Lando Kirchmair is a professor of national and international public law with a focus on the protection of cultural heritage at Bundeswehr University, Munich.
The rule of law is in decline, worldwide, and Europe is no exception. Democracy isn’t faring any better, and the question mark lingering behind political economist Francis Fukuyama’s concept of the end of history is growing.
Recently, it seems, the European Union has even been willing to sell out the last vestiges of the rule of law in Poland, in response to the country’s undisputedly brave stance in helping Ukrainian refugees and facing the imminent threat of the war on its borders. But if simply complying with the law is labelled a “milestone” for which immense sums of money from the EU’s recovery plan are being sent as a reward, it isn’t helpful for restoring the rule of law.
Criticism of the bloc’s measures to improve the rule of law and democracy in Europe is commonplace in EU law scholarship nowadays. And faced with the hybrid regimes within the EU, expectations for a strong commitment to the bloc’s core values, enshrined in Article 2 of the Treaty of the EU, have been met with disappointment all too often, especially by the European Commission.
But the most important – and, so far, largely overlooked – reason why the EU’s performance in restoring and protecting core European values has fallen short is that the EU itself suffers from severe deficits precisely on these same points.
The EU’s democratic shortcomings were a major point of discussion in the 1990s, until the Treaty of Lisbon secured some important improvements to this end, by strengthening the role of the European Parliament, for instance.
Yet, the most recent round of elections to the Parliament — which were very much presented as though the Spitzenkandidaten system were to be implemented — and the process by which the current president of the European Commission was finally selected, were a major disappointment for democracy at the EU level.
The most important political figure in the EU was promoted almost out of the blue. She was crowned by the governments — or rather some of the governments — of the member countries in the Council (at high cost), and the Parliament did not have much say.
The point here isn’t that the Spitzenkandidaten system — a rather specific way of designing political accountability — is the miracle solution to all the problems of democracy in Europe. However, the profound lack of directly attributable democratic political accountability for a key European institution — the European Commission — is an important problem.
And the rule of law isn’t doing much better these days either.
The Commission has failed to take adequate steps to confront opponents of the rule of law on countless occasions in recent years. And a consequence of the EU’s tremendous lack of democratic accountability is that other actors have had to step in to mitigate the most serious consequences of weakened, or missing, rule of law in specific member countries.
So far, this role has singularly fallen to the Court of Justice of the European Union (CJEU)— maybe due to the advantage of understanding the importance of the rule of law for a liberal constitutional democracy — which had to step in on multiple occasions.
The price for these interventions is high, however. In order to safeguard the rule of law in certain member countries, the CJEU, quite paradoxically, has had to put the rule of law at the EU level at risk, as it had to stretch its own mandate quite considerably, to say the least, so that it could protect judicial independence of its individual members.
While the consequences of these decisions are, in some ways, to be welcomed — let’s just imagine for a second what the situation would look like if the Court hadn’t protected judicial independence at all — it still endangers the rule of law at the EU level. And with every progressive step taken by the CJEU, patience is, unfortunately, wearing thin in other EU members, which now have to accept a stronger CJEU position, even if they are “well behaved.”
The rule of law and democracy are mutually dependent; therefore, they can only be protected and fixed together. And fixing them is crucial in enabling the bloc to master the “hybrid regime” challenge it currently faces from its member countries, as the examples mentioned above are no solitary events.
At risk of repetition, it’s also vital to clearly spell out that the erosion of the rule of law and democracy doesn’t only concern member countries, but also the EU itself. Such examples range from disregarding the Spitzenkandidaten system in Parliament elections for the Commission presidency and the removal of General Advocate Eleanor Sharpston, to the fact that the Commission didn’t apply the rule of law conditionality mechanism to Hungary (and is still reluctant to do so regarding Poland) and has been wary of initiating infringement procedures against members that clearly violate EU law.
This is unfortunate because, as we have witnessed for years now, when democracy and the rule of law are in decline, nothing improves by itself. Burying one’s head in the sand, averting one’s gaze, crossing one’s fingers or waiting until the storm might pass aren’t very promising tactics. If nothing is done to prevent attacks on the rule of law and democracy, the situation will simply get worse.
At the EU level and the national level, rule of law and democracy are deeply intertwined in many ways. This is the consequence of decades of European integration. Hence, their decline in specific EU member countries is poisonous for others, and the EU itself.
Just consider one simple example: If the elections in a member country are not free and fair, the political actors voted into power will be acting on the EU level too — in the Parliament and the Commission alike.
The EU must ensure the rule of law and democracy for itself. Only then will it be powerful enough to restore them in all its members.