by Petra Bárd

1.     Bumpy beginnings

High, but mixed expectations surrounded the Commission’s 2020 Annual Rule of Law Report, published on 30 September 2020.

Expectations were huge, since defense for the rule of law is existential for the EU. Violation of the rule of law in any Member State is an EU matter. Should elections not be fair in a Member State, all EU citizens will to some extent suffer due to the given state representatives’ participation in the EU’s lawmaking mechanism. What is more, should rule of law backsliding remain without consequences in one country, other states will follow suit. One rotten apple spoils the whole barrel. Respect for the rule of law is also essential for an investment-friendly environment and in general for the internal market to be functional. It is also vital for the effective cross-border judicial cooperation in criminal matters.

But not only were expectations high, they were also mixed, due to the bumpy start of the von der Leyen Commission. Many held Ursula von der Leyen too weak on the rule of law for a Commission President. Still she was voted in – with the support of the two autocratic governments against whom Article 7 TEU procedures are and were at the time pending. In her first interview given on the rule of law to Süddeutsche Zeitung, in an effort to use a reconciliatory tone, she belittled and framed the problem of systemic rule of law violations completely wrong: in her “nobody is perfect” interview,  instead of pointing to substantive rule of law issues, she claimed that there were dividing lines between Eastern and Western member states of the European Union, and Eastern states’ viewpoints were not respected.  This very much corresponds to the repeated critical statements originating from CEE politicians, who claim that disagreements between the friends of the rule of law and its enemies is nothing but an East-West divide. This is a false framing of the problem. As shown by Pech, Grogan and others, the various attempts for an alternative Eastern understanding of the rule of law are academically dishonest attempts for justifying rule of law backsliding. National differences of course do exist, but – agreeing with the succinct explanation by Kovács and Tóth –, there is “a crucial difference between a dialogue among constitutionalists within the framework of constitutional democracy and a dialogue with delegates of a constitutional simulacrum.”

Some other concessions that von der Leyen made when designing the future Commission reinforced the suspicion that she was willing to compromise on the rule of law for political benefits. Both member states currently subject to Article 7(1) TEU proceedings got the positions they wished for. In the case of Hungary this was the portfolio for neighbourhood and enlargement. The Commissioner is entrusted with overseeing in candidate and neighbouring countries the rule of law, the fight against corruption, the role of an independent media and civil society – in other words, values that his government has systematically and deliberately undermined.

 

2.     Prevention, dialogue and even more dialogue

Let us now turn to what the Commission did to protect he rule of law from a substantive point of view. Here the Commission’s Communication on the State of play and possible next steps of April 2019 and its Rule of Law Blueprint for Action of July 2019 provide some guidance.

The Commission’s plans follow a very clear structure of rule of law promotion, prevention of violations and a response prong. Both Ursula von der Leyen in the already referenced Süddeutsche interview titled “Not the worst threat right at the beginning”, and the Blueprint emphasize that response must be a last resort. Prioritizing rule of law promotion and prevention goes hand in hand with demand for more dialogue. The discursive approach might indeed work well with member states that respect the rules of the game and in the overall assessment adhere to the concept of liberal democracy. But when it comes to systemic rule of law backsliding, the strength of any EU reaction will depend on the “response” prong attaching dissuasive consequences to systemic and deliberate violations of values the EU is based on. More dialogue will not help.

Fast forward one year, and President von der Leyen in her first State of the Union address, entirely detached from reality, still pretends everything was all right on the rule of law front and the Commission’s main task was to “prevent” potential violations. She mentions a “starting point… to ensure there is no backsliding”.

The first Commission Annual Rule of Law Report published in September 2020 mirrored this positive approach building on dialogue and preventing problems from emerging. The Commission welcomed the “open dialogue with the Member States”, considered that the Report would prevent rule of law problems from emerging or deepening, and that it would promote “a robust political and legal rule of law culture throughout the EU”. EU Commissioner for Values and Transparency, Jourová, during the presentation of the Annual Rule of Law Report, emphasized dialogue. This happened 24 hours before the Hungarian Prime Minister suspended all diplomatic relations with her for calling Hungary an “ill democracy” and requested her to resign.

The Commission still believes in the force of dialogue after a decade long systemic dismantling of the rule of law in Hungary, five years in Poland, Bulgaria and others following suit. It emphasized prevention in the year, when Freedom House‘s Nations in Transit report proves that Hungary was no longer a democracy, and the report of the Varieties of Democracy (V-Dem) Project classifies Hungary as autocratic. The Commission pretends to uphold values at a time, when they have long been lost, at least in some parts of the EU.

