Can the EU guarantee the rule of law?

Poland has become one of the main talking points among European policymakers due to suspicions that its ruling party intends to undermine the system of democratic checks and balances, by curtailing the power of the Constitutional Tribunal to assess the legality of legislation, and by attempting to exercise close control over the country’s media outlets.

Should Poland deviate from the democratic norm, it would be violating one of the EU’s core values: the rule of law. The European Commission, the Union’s institution responsible for, inter alia, monitoring the compliance of Member States with European law, is already examining the case, by making use of a new policy instrument at its disposal.

Since early 2014 a Rule of Law Framework (RLF) has been established that enables the Commission to thoroughly assess the state of play before making any definitive judgement on the need to initiate the procedures that would see the Union eventually impose sanctions on a Member State, as per Article 7 of the Treaty on European Union. This mechanism is also known as the “pre-Article 7 procedure”.

On January 13 the College of Commissioners (cabinet meeting) discussed, among others, the situation in Poland. As the press release notes:

Recent events in Poland have given rise to concerns regarding the respect of the rule of law. The Commission had therefore requested information on the situation concerning the Constitutional Tribunal and on the changes in the law on the Public Service Broadcasters.

The College of Commissioners held a first orientation debate on these developments in order to assess the situation in Poland under the Rule of Law Framework.

Following today’s orientation debate, the College mandated First Vice-President Timmermans to send a letter to the Polish government in order to start the structured dialogue under the Rule of Law Framework without prejudging any further step.

The area of justice needs coordination

A few years ago the EU had to deal with the case of Hungary, where the ruling party appeared to be systematically eroding the constitutional order of the country to tailor it to its own wants and aspirations. Some commentators see Mr. Orban’s stratagems as a quasi-authoritarianism of sorts, with professor Kim Lane Scheppele calling Hungary’s constitutional reform a “perfectly legal coup”. While these may be valid claims, they do not align with the official position of the EU: Hungary remains an equal partner in all things concerning the Union, as if nothing had happened.

What explains the EU’s ineffectiveness at the time is the absence of a reliable instrument for dealing with systematic breaches to the rule of law. When the case of Hungary was first being examined, the Union was navigating unchartered waters, trying to identify the provisions in the Treaties that would enable it to act in an effective and timely fashion. On June 3, 2013 the European Parliament adopted a resolution (the Tavares report) that offered a comprehensive assessment of the prevailing conditions in Hungary, while suggesting a set of measures, rules of conduct, and initiatives to restore the rule of law.

As that resolution acknowledged, the EU Treaties have a glaring omission: they do not envisage any kind of institutional setup for assessing the continued compliance of a Member State with the EU Accession criteria—the so-called “Copenhagen criteria”—concerning the quality of political institutions and the respect for the mechanisms of democratic accountability. As things currently stand, a country needs to have a well-functioning democracy in order to enter the Union, but after gaining accession it may proceed to alter its constitutional order without having to face any immediate or straightforward challenge from the supranational level.

In short, the EU does not have the necessary legal-institutional arrangements for monitoring, evaluating, and coordinating the implementation and preservation of civil liberties and fundamental rights, as it so eagerly and forcefully does for the area of economic governance.

The pre-Article 7 procedure

What the EU did learn from the experience with Hungary—and it now applies to Poland—is that the Treaties are flexible enough to allow the European Commission sufficient scope for exercising “soft power”. While the Union’s primary law does provide for sanctions against a given Member State under Article 7 of the Treaty on European Union, this is generally considered a “nuclear option”, something that is both procedurally and politically extremely hard to put to use (notwithstanding any substantive considerations).

However, it is clear that Ar. 7 TEU does not prejudice the establishment of a Rule of Law Framework (RLF) by which the Commission would assess whether a Member State acted in such a way as to be subject to sanctions under that article. The Commission can leverage this Treaty provision to exercise diplomatic—and eventually political—pressure on the national government concerned.

The RLF, informally referred to as the “pre-Article 7 procedure”, was introduced in early 2014. The mechanism consists of three phases, which in the Commission’s words amount to:

Commission assessment: The Commission will collect and examine all the relevant information and assess whether there are clear indications of a systemic threat to the rule of law. If, as a result, the Commission is of the opinion that there is indeed a situation of systemic threat to the rule of law, it will initiate a dialogue with the Member State concerned, by sending its “rule of law opinion”, which will be a warning to the Member State – and substantiating its concerns. It will give the Member State concerned the possibility to respond.

