Strengthening EU rule of law protection: start with freedom of expression

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Polish prime minister Mateusz Morawiecki (R) and Hungarian prime minister Viktor Orban (L) during a greeting ceremony in the courtyard of the Royal Castle in Warsaw's Old Town on 1 May 2019. [EPA-EFE/MARCIN OBARA / POLAND OUT]

This Tuesday (21 May), during the General Affairs Council, ministers of foreign affairs will get a presentation by the Commission about a new Communication on the rule of law. Rather than just listen, ministers should show they are committed to backing up talk with immediate action, write Gráinne de Búrca and John Morijn.  

Gráinne de Búrca is a professor at NYU Law School. John Morijn is an assistant professor at the University of Groningen

Strengthening rule of law protection is perhaps the EU’s single most important necessity for the post-election period. Without more decisive safeguarding of the EU’s foundations, we cannot build a future-proof house. The quality of the EU’s foundations has rapidly worsened.

We all know that  Poland and Hungary, in particular, have been undermining the rule of law for years, particularly by dismantling independent courts. Romania may well be on course to go the same wrong way.

It is common to approach this issue from an abstract and institutional angle. This is time-consuming. It stands in contrast too to the very swift and concrete way illiberal governments act. How they crack down on their critics is a case in point.  One of the first warning signs of backsliding is deep ambivalence about free speech.

In Poland government actors and state-controlled media regularly use vitriolic, abusive and insulting language against opponents. But once the tables are turned and critical language is used against them, they cannot resist wielding the repressive power of the state to menace and silence their critics.

This has been illustrated in the recent harassment by the Polish ruling party (PiS) and its allies of a Polish professor, Wojciech Sadurski, who is facing an array of coordinated charges for criticizing PiS.

Two weeks ago we published an open letter in support of him and against Poland’s abusive use of legal process to silence critics.  The letter was signed within days by over 700 academics from 43 countries and 5 continents.

While condemnation by the global academic community of these attacks on free speech was swift, decisive EU political action against Poland remains absent.  The Commission has initiated legal proceedings against Poland before the Court in Luxembourg in relation to Poland’s undermining of judicial independence, but none of the other EU political institutions has acted. Instead, the Commission has chosen to again evaluate.

There is, however, no need for new procedures, reports or judicial rulings to clarify what is already so clear, i.e. that PiS is dismantling the rule of law in Poland.  Nothing prevents foreign affairs ministers who support freedom of speech from simply speaking out about Poland’s repressive practices this Tuesday.

Worried national parliamentarians could ask their ministers about how they acted on their return home. Members of the European Parliament could and should do the same with European Commissioners.

And if this Council Meeting does not bear fruit, try the Justice and Home Affairs Council later this month.  The message for PiS should be clear: stop your campaign of intimidation or there will be real consequences. Harassment of free speech should be a red line.

The example of Wojciech Sadurski’s case allows us to make two further recommendations:

First: the future rule of law framework should facilitate the possibility of prompt and concrete action.  Protecting the rule of law is not a long-term and abstract goal, but an actionable and urgent imperative.  Freedom of expression is central to it, particularly when criticizing political authority.

That the quality of the legal and political system in any one EU state has a direct bearing on that of any other is evident every day, e.g. when national judges face questions about whether to send an asylum seeker elsewhere or to surrender someone under an EU arrest warrant.

Second, in order for EU action to be effective, it must itself be accountable.  The Polish Prime Minister, Mateusz Morawiecki, whose government dismantles the rule of law, argued recently that the EU should not be the judge in its own cause.

Far from providing an argument against EU intervention, the very messenger of this point underlines the need for external accountability of the EU. This can be done, first, by speeding up the EU’s accession to the European Convention on Human Rights, and second, by making external reports like those from the Venice Commission a compulsory starting-point for the EU’s own assessment of these matters.

When Foreign Ministers listen to the Commission this Tuesday, they should realise that when the rule of law breaks down somewhere in the EU, the risk of contagion and deterioration is immediate. Own interests are at stake.

As a powerful player with real sway, the Council cannot forever hide behind procedures or future judgments. The situation is untenable. Now it is time to support the Commission with more than just words and to step up and act.

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