James McKendry (University of York)
As the Covid-19 crisis continues, it is further highlighted that we are truly living in the ‘EU crisis years’. The crisis years began most ostensibly with the Eurozone Crisis and has been punctuated in the interim by a number of ongoing crises, which include the Ukraine Crisis, the Refugee Crisis, Brexit and the Rule of Law crisis. This situation is termed the ‘Polycrisis of the European Union’. Demonstratively, the Polycrisis has exerted and continues to exert uncertainty on the 27. Despite this uncertainty, what is –almost– certain, is that the Brexit transition period is coming to an unceremonious end on December 31st 2020, and one of the EU’s most Eurosceptic members will depart the Union. Some commentators, such as Guy Verhofstadt have suggested that Brexit is “an opportunity to reduce the complexity of the Union”. This would be in keeping with some prevailing voices in EU studies (especially contemporary neofunctionalism), which argue that crises can act as a predictor for integration, owing to its capacity to highlight functional dissonances which necessitate integrative solutions. Of course, neither Verhofstadt nor those in EU studies that see crisis as an integrative predicator are arguing that Brexit is a definitive path to a more integrated Union. But it is one of several potential outcomes. Contrastingly, this commentary will argue that any reduction in Eurosceptic heterogeneity will be offset by the thus far unresolvable rule of law crisis. It will argue that the existing treaties are ill-equip to manage this threat to the EU’s core principles, and that whilst awkward partner departs, another remains.
The UK as an awkward partner
The argument that the UK is an ‘awkward partner’ to the EU is based in its demonstrative history of Euroscepticism in the UK, both amongst political elites, and its electorate. For example, Pewresearch has demonstrated that in the years preceding the Brexit referendum; the UK had consistently ranked in the top 3 most Eurosceptic countries in the EU. Similarly, Eurobarometer polls have consistently indicated a Eurosceptic preference in the UK. Of course, under closer inspection this is less clear when we recognise that the UK’s preferences have been diverse, with examples of historically integrative positions on topics such as the Eastern enlargement among others. However; the point remains that domestically the UK represented a high rates of Euroscepticism, and on issues such as financial burden sharing, opt-outs and rebates, the UK has retained a largely coherent intergovernmental preference. However, almost in unison with the UK’s decision to depart the EU, a second group emerged as a new ‘awkward partner’, the Visegrád 4.
The next/continuing awkward partners
The Visegrád 4 (Czech Republic, Hungary, Poland and Slovakia) traces its composition back to a series of summit meetings in the town of Visegrád, Hungary. It is an association that was created to facilitate the cultural and political integration of its members and to enhance economic cooperation between states. All of which ascended to EU membership during the 2004 Eastern Enlargement and each of which initially enjoyed a largely positive relationship with the EU institutions. Contemporarily, the Visegrád’s relationship with the EU has become more complicated, with one commentator stating the in recent history the group has transitioned ‘from poster-children of transition to the EU’s troubled teenagers’.
Where did it go wrong?
A respect for the rule of law is enshrined TEU Article 2, wherein it is identified fundamental value of the EU. In the years following their 2004 accession to the EU the Visegrád states, accession had an aggregately positive impact on respective democratisation. However, this commitment to the rule of law has not remained. Famously in 2014, the Visegrád de facto leader Viktor Orbán declared “When I mention the European Union, I am not doing this because I think it is impossible to build an illiberal nation state within the EU… I think this is possible… and “so in this sense the new state that we are constructing in Hungary is an illiberal state, a non-liberal state”. Subsequently Orbán systematically weakened the rule of law by curbing the powers of the constitutional court, while attacking press freedom, attacking non-governmental organisations and launching assaults on academic freedom in Hungary. In a similar expression of democratic backsliding, the ruling PiS party in Poland has led a consistent assault on its judiciary by implementing judicial reforms which undermined the independence of the courts by putting them under more direct government control, we have also seen the tragic emergence of self-declared “LGBTQ free zones” across large parts of Poland.
In the Czech Republic, the state of the judiciary is comparatively more independent than in Hungary and Poland, but corruption is a widespread issue. For example, MEPs recently raised vocal concerns that the Czech prime minister Andrej Babis’s company Argofert was misappropriating EU funds. Whilst in Slovakia, a previous a European Parliament resolution was passed which raised clear concerns about the rule of law in Slovakia because of “allegations of corruption and impunity in Slovakia’s governing circles”. So, in each of the Visegrád 4, there are grounded and real concerns that the rule of law is not being respected. The institutions of the EU have recognised the importance of resolving this crisis and have repeatedly attempted to implement the Article 7 mechanism in order to preserve the foundation of the EU.
Article 7: elusive and unattainable
As the treaties exist in their current format, there is no mechanism to remove a member state from the EU against its will. The most severe mechanism that does exist is TEU Article 7. This is subdivided into two mechanism, Article 7(1) and Article 7(2-3). The former is the “preventative arm”, wherein 1/3 of Member states, the Commission, or 2/3 of the EP can identify a clear risk of a serious breach of the values in article 2 TEU. If a serious breach is identified then a meeting in the council takes place wherein (by a qualified majority) a vote is conducted to determine if a breach has taken place. If a breach has taken place, a recommendation will be issued. The latter, more serious mechanism, is the corrective mechanism, initiated by 1/3 of member states or 2/3 majority of the votes cast representing the majority of MEPS. Which then follows a similar format to preventative arm. However, the issue is that the corrective arm culminates in vote by unanimity in the Council (minus the concerned state). So, any state which is undermining the rule of law requires only a single ally in order to escape any meaningful action.
