The EU and the rule of law paradox

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

Hungarian Prime Minister Viktor Orban (R) and Polish Prime Minister Mateusz Morawiecki (L) attend a press conference after their meeting in Budapest, Hungary, 26 November 2020. [EPA-EFE/Andrzej Lange POLAND OUT]

What has emerged in the last few years in the EU is a political rule of law. This rule of law-political is an instrument of political pressure that should not be confused with the real thing, writes György Schöpflin.

György Schöpflin is a former MEP for Hungary’s ruling Fidesz party.

We all think we know what the rule of law is, but do we? As its name suggests, it’s a set of legal principles – the presumption of innocence, integrity of evidence, no double standards, judicial independence and so on.

This is correct when it comes to legality. But what has emerged in the last few years in the EU is a political rule of law. This runs parallel to the legal version. The two are easily confused.

This rule of law-political is now central to the EU’s approach to dealing with member states with which it wants to pick a bone. It’s an instrument of political pressure.

Pressure, disagreement, conflict are all perfectly normal in politics. But the rule of law-political is something new. It’s politics in the vestments of law.

What this means at the deeper level is that if you offer legal answers to political pressure, these are ignored, they’re beside point in a political dispute.

This shift in the meaning of the rule of law has a history. It started with a statement by four foreign ministers in 2013 that there should be a new rule of law mechanism “to safeguard fundamental values”. It was a way of trying to modify the Treaties without treaty change.

The EU Council took note and the Commission duly obliged.

A rule of law Framework was announced on 11 March 2014, just before the elections for the European Parliament, so it never attracted much attention at the time. Still, the Council’s legal service noted that the Framework had no legal base.

Some might think this odd – rule of law with no law behind it. But politically, it was shrewd. No one would ever stand up and say “I’m against the rule of law”.

The Framework was, in fact, deployed against Poland in 2016, but the Polish government sat it out, as legally it could. The von der Leyen Commission returned to the subject and most recently rule of law reports were published on all 27 member states.

What is worth noting in this area is that the Commission extensively monitors the member states, through the justice scoreboard, legal compliance reports, country-specific reports, but these don’t count politically.

How could they? They are rule of law-legal and, therefore, irrelevant to rule of law-political. The beauty of rule of law-political is that there is no appeal, no means of countering it other than by political resistance.

If you are a fervent integrationist, you will rejoice that those unenthusiastic about further integration are stumped for a response.

All the same, there are potential landmines around. First of all, it is a founding principle of democracy – liberal democracy, social democracy, Christian democracy – that law and politics must be kept as far from each other as possible.

Otherwise, the law becomes politicised. Politicians will use legal action for their own advantage and we all know where that ends up.

But if you are imbued with the spirit of integration, then this politicisation is more than appealing. It lets you assess different member states by divergent criteria.

Take Article 24 of France’s law on global security, which introduces severe restrictions on the media. Response from Brussels? A whispered protest. Now imagine what would happen if Hungary (a bad guy) were to do it – howls of outrage.

Further, if law is politics, then member states can be far more active in monitoring one another. We can be certain that when the €310 billion from the Covid fund is actually disbursed, the frugals will watch how it’s spent with an eagle eye.

Other states that see themselves as victims of tax injustice could well look very closely at the tax regimes that allow multinationals to minimise their tax liability.

The Commission’s present monopoly of monitoring EU activities will likely be weakened.

Finally a paradox, a truly bizarre paradox.

Poland and Hungary have been criticised constantly for their supposed democratic backsliding, as determined by the rule of law-political. Yet what are trying to do with their veto is to keep the rule of law legal.

They want to see a fully legal mechanism in which actions are assessed by legal criteria, with a right of appeal to the Luxemburg court, the ECJ.

So it’s the alleged democratic backsliders who are trying to uphold liberal democracy.

Do the integrationists want this, even if it is well within the rules of classical democracy, keeping law and politics separate? No, not a lot.

A rule of law mechanism that would use only legal criteria really would get in the way of the integrationist project.

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