The dominant Rule of Law narrative among the European institutions and the media focuses on ‘backsliding’ in some capitals as the key Rule of Law problem to solve. Significant resources have been (mis)invested with the EU unfortunately prioritising Rule of Law tool creation and the multiplication of monitoring and reporting mechanisms, of which the Commission’s Annual Rule of Law Report, released since 2020 is one. What has been overlooked is deafening silence about the EU itself: the Commission and the Council have persistently refused to set up mechanisms allowing for a meaningful, let alone independent, annual scrutiny of the Union’s own Rule of Law performance.
Notwithstanding recurrent calls from the European Parliament to fill this major gap, EU’s (in)actions and potential or actual lack of compliance with the EU’s own Rule of Law requirements continue to this day to be left outwith the ambit of any monitoring, contrary to what has been organised in respect of each EU Member State. Knowing that the EU is too present, real, and too important to be included among the proverbial ‘angels’ Publius would dismiss checks and balances for, this gap ought to be filled.
This is not only a matter of consistency, it is also drawing on the fast growing number of worrisome examples where EU institutions’ actions or inactions raise –to use the EU institutions’ favourite word– ‘serious concerns’. One may for instance mention ‘migration deals’ with authoritarian regimes and the funding of gross human rights violations; the disregard of EU citizens’ basic rights, especially in criminal proceedings, where guilt is sometimes presumed by EU law, and the overall balance between law and politics underpinning key decisions in our ‘Union of law’, ranging from judicial independence issues to manifest misuse of powers in response to extortion tactics, the disregarding of the well-articulated Court of Justice’s Rule of Law imperatives to the increasingly politicisation and selective triggering of enforcement tools at the EU institutions’ disposal, if at all.
It is plain that while the Rule of Law is advocated as a foundational value of the European Union, serious and recurrent monitoring of the EU’s own compliance with the EU’s Rule of Law principles is severely lacking in a number of areas including inter alia the mutual recognition in criminal matters and migration management. Further, Rule of Law enforcement, especially when it comes to the EU refusing to enforce EU law, appears increasingly dependent on undue political factors with the Commission treating the Rule of Law as a bargaining chip or adjustment variable whenever politically required. This is coupled with increasing gaslighting and misleading figures –the claim that EU Member States have followed up on 68% of the Commission’s 2023 Rule of Law recommendations is for instance laughable.
This in turn weakens the credibility of EU institutions as Rule of Law actors. Crucially, it introduces systemic and significant deficiencies at EU level. The consequence of this is to undermine efforts to prevent and reverse Rule of Law backsliding in certain Member States, as well as, in some cases, to tangibly harm Rule of Law in properly functioning Member States strongly committed to Rule of Law standards.
Worse still, the EU risks to emerge as an effective shield defending abusive national governments unwilling to play by the rules of Article 2 against their own Constitutional requirements and basic Council of Europe standards to the detriment of EU-wide Rule of Law and human rights protection. Think about the EU’s questionable migration deals with third countries resulting in ‘crimes against humanity’ and brought to the attention of the ICC, or multi-billion gifts to the autocrats at home and abroad, which would never withstand serious independent legal scrutiny. The Court of Justice’s case law regarding migrants’ access to (EU) justice, especially in relation to FRONTEX, may also be questioned.
Acknowledging and addressing Rule of Law deficiencies at EU level is necessary in order to remain credible and effective when it comes to dealing with backsliding at Member State level. We would not want the EU to enable backsliding through its own actions or persistent inaction. It is thus equally indispensable to hold the EU itself to account and ensure that its values are not empty proclamations.
The Democracy Institute Rule of Law Clinic at the Central European University in Budapest made a first step in the direction of filling the gap we identify. The Shadow Report it released on October 28 this year (which was written by Barbara Grabowska-Moroz and Joelle Grogan with the contributions from the authors together with Petra Bárd, Elena Basheska, Mariam Begadze, Sarah Ganty, Emilio De Capitani, Giulia Raimondo, Omer Shatz, Jacquelyn Veraldi and Anna Wójcik) aims at starting a serious and critical discussion about the state of the Rule of Law at the level of the European Union. It calls on the EU to ensure that the values of Article 2 TEU and, especially, the Rule of Law, do not suffer from double standards and apply to the fullest extent to the EU institutions in order to guarantee robust liberal democratic constitutionalism, and institutions capable of defending EU values also at the level of the Member States.
