This piece was originally published by EU Law Live on 3 June 2024
The enlargement process of the EU that led to the accession of 13 new Member States was a monumental shift in the bloc’s politics, policy, and law. This process presented a unique challenge as the EU welcomed new members who had recently transitioned from authoritarian rule to democracy. It was not an unprecedented situation for the EU, as some of its existing Member States – Greece, Portugal, and Spain– had undergone a similar transition before joining the bloc. However, the 2004+ enlargement process brought about significant changes in the EU’s approach to the rule of law, necessitating the development of new tools to address the issue of democratic regress in EU Member States.
With the view towards an almost certain enlargement down the road, the EU began preparing to tackle the issue of respect for the rule of law, human rights and democracy in candidate countries by adopting the 1993 Copenhagen Criteria. These criteria have established a very high bar of entry into the EU regarding the respect for these values, yet at the same time, the EU was left with very little in the way of tools and mechanisms for protecting them, save for the Art. 7 TEU procedure, introduced in the 2001 Treaty of Nice. The challenges faced by candidate countries in meeting these criteria were significant, leading to delays in some of them acceding to the bloc. The rule of law issue was one reason Bulgaria and Romania joined the EU later than their peers, in 2007, and were immediately subject to the Cooperation and Verification Mechanism, a transitional measure established to support strengthening the rule of law in both countries (a specific Op-Ed on this mechanism by Elena Basheska will be published in this Symposium). The Commission was tasked with assessing and supporting their progress based on defined benchmarks and issuing regular reports and recommendations to the authorities in both countries.
The XXI century enlargement brought about a challenge the EU was ill-prepared to meet – democratic countries coming under an anti-democratic rule of Euroskeptic powers intended to weaken the judiciary and abolish checks and balances to remove obstacles to single-party rule. An idea that intellectuals in the old EU Member States have only passingly contemplated with regards to countries that experienced authoritarian episodes in their history became a reality in the newly enlarged EU, as nativism fueled by disillusionment with the pace of the new EU Member States catching up economically with ‘old’ members of the bloc paved the way to illiberal populist movements seizing power. This political turn led to a rule of law crisis in Hungary first and Poland, with right-wing majorities led by Fidesz and PiS, respectively setting out to dismantle the rule of law to secure their hold on the country.
Initially, the response of EU institutions to the rule of law crisis in Hungary and Poland was insufficient, to put it mildly. Article 7 TEU, the mechanism that was designed to prevent damage to the rule of law in EU Member States, was triggered only in 2017 towards Poland and in 2018 against Hungary when the damage to the judiciary and fundamental rights in both countries was already significant. The procedure’s most severe sanction, the removal of Council voting rights, was rendered powerless due to the requirement of unanimous agreement on its use in the Council, with Hungary and Poland covering for each other. When a new government emerged in Poland in 2023 to repair the rule of law, the Commission set out to terminate the Art. 7 TEU procedure against Poland. While the procedure remains ongoing against Hungary, the prospects for its effective use are bleak, as Viktor Orban quickly found a new ally in resisting the mechanism, namely Slovakia. Art 7 TEU failed due to its design and the lack of political will to use it effectively. Any revision of Treaties in the future should be an opportunity to remodel Art. 7 TEU into a working mechanism, one that Member State politics cannot easily undo.
The Commission’s activity was more successful in the form of infringement proceedings and cases brought against Member States before Court of Justice. While these led to some spectacular wins, such as the Court of Justice finding in a case brought by the Commission the Disciplinary Chamber of the Polish Supreme Court, used to attack and harass judges critical of the government, was established in a breach of EU law and handing Poland an unprecedented financial penalty of 1m EUR/day, these procedures were few and far between, and the Commission all too often languished where it should have acted forcefully. Far more significant was the impact of the rule of law crisis on case law of the Court of Justice, as the Court set out in 2018 to develop a line of interpretation of the Treaties, with particular emphasis on Art. 19 TEU, as standards for assessing judicial independence in the EU. Starting with hearing an unassuming case of Portuguese judges who sought reversal of their salary cuts, the Luxembourg court moved on to hand out several seminal judgments concerning the judiciary, with landmark judgments such as A.K. and Others v S’0105d Najwy’017cszy, W.’017b.and Commission v Poland (e.g. C-204/21 and C-791/19) that established a mature and stable line of interpretation, despite occasional missteps such as the unfortunate Getin Noble judgment.
