties), published in spring. The report describes a ‘negative trend’ in rule of law issues within certain EU Member States, highlighting for example judiciaries becoming politicised and attacks on media freedoms, and concludes that ‘top-down pressure from the EU needs to be accompanied by support for democracy at the grassroots level’ to resist this direction of travel.

Over the past year, the EU has faced multiple rule of law challenges. For example, Slovakia’s government is proposing to reduce sentencing for certain financial crimes and has already closed the Special Prosecutor’s Office tasked with investigating and prosecuting corruption. In February, Members of the European Parliament (MEPs) passed a resolution in respect of Greece’s adherence to the rule of law. Their concerns include the lack of progress in a criminal case in which a journalist was killed.

The challenges didn’t only begin recently. Hungary introduced worrying curbs on the powers of its constitutional court as long ago as 2012, which were followed by rules forcing the retirement of judges and state bans on foreign entities such as educational institutions and non-governmental organisations. Poland also brought in new laws on judges’ retirement, alongside changes to the way they were appointed and disciplined; the majority of these changes have since been reversed.

The EU has been grappling with an effective response ever since. It’s constrained by the fact that, ultimately, it’s a member organisation and thus is having to challenge its own members for not following the rules. Article 7 of the main EU Treaty [the Treaty on European Union] sets out powers whereby a Member State’s voting rights can be suspended if that country is not upholding the fundamental values of the EU as set out in the Treaty and which include the rule of law. But these powers are difficult to invoke, as suspension requires a unanimous vote – a position the EU probably won’t be in.

To avoid an Article 7 showdown, the European Commission has set up an annual reporting mechanism on rule of law issues with the aim of preventing problems from arising in the first place. Each year, as part of a continuous cycle, representatives meet with all Member States at a national and institutional level to measure the rule of law in key areas such as a country’s justice system and its anti-corruption framework. A comprehensive report is then published that includes recommendations. Beyond this, there have been a number of infringement proceedings brought against Hungary and Poland for alleged breaches of EU law.

Despite these tools, there continue to be real and growing problems around the rule of law in certain Member States, as the examples in Slovakia and Greece attest to. The EU has been criticised for prevaricating for too long, particularly in relation to Hungary and Poland. Laurent Pech, Dean of Law and Head of the Sutherland School of Law at University College Dublin, says that ‘the EU has lacked, and still lacks, the political courage to deal with these issues when they first become apparent’.

Balazs Denes, Executive Director at Liberties, argues this timidity is a symptom of its design and purpose. ‘It was never intended to be an independent enforcer of democratic ideals’, he says. ‘The EU was a trading bloc, an economic union, a consumer and human rights project. It wasn’t set up to protect itself from inward threats.’ This is where public engagement comes in, because only then will there be ‘domestic pressures’ to take the rule of law seriously, says Denes.

All schools throughout the EU should teach […] the principle of the rule of law as the founding principle on which European democracy is based

Martin Provaznik
Vice-Chair, Communications Group, IBA European Regional Forum

Martin Provazník is Vice-Chair of the Communications Group of the IBA European Regional Forum and speaks in a personal capacity. He agrees that education is at the heart of this. ‘It needs to be explained over and over again why the rule of law is important’, he says. ‘All schools throughout the EU should teach not only about the EU, but also about the principle of the rule of law as the founding principle on which European democracy is based.’

The European Commission’s spokesperson, Christian Wigand, has argued that it’s making progress. ‘We have a good rule of law toolbox and we have strengthened it,’ he has said. ‘Seventy-five per cent of our recommendations through the rule of law mechanism have been or are being followed up’.

Indeed, in 2021, the EU took a different tack that has the potential to carry considerably more weight. It introduced rule of law conditions to a Member State receiving EU funding – both through Cohesion Funds and Recovery and Resilience Funding, which was set up following the Covid-19 pandemic. In 2022, this mechanism was deployed against both Hungary and Poland, with their funding frozen after they failed to meet rule of law conditions.

On the face of it, this latest approach appears to have had the necessary impact, with the respective governments in both countries promising reform. But, some commentators argue, funding has since been released not because of actual reforms but out of political expediency. ‘While publicly denying this, it is obvious the EU gave in to blackmail and unlocked funding to Hungary in response to Orban’s veto threats in relation to Ukraine while it simultaneously rushed to release funds to Poland as the Commission needed a “rule of law win” prior to the parliamentary elections’, says Pech.

The European Parliament has been very critical of when the funding was released and, in March, filed its own proceedings against the Commission for doing so. The European Commission declined to comment when approached by Global Insight about the assertions in this article.