In this episode of the Liberal Europe Podcast, Leszek Jażdżewski (Fundacja Liberté!) welcomes Heather Grabbe, a Senior Fellow at Bruegel, a Visiting Professor at University College London and KU Leuven, and a former director of the Open Society European Policy Institute in Brussels. They talk about the rule of law conditionality vis-à-vis EU candidate countries, why the EU was unable to discipline its member states on the rule of law issues, what is the way forward for the new European Commission on the rule of law, and why member states should be engaged in this process.
Leszek Jażdżewski (LJ): Why the rule of law and enlargement are (and should be) so closely interlinked?
Heather Grabbe (HG): We have always had concerns about preparing the European Union for enlargement and making sure that when countries join, they are able to apply EU law. Back in 1993, when the EU first set conditions for Central and Eastern European countries, one of the key conditions was that the country must have stable institutions guaranteeing democracy, the rule of law, human rights, and respect for protection of minorities. There was also another condition, which referred to the ability to meet all of the requirements of membership – including the application of EU law. This has always been there because the European Union is a community of law.
It was, however, taken for granted in previous enlargement that once a country had been through the accession process, once its judges and officials had been trained in EU law, its institutions had reached a degree of stability which the member states and the European Commission were satisfied that they could do all of these things, then it would stay like that forever and the institutions would carry on applying the rule of law.
Of course, what we saw a few years after the enlargements of 2004 and 2007 were problems with governments deliberately rolling back the rule of law in order to consolidate the power of one party and to make sure that they could control the judiciary and other state institutions – not only running the government, but also violating the separation of powers and extending their power into other institutions, so that it would become very difficult for any other political group or anybody with a dissenting opinion to oppose them.
There is now a revived interest and concern about the rule of law for two reasons. First of all, because of the prospect of Ukraine and Moldova joining the Balkans in the accession process. They now have the candidate status and so the question if when they might start negotiations. The second major concern is about the erosion of the rule of law within the EU itself.
Tackling both of those aspects is going to be extremely difficult because once a country is a member of the European Union, they can block attempts to improve the situation in the area of the rule of law and to restore the separation of powers. This is what we have seen in the past few years.
LJ: How can we do this differently this time around? And how to get Hungary on board?
HG: It is not going to be easy because the same government is still in power – unlike in Poland, where now a new government is forming, which may well be amenable to improving the EU’s capacity to ensure the rule of law and revamping the accession process. Poland is a proof that it is still possible – even after a long period of rule of law violations, as well as increasing state capture and government control of the judiciary, it is still possible for an opposition coalition to win an election.
This is a great news this year and it shows that it is still possible. However, it is going to be a long road for the government to restore independence to state institutions, because to do so quickly would require using the same kinds of tactics as the Law and Justice (PiS) party used to take them over in the first place. I very much hope that the new government will not want to do it that way.
On the other hand, in Hungary, there is still a ruling party that has been in power since 2010. The Fidesz party has a very firm grip on state institutions. The state capture has gone a very long way there. As a result, the ruling party is not going to want to see stronger measures at the EU level to ensure it. So, that is going to be a conundrum, because the countries that have succeeded in capturing state institutions do not want the EU to be able to force them to release their grip on those institutions.
LJ: How should we transform the European Union to prevent rule of law violations from happening again? Can Brussels and member states control the internal policies of a given state? Or maybe we should take it for granted that once you are ‘in’, we do not have to keep an eye on you anymore?
HG: It is not the care that rule of law problems never happened before the Eastern enlargement. This is not a uniquely Central European problem. There were plenty of rule of law problems in, for example, Italy under Berlusconi’s government already in the 1990s. Berlusconi tried very hard to take control of parts of the judiciary – and he did succeed in taking control of quite a lot of media in Italy.
So, this phenomenon has emerged in other member states, but it never went as far as what we saw particularly in Hungary and Poland in the 2010s. It has become really extreme. In Italy, there was always a functioning opposition as well as some free media, which were able to talk about this (same in Poland). Meanwhile, this has gone further in Hungary during that period.
