Better Late than Never? On the European Commission's Rule of Law Framework and its First Activation

Abstract

This article first offers an overview of the European Commission's Rule of Law Framework, which was adopted in March 2014. The mechanism's potential effectiveness and the Commission's reasoning to justify its first activation against Poland in January 2016, when it has failed to do so against Hungary, are subsequently analyzed. While the Commission should be commended for seeking to address increasing rule of law backsliding at Member State level, our main submission is that reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an ‘illiberal’ regime.

The EU’s ‘actions-without-sanctions’? The politics of the rule of law crisis in many Europes

“…6 In the same speech he underlined that the rule of law represents a crucial element of Europe's self-image and emphasizes the EU's ability to promote the issue vis-à-vis a host of international fora, including the Council of Europe, World Trade Organisation, the International Court of Justice and the UN. 7 In addition to promoting the EU's external self-image, the globalist vision helped the Commission to strengthen its leadership and its inter-institutional bargaining power vis-à-vis the Council and the EP (Bergström et al, 2007;Kochenov & Pech, 2016;Oliver & Stefanelli, 2016). In the end, it was also the Commission that activated Article 7 for the first time against a member country (Poland) in 2017.…”

The Possibility and Desirability of Economic Sanction: Rule of Law Conditionality Requirements Against Illiberal EU Member States

“…Therefore, reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, cannot remedy a situation where systemic violations of EU values form part of a governmental plan to set up an 'illiberal' regime, as happened both in Hungary and Poland. 71 Hence, it is a legitimate question whether the Commission should have started an Article 7(1) procedure in the first place, and preferably not only against Poland but against its forerunner, Hungary in parallel, in order to avoid that Hungary -as Prime Minister Orbán already indicated in early January in the Hungarian public radio 72vetoes the sanctions of Article 7, which requires unanimity. 73 But one has to take into account also that Article 7, especially in the case of new Member States, which are very dependent on EU funding, is unlikely to be the most effective tool without the threat of rule of law conditionality requirements.…”

Containing Populism at the Cost of Democracy? Political vs. Economic Responses to Democratic Backsliding in the EU

“…It can no longer be taken for granted that EU member states are on a forward trajectory in terms of democracy and the rule of law (Kelemen, 2017;Kochenov, 2015;Kochenov and Pech, 2016;Scheppele 2017, Oliver andStefanelli, 2016). In the 2019 edition of the Freedom in the World Index, Hungary dropped below the threshold democratic indicators required to be categorized a 'Free' country -the first EU member state ever to do so.…”