Defending the rule of law in the EU

The European Parliament has in this term learnt lessons on enforcing universal norms, which next term must be acted upon.

In her address to the European Parliament in July 2019, as candidate for the presidency of the European Commission, Ursula von der Leyen insisted that ‘there can be no compromise when it comes to respecting the rule of law’. She struck a chord with MEPs.

At the beginning of this term the European Union was confronted with the authoritarian agenda of the governments in Poland and Hungary. Others in Slovenia, Bulgaria and the Czech Republic were flirting with the playbook to subvert the rule of law of the Hungarian prime minister, Viktor Orbán.

The commission seemed however neither willing nor in possession of the right tools to counter anti-democratic policies in European Union member states. It was time to take action and to protect democracy and European values.

Fight far from over

Today—five years later—the right-wing populist governments in Poland and Slovenia are history, having been ousted in democratic elections. Orbán is still in power but for the first time EU institutions have used funds they disburse as a lever to enforce rule-of-law reforms: some €20 billion earmarked for Budapest remains frozen.

But the fight for the defence of European democracy is far from over. The coming European Parliament elections could reinforce those political forces in the EU willing to follow in Orbán’s illiberal footsteps. With a parliament shifting to the right, the rule of law might appear in the crosshairs of the populists again.

So what can be done when it comes to ‘defending Europe’s values’, as von der Leyen put it five years ago? Four lessons have emerged meantime from the European Parliament:—

Right-wingers won’t question Europe—but they will question liberal democracy: ‘Brexit’ was a watershed moment for Eurosceptics. Flying high during the 2016 referendum in the United Kingdom, the support they enjoyed hit rock-bottom after Britain’s departure was sealed in January 2020. It became clear, even to the most fervent ‘defenders of sovereignty’, that images of empty supermarket shelves and trucks queuing at British ports would not win them any elections—‘Frexit’, ‘Polexit’, ‘Nexit’ … were all off the agenda. Today, Alternative für Deutschland is the only major right-wing party campaigning for EU departure after Marine Le Pen, leader of the French Rassemblement National, abandoned the idea.

Instead of aiming to leave the union, the populists now criticised ‘Brussels’ for being too ‘woke’, too interfering, too liberal. It should be reformed, they demanded, into a structure where Brussels would pay, yet have no say in what were supposedly the ‘internal affairs’ of member states, revolving around such issues as the rule of law, democracy and fundamental rights.

It comes as no surprise that this movement was spearheaded by governments in central-European countries, such as Hungary and Poland—the biggest recipients of EU funds with an extremely poor record when it comes to protection of democratic standards. Demanding EU money while rejecting European values culminated in the ruling of the Polish Constitutional Tribunal dismissing the primacy of EU law.

Build democratic institutions that withstand a right-wing takeover: when the Polish opposition won last year’s parliamentary elections, democrats all over Europe sighed with relief. The authoritarian wave seemed to have come to a stop. Eight years of government by the PiS (Law and Justice) party have however left their mark on Poland. Months later, the government of Donald Tusk, former president of the European Council, is still struggling to reverse the past judicial ‘reforms’ and enforce the rule of law. Poland shows that far-right governments promptly embark on restructuring state institutions, with the aim of permanently strengthening their own power, securing access to state resources and making it difficult for the opposition to win elections.

But what does this mean for the EU? In this legislative period, the EU institutions have for the first time been given tools which allow them to address violations of the rule of law and corruption in member states. The rule-of-law mechanism permits the freezing of EU funds when the rule of law no longer obtains in a member state.

This instrument has however only been timidly used. It is not yet a true defence mechanism against pervasive anti-democratic currents. Too often, its application is subject to political considerations—not facts on the ground. There is a serious danger that, following a shift to the right in the parliament and consequently also in the commission, it will no longer be applied at all.

The commission has missed the opportunity to create a genuine mechanism with its sporadic use of this instrument, which should automatically kick in when an anti-democratic government once again dismantles the rule of law. The EU must remedy this situation and guarantee the resilience of its institutions via the treaties.

Resilient institutions help—but eventually it is up to politicians: with the rule-of-law mechanism, the common provisions regulation and the Recovery and Resilience Facility, plenty of instruments have been placed at the disposal of the commission this term to protect European values by financially sanctioning violations in member states. But it is safe to say von der Leyen would have used none on her own initiative. It was only due to sustained pressure from the parliament that the rule-of-law mechanism came into being, that it was triggered against Hungary and that financial sanctions against the Orbán regime were introduced.

Even here, majorities for a tough stance were not a given. Eventually, it boiled down to a few dedicated MEPs, from the four biggest pro-European families in the parliament, convincing their political groups and putting sufficient pressure on the commission finally to take action. Because of its inertia, the commission has been sued (twice!) by the parliament at the European Court of Justice.

Von der Leyen has failed to stand up for European values in the past five years and it is unlikely she will change course if she secures a second term. It will be up to a few courageous MEPs to sustain the fight. They will need all the public support possible in this endeavour.

Money matters: we have seen with the freezing of EU funds, over violations of the rule of law, a before and an after. Before, when concerned letters and infringement proceedings were part of the standard repertoire of the commission, little or nothing usually happened in the affected member states. Only after, when dozens of billions of euro were put on hold, was there movement: in Poland, the PiS suffered the consequences of its anti-democratic course with electoral defeat, while in Hungary judicial reforms, albeit inadequate, were set in motion.

The lesson for the coming years is clear: the most effective lever against the rightward shift and erosion of democracy in the union is a brake on EU funds. We shall have to use it more frequently and comprehensively.

Daniel Freund is a member of the European Parliament for the Greens. In 2021 he was part of the team negotiating the EU’s rule-of-law conditionality. In his parliamentary work he focuses on the fight against corruption and an upgrade for European democracy.