How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried.

/pdf/illiberalism-within-rule-of-law-backsliding-in-the-eu-iyio75cekk.pdf

Illiberalism within: rule of law backsliding in the EU

When confronting democratic backsliding in its member states, the European Union (EU) cannot rely on material sanctions. There are formidable obstacles to using the one political safeguard that ent...

/pdf/political-safeguards-against-democratic-backsliding-in-the-1ptsgi0f5w.pdf

Political safeguards against democratic backsliding in the EU: the limits of material sanctions and the scope of social pressure

This article first offers an overview of the European Commission's Rule of Law Framework, which was adopted in March 2014. The mechanism's potential effectiveness and the Commission's reasoning to justify its first activation against Poland in January 2016, when it has failed to do so against Hungary, are subsequently analyzed. While the Commission should be commended for seeking to address increasing rule of law backsliding at Member State level, our main submission is that reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an 'illiberal' regime.

/pdf/better-late-than-never-on-the-european-commission-s-rule-of-19cq7s9zf5.pdf

Better Late than Never? On the European Commission's Rule of Law Framework and its First Activation

In order to tackle democratic backsliding in EU member states, the European Commission proposed a new financial conditionality in May 2018 that would allow the suspension of EU funds in cases of sy...

https://www.tandfonline.com/doi/pdf/10.1080/07036337.2019.1708337

Conditionality of EU funds: an instrument to enforce EU fundamental values?

The European Union is facing a unique historical situation: a political club of democratic regimes established primarily to promote peace and prosperity in post-World War II Europe is confronted with the first EU member state ever sliding into an authoritarian illiberal political regime. The Fidesz government achieved a fundamental revision of the rules of the constitutional and political order in Hungary. In only five years it managed to transform Hungary from one of the success stories of the transition from Communism to democracy into a semi-authoritarian regime based on an illiberal constitutional order by systematically dismantling checks and balances, undermining the rule of law, limiting independence of judiciary, almost destroying press freedom, attacking civil society and increasing executive power. As a consequence, the new Hungarian constitutional order is in a direct conflict with the ‘fundamental values’ of the EU “political” constitution, such as democracy, the rule of law and respect for human rights. One of the most important legal questions facing Europe today is how well is the EU equipped, legally and politically, to defend democracy and the rule of law in its member states?While EU constitutional law contains a legal provision designed to deal with such a situation, this provision is often criticized as largely inadequate to provide for a toolkit with which to intervene effectively in the internal matters of member states. A major problem surrounding the debate whether to use or not to use Article 7 in case of Hungary has less to do with the legal intricacies of Article 7 than with the absence of political will to use it. The current EU economic and political crises have weakened the ability of the EU institutions to effectively tackle the Hungarian problem. With trust in EU at an all time low and with unwillingness of the EU political elites to adequately acknowledge the gravity of the Hungarian problem, it is quite unlikely that sanctions, even if imposed, would actually achieve desired results.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2777179_code1896061.pdf?abstractid=2777179&mirid=5

Protecting Democracy inside the EU

This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.

/pdf/monitoring-and-enforcement-of-the-rule-of-law-in-the-eu-1k1zq9n5pj.pdf

Laurent Pecht

Papers

Monitoring and enforcement of the rule of law in the EU: rhetoric and reality