Wednesday

2nd Dec 2020

Opinion

The EU's new rule of law report - pushing at an open door?

  • Hungary's Viktor Orban, attending a rule of law debate at the European Parliament in 2018 (Photo: European Parliament)

For years, the message from the European Commission to human rights defenders concerned about the systematic dismantling of the rule of law and democracy in their country was literally "don't knock on the wrong door."

Well-intentioned official guidance reinforced a discouraging view that the powers of the EU were limited and constrained in the face of determined efforts by governments to hobble a free press, rig the judiciary and silence civil society opposition.

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Unless these efforts transgressed well-defined EU powers, commissioners could only offer dialogue and moral sanction, usually disregarded by emboldened autocrats such as Hungary's Viktor Orbán.

The first ever report on the state of the rule of law in the EU due to be published this week by the European Commission marks a significant change in that mindset.

We have seen more muscular legal action from the commission before of course, most notably with the triggering of Article 7 proceedings against Poland in 2017 over concerns about political interference in judicial appointments.

This report represents another step-change, however, because it recognises that defending the rule of law is not just about the independence of the judiciary, but making sure there is a flourishing system of democratic debate and dissent, including a free press and a thriving civil society sector.

And it recognises that threats to the rule of law can emerge anywhere and at any time.

Government attacks on state media in Slovenia and the recent protests against state capture in Bulgaria demonstrate the urgent need for such an early-warning system, and attest to the contagion effect of not dealing forcefully with rule of law issues elsewhere.

It takes courage for the commission to call out anti-democratic tendencies in member states.

This is welcome but is it can only open the door to further action.

First through the door should be the Council. As far as possible, it needs to speak with one voice in support of whatever action the commission proposes and sustain these efforts for the long-term.

In some cases, such as Hungary, we are looking at a project of re-democratisation that will take years.

The council will need to quickly approve the rules on suspending EU funding in cases of threats to the rule of law and, more importantly, act decisively to cut off funds to would-be autocrats.

It needs to ensure that the existing Article 7 procedures against Hungary and Poland end with a clear path and timetable for reform.

Next through the door should be the commission's political leadership, who need to put resources behind promising avenues for deterrence, such as 'values-based' legal proceedings that have been taken against the expulsion of the Central European University from Budapest and the illegal detention of migrants by the Hungarian government.

They also need to see this report as part of a broader effort by the commission to reinvigorate European democracy, efforts which can be supported by the anti-discrimination and anti-racist commitments made in its groundbreaking Action Plan, or undermined by the harsh realpolitik of the migration pact unveiled last week.

Bravo, European Parliament

The welcome mat also needs to be put out for the European Parliament.

It was parliament that took the initiative and set Article 7 proceedings in motion for Hungary, while others shrugged their shoulders. Once again it is blazing a trail with a proposal for a single mechanism for promoting rule law, democracy and fundamental rights that may well be a blueprint for future policy.

Too often, the other institutions have been happy to leave the parliament out in the cold, even refusing to invite MEPs to the Hungary proceedings that it initiated. This is bad for European democracy and the parliament should be a full partner in an EU strategy to defend the rule of law.

Finally, there needs to be an invitation for civil society to come crashing through this door.

Their work and support will be invaluable to provide the early warnings necessary for this report to do its work, and to sustain the work of re-democratisation that will be necessary in some cases.

The commission should institute a formal and continuous dialogue with civil society on these issues.

Only in this way will it become a living report and avoid the fate of previous monitoring efforts, such as the EU anti-corruption report, unceremoniously ditched a mere two years after it was first published in 2014.

On Wednesday we will see what lies on the other side of that door – the journey then begins in earnest.

Author bio

Natacha Kazatchkine is head of internal EU policy for the Open Society European Policy Institute, where Carl Dolan is deputy director.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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