The rule of law mechanism
The Hungarian crisis in which Prime Minister Viktor Orbán brought in a succession of media laws and regulations that have crippled the independent press showed that most national governments and a significant number of MEPs underestimated Orbán’s threat to the EU as an institution and a community of values. They did not believe, or refused to admit, that Hungary was more than just a temporary case of abuse of political power that would be corrected with time through elections.
The Hungarian issue also exposed a blurred vision of the EU mechanisms supposed to discipline a member state. A May 2013 European Parliament resolution noted that “although existing member states are required to comply with the Charter [of Fundamental Rights], no mechanism exists to ensure that they do.” The difficulties in changing the system, however, cannot be dismissed. “Many of the proposed new mechanisms would require treaty amendments, such as lower thresholds for triggering the Article 7 mechanisms, a judicial review by the CJEU [EU Court of Justice], extended powers of the Fundamental Rights Agency, or abolishing Article 51 of the EU charter, to make EU fundamental rights directly applicable in all member states,” according to a March 2015 European Parliament briefing. However, a group of lawyers and political scientists argued in a 2014 European University Institute working paper that the treaties already provide the necessary methods to enforce laws and values.
The only aspect on which EU experts appeared to agree was that the proposed initiatives would not please member states keen on retaining their sovereignty. “The powers that the EU has are attributed powers—in other words, powers that the member states have chosen to grant to the EU,” said EU Ombudsman and former Irish journalist Emily O’Reilly in a speech to the Law Society of Ireland. “[Member states] are often unwilling to grant supranational control to bodies with such strong powers, especially where the exercise of such control powers impacts upon their own actions or vital interests.”
Beyond these diverging readings of the EU’s current powers, the need for an unquestionable, effective, and enforceable mechanism appears imperative to those who viewed the Hungarian case as a dangerous challenge to the EU’s core values.
In March 2013, foreign affairs ministers from Germany, Denmark, Finland, and the Netherlands, including the commission’s current strongman, Vice President Timmermans, wrote a letter to the commission asking for a new rule of law mechanism, with monitoring and graduated responses and sanctions, up to the suspension of EU funding, before triggering the so-called “nuclear option” of Article 7 of the Treaty on European Union. By qualifying this article as “nuclear,” the EU practically condemned itself never to use it since it was bound to be seen as an attack on a member state. In a report on fundamental rights in the EU, Belgian liberal MEP Louis Michel attempted to address what he saw as key failings of the current mechanisms. The resolution drawn from his report in February 2014 stressed “that the obligation to fulfill the Copenhagen criteria—the political criteria imposed on candidate countries before they are welcomed into the EU—does not lapse after accession.” The criteria include commitments on rule of law, democracy, and human rights, including press freedom, with which a candidate country must comply before becoming part of the EU. The resolution called for a “new Copenhagen mechanism” that would be binding on all member states and would find a reasonable way to objectively monitor states, with the help of a so-called Copenhagen Commission of independent experts. It would also be able to suspend funds and use other penalties if needed. The option to suspend funds has particular relevance to Hungary, which was handed a multi-billion euro grant by the commission despite Orbán’s repressive action against press freedom and other EU values.
“The Hungarian experience showed that by [the EU] not acting fast and firmly enough on past transgressions Viktor Orbán had constantly raised the stakes.”
– Ana Gomes, Portuguese MEP
Further proposals to deal with straying member states were put forward until, in March 2014, the commission, under José Manuel Barroso, proposed the EU framework to Strengthen the Rule of Law in a communication to the Council and the European Parliament. “The framework seeks to resolve future threats to the rule of law in member states before the conditions for activating the mechanisms foreseen in Article 7 would be met. It is therefore meant to fill a gap,” the commission stated. It was conceived as a three-stage process: a commission assessment of alleged breaches or threats, which may lead to a “rule of law opinion” substantiating the concerns and giving the state in question the chance to respond; in case of an unsatisfactory reply, the commission would send a “rule of law recommendation” specifying the problems to be fixed within a given timeframe; if the state failed to comply, the commission would “assess the possibility of activating one of the mechanisms set out in Article 7.”
In a December 2014 meeting, however, the General Affairs Council, a gathering of EU and foreign affairs ministers, suggested instead an annual dialogue with all member states on the rule of law issue. Eventually, in a March 2015 appearance before the European Parliament, Timmermans sided with member states, according to reports. He said he was wary of another monitoring mechanism and asked MEPs to give the commission a chance to demonstrate that the current system can work.
Dimitry Kochenov and Laurent Pech objected to the initiatives inEU Law Analysis, a website covering EU law. The law academics wrote: “Both initiatives, and in particular, the Council’s, appear grossly inadequate to tackle the problem of ‘rule of law backsliding post EU accession.”
Portuguese MEP Gomes shares their view. She told CPJ, “Nothing has moved yet, although the Hungarian experience showed that by [the EU] not acting fast and firmly enough on past transgressions, Viktor Orbán has constantly raised the stakes.” With the EU stymied, repressive governments such as Orbán’s know they have free rein to subvert the EU norms.