It cannot be stressed enough that the EU is a “Union of law” where the rule of law has been the paradigm of the European model and the structure of the common Europe since its foundation. The Treaty on the European Union (TEU) enshrines the rule of law as one of the fundamental values of the EU thereby making it the prerequisite for the protection of all other essential principles, including fundamental rights and democracy. Given its importance, it is essential to acknowledge how the concept of the rule of law is expressed by the Treaties, that is, understand the role that it has in the European legal system.
The central role of the Rule of Law in EU Treaties
In Article 2 TEU, the rule of law – together with the respect for human dignity, freedom, democracy, equality, human rights – is cited as one of the fundamentals of the structure of the Union. The fact that those values form the foundation of the European project indicates that the importance of such values sets the direction of the interpretation and application of law in all fields covered by EU law. In occasion of the EU’s accession to the European Convention on Human Rights, in 2014 the European Court of Justice (ECJ) reiterated the indispensability of the safeguard and, hence, the importance of the values enshrined in Article 2 TEU by declaring in its opinion (Opinion 2/13) that “each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected”. Moreover, following the European Council in Copenhagen in 1993, Article 49 TEU made EU membership conditional inter alia upon the respect of and the alignment with the fundamental values. This was aimed at ensuring that only sound democracies were able to accede to the EU. Thus, not only are these liberal democratic values seen as the normative bulwark of the Union, but they also constitute the fundamental political requirements for a functioning integration. Article 19 TEU concretely expresses the value of the rule of law, demanding that for an effective performance of the EU legal order member states have a minimum standard of the rule of law, as national courts are responsible for the implementation of a significant part of EU law (Giappichelli, n.d).
Like in many other international organizations, in the EU the concept of the rule of law became a dominant organisational model of constitutional law with the goal of controlling the unfolding and the exercise of public powers. The principle of the rule of law guarantees that public powers do not act outside their sphere of competence defined by law; that they unfold their powers in accordance with the values of democracy and fundamental rights; and that they legitimately act under the surveillance of independent and impartial courts. Although the principles and standards characterizing the rule of law differ between member states, the 2014 Communication from the Commission to the European Parliament and the Council (“A new EU Framework to strengthen the Rule of Law”) conferred to the rule of law a common meaning for all member states. The Commission provided a list of values that characterise the rule of law, thus, defining its essential meaning as a common EU value in accordance with Article 2 TEU. These principles consist of legality (which implies a transparent, accountable, democratic, and pluralistic process for enacting laws); legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law (Communication from the commission to the European parliament and the council, 2014).
On numerous occasions, both the Court of Justice and the European Court of Human Rights claimed that these principles are not only solely procedural requirements with a formal nature. Instead, they are the prerequisite for safeguarding and guaranteeing conformity with democracy, democratic values and human rights within the Union. As stated in the Communication from the Commission to the European Parliament and the Council, the “[…] respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights: there can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa. Fundamental rights are effective only if they are justiciable. Democracy is protected if the fundamental role of the judiciary, including constitutional courts, can ensure freedom of expression, freedom of assembly and respect of the rules governing the political and electoral process […]”. The rule of law safeguards democracy by guaranteeing the accountability of elected officials through the limitation on the exercise of power. It prevents uncontrolled, or uncontrollable power, thus protecting human rights and, more specifically, safeguarding individuals from governments’ arbitrary interference with their liberty and freedoms. Only if the rule of law is withheld is it possible for a democracy to rise, and only then can citizen rely upon an independent judicial body, a legislative organ that respect human rights, end an executive that abides by the rules (Communication from the commission to the European parliament and the council, 2014).
Thus, the rule of law represents a constitutional principle with formal as well as substantive elements which is vital for the development of the EU into a union where freedom, security and justice without internal frontiers prevail. This, however, is only possible if the rule of law is safeguarded in all 27 member states (Communication from the commission to the European parliament and the council, 2014). Given the crucial role of the rule of law, it can be derived that the credibility of the Union can be achieved only if both the coherence and consistency of the internal practice and the external promotion of the rule of law is guaranteed. Indeed, the rule of law plays such a vital role within the European legal order that the Union is committed to promote it in its external action, that is, in countries beyond EU borders (Ioannides, 2014).
