October 20
2020
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6th October 2020
Human Rights Institutional law

Op-Ed: “You can’t fight autocracy with toothless reports” by R. Daniel Kelemen

On September 30, with one democracy under its guard already burned to the ground and another in the midst of a three-alarm fire, the European Commission published an obscurantist treatise on the importance of fire safety and on warning signs of fire risk. I am referring of course to the Commission’s first annual Rule of Law Report.

The report is the culmination of a Blueprint for Action on strengthening the rule of law in the EU published by the Commission in July 2019. In that plan, the Commission announced it would establish a new, annual Rule of Law Review Cycle or mechanism, including an annual Report, which would promote an ongoing dialogue between EU institutions, member governments and stakeholders on the rule of law. The stated purpose of the Report was to prevent problems from emerging or deepening by monitoring and providing a basis for discussion on the situation of the rule of law in EU Member States, specifically on the issues of the justice system, the anti-corruption framework, media pluralism, and other institutional issues related to checks and balances. Some proponents of the Report additionally claimed that by focusing on all 27 Member States, it would help counter accusations from the Governments of Hungary and Poland that they were being subject to double standards.

So did the Report deliver on expectations? Did it meet the Commission’s stated goals? Could it or the annual rule of law cycle of which it is a part represent gamechangers for the defence of the rule of law in the EU? Could they usefully support the application of other tools in the EU’s arsenal such as Article 7 procedures or the pending rule of law conditionality regulation?

Absolutely not.

To understand why, we must recognise the shortcomings of the report itself, as well as consider the political context in which it is situated.

A recent paper by Daniel Hegedüs of the German Marshall Fund has already addressed the profound shortcomings of the Report, so I can just summarise them briefly. As he explains, ‘the report is undermined by soft language, the wrong time frame, and decisions not to address systemic deficiencies of the rule of law in certain member states. This makes the comparative approach useless and even harmful’. First, when addressing developments in the most problematic Member States such as Hungary, Poland, and Bulgaria, the Report deploys a language of euphemisms and understatement. The Report speaks of ‘concerns’ and ‘risks’ to the rule of law, in instances where it has already been destroyed. It refers to controversial ‘reforms’, when describing what are actually blatant assaults on the rule of law.

In short, the report fails to recognise – even at a conceptual level – the nature of the threat to the rule of law in the EU. The actual phenomenon in question in states such as Hungary, Poland, and Bulgaria is ‘rule of law backsliding’, which the experts at the EU-funded Reconnect research project define as, ‘the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.

The Report completely fails to recognise that systemic assaults on the rule of law and democracy itself are taking place – and indeed that they have already succeeded in one state – Hungary. Readers will search in vain for any mention of the fact that leading international ratings bodies such as the V-Dem Institute and Freedom House have already recategorised Hungary as the EU’s first autocratic Member State.

To be fair, the Report does recognise (albeit in euphemistic language) some of the negative developments taking place in specific areas in states such as Hungary and Poland. The efforts of the Commission civil servants who conducted research, took input from stakeholders, and reported on these developments are laudable.  However, both the individual country reports and the synthetic, cross-country report, as Professor Laurent Pech put it, fail to connect the dots to present a comprehensive picture of rule of law backsliding. Anyone interested in such an overall picture of backsliding in EU Member States would do better to read various reports on the issue already produced by the European Parliament, annual reports by bodies such as V-Dem Institute, Freedom House, and the World Justice Project, or indeed any number of scholarly or journalistic accounts of these developments that have been published in recent years.

Beyond its failures in describing rule of law backsliding, the Report also – quite intentionally – offered no recommendations for sanctioning or remedying the problems it identified. Precisely because of such shortcomings, advocates of the rule of law in the European Parliament continue to press for a distinct annual monitoring cycle on democracy, the rule of law, and fundamental rights, which would go beyond the Commission’s approach by adding country specific ‘corrective measures’ where needed, including recommending the suspension of EU funds.

Some readers might object that the angry reactions of the governments of Hungary and Poland to the publication of the Report indicate that it must have been hard-hitting. After Commission Vice President Vēra Jourová gave interviews about the report, the Hungarian Government even declared her persona non grata in Hungary and wrote to Commission President von der Leyen calling for her removal from office. But to conclude from this reaction that the report was damning would be to miss the political theatre involved – a set piece in which the Commission pretends to get tough on the rule of law, and Hungary and Poland pretend to be very upset about it.

In fact, autocrats and aspiring autocrats like Viktor Orbán or Jarosław Kaczyński are not bothered by anodyne reports like that published by the Commission. If there is one lesson to take from the angry reactions of the Governments of Hungary and Poland, it is that the notion that a Report looking at all 27 Member States could counter these regimes’ accusations of double standards and could facilitate constructive dialogue was fundamentally misguided from the outset. When working with democratic governments who take seriously the requirement of sincere cooperation in the EU, such dialogue might be beneficial. But an emphasis on dialogue only signals weakness to aspiring or actual autocrats, and they use delays it provides to accelerate their assaults on the rule of law.

Indeed, the biggest problem with the Commission’s Report isn’t its shortcomings, but the opportunity costs its preparation entailed. The time and political capital that the Commission spent preparing this Report would have been better spent pursuing more infringement proceedings against rule of law backsliders. The vigorous pursuit of far more rule of law related infringement cases – backed up where necessary with Article 260 TFEU cases seeking penalties for non-compliance with CJEU judgments – could have a real impact.

And above all, the greatest concern of autocratic leaders is the ongoing debate about introducing rule of law conditionality for the EU budget – and the prospect that the EU might eventually suspend the funding that their regimes depend on. Though the German Council Presidency is looking to water down the existing Commission conditionality proposal from 2018 – no doubt because of the inclination of the CDU leadership to appease autocrats in the EU –  major party groups in the European Parliament are insisting they will only approve the MFF and NextGenEU recovery fund if a robust rule of law conditionality system is put in place. So, Orbán’s histrionics concerning the Rule of Law Report should be understood as part of a larger game in which he and the PiS regime in Poland are trying to convince other leaders that they would be willing to veto the MFF and NextGenEU if the Council and Parliament override their objections and introduce a robust rule of law conditionality regulation by qualified majority vote. This is of course a bluff, but if the European Parliament does not stand its ground, it is a bluff that may succeed.

 

Roger Daniel Kelemen is a Professor of Political Science and Law and Jean Monnet Chair at Rutgers University

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