After years of tiptoeing around the issue, EU governments are finally set to check on each other’s records on the rule of law. This is a significant step forward, but governments have to take this broad dialogue seriously and talks must lead to action, argues Linda Ravo.
Linda Ravo is an expert adviser at the Civil Liberties Union for Europe (Liberties).
As it reaches the end of its six-month Council Presidency term, Germany has invited all EU governments to sit around the table on 10 November and start a discussion on the rule of law and democracy in every EU country. Discussions will be based on the recently launched annual audit of EU countries’ rule of law situation by the European Commission.
To avoid this becoming a dialogue for the deaf, the Germans must prepare well and set some clear rules. And the EU still needs to create and use other tools to the full.
A welcome, long over-due step
The fact that this is happening at all is a significant step forward. In the ‘rule of law dialogue’ that ran for the past six years, governments were just invited (not obliged) to present on a particular aspect of the rule of law in their country. There were no questions, no reviews of a country’s performance and no recommendations.
In the background, the situation alarmingly deteriorated in Hungary, Poland and a number of other EU countries. It will come as no surprise that the elephants in the room strenuously tried to block any improvements to the old system.
Getting it right
Getting the peer review right could pre-empt, or at least weaken, such attempts. Here are three golden rules.
First, there should be a first discussion involving national independent actors, and regional and international monitoring bodies, before the official dialogue starts. If member states have all the relevant information beforehand, that will help governments backing up the exercise not to fall for the examinees’ deflections and the authoritarians’ provocations.
This will also serve to steal a march on dodgy initiatives to come up with alternative country assessments.
Second, governments should take the dialogue seriously as an opportunity to question their peers on their performance and make tangible recommendations for improvements. We have seen how emulation can gang up authoritarian plans – just think of Slovenian Prime Minister Janez Janša’s war against the media, patterning after Hungary and Poland’s.
But peer pressure can be for the best, too.
Third, recommendations should be made public. Governments should have to report back on them and progress should be verified against information from civil society groups and independent monitoring bodies, like the Council of Europe.
A tough row to hoe
Belgium, Bulgaria, Czechia, Denmark and Estonia are first up in the discussion. One can expect Hungary, Poland and its faithful peers to jump on opportunity to attack Belgium and Denmark – two proponents of better protection for the rule of law – and to pick an argument on the others to deepen the bloc’s division.
Bulgaria will prove to be an especially difficult discussion. The picture painted of the country in the Commission’s report is grim. It exposes attacks on the judiciary, an ineffective anti-corruption framework, lack of media pluralism and threats to watchdogs such as journalists and rights groups, coupled with a generally low trust of people in public institutions.
If this is not serious enough, the Commission’s assessment fails to mention other problematic developments affecting the justice system, as also reported by Liberties. Neither does it dig into how the country’s oligarchic mafia has been infiltrating the government, which is at the origin of the country’s pervasive corruption (and misuse of EU taxpayers’ money).
And yet, the Commission considered Bulgaria to have made ‘sufficient’ progress just a year ago when it looked at what had been accomplished since accession to the EU. This makes the peer review on Bulgaria a real battleground for countries like Hungary who try to undermine the credibility and impartiality of the whole exercise.
Actions speak louder than words
Even if this system of peer review is made as strong as possible, by itself it won’t be enough to preserve European democracies from the kinds of sustained attacks carried out by the EU’s authoritarian governments.
There is no excuse for the Council to continue dragging its feet on imposing sanctions under Article 7 on Hungary and Poland. Governments supportive of democracy also need to stand their ground and push for the adoption of a strong mechanism that will link access to EU funds to respect for the rule of law, instead of getting away with lousy deals.
Rights and democracy groups in problematic countries must get real support under the future Justice, Rights and Values fund. And the Commission needs to pursue court cases promptly and with less reticence than hitherto.
Compromises and half-measures have done nothing but emboldening authoritarians like Viktor Orbán.