Promotion of the Rule of Law
Throughout the years, EU institutions have been committed to promoting the rule of law as a common and indispensable value. During Germany’s Presidency of the Council of the European Union starting in the second half of 2020, a rule of law peer review mechanism has been established. Aimed at developing a constructive dialogue on the rule of law alongside the encouragement of a shared perception of the rule of law, the proposal “is a low-ambition effort that might be able to win majority in the Council and demonstrate some symbolic commitment by the member states to safeguarding the rule of law” (Hegedüs, 2019).
Soon after the appointment of the new Commission, Ursula von der Leyen clarified that one of the new Commission’s most compelling aims was to intensify the latter’s commitment to defend the rule of law through the adoption of a comprehensive European Rule of Law Mechanism. The latter, which would be applicable across all member countries, is aimed at delivering a uniform approach to supervising the respect of democracy, rule of law and fundamental rights in all member states. This mechanism which is a development of the Rule of Law Framework of 2014 has three main goals. The first is to “foster, through public outreach, a rule of law culture across the EU”, alongside “expand[ing] the scope of monitoring and reporting to all member countries while deepening the Commission’s institutional expertise to achieve a timely and detailed understanding of developments” (German Institute for International and Security Affairs, 2019).
The mechanism has been supported by the Rule of Law Report, that is, a preventive instrument, not a sanctioning one. It is in charge of analysing and scrutinizing both the positive and negative developments across member states in order to distinguish possible contraventions of the rule of law as early as possible, as well as best practices. The report focuses on the following areas: justice systems, the anti-corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances (European Commission, 2020).
Lastly, the Mechanism aims at strengthening “the leverage of the EU to respond in cases where there is serious deviation from rule of law norms. This latter aspect of the reinforced toolbox includes adopting a strategic approach to bringing anti-infringement cases to the CJEU and the introduction of rule of law conditionality to EU funding in member countries” (German Institute for International and Security Affairs, 2019). Indeed, the latest powerful act of the von der Leyen Commission was the adoption of a regulation aimed at the safeguard of the EU budget in case of “generalized deficiencies as regards the rule of law” (German Institute for International and Security Affairs, 2019). In other words, the Commission proposed the so-called rule-of-law conditionality that would link the receival of EU funds to the respect of the rule of law by the member states (Kirst, 2021). This proposal which has been turned into a Regulation applying as of January 2021, however, already surfaced in 2017, as existing constitutional measures – such as Article 7 TEU – failed to impede the already strongly exhibiting rule of law backsliding. Yet, the deterring function of this regulation still has to show its intended results as Poland recently did not feel frightened to claim the incompatibility of some parts of EU treaties with the Polish constitution, thus, asserting the sovereignity of the member states and, therefore, the undisputed precedence of the Polish constitution over EU law.
The role that the Article 2 TEU values play within the EU legal framework implies that they enjoy constitutional status in EU law. Hence, the breach of the rule of law – and generally of all fundamental values enshrined in Article 2 TEU – represent the most flagrant and the most serious infringement of the unity of the Union as well as the Union’s value structure. When the European Union is confronted with breaches of the principal values from within, its toolbox to address such challenges is challenged. The violation of only one value by only one Member State leads to the jeopardization of the principle of mutual trust set in Article 49 TEU. Even if it does not explicitly violate EU laws, an EU member-state that does not respect the rule of law diminishes mutual confidence and cooperation and jeopardizes the rights of its own and other EU residents on its territory, thus, undermining the functioning of the EU legal order. Moreover, breaching Article 2 hampers the realisation of the Union’s aims cherished in Article 3 TEU and harms the principle of sincere cooperation between member states and among EU institutions. Indeed, the rule of law determines the manner in which the Union achieves its objectives as well as how EU institutions exercise their competencies. Violating it implies that the principle of cooperation according to which “the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties” (Article 4(3) TEU) is infringed. This generates a significant gap between the pre-accession promise of respecting the rule of law and the de facto post-accession violation (European Movement International, n.d.).
