By Sonja Priebus
Ever since Hungary and Poland started backsliding on democracy and the rule of law in 2010 and 2015 respectively, academics and practitioners alike have racked their brains over one central question: How can the European Union make noncompliant governments enforce European core values such as democracy, the rule of law and respect for human rights? And more precisely: should the European Commission as Guardian of the Treaties only talk to the governments of Hungary and Poland or also sanction them?
The Commission has mainly chosen the former strategy, which is in line with its usual consensual approach towards noncompliance. Instead of using the few available “hard” instruments in its rule of law toolbox and pushing the boundaries of what’s possible, the EU’s executive has mostly resorted to bilateral dialogues as its central problem-solving strategy. The most recent evidence of the Commission’s preference for problem-solving is its reluctance to activate the Rule of Law conditionality mechanism adopted in December 2020 against Poland and Hungary. It was only on 5 April 2022 – two days after the general elections in Hungary – that Commission President Ursula von der Leyen finally announced the activation of the mechanism against Hungary.
Enforcement versus management in case of noncompliance
According to the management approach in compliance research, problem-solving through dialogue, capacity building and preventive measures are part of the appropriate strategy when noncompliance with certain rules or norms happens accidentally. When, however, noncompliance is the deliberate choice of actors, the enforcement approach recommends extensive monitoring coupled with sanctions. Because noncompliance is voluntary, the appropriate strategy to make noncompliers comply is punishment, not trying to solve problems by engaging in long discussions.
By now it is uncontested that the Hungarian and Polish governments’ attacks on democratic institutions, the judiciary and political rights are not mistakes, but calculated policy choices. More recently, the Polish government’s continued open defiance of several European Court of Justice rulings and its refusal to pay the required fines for not abolishing the Supreme Court’s Disciplinary Chamber has just underlined this.
Because in both cases the respective governments commit violations of EU values deliberately, the adequate response according to the enforcement approach is to monitor these violations and punish the rule violators. In cases of deliberate non-compliance, only talking to the rule breakers to try to convince them of their wrongdoing seems a rather futile strategy.
Mismatch between the source of noncompliance and proposed remedies
When we look at the Commission’s recently expanded rule of law toolbox, i.e., the instruments the Commission itself has developed in response to democratic backsliding in members states, we see, however, that these instruments mostly follow the logic of the management, not the enforcement, approach. While the Commission admits that the dismantling of the rule of law in some states is “the result of deliberate policy choices”, it has been reluctant to propose “hard” instruments with possible sanctions. Instead, it has almost exclusively developed “soft” instruments that rely on dialogue and prevention. As I argue in my Journal of Common Market Studies paper, this leads to a mismatch between the identified causes of the problem and the solutions chosen. Put differently: although the Commission has correctly identified the origins of noncompliance, it has not drawn the correct conclusions concerning the remedies to rule of law breaches.
Example: The Rule of Law Mechanism
Dialogue with rule violators and prevention, i.e. early identification of problems, are the dominant strategies of almost all of the rule of law tools created by the Commission since 2014. Thus, the Commission manages, instead of enforces EU values.
I will illustrate this point by using the example of the Rule of Law Mechanism announced in 2019. According to the Commission’s communication, this mechanism is supposed to “act as a preventive tool, deepening dialogue and joint awareness of rule of law issues”. To achieve this objective, the mechanism, on the one hand, seeks to promote a rule of law culture among EU citizens through e.g., the dissemination of knowledge, new programmes for promoting values (e.g., the Rights and Values Programme) and exchanges between different groups. This is, on the other hand, complemented by an extensive monitoring of developments within each member state as well as exchanges with different domestic groups to prevent rule of law problems from emerging or deepening in one certain country.
In practice, this monitoring translates into a so-called Rule of Law Review Cycle. Over the period of one year the Commission conducts consultations with stakeholders at the national level – which include governments as well as different societal and administrative actors – and makes country visits. The findings afterwards feed back into an Annual Rule of Law Report. The Report, which was published in 2020, 2021 and 2022 respectively, focuses on aspects central to the rule of law: justice systems, anti-corruption frameworks, media pluralism and media freedom as well as “other issues linked to checks-and-balances” such as constitutional reforms, the quality of law-making or civil society organizations. The objective of the specific country reports is to highlight deficiencies as well as problematic issues at the nation state level. The findings are not, however, binding and there are also no sanctions attached if governments choose not to take these findings into account.
Management instead of enforcement of values
From the perspective of the enforcement approach it seems, however, insufficient to counter deliberate breaches of the EU’s fundamental values with bilateral negotiations and preventive measures designed to raise awareness of rule of law issues among citizens. In cases such as Hungary and Poland, where democracy and the rule of law have been deliberately destroyed over years, talking to governments or summarizing findings in a nonbinding report is too little, too late. Overall, the Commission’s rule of law strategy is thus characterized by a mismatch between the strategies that should be and the strategies that are actually deployed in cases of deliberate rule violation.
The only exception so far is the so-called Rule of Law conditionality, which the Commission proposed in 2018 and which the European Council adopted in a diluted version in 2020. Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget links the payment of EU funds to respect for the rule of law. Even though the conditionality mechanism cannot be activated for general rule of law violations but only if these have a direct bearing on the implementation of the EU budget or the spending of EU money, it provides the Commission with a powerful instrument to sanction noncompliers.
Sanctions as the correct method to reverse backsliding?
The enforcement approach offers a theoretically convincing explanation for why the Commission’s new rule of law tools are both inadequate and ineffective. We need to be careful, however, in concluding that sanctions alone are the correct method to reverse backsliding. Research on candidate state Europeanization, for example, teaches us that we need to pay attention to the context where such measures are deployed. The more authoritarian the targeted state is, the less conditionality through sanctions is likely to work because reversing controversial reforms is far too costly for incumbents. While it is not easy to find the right response to backsliding, what seems to be clear is that dialogue with governments alone does not suffice. A combination of enforcement and management could thus be a more promising way.
Sonja Priebus is postdoctoral researcher and lecturer at European-University Viadrina Frankfurt (Oder), Germany, Chair of European Studies. Her research focuses on democratic backsliding in the EU the EU’s rule of law toolbox and politics in Central and Eastern Europe.