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European Union: Legally Binding Rule of Law Mechanism in the Works


For years the Members of the European Parliament (MEPs) have expressed their worries over the degradation of the rule of law and the rise of illiberal tendencies within certain member states of the European Union (EU). On 7 October a Slovak Member of European Parliament, Michal Šimečka from the liberal RE, wrote a proposal to demand a legally binding mechanism to protect EU values such as the rule of law. The proposal argues that the current methods of the EU to protect the rule of law are insufficient. The MEPs in their proposal argue for an evidence-based tool that would apply to all EU member states equally and fairly.

A rule of law mechanism has widespread support among Europeans. In a survey commissioned by the European Parliament and conducted online by Kantar in October 2020 in 26 EU member states, 77% of Europeans agree that the EU should only provide funds to member states who oblige to the rule of law and democratic principles, which work as fundamental values of the EU.

On 5 November a preliminary agreement on a rule of law mechanism was reached between the European Parliament and the European Council (the heads of states of EU member states). In this agreement a rule of law mechanism is proposed, potentially cutting funding of EU member states. The agreement is closely linked to the new budget and the COVID-19 recovery package of 1.8 trillion, which is still being debated.

The mechanism would work as follows: the European Commission, part of the executive branch of the EU, by a qualitative assessment establishes a possible breach of the rule of law and proposes to trigger the rule of law mechanism against an EU member state. The criteria of breaches are wide. They cover not only cases of fraud, but also abuses of EU fundamental values, such as democracy, threatening the independence of the judiciary and human rights. After this proposal, the European Council proposes measures against the EU member state. Possible measures are, among others: suspension of payments, early repayment of loans, and reducing existing funding. These measures should be passed by the European Council within three months (a demand by the MEPs) by a qualified majority of 55% EU member states who represent at least 65% of the EU population (a demand of the European Council).

Party lines

The proposal in the European Parliament was accepted by a large majority of MEPs. 521 MEPs voted in favour, which constitutes 75% of the parliament. 152 MEPs voted against and 21 MEPs abstained.  The majority was formed by the centre-left S&D, liberal RE, left-wing GUE/NGL, the Greens/EFA, and the centre-right EPP. Iratxe Garcia, the leader of the S&D in the European Parliament, called the agreement a ‘victory for the European Union’ and Manfred Weber, leader of the EPP, has called the agreement ‘historic’. The groups who were against the proposal are the right-wing ID and the national-conservative ECR. Polish ECR MEPs from the governing PiS argue that the agreement is not in line with the July summit of the European Council. During this Summit, the EU leaders agreed to introduce a rule of law conditionality for receiving EU funds. Within the EPP group there is division concerning the agreement. Hungarian Fidesz MEPs and two Slovenian MEPs voted against the EPP party line on the issue. Hungarian MEP Hidvéghi Balázs called the agreement on Twitter ‘madness’ and a ‘political weapon’. Further, seven French EPP MEPs, representing the Republicans, chose to abstain from voting.

The effectiveness of the proposed mechanism

If the rule of law mechanism is passed, it would send a strong message that the EU stands firm on safeguarding its values and that it does not stand for the erosion of these values among its member states. A large majority of Europeans, as shown by the October survey, favour such a mechanism. Thus, the mechanism would most probably increase the positive opinion of Europeans on the EU.

Nonetheless, there are worries concerning the effectiveness of the mechanism. A complicating matter is that the rule of law is an internationally contested concept. In the Treaty of the European Union, the rule of law is described as a ‘value’ that all EU member states share. There is no clear definition of the rule of law. Another aspect is that the mechanism needs a qualified majority to be passed. Though a qualified majority is more easily achievable than unanimity, it is still difficult to obtain, especially considering that the Visegrad group (Poland, Hungary, Slovakia, and the Czech Republic) often vote on the same line. Poland and Hungary, further, are not and will not be the only EU member states which are backsliding on their rule of law. Other examples include Romania, Bulgaria, Malta, Czech Republic, Slovakia, and Croatia. Voting in favour of triggering the mechanism for one country might set a precedent which they could find ahead of themselves later along the way.

The current stand

The agreement still has to be officially approved by both the European Parliament and the European Council in order to take effect. On 16 November the Hungarian and Polish governments blocked the budget and COVID-19 recovery package due to their opposition to the rule of law mechanism. Vetoing the deal would further strain the already tense relations of Hungary and Poland with the rest of the EU member states.

The MEPs have stated clearly that they will not compromise further on the agreement. European Commission President, Ursula von der Leyen (CDU-EPP), also put pressure on Hungary and Poland saying that if they disagree they should take the judicial road and not block the budget. A large burden now rests on the shoulders of the current German EU Presidency to come to an agreement. A solution is likely to be reached during the European Council Summit on the 10th of December.