Poland and Hungary’s efforts to undermine liberal democracy
Notwithstanding the European Commission’s frequent reiteration of its role as guardian of the Treaties – which inter alia implies the safeguard the fundamental values of Article 2 TEU – its political practice did not always meet this goal as showed on several occasions. Indeed, member states have repeatedly challenged and still continue to undermine the rule of law in their own jurisdictions. The two countries that have generated a wide-spread and general preoccupation among member states and EU institutions have been Poland and Hungary as both have been the most overt examples of counties assertively trying to undermine liberal democracy. In 2014 Hungary’s Prime Minister even declared that he was transforming the country into an illiberal state.
In its intent to restore the soviet-style justice system, the Polish government has purposefully violated the Polish Constitution and EU law on numerous occasions thus becoming the first EU Member State undergoing both the Article 7 TEU procedure and the special monitoring procedure of the Council of Europe. The extirpation of the independency principle of the judicial branch, which has been carried out through several attacks at Polish courts, judges and prosecutors reached its apex with the adoption of the “muzzle law” in 2019. This legalised the blatant unconstitutional and systemic violation of EU and ECHR judicial independence requirements (Wanat and Tamma, 2021). In other words, “any Polish judge at any point in time can now be the subject of arbitrary disciplinary investigations, proceedings and/or sanctions (including dismissals), initiated, conducted and adopted by unlawful bodies (as a matter of EU law) —not to forget the subject of arbitrary criminal proceedings—for fulfilling their EU law duties and applying EU rule of law requirements” (Laurent, Wachowiec and Mazur, 2021). This, which has been deemed by the EU as compromising the composition, as well as the independence and the functioning of the Polish judiciary, has been denied by the Law and Justice Party since 2016. Indeed, the Polish government claimed that such measures were necessary to increase the efficiency and that Brussels has no right to intervene in what it regards as a domestic matter. This situation has been deteriorating ever since 2016 and touched a low point in 2021. A couple of months back, the Polish government stated that member states remain sovereign and that, therefore, the Polish constitution takes undisputed precedence over EU law. More specifically, it claimed the incompatibility of some parts of EU treaties with the Polish constitution – hence, the latter’s superiority.
Similarly, Hungary is increasingly drifting away from the EU and its values are steering towards a structural breakdown of the rule of law. The proceeding of Article 7 EU has been activated also against Hungary as it has been accused by the EU inter alia of systemically undermining independent institutions and allowing figures close to the ruling Fidesz party to be involved in widespread corruption, including misuse of EU funding. Media freedom has strongly been limited since 2018 resulting in the existence of very few free voices against the government’s harmful storylines and fake news. Control over the media have been attained by consolidating media regulations into one single body which is under control of the Media Council, whose president is elected by the prime minister. LQBTQ rights have been severely restricted. A law rendering impossible for transgender or intersex people to change their gender legally has been approved, alongside the restriction of LGBTQ education rights and freedoms, including the ban of information identified as promoting homosexuality or gender change to minors. As Warsaw, Budapest lowered the retirement age for judges of the country’s constitutional court, thus, breaching the principle of judicial independence and non-discrimination based on age (GUE/NGL, 2020). A new law has been introduced permitting Orbán to rule by decree, thus, reducing surveillance on his power by other state institutions. The government took indirect control of Hungary’s 11 state-funded universities by transferring the institutions’ governance from independent trustees to new educational foundations managed by the prime minister’s allies. Lastly, homelessness has been prohibited in 2018 (Luk, 2021). These represent only a few governmental measures infringing the rule of law.
Further examples of member states violating the Rule of Law
Although much of the debate around the infringement of the rule of law in the EU has been focusing on the independence of the judiciary, it should be reminded that violations of this principle also encompass other matters. Indeed, according to the Venice Commission, the rule of law is characterized by six elements: legality, including a transparent, accountable and democratic process for enacting law; legal certainty (people know what the law is and how the courts interpret it, and neither will change unpredictably); prohibition of arbitrariness (the exercise of power cannot be unlimited); access to justice before independent and impartial courts, including judicial review of administrative acts; respect for human rights; non-discrimination and equality before the law (Bond and Gostyńska-Jakubowska, 2020).