The question is how to make the dynamic positive. The book that I wrote on the EU’s transformative power is all about how the dynamic becomes positive in candidate countries, because in addition to the negotiating process, which is based on rational choices and negotiations based on interests. In addition to that going on – which is definitely happening as both sides are negotiating for their interests – there is also a socialization and constructivism process, whereby people become used to the idea that they are negotiating not between them and us, but between and about the future us. That they are negotiating with the people who will not just be on the other side of the table in the future, but actually, on the same side of the table. That tends to occur both on the EU side and in the candidate country, because its accession is a process of historical importance. It is so much the integration of a country into this bigger regional political body.
It is not like a trade negotiation, where you meet, you agree, and then you go your separate ways. It really is about the future us. As a result, there is a lot of influence that the European Union has in candidate countries, where people – officials and judges, but also academics and civil society – start to want to understand the EU better in order to do things ‘the EU way’, because this is going to be the future of their country.
There is a lot of adjustment that is going on – which is beyond what the European Union tells countries to do. In fact, when one looks at the accession requirements, they are not so very detailed on a lot of issues. For example, on independence of the judiciary, there are not very detailed guidelines on exactly what an independent judiciary has to look like or how constitutional courts should be set up, because the EU actually has a huge variety of arrangements in its member states.
As a result, the EU does not dictate ‘This is what a country has to do before joining.’ It relies on the socialization process, whereby they realize that they need to have an independent judiciary, they need to be able to apply EU law in different ways, and gain understanding of how this should work in their own system and how this system should be adapted.
This process requires a voluntary and willing adaptation to what the EU would need to apply the rule of law in your country. In the past, every government that wanted to come into the EU has tried – to a greater or lesser extent – to do what in the Treaty is called ‘sincere cooperation’ by the government in trying to apply EU law. Sometimes, there have been problems with lack of capacity or institutions that were not working very well. We saw that in Romania and Bulgaria when they came in in 2007. This is why the EU put in a post-accession conditionality – called the ‘cooperation and verification mechanism.’
However, on the whole, the governments have tried rather sincerely to be ready to apply EU law. This is why it came as a shock when quite a few years after accession, the Fidesz government in Hungary started rolling back on independence of the judiciary and started taking over the media. The EU did not really know how to respond. It was not so much that the dynamic stopped working, but that the dynamic is just different once you are inside the EU.
Normally, for most countries, once they join, people continue to apply EU law and continue to maintain the independence of state institutions and separation of powers, because it is part of what becomes their democratic tradition. Why that did not happen in Hungary is a really interesting question. There was clearly an openness in the Hungarian politics for a party to come and justify its actions in taking over state institutions in ways that people did not object to. There were protests in Budapest and other cities – we have seen that – but, somehow, there was no political force.
The opposition was very weak and discredited. When Fidesz came back in 2010, they were unable to rally people in favor of separation of powers and democratic practices in institutions. There are many PhD theses to be written on the subject of how they managed to do that.
Meanwhile, in Poland, the opposition remained strong. There were huge rallies of people, mobilization of young voters and women – also because of specific measures that PiS put in. All this made it possible to change the situation – this, however, has not been possible in Hungary.
LJ: Will EU membership need to be made conditional on certain behavior?
HG: It would be very problematic to have different tiers or classes of membership, where the countries that are already in can do whatever they like, whereas the countries that are only just joining would face a very long period when they do not have full voting rights or access to the EU budget. If that was conditional only for new members, then accession would not really be ‘accession’ – accession would only really happen once a country had fully joined the European Union. For Ukraine, in particular, that would be unacceptable given all the suffering and problems that the war has brought.
Introducing that kind of conditionality would be tricky. However, what we could think about doing is introducing conditions on the rule of law for new members that would also apply to the old members. After all, the accession treaties are primary law – they are intergovernmental agreements which become part of the treaties of the European Union. So, for example, if Ukraine joined with provisions in its accession treaty that said that if there are serious problems with the rule of law, then the European Council could have a vote about it with unanimity minus one – or even minus two – so that the country concerned could not veto action or that access to the EU budget could also be restricted based on the rule of law conditionality with a decision by qualified majority.