Commission Recommendation: In a second stage, unless the matter has already been satisfactorily resolved, the Commission will issue a “rule of law recommendation” addressed to the Member State. It will recommend that the Member State solves the problems identified within a fixed time limit and informs the Commission of the steps taken to that effect. The Commission will make public its recommendation.

Follow-up to the Commission Recommendation: In a third stage, the Commission will monitor the follow-up given by the Member State to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission can resort to one of the mechanisms set out in Article 7 TEU.

If we read between the lines, we recognise that an outright top-down approach is practically limited to diplomatic pressure that may or may not yield the desired results. The sticking point is that the culmination of the pre-Article 7 procedure, namely, the activation of Ar. 7 TEU, depends on an intergovernmental decision that is realistically hard to reach and would otherwise run contrary to the Council’s preferred modus operandi: consensus building.

The introduction of the RLF is certainly a step forward, though it may well prove insufficient if faced with a resilient government, such as Poland’s. Also, the top-down nature of the procedure might raise legitimacy concerns, given that the Commission is a technocratic entity that is not directly elected by the Union’s citizens. Furthermore, it is not at all clear how constitutional matters can indeed be regarded as mere technicalities that are divorced from political judgement calls, suggesting that the Commission may be excoriated for using its technocratic facade to obfuscate the fact that it is actually engaging in politics. The implication is that the Commission will find itself in a weak position if it fails to secure the unequivocal support of the European Parliament, the European Council, and the Council of the European Union.

[also read: Is the European Union a republic?]

The role of national governments

While referring to the Council, and to the possible shortcomings of the Commission’s top-down approach, it is worth noting that the rule of law is a core value enshrined in the Treaties and, in being such, is meant to reflect and functionally extend the constitutional achievements of the nation states that have founded the European Union.

It follows that each national government has a duty to uphold democratic principles at home and to expect from its European partners to do likewise. To this end, the Commission’s findings can prove particularly useful for national governments. They may be used as an objective criterion with which to ask from their counterparts to change their ways. If governments opt not to make use of them, these findings will eventually be archived without having made any noticeable impact whatsoever.

Lest we forget, the EU is also made up of its Member States. The Commission can do virtually nothing on its own accord. Once the Rule of Law Framework delivers its results, national leaders must speak up, asking from Poland to change its ways, if indeed it has been found to deviate from the Treaties.

It is understandable that the exercise of intergovernmental pressure, including bilateral sanctions, is always a tricky and highly sensitive issue. Diplomats would rather avoid any direct confrontation, especially since they could instead agree on a quid pro quo on other areas of policy that are important to the Union, such as migration and the relocation of asylum seekers. Nevertheless, the recent experience with the third bailout package to Greece has revealed that when things reach a critical stage, confrontation is inevitable and, perhaps, necessary for promoting the general good and achieving progress once all other options have been exhausted and niceties become a hindrance.

Is the rule of the majority absolute?

Turning to a more theoretical point, the typical rebuttal to any effort from the EU to examine the quality of democracy in a certain Member State is that the government in question enjoys a majority in parliament and, the argument goes, in a democracy the majority gets to decide on everything, so “deal with it”. This line of reasoning is erroneous as it is based on a misunderstanding about how the democratic state—the republic—evolved throughout the ages.

Ancient Athens is often depicted as the cradle of democracy. Where the Athenian democracy deviates from the modern conception of this political system is in its lack of a clearly defined corpus of primary law on which to establish its legal order, and which would limit the power of the demos. Ancient Athens was prone to demagoguery as it lacked an effective system of checks and balances. The “rule of the many” would thus often descend into ochlocracy_ _(mob rule), to a form of tyranny by the sheer force of numbers. It is this decadent form of “majority rules” that sentenced Socrates to death while forcing many a great mind into exile, including Aristotle.

In the modern era, when we apply the term “democracy” we are in fact denoting a constituted polity, a compact between government and citizens, a virtuous cycle of popular and state sovereignty; founded on a clearly-delineated corpus of primary law; predicated on the division of the state’s powers; where the executive rules for, by, and with the citizens; where the judiciary is the ultimate guarantor of the legality of the constitutional order; where legislative decisions are adopted by representatives of the citizens in accordance with the majority of numbers, without ever infringing the inalienable rights of the minority and the capacity of every person to exercise their role as citizen in partaking of the common good; and where the political order is bound by the law of the international community at-large, with the universal values it establishes (my definition, so do not take it at face value).

