Jakab, András

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Three misconceptions about the EUrule of law crisisAndrás Jakab 2022-10-17T11:03:51There are three major academic and political misconceptions concerning the EUrule of law crisis. The first mistake is already in the denomination, as the name ‘ruleof law crisis’ is actually misleading, the second is to believe that ‘the EU does nothave the necessary legal tools’, and the third is to conceive it as a ‘crisis only in theMember States affected’. These misconceptions make the crisis look narrower andless threatening than what it actually is, while also offering excuses for inaction.First, it is far too simplistic to talk about the EU’s ‘rule of law crisis’; it is more fittingto call it a ‘hybrid regime crisis’. What has been happening in the EU’s hybridregimes is more of a twin crisis, namely, a slow decline of both democracy and therule of law. In the last decade, two EU Member States have degraded from liberaldemocracies to hybrid regimes (Hungary and Poland). These are not full-blowndictatorships, at least not yet, even though the situation is getting worse year byyear in both countries, with no end in sight. They are currently in-between in thegrey zone. Not only key elements of the rule of law, like judicial independence, butalso mechanisms of democratic accountability have been eroded (i.e. ‘electionsare free, but not fair’, both private and public media are centralized and used as apropaganda machine). By focusing exclusively on the rule of law, we are missingthe point of how democracy and the rule of law mutually support each other. It hasbeen commonly known for some time that the rule of law, and especially certainpolitical fundamental rights, are preconditions for a democratic process. However,one should not forget the reverse causality either: namely, that the rule of law isitself a product of democratic rotation; if governing parties have no fear of beingoutvoted and finding themselves in opposition, they will inevitably be less and lessinclined to respect the separation of powers, particularly judicial independence, andfundamental rights. Moreover, if we understand the rule of law as the negation ofunlimited government power, then democratic accountability contributes to it itself bybeing a limitation on government power.Second, it is outright false to say that the ‘EU does not have the necessaryenforcement tools’. As a matter of fact, it does. It always has. The problem hasrather been that the application of these enforcement mechanisms depends at onepoint or another on political discretion. Just to provide a few examples: Firstly, in theinfamous Article 7 procedure the Council (of foreign ministers) and the EuropeanCouncil decide at key points of the procedure. Secondly, releasing the recoveryfunds, which was considered to be the possibly most effective leverage in the hybridregime crisis, also depended on the discretion of the Commission. It has established‘milestones’ for the actual payments in the case of Poland, which milestones,however, do not tackle the substance of the Polish hybrid regime crisis. In a strictlylegal sense, the Commission has acted within its discretion. (The Polish governmentseems to be reluctant to implement even these unhelpful milestone steps, thus- 1 -the actual payments to Poland are now delayed until further notice.) Thirdly, alsoin the case of infringement procedures, the Commission has political discretionwhether to launch them or not – and what we have seen in the last two decadesis a stark decline in the number of new infringement procedures. Member Stateshave not become more law-abiding, but the willingness of the Commission to launchinfringement procedures has declined. This has been a deliberate strategy from theCommission in order to avoid antagonizing national governments, as they believedthat infringement procedures would jeopardize the support for the Commission’splanned legislative proposals. The now situation increasingly resembles horsetrading: if a Member State is in violation of EU law in, for example, four matters,then the Commission is often willing to look the other way in two cases, if atleast the remaining two will be solved quickly. Political expediency rules over lawenforcement.Third, it is wrong to conceive all this ‘purely as a crisis of the Member Statesaffected’. It is not only that hybrid regimes are poisoning other Member States (byinvesting into various foreign media assets or by ruining judicial cooperation throughfake judges) and the European Union (by electing MEPs in unfair elections or bydelegating Trojan horse officials in EU institutions). The hybrid regime crisis isactually a symptom of the EU’s own constitutional malaise. The legal tools are there,but the Commission has so far been unwilling to apply them.So the real question is how to make the Commission use their already existingpowers. There are two pathways:1. The European Parliament (or any Member State) could challenge acts of theCommission (or acts of the Council that were proposed by the Commission).Four organizations of judges already challenged the adoption of the Council’sdecision (proposed by the Commission) to unblock Recovery and Resiliencefunds for Poland. This Council decision basically softens down the ECJ’sindependence requirements concerning the Polish judicial system andis therefore substantively illegal – it is unclear though whether the fourorganizations of judges have locus standi. The European Parliament or MemberStates, however, automatically have locus standi (Art 263(2) TFEU), therefore,they could go after such illegal acts. For illegal inactions Art 265 TFEU could beapplied similarly.2. A large part of the problem is, however, that the Commission is not actingillegally: it is their legal discretion whether to use their powers to tackle thehybrid regime crisis. A number of MEPs are frustrated over this phenomenonand would like the de facto behavior of the Commission to be nearer to thewishes of the European Parliament. The institutional method to achieve thatis the Spitzenkandidatensystem. This system would therefore not only be animprovement of the EU’s own democratic accountability, but this is also themethod to rescue the EU from its own hybrid regime. It is time to return to it.- 2 -

Three misconceptions about the EU rule of law crisis

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Three misconceptions about the EU rule of law crisis

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