These are new provisions that could be introduced in the accession treaty that could apply to Ukraine, but also to the old member states – they could then become something that applies to everybody. This would still require all of the member states to agree to that provision in the accession treaty, which would need to be agreed on unanimously and ratified by every member state. This, in turn, would depend on having a government in every member state that were willing to live up to those conditions and felt that it was fair for every country – not just the new member.
We might well get to that situation because it has now been so long (13 years) of problems with the rule of law. It has such a big impact on the whole functioning of the European Union – on values, democracy, the application of human rights, gender equality, and a whole range of other EU values – that, in addition to values and democracy problems that it has caused, it is also deteriorating the functioning of the European Union.
It is harder and harder for the EU to make decisions about things like not only aid to Ukraine, but also foreign policy stances and so on. When you have one or two member states saying all the time ‘no, no, we will not agree to this until you give us our money or until you remove the conditionality on the rule of law’, then that is causing all kinds of problems to the functioning of the EU.
This, of course, is also very damaging to the single market, because the whole point of the level playing field introduced by the Single Market is that companies can operate in any member state like in their own. But this does not work if companies cannot get a fair hearing in the courts in another member state, because the courts are controlled by the ruling party or if there is corruption, which means that they cannot bid for public procurement contracts without paying bribes to the ruling party, oligarchs, or family members of cabinet ministers. Then, the Single Market is not functioning properly and the community of law – which is the very fundamentals of the EU – is not functioning well either, because EU law is not applied evenly across the member states.
These kinds of problems become more and more fundamental, and this is why, at some point, the other member states will keep adding to the ‘rule of law toolbox’, which is whereby (in addition to all of these annual reports on conditionality on funds and so on) other conditionalities will start coming into place.
LJ: Are we facing a ‘Hungary fatigue’? Will member states decide to push Hungary out if it continues to not comply with EU law?
HG: This is a real conundrum because there is no provision for pushing a country out of the European Union. It can leave only voluntarily. However, since the disaster of Brexit, no country wants to do that. There were populists who considered leaving and argued in favor of ‘Frexit,’ ‘Nexit,’ or ‘Huxit,’ but these ideas disappeared, because nobody wants to have the kind of experience that Britain has had.
Still, it is very tricky, because the countries that stay inside the EU, but then their governments erode the EU’s values and its functioning from the inside are, in many ways, much more problematic than the countries that leave. The rule of law crisis is a creeping cancer inside the UE, which could ultimately prove fatal to the European Union. It is far more dangerous to EU’s health than Brexit was.
Brexit was an amputation which was very nasty for both sides as it caused a lot of bleeding, damage, and pain, but the body of the EU recovered and healed. Meanwhile, you cannot treat it like this when you are dealing with the erosion and the damage to the fundamentals of the EU from the inside.
I do want to distinguish between Hungary and the ruling party Fidesz. People like to talk about the ‘Hungary fatigue’ and Hungary’s problems – yes, that is something that has been happening in the country of Hungary, but it does not mean that every Hungarian supports it, just like not every Pole supported what PiS did in capturing the judiciary Poland. It is important to remember that there are still protesters and opposition in Hungary. It just has not succeeded in overcoming the very tight grip that Fidesz now has on state institutions. But there is still hope that this might happen at some point in the future – although it becomes increasingly difficult as it is getting harder to have free and fair elections, because of the degree of state capture.
However, there is definitely huge concern among the other member states now. Other prime ministers and foreign ministers really do not like criticizing their peers. There is a ‘gentlemen’s club’ element in the European Council, in particular, where the heads of states and governments avoid doing that.
This is why they looked the other way for so long after Fidesz came back into power and began doing these things. They were hoping that the antidemocratic unpleasantness would just go away or that the government would change – as was the case in other countries (like in Slovakia, where the government change several times over the last couple of decades, or in Poland). Now, there is a growing realization that it is very hard for any democratic opposition to overcome of Fidesz’s control of the media, social media, and institutions.
