The European Commission on Tuesday will unveil a signature rule-of-law report intended to identify and prevent democratic backsliding — just as the EU is being surrounded by reminders that it hasn’t been able to halt that backsliding with such efforts.
Hungary’s anti-LGBTQ+ law has left European leaders questioning whether the country should even be in the EU. A Polish court has suggested the country can simply ignore some EU court orders, which are meant to reign supreme. And desperate journalists in Slovenia are trying to alert the broader public to government pressure on public media.
When Ursula von der Leyen declared her support for annual rule-of-law reporting ahead of the start of her tenure as Commission president in 2019, she pledged it would serve as an early warning system for such issues. The EU could then extinguish these burgeoning sparks with “targeted support.”
But when the second edition of the report comes out Tuesday, it will be describing several situations that are already well known and well past the early stages. And it won’t be offering any concrete plans for these situations — no recommendations, no sanctions.
Essentially, democracy advocates argue, the EU is handing out report cards without any repercussions for those everyone knows are going to fail.
“It hasn’t achieved, I think, what it was aimed to achieve, especially as regards those deliberately destroying the rule of law,” said Laurent Pech, a European law specialist at Middlesex University. “I’m afraid edition No. 2 is going to suffer from the same shortcoming.”
It’s a disconnect that is part of a broader crisis for the EU. As certain national governments increasingly flout what the EU and many of its countries insist are basic membership rules, the bloc’s leaders have struggled to find tools or punishments that effectively rein in these wayward members. Proceedings under Article 7 of the EU Treaty have stalled. Threats to withhold EU funds from countries have yet to come to fruition. Legal infringement proceedings over countries’ most controversial laws are frequently launched but have done little to resolve systemic problems in Poland and Hungary.
EU officials note the report was never intended as a roadmap to solve democratic backsliding. And they argue the effort has helped Europe discuss these issues more openly — a process that could help mitigate future rule-of-law problems. It might have even helped improve the rule-of-law situation in Malta and Slovakia.
“It’s not the main purpose of the report to kind of resolve the issues we have with Hungary and Poland,” said one senior Commission official. “It is really much more facilitating debate about each others’ systems in a much broader sense, because who knows who will be challenging partners in the future.”
The rule-of-law report is one of several new tools the EU has created in recent years to address concerns that the bloc wasn’t policing democratic backsliding within its own ranks.
But since its first iteration, the report has received criticism from experts who say it lacks consequences and suffers from analytical weaknesses.
In hundreds of pages covering judicial independence, media freedoms, anti-corruption measures and basic governmental checks and balances, the Commission last year offered exhaustive descriptions of the rule-of-law situation in each member country. But it avoided ratings, rankings or clear suggestions.
The report, said Pech, “doesn’t come with legal sanctions, deadlines, recommendations, nothing concrete.” As a result, he argued, it lacks impact in countries such as Poland and Hungary.
Attaching recommendations, said Zselyke Csaky, research director for Europe and Eurasia at the Freedom House think tank, would mean “you know what the next steps are.”
Another complaint has been that the Commission’s report fails to distinguish between minor irritants and major problems. Pech lamented that the current format mixes “small, medium-sized, large violations of the rule of law, some of them actually deliberate, others are simply not deliberate.”
The European Parliament echoed this point in a resolution approved last month.
MEPs welcomed the Commission’s efforts but said that “presenting breaches of a different nature equally risks trivializing the most serious breaches of the rule of law.” They said, “future reports should contain country-specific recommendations.”
Spanish MEP Domènec Ruiz Devesa, who led the Parliament’s work on assessing the report, insisted the process has potential.
“Of course it’s not a silver bullet, we cannot place all our hopes on this annual report,” he said in an interview. “This idea that the Commission had of this annual report being of a preventive nature probably is not the case — certainly not with the most complicated cases, namely Hungary and Poland.”
“But still, it’s a very useful tool,” added Ruiz Devesa, a member of the Spanish Socialist Workers’ Party.
Yet some question the utility of producing even a well-done report, given the extensive rule-of-law research already being conducted by international organizations, academics and NGOs.
“There’s no lack of information — there are plenty of reports out there from many international bodies,” said R. Daniel Kelemen, an EU legal and political specialist at Rutgers University. “The creation of tools is an excuse for the failure to use existing tools. … And I saw this report very much in that light.”
Not everyone is down on the initiative. Expectedly, it has support within the Commission. But it also has adherents in several European capitals.
From the Commission’s perspective, the effort pairs well with the EU’s expanding rule-of-law sanctioning tools.
While the EU has long had the ability to strip members of voting rights through Article 7 proceedings, it has more recently created an additional mechanism that allows the bloc to cut funding to members when rule-of-law problems impact the EU’s financial interests. The Commission can also launch legal infringement proceedings against states over particular laws — a process that can result in the Commission taking member countries to court.
“The rule-of-law report was always meant to kind of give us an additional tool in order to be better equipped on the preventive side,” said the senior Commission official, pointing to Slovakia and Malta as countries where governments “pushed the reform cycle forward.”
After the first report was published, European affairs ministers held discussions on various chapters. They’re expected to continue that practice after the second report’s release.
Finnish Minister for European Affairs Tytti Tuppurainen argued the entire process keeps “the rule of law issue continuously on the table.” And by including everyone, Tuppurainen added, it “helps to avoid ‘blaming and naming only’ type of discussion.”
“Yet it’s not enough, not nearly enough,” Tuppurainen argued. Tuppurainen wants the EU to use existing tools, such as the Article 7 hearings and the mechanism to withhold EU funds — and if they are not enough, other ones that haven’t even been invented yet.
Thomas Byrne, Ireland’s minister for European affairs, suggested in an interview earlier this year that ministers should discuss the report “in public,” further creating public awareness. But the Fianna Fáil politician conceded that such a process is more effective for countries just beginning to erode democratic norms.
“If the backsliding has moved on a bit … that’s more difficult,” he said. “But we just have to keep putting pressure — friendly pressure.”
The source: POLITICO