What Role for EU Institutions in Confronting Europe's Democracy and Rule of Law Crisis?

The signs of the democracy and rule of law crisis in the European Union are undeniable. At the same time, autocratizing member states, like Hungary or Poland, block important EU policy initiatives, and their governing parties, which are key members of the European People’s Party and the European Conservatives and Reformists, have significant impact on European party politics.

However, the democracy and rule of law crisis did not appear suddenly and unexpectedly; it developed gradually since 2010 and was exacerbated by the ineffective responses of the European institutions. This paper argues that not the deficiencies of its legal framework hampered the EU in addressing the developing crisis appropriately, but rather the political settings, the institutional traditions, and the role concepts of the main European institutions, especially the European Commission.

The Commission’s lack of a constitutional mind-set, and its selective and superficial approach, resulted in only symbolic or procedural compliance with European values in Hungary’s case. It overlooked the substantial violation of democracy and rule of law standards in the country. Furthermore, inter-institutional struggles, the ongoing conflict between the Commission and the Council over the monopoly of the legal interpretation of European values, and party-political bias aggravated the challenge and resulted in political deadlock.

The Commission and the Parliament need to engage in constructive cooperation, instead of leaving important initiatives of the latter unconsidered.

Against this background, to overcome the current situation in which institutional traditions and political settings prevent exploiting the potential in the framework of EU law for the protection of democracy and rule of law, the main EU institutions—especially the Commission—have to reconsider significantly their approaches. The Commission and the Parliament need to engage in constructive cooperation, instead of leaving important initiatives of the latter unconsidered.

The Commission has to differentiate between Article 2 “constitutional” issues and matters of “ordinary” EU law, and develop an enhanced constitutional mindset that insists on substantial output compliance with EU values by member states, and, if required, systematically enforces it. Furthermore, it should create via infringement procedures legal inputs for the Court of Justice of the European Union that allow the court to unfold a progressive interpretation of the treaties and the development of EU law.

A return to Article 2 compliance by rogue member states is very unlikely without putting pressure on autocratizing national elites and altering their political cost—benefit calculations. The proposal to impose rule—of—law conditionality on EU funds is the only current initiative that creates political issue linkage and offers solid political leverage over rogue member states. Most criticism toward its allegedly discriminatory character can easily be dispelled and the proposal is well-tailored to the political realities of the European rule of law crisis. This initiative must remain in the political forefront and put through the current negotiations over the multiannual financial framework without any weakening.

The complementary character of rule-of-law conditionality and proposals for an objective and comprehensive monitoring mechanism for Article 2 values should be better recognized. Creating such a mechanism could not only render obsolete the main objections against rule-of-law conditionality, i.e. the lack of benchmarks on which to base it, it could also ease the Commission’s burden, as it is currently responsible for monitoring and the enforcement of value compliance. Last but not least, the parallel introduction of rule-of-law conditionality and a comprehensive Article 2 monitoring mechanism would represent a genuine compromise among the diverging interests of various EU institutions and member states.