By far, the most effective tools developed by the EU during the rule of law crisis allowed direct financial pressure on the Member States that violated the rule of law. The rule of law conditionality regulation, introduced in 2021 and later used against Hungary, allowed the EU to stop the money flowing towards Member States that disregarded common values. Yet that mechanism is not free from shortcomings and ultimately still depends on a Council decision, fortunately not one made with unanimous agreement. A far more effective, if deeply unorthodox, was the use of two instruments overtly unrelated to the rule of law, the Recovery and Resilience Facility (EU covid-19 recovery fund) and the provisions on the payout of cohesion funds, to withhold a staggering amount of over 130b EUR towards Poland over concerns regarding the rule of law and fundamental rights. Despite controversy over how the instruments were used, this move proved successful and forced the Polish authorities to dismantle the Disciplinary Chamber of the Supreme Court and abandon some of its plans to further erode the rule of law.
Apart from developing instruments for financial pressure due to a lack of respect for the rule of law, the EU has also introduced new ways of assessing its condition in Member States. The annual rule of law report, carried out by the Commission and taking stock of the situation of the judiciary, anti-corruption, media freedom and checks and balances, was introduced in 2020 and continued since. The Commission refers to the report as a preventive tool, but it is, in fact, primarily descriptive and focused on assessing the situation in the Member States and helping the Commission and other EU institutions act accordingly. The report has shortcomings, and its mechanism of recommendations and follow-up to them leaves plenty of room for improvement, but it is an important stepping stone in the development of robust monitoring of the rule of law in the EU. The Cooperation and Verification Mechanism towards Bulgaria and Romania failed to live up to its potential and was terminated in 2023, with little discernible effect on the ground. For all practical purposes, the annual rule of law report absorbed the reporting aspect of CVM.
These events of the rule of law crisis have also prompted a broader shift in thinking about strengthening values in the EU. The EU has been very good for quite a long time at supporting actions to protect and promote the rule of law abroad, with multiple funding lines for civil society actors active in EU’s neighbourhood and modes of cooperation with other international organisations focused on supporting human rights defenders and actors fighting to maintain the rule of law. At the same time, support available for civil society active within EU Member States to protect the rule of law, democracy and human rights internally was significantly smaller. To address this problem, the EU introduced in 2021 a new programme, Citizens, Equality, Rights and Values, aimed at strengthening, among others, respect for EU values and helping stakeholders active in that field. This has been a very welcome development, and despite some shortcomings of CERV, it has been an important milestone in providing aid to organisations that work on the ground in EU Member States to strengthen the rule of law.
It would be a grave misrepresentation of facts if one were to conclude that the rule of law issues in the EU are limited to the new Member States that joined from 2004 onwards. Spain is experiencing a rule of law crisis regarding its judiciary, with the political appointments to the judicial council effectively broken due to politics. Greece struggles with respecting media freedom and sees journalists being put under surveillance and attacked by SLAPPs. The German Federal Constitutional Court caused a legal firestorm by challenging the jurisdiction of the Court of Justice in 2020, prompting the European Commission to launch an infringement procedure against the country. The rule of law crises are not limited to some particular geographic area or political history; they can quickly metastasise between regional boundaries as playbooks for taking over courts or dismissing concerns over legality. These are universal and can be easily adapted to different cultures.
Looking back at the history of the EU struggling, and frequently failing, to protect the rule of law in Member States, one can hope that EU has learned three important lessons from its two decades of attempts to enforce respect for fundamental values.
Firstly, procedures based on unanimous agreement in the Council don’t work. Attempts to conjure the political will of 26 capitals against one can be undone easily by anti-democratic governments aiding each other or by other considerations – regional friendship or political trades over other Council items. Once again, qualitative majority voting is the only reasonable solution. The failure of Art. 7 TEU procedure clearly shows that this element of the EU rule of law toolbox must be redesigned.
Secondly, financial pressure works. Governments that disregard the rule of law often remain unmoved by appeals to values and solidarity. However, they do respond to the language of force. In the EU, the strength of financial instruments has been instrumental in curbing governments that rely on subsidies and public investments for public support. The EU’s most significant victories in protecting the rule of law have come from blocking funds for Member States that flout common values. While the rule of law conditionality mechanism is not perfect, it offers hope for the efficient application of financial pressure, provided there is the political will to do so.
Thirdly, you can only get so far with law and institutions. Research on the rule of law resilience in the EU clearly shows that who and how respects the norms is a more important factor than what these norms are and how institutions are set up. Ultimately, this translates into the importance of the rule of law culture and the actions of the authorities that society treats as acceptable and which it does not, leading to protest and resistance. The EU must strive to strengthen the culture of respect for the rule of law. The CERV financing mechanism is a good start, with EU finally diverting significant funding to bolster civil society working inside of the EU, but more has to be done – both in terms of resources but also initiatives and support for Member States – in order to make EU resistant to attempts at demolishing the rule of law.
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