Add news
March 2010
April 2010
May 2010June 2010July 2010
August 2010
September 2010October 2010
November 2010
December 2010
January 2011
February 2011March 2011April 2011May 2011June 2011July 2011August 2011September 2011October 2011November 2011December 2011January 2012February 2012March 2012April 2012May 2012June 2012July 2012August 2012September 2012October 2012November 2012December 2012January 2013February 2013March 2013April 2013May 2013June 2013July 2013August 2013September 2013October 2013November 2013December 2013January 2014February 2014March 2014April 2014May 2014June 2014July 2014August 2014September 2014October 2014November 2014December 2014January 2015February 2015March 2015April 2015May 2015June 2015July 2015August 2015September 2015October 2015November 2015December 2015January 2016February 2016March 2016April 2016May 2016June 2016July 2016August 2016September 2016October 2016November 2016December 2016January 2017February 2017March 2017April 2017May 2017June 2017July 2017August 2017September 2017October 2017November 2017December 2017January 2018February 2018March 2018April 2018May 2018June 2018July 2018August 2018September 2018October 2018November 2018December 2018January 2019February 2019March 2019April 2019May 2019June 2019July 2019August 2019September 2019October 2019November 2019December 2019January 2020February 2020March 2020April 2020May 2020June 2020July 2020August 2020September 2020October 2020
News Every Day |

The European Commission’s Missed Rule-of-Law Opportunity

Transatlantic Take

The European Commission’s comprehensive rule-of-law report published on Wednesday is the first exercise of its kind in the EU’s history. Its main goal is to provide fact-based analysis on the state of the rule of law in all EU member states, to allow an objective comparison among them, and to facilitate discussion on best practices for maintaining solid rule-of-law standards.

Comparing the performance of member states is particularly important since the two with the most controversial record—Poland or Hungary—have long complained about being singled out and demanded the extension of the monitoring to all members. From the European Commission’s perspective, the comparative approach is also ideal to counter the strategy of “whataboutism” deployed by Warsaw and Budapest. In defense of what they have done, the Polish and Hungarian governments frequently selectively refer to legal provisions in other member states that either appear to be similar to their own controversial measures or that allegedly indicate even lower standards there.

The areas covered by the report—independence of the judiciary, anti-corruption frameworks, media pluralism and freedom, and checks and balances—were known in advance. This raised the hope that the European Commission would conduct a systemic assessment with a broad focus that might identify patterns of autocratization and state capture in member states. It was also hoped that the report could inform other important measures the EU has in progress with regard to democracy and the rule of law. This includes the European Council’s Article 7 hearings on Hungary and the rule-of-law conditionality tool that will hopefully tie EU funds to the quality of the rule of law.

Unfortunately, these hopes remain unfulfilled as the European Commission has deliberately failed to exploit the opportunities in the reporting mechanism. Its report is undermined by soft language, the wrong time frame, and decisions not to address systemic deficiencies of the rule of law in certain member states. This makes the comparative approach useless and even harmful. Instead of underlining the existing differences among member states, the differences are rather relativized, and therefore so is the threat posed by the advancing autocratization in countries like Hungary or Poland.

The rule-of-law issue emerged on the EU’s agenda due to the alarming and speedy collapse of constitutional checks and balances in those two member states. If the European Commission’s report is unable to capture clearly the objective situation in those countries, the whole exercise is rather pointless.  

The European Commission is the “guardian” of the EU treaties and in this capacity also that of the rule of law. This is not merely a competence—it is a responsibility. The commission is a stakeholder in the rule-of-law dialogue with the member states, not an external third party. Accordingly, its report should have established facts, at least from its perspective, instead of only reporting about well-known “existing concerns” and “controversies” in disturbingly soft language.

This peaks in euphemisms like the report’s statement about the independence of Hungary’s national media authority. According to the text, “The independence and effectiveness of the Media Council is at risk.” In fact, the Media Council was one of the first casualties of Hungary’s autocratization, having been captured and lost its independence following the country’s infamous media law in 2011.

Due to an incorrect application of the narrative of resilience, just as in President Ursula von der Leyen’s recent State of the Union address, the approach of the European Commission’s report is to defend fortresses that are in fact not besieged but already lost. The report presents the situation in Poland or Hungary as one where a largely intact system of constitutional checks and balances is being attacked. In fact, in both countries key ones were already removed a while ago and the authoritarian developments are already institutionally entrenched.

The report’s time frame is also often arbitrary. While it covers the whole period of Poland’s autocratization since 2015, it gives the impression that Hungary’s democratic demise only started recently. The first stages of the latter’s decade-long autocratization are not covered, although the early capture of constitutional institutions after 2010 had a more striking impact on the quality of the rule of law than later developments. The report does not even try to establish whether Hungary’s state institutions are already captured. The lack of any reference to the captured status of the Hungarian Constitutional Court is emblematic of this.

A reader not familiar with the situation in Poland or Hungary could hardly get the impression from the report that deliberate, well-organized, years-long systemic attacks have taken place in these member states against the melting remnants of liberal constitutionalism and democracy. Not the first time, the European Commission has failed to connect the dots and offer a clear picture about the autocratization in Poland and Hungary.

The report does not fulfil any of the commission’s goals. It is ill suited to serve as a go-to document about the rule of law in the EU, simply because it offers an incomplete and biased picture about those member states where the problem is most flagrant. Interestingly, the chapters on corruption and media pluralism are better than those on checks and balances and the independence of judiciary, which is not surprising since here the commission has heavily relied on external information. Perhaps a similar approach should be followed in the future when it comes to the legal chapters as well.

Furthermore, the European Commission’s claim that the new reporting mechanism will facilitate public and parliamentary debates on these issues in member states does not make much sense. Discussing the findings of the respective national reports in the Dutch, Danish, or Swedish parliaments, for example, will not contribute much to the overall situation in the EU, while in their current state the Hungarian and Polish parliaments hardly offer proper stages for such a national debate.

The threats to the integrity of the exercise were well known in advance, but the European Commission has managed to fall into every single trap that had been flagged to it in advance. Vice President for Values and Transparency Věra Jourová stated recently that Brussels has been “naive in the past” over rule-of-law breaches. Unfortunately, the present exercise is no proof that it has overcome this.

Featured image: 

Photo Credit: Alexandros Michailidis / Shutterstock

Research and analysis for: 

Read also

Sacha Baron Cohen Demands Facebook Remove Conspiracies; Flips Out When Facebook Removes His Article With Conspiracy Images

Boris Johnson has a duty to see through his panic and recognise the grim impact of lockdown on individuals

Braun Strowman reveals he will retire from wrestling once his days with WWE come to end out of loyalty to Vince McMahon

News, articles, comments, with a minute-by-minute update, now on — latest news 24/7. You can add your news instantly now — here