3.     Assessment of the assessment

Moving beyond political rhetoric and framing the problem of the rule of law as a potential or existing danger, let us assess whether the first ever Commission Rule of Law report could give a realistic picture of the state of the rule of law in the EU. On the plus side, one should praise the Commission for starting with a very clear definition of the rule of law inspired by the Venice Commission’s Rule of Law report and checklist of 2011 and the definition offered by the Commission already back in 2014. Reporting will be a regular exercise, treating Member States on an equal basis. The selection of subject matters covered (justice, corruption, media, separation of powers) gives an overview of where Europe stands with regard to the rule of law.

The report at times tries to give a qualitative analysis, but when it comes to systemic breaches, it fails to give the necessary context, and to connect the dots. Although it does give a devastating picture of notorious rule of law violators, the scale and especially the systemic nature of the problem of state capture is not visible. The report offers a long enumeration of a number of separate, seemingly disconnected issues. But since all the national reports have enumerations of negative and positive developments, just by reading the Annual Reports one does not grasp how authoritarian regimes are qualitatively different from resilient democracies. The Report on Hungary, which is considered the first non-democratic regime in the EU by V-Dem, will serve as a test case.

 

Whataboutery

Hungary took whataboutery to the extreme, with the Hungarian Justice Minister launching a website dedicated to rule of law issues in established democracies – from abolishing referenda in the Netherlands to the treatment of the Sami minority in Finland. Interestingly, the other main violator of Article 2 TEU values, Poland is not mentioned – feeding the conspiracy theory that the rule of law is a war waged by the West against the East, or that double-standards are used against old Member States and those that acceded in 2004 or after. Commissioner Jourová, in an effort to show that Western states are indeed imperfect, too, misconstructs a Luxembourg case, where the CJEU held that German prosecutors were not independent judicial authorities for the sake of EU law, since they could be given instructions by the justice ministers, and could not issue European Arrest Warrants in the future. Commissioner Jourová claims that this was a clear weakness in terms of the rule of law. But it is not. Holding that German prosecutors were not independent enough to issue European arrest warrants, does not say anything about the quality of Germany’s prosecution system. There are different, equally legitimate models for the prosecutor’s office. As the Venice Commission put it: “[T]he major reference texts allow for systems where the prosecution service is not independent from the executive.” This is not a violation of the rule of law.

Missing and misconstrued issues, failure to point at interlinked system errors

The Hungarian report simply fails to mention the early steps of a decade-long autocratization, such as the dismantling of the Hungarian Constitutional Court’s independence. This is so despite the fact that the EU documented these developments well, for example in the 2013 Tavares report.

Without mentioning early instances of constitutional capture, and without the Report linking more recent events to these early ones, one cannot fully grasp the importance of matters that the Report does mention. One example is the Hungarian Parliament’s 2019 omnibus law, which interfered into judicial appointments, and made sure that Constitutional Court justices without any experience in normal adjudication land at the top of the judicial hierarchy, in the Supreme Court. Another example is the new possibility granted to public authorities to challenge ordinary court decisions before the Hungarian Constitutional Court. Such rules of course violate legal security, but more importantly – and this is not clear from the Report – they extend the powers of the Hungarian Constitutional Court judges who were selected more for their loyalty than for their professional achievements by the majority of the Parliament, i.e. Fidesz MPs.

Another instance of no contextualization is the reference to judges being subject to negative narratives in the media (p. 4). This is a much graver problem than that. The judicial system, court decisions and individual judges are attacked in the media. They have very few platforms for protecting themselves, and when they try to do so, they are blamed for engaging in politics. According Amnesty International, this had a chilling effect on judges, who are now even less likely than before to stand up for their independence, and they harbor diffidence and hostility against each other.

Another example of mischaracterization and downplay in the Hungarian Report is the compensation awarded to Roma victims of school segregation and the compensation awarded to prisoners detained under inhuman conditions. The Report talks about “Government and pro-government media outlets (…) criticis[ing these] judicial decisions” (p. 4) and lawyers fearing that this would “undermine public trust and confidence in the justice system” (p. 5). But when it comes to the dismissing court decisions on the false ground that it was a provocation of the Soros-network, the most crucial matter is not the potential undermining of public trust. Rather, the Hungarian Report should have emphasized that prison conditions were so heinous that it resulted in a pilot judgment by the Strasbourg court condemning Hungary. It should have mentioned that instead of rethinking its penal policy, the government continued to keep prisoners under horrible conditions, but it established a fast track compensation system to preempt further Strasbourg condemnations. It was precisely this system Fidesz itself created that was then presented as a “prison business”. So not only did the government let prisoners down by keeping them under awful conditions, but they also out tricked the system, so that inmates could not be awarded compensation, neither as a result of European Court of Human Rights judgments, nor due to national judgments. Finally, in clear violation of separation of powers, the government straightforwardly overwrote court decisions, but the report entirely fails to mention that these court decisions were overwritten by Parliament.