The World Justice Project’s annual ‘Rule of law index’, suggested that the situation about the backsliding of the rule of law in the EU should be of concern to all EU citizens, and not only to Polish and Hungarians. Also, the World Bank’s Worldwide Governance Indicators showed that compliance with the rule of law between 2009-2018 saw a strong decline in 17 EU member states. According to The Rule of law index, in 2019 Bulgaria, France, Hungary and Poland showed a substantial worsening in the respect of the rule of law as compared to 2015. “Bulgaria has slipped from 56th place (out of 102) for constraints on government powers to 91st place (out of 126); Hungary from 66th place to 103rd. France went from 30th place in 2015 to 56th place in 2019 in relation to order and security, presumably as a result of a number of terrorist attacks: the authorities have responded to these attacks with laws permitting extensive surveillance, not only of suspects but of all communications in specified areas, with little judicial oversight. France’s ranking for constraints on government power, protection of fundamental rights and the effectiveness of its criminal justice system also slipped, though by fewer than five places in each case” (Bond and Gostyńska-Jakubowska, 2020). Moreover, in 2019 Austria, France, the Netherlands, and Poland government powers saw less constraints by the judiciary, legislature, audit agencies or civil society compared to 2015. A substantial deterioration was also registered in the management of criminal justice as well as the protection of fundamental rights in terms of equal treatment and non-discrimination (such as in Bulgaria, France, Greece and Slovenia). Hungary’s backslide in terms of the safeguard of human rights has even been compared to the Chinese and Iranian situation (Bond and Gostyńska-Jakubowska, 2020).
The Economist Intelligence Unit’s (EIU) ‘Democracy Index 2018’ declared 15 member-states in Western Europe to be less democratic in 2018 than ten years before. Belgium, Cyprus, France, Greece, Italy and Portugal were declared faulty rather than full democracies. In Greece the problem resides in the country’s constitutional weakness. Germany’s Max Planck Institute for Comparative Public Law and International Law affirmed that the lack of an efficient administration and judiciary was hampering the possibilities of the development of a modern and sustainable eurozone economy. This, summed to corruption, the lengthy and cumbersome court proceedings, the lack of administrative expertise and of co-ordination represent compelling problems that amount to a rule of law problem (Bond and Gostyńska-Jakubowska, 2020).
The World Justice Project (WJP) confirmed that Italy scored substantially lower than the EU average on issue such as constraints on government powers; corruption; open government; respect of fundamental rights; order and security; regulatory enforcement; civil justice; and criminal justice. Moreover, the country’s institutional and political issues aggravated the situation. As Italy is the member state with one of the lowest number of judges, it takes around 399 days to settle civil, commercial, administrative cases, compared to 22 days in Denmark. Another example of breach of the rule of law, was represented by the then-prime and leader of the Lega right-wing party Matteo Salvini who had endorsed the eviction of members of the Roma community from a camp in Rome, despite orders of the European Court of Human Rights to halt that action (Bond and Gostyńska-Jakubowska, 2020).
MEPs have been monitoring the Czech Republic as they criticize the delayed probe into Czech Prime Minister Andrej Babiš’s conflict of interest in the misappropriation of EU money. Babiš, as Prime Minister, allegedly impacted the distribution of EU subsidies to Agrofert, an agribusiness giant that he established and controls. MEPs demand that the Commission use the conditionality mechanism to preserve the EU budget if it rule of law violations will be proved (Wahl, 2021).
Freedom of media is another vital aspect characterizing the rule of law. According to the 1019 ‘World Press Freedom Index’, media freedom resulted to be a problem in six member states, especially in Romania, Poland, Croatia, Greece, Malta, Hungary, and Bulgaria. In Croatia, little is done to avert political interference in both the appointment and removal of editors-in-chief, while Maltese political parties are the owners of big media enterprise (Bond and Gostyńska-Jakubowska, 2020).
