Manfred Weber and the art of passive resistance

Manfred Weber, the chairman of the European People's Party (EPP) and its lead candidate for the European Parliament elections, used passive resistance with aplomb, when he recommended that a new panel of experts be created to deal with threats to the rule of law and democracy in Europe.

In parallel Belgium and Germany put forward a proposal for a peer review mechanisms, where EU member states review each other's respect for the rule of law, an idea more likely to result in something.

Weber's proposal is classical passive resistance in that it makes the solution to a problem so difficult, that it will never be implemented.

He suggests the creation of a panel of former judges with a mandate to investigate rule of law and corruption concerns in all member states. They could then bring cases to the European Court of Judges for infringement of EU rules.

These judges would thus act more like prosecutors and some of their mandate would overlap with the EU's Anti-Corruption body OLAF. An institution with such powers would require a change to the EU Treaty, which means all member states would need to agree - obviously an illusory idea at this point.

The solution has no chance of adoption.

The other element of passive resistance can be found in Weber's implied assumption that too little is known about rule of law problems and therefore a new body needed.

If you want to avoid solving a problem, you insist that the problem is not well-understood.

But enough is known about democracy problems in EU member states. There already is an independent expert body of legal experts, the Venice Commission of the Council of Europe, which has analysed and identified the many threats to democracy and the rule of law in EU member states.

Ever since Fidesz surprisingly adopted a new constitution in 2011 (without public referendum), the Venice Commission examined 17 legal acts, producing 362 pages of densely argued legal analysis, a lot of it critical and warning of the erosion of the rule of law.

And it is not alone. The European Parliament, the commission, the European Court of Justice in various reports and decisions have covered rule of law problems, not to speak of the many reports by NGOs.

The big question has always been who acts on these problems? Politicians like Weber like to argue that these are legal problems that cannot be solved politically.

Many lawyers argue the other way round. In truth, politics and law both have a role to play.

Hungary's government dismantled rule of law institutions and democratic guarantees in broad daylight. This could have been perfectly addressed by Weber's EPP years ago, but it dithered.

Weber does not mention that EU institutions have started acting on these problems and not only through Article 7.

There is a case at the European Court of Justice on Poland's judiciary reforms. The EP proposed legislation that would allow to reduce or cancel EU funding in case of rule of law deficits in a member state.

These doable steps should be supported rather than going back to the drawing board to design illusory schemes.

Better proposal

The Belgian-German proposal does more to address the problem.

The Hungarian, Polish and Romanian government claim that they are unfairly singled out by the various EU initiatives. The proposal responds to that concern and suggests a peer review mechanism by which all member states discuss each other's rule of law situation.

Such a mechanism would be useful to lift such essential questions to the level of permanent attention among the member states in the Council. Democracy and the rule of law are the EU's 'operating system'.

For example, the European Arrest Warrant does not work if judges are not independent anymore in a member state. The European law-making process does not work if not all member states, who co-legislate in the Council, are democratically elected.

The Belgian-German proposal runs the risk however of adding a new lawyer of bureaucracy with no wider impact. As I have argued in a report by the Friedrich-Ebert-Stiftung, a review mechanism should listen to what main stakeholders in each member state – such as the government, the opposition, the media or civil society - raise as principal concerns.

The outcomes of such peer reviews should not disappear in the drawers of the council bureaucracy, but they should be discussed in each member state's parliament and the European parliament.

Attacks on democracy and the rule of law are political as well as legal problems and must be addressed on both levels.