Hans Kundnani / Jun 2019
The concept of the “rule of law” plays a central role in debates about the EU – especially since the governments of Viktor Orbán in Hungary and the Law and Justice Party in Poland have restricted media freedom and the independence of the judiciary in the last few years. “Pro-Europeans” like to think of the rule of law as a “European value”, so they see the erosion of checks and balances in Hungary and Poland as an existential threat to the EU. In April, the European Commission began an infringement procedure against Poland under Article 7 of the European Treaties. But there is also now much discussion about the need for new, more effective tools to enforce the rule of law in EU member states.
The problem is that, since the beginning of the euro crisis in 2010, the EU has again and again appealed to the ideas of the rule of law and of “European values” in order to enforce ordinary policy choices that were supported by some member states but vehemently opposed by others. First, it did so in order to justify the development and enforcement of the eurozone’s fiscal rules based on the preferences of creditor countries and above all Germany. Then it did so again in order to justify the agreement and enforcement of a system of mandatory quotas for refugees based, again, above all on German preferences (though this time with allies from the south of Europe rather than the north).
In each case, supporters of these contested policies claimed that to challenge them was to reject the idea of the rule of law and “European values”. The logic is simple: decisions taken at the EU level have the force of law. That goes for decisions of the European Council, including those decided on by qualified majority voting such as the mandatory distribution of refugees, and even decisions taken outside of the EU Treaties such as the Fiscal Compact. Therefore any member state that challenges such a decision or fails to implement it (even, for example, by running an “excessive” deficit as determined by the European Commission) is accused of challenging the rule of law and therefore “European values”.
This inflationary and undifferentiated use of the concept of the rule of law has led to confusion about what it means in the context of the EU. It has allowed Orbán and PiS to present their opposition to EU action to enforce the domestic rule of law – that is, its response to their attempts to remove internal checks and balances – as an assertion of national sovereignty somewhat like opposition to the EU’s fiscal rules and mandatory quotas for refugees. In short, they are able to present what the EU sees as “democratic backsliding” as an expression of democracy.
As a result, the EU is now struggling to take action to defend the domestic system of checks and balances in individual member states like Hungary and Poland – something quite different from EU rules on fiscal or refugee policy – because its rhetoric of the rule of law and “European values” has been largely discredited. Many European citizens will inevitably see the coercive approach the EU is taking as being a continuation of the coercive approach it took in response to member states’ violations of EU rules on eurozone or refugee policy. This is likely to make the EU even more unpopular in the countries against which it is taking action.
The lack of clarity about the concepts of the rule of law and “European values” is related to a structural problem with EU policymaking. As Dieter Grimm has argued, EU law is “over-constitutionalized” – that is, in the EU, provisions that would normally be ordinary law have constitutional status and are therefore “immunised against political correction”. The eurozone’s fiscal rules are a good example – based on the approach Germany had taken in 2009, the Fiscal Compact required EU member states to write a debt brake into their national constitutions.
This overconstitutionalization has led to a blurring of the distinction between the basic idea of the domestic rule of law as a basic requirement of membership of the EU and a whole series of problematic policy choices that have now become EU rules – they all have the same status. It seems that, when many “pro-Europeans” talk about the importance of the rule of law, they simply mean adherence to EU rules – which are continually expanding and being changed – rather than a basic, limited set of non-negotiable and uncontroversial conditions for EU membership.
“Pro-Europeans” need to rethink their approach to the “rule of law”. In particular, they should differentiate more carefully between the domestic rule of law as a condition of EU membership and other EU rules. It is quite right that there should be basic conditions for EU membership, including an independent judiciary and media freedom – and the EU must be able to take action against member states that violate these conditions. But EU rules on areas like fiscal and refugee policy can and should be challenged by member states without being accused of violating the rule of law.