Conclusion
Violation of the rule of law in different intensities seems to be a recurrent pattern in the behaviour of member states. When joining the Union, the EU citizens put their trust in the European Union, and they now expect the EU to defend their rights. However, frustration and discouragement become more overwhelming every day as people see nothing tangible happening. This could most likely lead them to lose faith in the EU, as well as to doubt the powers of EU institutions to be able to face disobedient governments. Europe cannot afford to lose the support of its citizens. Brussels must stop underestimating the assertiveness of disobedient counties. The Polish and Hungarian situation do not represent a mere problem of bad governance of yet other incompliant member states trying to establish their superiority in the European landscape by undermining the EU’s fundamental values.
However, whenaiming to protectthe rule of law and, hence, the functional and normative basis of the Union, the EU has found itself lacking the necessary tools to ensure member states comply with this fundamental EU values. Article 7, which was intended to dissuade EU member states from committing major and long-term violations of the rule of law, has not lived up to its original objective. The gravity of the measures is such, and the required unanimity so unlikely that its deterrent effects have run counter to its declared aim. The normal infringement procedure under Article 258 TFEU is limited to the breach of the EU acquis and– although it adds pressure on the Member State to respect the principles of the EU legal order – eventually fails to address infringements of the rule of law and of the other fundamental principles of Article 2 TEU. This highlighted the deficiency of the EU’s institutional traditions and political settings that hamper the Union from utilising the potential in the framework of EU law for the protection of democracy and rule of law (Lavelle, 2019).
To find a solution to the lack of legal instruments, as well as to strengthen the rule-of-law conditionality, the Commission should develop a constitutional “mind-set that insists on member states’ substantial output compliance with EU values and, if required, systematically enforces it” (Hegedüs, 2019). Indeed, “the lack of a constitutional mind-set by the European Commission is a key obstacle to the EU safeguarding liberal democratic values. No legislation is required to overcome this, but the necessary change of institutional traditions, role perceptions, and ways of thinking may cost even more time and political resources than legislation. The Commission should embrace the idea that Article 2 and Article 7 issues must be considered constitutional affairs. Substantial breaches of fundamental norms may not be as obvious as procedural breaches or violations of “ordinary” European law, and therefore their investigation may require a more nuanced approach. Since these breaches may pose a considerably higher threat for the functioning of the EU than simple legal non-compliance, it should be the undisputable obligation of the Commission to address them systematically and in an unbiased way. Its margin of discretion in whether and how to address these challenges should be significantly reduced and be subject only to substantial consideration of the threat posed and the member state’s outcome compliance” (Hegedüs, 2019).
Furthermore, the Commission is strongly advised to empower the ECJ by providing it with legal inputs through infringement processes, in order to enable the court to establish a progressive interpretation of the treaties and the development of EU law. Indeed, these inputs would “destruct the extremely restrictive and sovereigntist interpretation of the Council’s Legal Service on Articles 2 and 7 issues […]” making “it more complicated for the Council to obstruct future legislative proposals that aim at guaranteeing democracy and rule of law with measures others than the Article 7 process” (Hegedüs, 2019).
Moreover, the inter-institutional power struggle that strongly hampers EU institutions to set forth valuable attempt to safeguard the rule of law, should be replaced with a more constructive dialogue and efficient cooperation between the Commission, the Council, and the Parliament. Disputes between the first two over the monopoly of the legal interpretation of European values frequently resulted in political gridlock with the party-political bias exacerbating the situation. Tensions and power battles between the Council, the Commission, and the European Parliament have made attempts to solve violations of Article 2 effectively difficult. Institutional tensions did not only prevent the formation of political synergies, but also hampered or even immobilized actions of the Commission or the European Parliament aimed at improving the preservation of democracy and the rule of law in member states. Thus, EU institutions should reassess their stances and approaches, and focus on creating efficient and constructive institutional synergies between one another. Institutional cooperation is a sine qua non of progress in safeguarding Article 2 values and, hence, the rule of law. Being the guardian of the Treaties does not mean a maximization of the Commission’s discretion and action room for the safeguard of EU Treaties. It means substantial engagement for the safeguarding of Article 2 values in sincere cooperation with other EU institutions, implying that that the Commission should aim for a more cooperative partnership with the Parliament (Hegedüs, 2019).
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By Mahmoud Refaat: The European Institute for International Law and International Relations.