Reigning in the Awkward partner
The use of article 7 to resolve the Rule of Law Crisis began in June 2015, when through Article 7(1) the Commission instigated infringement proceedings against Hungary. This attempt however failed to gain traction, and similarly, in October the same year a second infringement procedure related to Hungary’s mistreatment of migrants was voted down. In January 2016, the Commission began Article 7 proceedings against Poland for continued attacks on the Judiciary, which led to a final report which concluded “after two years, the Commission can only conclude that there is now a clear risk of a serious breach of the rule of law”. In September 2018, the European Parliament voted in favour of action against Hungary for its continued undermining of the value enshrined in TUE Article 2. However, action failed to materialise.
In February 2020, the leaders of European Parliaments five groups issued a joint letter to Council President Charles Michel, and Croatia’a EU affairs state secretary, Andreja Metelko-Zgombic (which held the rotating presidency at the time), which highlighted concerns that the Article 7 procedures are incapable of resolving the rule of law crisis. Such sentiments were mirrored in an October 5th 2020 European Parliament report, which again highlighted the failings of article 7. So why then is progress not made? It is because of the unanimity clause in Article 7(3). So, in order to achieve the final purpose of the Article, all states (barring the concerned state), must agree. In practice the Visegrád states will never allow the vote to pass, for example the Czech government made it explicitly clear that it would veto any Article 7 Council proceeding “the Czech Republic should stand up for Hungary in its dispute with the European Union, not only because it is a close ally, but because the Czechs themselves could one day find themselves in a similar position.” Similar commitments exist between Hungary and Poland, that if the vote ever reaches the Council, they will exercise their right to veto it.
Despite these continued attempts if implementing article 7, and despite the coverage that Article 7 has attracted, the Rule of Law Crisis continues. On September 30th, the Commission published its first rule of law report which examined both the achievements and failings of all member states. Unsurprisingly, it found that Hungary and Poland (and to a lesser extent its Visegrád partners) had continued their assaults on the rule of law. On the eve of the report being published, its Autor Věra Jourová, Vice-President for Values and Transparency stated in an interview with Der Spiegel that Hungary was building a “sick democracy”. But as has been identified, the EU institutions are powerless to act because of a blocking coalition that exists in the Visegrád. Article 7 is elusive and inconsequential, undermined by design to allow coalescing states undermine the core values of the EU with what is largely impunity.
What can be done?
Despite the gloomy picture painted by the ineffectiveness of Article 7, a potential solution does exit and is attracting extensive attention. This comes with the radical suggestion to link the disbursement of EU funds to a respect of the rule of law during the current Multiannual Financial Framework negotiations (MFF). This an idea that is supported by 77% of EU citizens. Hungary receives around 2.5-3% of its GDP from EU funds, whilst in Poland the figure is 2%. When we consider that in the Hungarian example, the entire agricultural sector equates to around 3.5 of GDP, we can understand just how substantial conditionality in disbursement would be. However, as is consistently the case, achieving the much-needed conditionality clause is a Sisyphean task. Orban has already succeeded in watering down previous attempts at conditionality rules during the July 2020 summit. A situation that led to Dutch PM Mark Rutte to state “Can you make a budget via an intergovernmental agreement, or can you found an EU without Hungary and Poland?”. Contemporarily, Budapest is now pushing to negotiate the Rule of Law clause as part of a wider package in order to prevent MEPs from exercising greater oversight over the text final stages of the MFF budgetary talks of which unanimity is still a requirement.
So, the MFF potentially offers an opportunity to resolve what is arguably one of the greatest barriers to the EU’s future, the constant resistance to the basic principles of the EU in the Visegrád. Without a conditionality clause for financial disbursement, the existing mechanisms are not equipped to resolve the crisis and the EU is will be managing its newest awkward partner ad infinitum. Further, as the Commissions September 30th report cautioned, the trajectory of the Rule of Law in East is heading in the wrong direction. Finally, we must remember that the Rule of Law crisis is much than just an issue for the integration of the EU. It is a humanitarian consideration, and a crisis that is an affront to the freedom of millions of the Union’s citizens. We cannot let technical discussion distract us from what is the main concern, the lived experience of millions of citizens, who, like the LGBTQ community in Poland, are not being granted the rights afforded to them by both EU and international law.
It has been shown that the Visegrád, particularly Hungary and Poland, have continued their assault on the rule of law and that the existing mechanisms are powerless to redress the issue. So, linking this back to the first section, without an effective alternative, the notion that Brexit means that the EU is opened up to a less complex Union is largely untrue. The Union will continue to remain divided along one of its many cleavages. But, unlike debates around debt to GDP ratios or financial backstops, the assault on the rule of law undermines the very founding principles of the EU and without a solution threatens to fundamentally challenge the future of the European project.
James McKendry is a PhD researcher at the University of York. His research focusses on European (dis)integration and the polycrisis
Image credit: “Konferencja po nadzwyczajnym szczycie Grupy Wyszehradzkiej” by Kancelaria Premiera is marked with CC PDM 1.0