At times, the Report cannot grasp the important problems, it fires in the air. With regard to corruption one may have expected the Commission to list all the OLAF reports and procedures indicating how much money was used against the rules (it only gives a number of procedures). Instead we learn that the problem is that asset declarations of senior civil servants and MPs are not systemically verified (p. 11) – which shows a great deal of naïveté in a country of strawmen, where the wealth of the childhood friend of the Prime Minister, gas fitter by profession, grows at an exponential speed.

The Report also uses extremely soft language. It says: “The independence and effectiveness of the Media Council is at risk,” (p. 13) whereas in reality the Media Council was one of the first entities to be captured, which allowed media pluralism to be greatly damaged, which again made access to information and deliberative democracy impossible, and contributed to the fact that elections are not fair anymore.

Finally, the Report illustrates a delicate issue: standards employed in democracies might not function for autocracies. An example is the praise for the adequate funding of the Media Authority (p. 13), whose independence however is not existent, quite to the contrary: it proactively supports government outlets and harnesses opposition ones. Is it really a virtue to finance well the enablers of one’s own autocracy?  

4.     Conclusions

All in all, the Commission engaged in a problem mapping exercise, for the better or worse. It enumerates many problem areas in all the Member States, but as shown through the example of Hungary, the first Member State declared to be a non-democracy, the Report uses too soft a language, mentions isolated cases without connecting the dots, often without context. This may feed whataboutery, downplay the problem, or even normalize it. As Hegedüs put it: “A reader not familiar with the situation in 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.”

More importantly, the document does not foresee remedies, it solely aims to give an assessment of the rule of law situation in the Member States, which may or may not feed into procedures that are designed to respond to rule of law violations. Elsewhere we suggested to reverse things, and take the response prong as a starting point, since without effective and dissuasive enforcement options, any attempt to strengthen and promote the rule of law is a futile exercise. The EU should think about an effective response sooner than later. It could reform Article 7 TEU procedures, make more frequent and more timely use of Article 7(1) TEU, and use it for what it is: a platform for discussion before rule of law backsliding happens. It could make better use of infringement procedures. For now, the Ursula von der Leyen Commission initiated one single infringement procedure for rule of law violations, albeit Member States offered plenty of opportunities. The Commission could bundle cases and point to the systemic nature of various problems (Scheppele). It could accelerate and prioritize infringement procedures and make much better use of interim measures (Bárd-Sledzinska). EU institutions could agree on automatic triggering of sanction procedures, and suspension of EU law instruments and concepts, which are based on the presumption that all Member States are respecting Article 2 TEU values. They could have a clear rule of law conditionality when distributing funds, and they could suspend the allocation of money to European political parties and European political foundations that harbor and are connected to political parties disrespecting the rule of law (Morijn). These are just some of the options the EU has available, or could make better use of, even within the existing Treaty framework (for some more brainstorming see van Ballegooij).

Unless EU institutions make better use of their tools designed to respond to violations of EU law, documents like the Commission’s 2020 Annual Report turn into an autopsy of former democracies. It is the coroner who gives the best diagnosis, it is only too late. It will be too late both for Hungary, a country where there are no efficient internal checks on government anymore, but it will be too late for the EU, too, for which a firm and clear stepping up against rule of law backsliding in the national setting would be existential.

The text is partially based on my speech delivered at the roundtable discussion organised by the German Marshall Fund of the United States on the 5 October 2020, titled “Assessing the State of Rule of Law in the European Union: Diagnosis or Autopsy?” 


Petra Bárd

Dr. habil. Petra Bárd LL.M. SJD is Associate Professor at ELTE School of Law, Budapest and teaches EU constitutional and human rights law, EU criminal justice, criminology and data protection law. She is Visiting Faculty at the Central European University’s (CEU) Legal Studies Department and lectures at other universities across Europe including Belgrade, Frankfurt and Vienna.