How to fix Europe’s ‘rule of law’ blindspot

BERLIN — For too long, the only option for sanctioning an EU member that deviated from democratic norms has been the suspension of its voting rights in European institutions. This process has been so slow-moving that it is rarely taken seriously. Indeed, it has never actually been used.

A recent German proposal linking eligibility for EU funding to compliance with the rule of law provides a better way forward. It would arm the bloc with a more effective tool to withstanding authoritarian assaults on democratic institutions and should be pursued.

European policymakers acknowledge that their response to democratic decline in Poland and Hungary has been slow. Still, they insist things are moving forward. After the European Commission called on Poland to stop undermining its judiciary, ministers from EU countries urged Poland to implement the recommendations.

It was the first time the state of the rule of law in an individual country was addressed by its peers. The European Parliament also recently threatened Hungary with initiating Article 7 sanctions, a move toward suspending its voting rights.

These are welcome moves, but their speed is glacial compared to how quickly authoritarian governments go about dismantling democratic checks and balances. It took the Polish government less than two months to paralyze the country’s Constitutional Court. Indeed, sluggish responses feed into the narratives of anti-democratic leaders such as Hungary’s Viktor Orbán, who ridiculed the “nice guys” of the liberal mainstream as too afraid to take action.

Specific European achievements, such as the European arrest warrant, only work if there is confidence that all members will respect the rule of law.

Going after the money is a better move. Few countries benefit from EU funding as much as Poland, which is the bloc’s largest recipient, and Hungary, where EU cohesion funds represent almost 4 percent of GDP.

There are several ways to go about it. EU funds are paid out on the back of multiyear agreements. The current agreement runs until 2020. There is no legal impediment to adding language in the next agreement that stipulates funds can be stopped following serious breaches of obligations on democracy, human rights or the rule of law.

But there’s no reason to wait three years. Many officials believe the current funding agreement must be honored, even if the government has clearly overstepped democratic red lines, and argue that freezing funds can only happen with the help of Article 7 — which requires the unanimous support of all member countries, minus the one concerned. The Polish and Hungarian governments have already indicated they would support each other.

But the argument that nothing can be done outside Article 7 is not convincing. If tanks rolled out of a country’s barracks tomorrow and the military took over, would the EU only act if all other 27 members agreed to do something? What if one ally blocked taking action?

The EU treaty can be interpreted differently. In obvious cases, such as the Polish government’s violation of its own constitution to paralyze the Constitutional Court, the Commission can simply stop transferring funds by arguing that the member country is in breach of fundamental commitments made in Article 2. The Polish government would then be free to appeal the decision in the European Court of Justice to find out if its actions are consistent with its obligations on the rule of law.

This would not be undue interference in a member country’s domestic affairs. It is in keeping with the logic of the treaty.

EU citizens accept being partly governed at the European level on the basis of its democratic legitimacy and that of other member countries. If one member lacks such legitimacy, the whole structure becomes contaminated. Specific European achievements, such as the European arrest warrant, only work if there is confidence that all members will respect the rule of law.

The whole European project could crumble if the bloc is too polite to take action when one of its own starts to backslide on its democratic commitments.

This interpretation of the treaty is not fanciful. The EU’s existence is “predicated on respect for fundamental rights,” as former Advocate General at the European Court of Justice Miguel Poiares Maduro once argued in a case on freedom of expression. A serious breach “would make it impossible for a member state to comply with many of its EU obligations.”

Some EU officials try to wriggle out of commitments by saying that democracy and the rule of law are difficult to define. Yet the Commission’s directorate for enlargement is deeply involved with democracy and human rights. It assesses whether aspiring members fulfill the “Copenhagen Criteria” for accession — meaning it has made judgments on adherence to democracy, rule of law and human rights for close to three decades.

Given that there is no lack of confidence in defining democratic standards for new members, there is no excuse for there to be a blind spot when it comes to current members. Such timidity is dangerous. The whole European project could crumble if the bloc is too polite to take action when one of its own starts to backslide on its democratic commitments.

Michael Meyer-Resende is the executive director of Democracy Reporting International.