The Making of the EU’s Shared Rule of Law Agenda
When the new European Commission (EC) is set to start working this fall, one of the most contentious agenda items will likely be the EU’s approach to monitoring and enforcing rule of law across all member states. That would include tackling corruption, fraud and money laundering, ensuring respect for the independence of the judiciary, fundamental rights, free media, and in general basic democratic standards. The Finnish presidency of the Council of the European Union has also listed rule of law as one of its main priorities and has already managed to irritate some member states that have been targeted by Article 7 proceedings. And, as discussions in the European Parliament (EP)—both previous and current legislatures—seem to indicate, rule of law is a big concern and will continue to permeate other decisions within the union, mainly including budget allocations. But whether this apparent alignment between the three main EU bodies will engender political decisions in support for stronger rule of law oversight in the EU remains to be seen.
Efforts to address corruption and rule of law inside the EU are not new. Started as a means to protect the financial interests of the EU (preventing and punishing fraud involving EU money) and then to assess the fitness of applicant countries from Central and Eastern Europe to become full members, rule of law assessment and enforcement mechanisms have gone through various—unsuccessful, some would argue—iterations.
The Cooperation and Verification Mechanism (CVM), an annual monitoring and reporting tool of the EC based on pre-set benchmarks regarding corruption and justice reform to which Romania and Bulgaria were subjected upon EU accession in 2007 and which continues to this day, is probably the most successful one. Although political leaders in both countries would like the CVM to be removed as reports typically shed a negative light on the limited progress, the annual monitoring and assessing of progress in anticorruption and rule of law has produced impact on the ground. So much so, that in 2014 the EC published an EU-wide anticorruption report (arguably inspired by the CVM) meant to assess rule of law standards in all member states and alleviate the apparent stigma that came with a monitoring mechanism targeted at two countries (Romania and Bulgaria) only. Finally, as the anticorruption report, which was supposed to be released every two years, never saw the light of day again, the Commission adopted a new mechanism, the rule of law framework, the visibility of which was raised by Poland as the first country to undergo this process for issues related to judicial independence and checks and balances. It was also the first time that the threat of activating Article 7 of the EU treaty (suspension of voting rights) was used in relation to failing to implement rule of law principles.
With the new EP and soon the new EC, Europeans will have to deal with a potentially deeper level of judicial integration through the European Public Prosecutor Office (EPPO), which will investigate and prosecute cases of fraud and corruption involving EU money across and despite national borders. This goes even further than just tying EU money to respecting the rule of law, itself a rather recent decision from 2018 that will allow suspension of payments for EU-funded programs dues to violations of rule of law principles. The creation of a supranational investigative body, if it manages to garner the political support to effectively pursue corruption and fraud cases, could remove jurisdictional boundaries, thus putting more pressure on national governments that might have a tendency to suppress judicial independence.
Moreover, a new rule of law blueprint for the EU was presented in July in one of the first official communications from the EC under the leadership of Ursula von der Leyen. With a strong focus on democratic values as defined by Article 2 of the EU Treaty, the communication presents a rather ambitious set of objectives and tools to monitor, assess, and enforce rule of law, as well as promote a shared rule of law culture across the EU. A strong reference to the values that brought member states together beyond the mutual economic advantages might prove useful since the union is already undergoing some soul-searching. However, questions about the implementation of this plan and the ability of the EC to get countries on board and keep them in-line remain unanswered, given that this would seem to further expose domestic problems regarding judicial independence or respect for democratic norms in many EU states on the European arena.
Political support for deepening the EC’s involvement in rule of law issues is still very weak. A number of countries (like Hungary or Poland) strongly oppose the rule of law push inside the EU, which they construe as a further infringement of national sovereignty. Critics also argue that the EU does not, in fact, have the right benchmarks or mechanisms—or the legitimacy for that matter—to oversee the rule of law in member states. A growing body of literature also points to mixed results for supranational anticorruption or rule of law interventions. But, a closer look at the EU Treaty and the political integration in the past 20 years illustrates why the focus on rule of law is not only a natural development, but a necessary one.
From the perspective of the EU’s political survival, the successful implementation of its rule of law agenda could contribute to an increase in citizen satisfaction not only with the EU but with the functioning of their domestic institutions as well. An extensive EU-wide survey from April 2019 shows that an overwhelming majority of Europeans believe rule of law principles, as well as acting on corruption, to be important and that their respective countries need improvements in this area. Plus, trust in EU institutions appears to be surpassing trust in national institutions, potentially a future boost to the claim of legitimacy for more supranational action.
From a geopolitical perspective, rule of law would be a part of a total defense concept – if the EU had one. As corruption, nontransparent money flows, illicit transactions, and money laundering are major threats to European security, the preservation of European values will also likely depend on how the EU protects itself from these challenges. All the more so as geopolitical competitors like Russia or China have been in recent years using all of these tools to undermine the European legal order, solidarity, and self-confidence.
August 22, 2019