It thus is important to stress that in modern republics the majority does not exercise unbridled control over the entirety of the state. It is bound by the constitution and the legal order it founds, its decisions are reviewed for their compliance with the law by independent courts, while citizens either independently or via organised media outlets maintain the right to express the full array of their opinions, including criticism for the government. A constitutional reform that aims at restricting the access of citizens to the commons or the common good (res publica), and/or that seeks to place the government above any effective system of accountability, can no longer satisfy the criteria for qualifying that polity as a democracy.

The idea that the “majority rules”, if taken in its own accord, is a perversion of the republican model, a throwback to the times when any circumstantial majority could commit crimes under the pretense of being just by virtue of its preponderance. Since “ochlocracy” is not a perfectly accurate term for the present, it is best to describe illiberal regimes that appear to be democratic as majoritarian.

There is a fine line separating the legitimate exercise of authority by a clear majority in parliament from a majoritarian form of oppression. One needs to make an evaluation of the particularities of the case before offering their definitive judgement on the matter. What is certain though, is that without a well functioning system of democratic checks and balances the majority will have nothing to prevent it from abusing its power.

Understanding the specifics

Poland’s new government will be dealing with the European Commission for the coming weeks and months. As of now, it is not clear whether the European Union can indeed guarantee the rule of law in one of its Member States, due to the fact that it does not seem to have the most credible and effective of mechanisms in place. Only time will tell whether the Rule of Law Framework will yield any tangible results. Perhaps a modest expectation is that it will not be particularly successful, though it will teach policymakers important lessons that they will have to put to use when they inevitably amend the Union’s primary law.

In conclusion, it always is challenging to examine the internal affairs of a nation state you know little about. Any individual attempt from its political actors is judged in the absence of crucial information, such as the historical context and the contributing factors of the new state of affairs. These problems are compounded by the fact that a foreigner may not have direct insight into that country’s public opinion, due to the linguistic barrier. To this end, the constitutional identity of each state cannot be simply evaluated against a set of ideals that may or may not apply to other countries. The analysis has to account for the prevailing conditions and the manner in which any constitutional amendment takes place. The Commission seems to understand this.

To that end, the sociological account provided by Gavin Rae regarding the “Liberal Roots of Polish Conservatism” is a reminder that any given problem has its own set of causes and that no one party to the argument necessarily holds the higher moral ground. Gavin Rae notes:

In response to the actions of the new government a new opposition movement has arisen. The problem is that many of those now standing up for democracy are the very people that helped to create the economic system that excludes so many and serves so few. For the past 18 years they have ignored the social clauses in the constitution that state such things as people having the right to form trade unions; that citizens shall have equal access to a health care system funded by the state and that the state shall promote low-cost housing. They have spent the past 2 decades denigrating the state; undermining its social rights and trying to avoid its obligations. And even now, this liberal milieu – represented strongly in the Polish parliament – propose yet more economic liberalisation and privatisation to cure the woes of the country. However, as the sociologist David Ost has regularly pointed out, the turning away of the Polish intelligentsia from the working class and poor created an anger within society that helped to generate the growth of right-wing conservatism that we see today. In the mainstream public debate it is now the conservative right that talk about such things social inequality and poverty.

The above granted, a dubitative approach does not justify remaining silent in the face of evidence about the degradation of republican norms in a given state. Furthermore, being inquisitive about a nation’s constitutional reform does not imply that the country in question is the only one that falls short of the standard and that the other EU Member States are paragons of democracy and justice. Assumptions of this sort need to be set aside, giving way to a case-by-case study that relies on a fixed set of benchmarks to reach its conclusions.

This is not about the rest of Europe teaching Poland lessons in democracy. That would be insulting, pretentious, and hypocritical given the continent’s recent history. What the Commission’s Rule of Law Framework is about is whether the constitutional reforms that a national government has the right to put forward are in line with the European acquis; something that is an obligation of every nation state that has ratified the EU Treaties. Time will tell whether the Commission’s initiative will enjoy any kind of success in preserving or restoring the rule of law.