This issue also has an effect on other member states, because it is about EU taxpayers’ money. Dutch Prime Minister Mark Rutte really pushed the issue of conditionality on EU funds, because he saw it as the Dutch taxpayers’ money being siphoned off and misused in Hungary. We know that there is corruption and many other problems. This also applies to taxpayers from other member states.
Therefore, the concerns about the functioning of the EU are driving this motivation. However, no solution has yet been found, because the EU treaties and its legal framework never made any kind of provision for this kind of a turn by a member state. Silvio Berlusconi did that in Italy, but he was pushed out of power and a series of technocratic governments managed to restore independence to the judiciary.
This can be done, but the question is at what point other member states give up hope that it could happen also in Hungary – that it is feasible to have a change of government – and whether they regard the damage to their own economies and to the overall system of law and to their taxpayers trust and faith in the EU budget and their willingness to pay into it. That is the point at which there will be a real crunch. But although there is plenty of pressure right now, still no decisive moment or event has happened that would force the heads of states of governments to say ‘Hey, enough is enough, we really have to change this now.’
LJ: What should be the roadmap for the new European Commission in light of a great variety of populists and nationalists that may potentially enter the European Parliament? What should the Commission do in regard to the rule of law? What should be its next steps?
HG: The European Commission’s capacity and political room for maneuver in tackling the rule of law is very limited because of its institutional role. It is the guardian of the treaties, but it is very politicized. It has a commissioner from every member state – including the countries where governments are rolling back the rule of law. There are a lot of influences of the political parties as well.
The Commission is always very reluctant to criticize or tackle a particular member state. For example, if we look at the infringement proceedings, they are the last resort – the Commission does not like taking their mistakes to court and tends to want to negotiate with them. Even in the area of the rule of law, the Commission is now doing annual reporting in this area, but it still has to negotiate with the member state governments on their individual national reports. This is why the European Commission cannot fully play the role of a watchdog for the rule of law because of its institutional relationship with the member states.
The Council, on the other hand, where the member states sit, must be much more active and important on this. They have to overcome the ‘glass house syndrome’ and the ‘gentlemen’s club’. They should really take issue with the problems that are damaging all the member states and the whole community of law.
There is also a role for the European parliament in having a much more active debate about this. There have been moments when the Parliament has had important debates – and even initiated the Article 7 procedure on Hungary – but then the Council did not follow up. The Parliament could continue on that line and be much more active on it.
Fundamentally, we are going to need a new institution of some kind. An independent institution that would be able to assess whether rule of law violations are taking place, and then recommend action. The idea put forward by the Franco-German expert Group of Twelve of having an integrity mechanism is a good one, but it probably needs to be an independent institution – like the Ombudsman – which would not be fully located inside the Council or the Commission because of how the system works. It could perhaps be another chamber of the Court of Justice of the European Union or another part of the office of the Ombudsman.
We are going to need some kind of an independent institution that can say very clearly when and how the rule of law is being violated, and then force the Council to make a decision about it. Then, Council decisions made by QMV would also help a great deal.
There are ways forward and the Group of Twelve made a number of important and useful recommendations in this respect. However, it is still, of course, up to President Macron and Chancellor Scholz to take that group’s recommendations and make them their own policies. Therefore, the question is at what point will they be willing to do that.
If there are large numbers of radical right-wing populists in the European Parliament the next time around, it could be more difficult because we might see erosion of the rule of law also in other member states. There is already a question whether this might happen in Slovakia, there have been attempts to do it in Slovenia, the Czech Republic, and Italy. The rule of law has not been perfectly applied in France from time to time. So, this is not a uniquely Central European phenomenon. It is an issue that now all of the member states are going to have to tackle.
This podcast is produced by the European Liberal Forum in collaboration with Movimento Liberal Social and Fundacja Liberté!, with the financial support of the European Parliament. Neither the European Parliament nor the European Liberal Forum are responsible for the content or for any use that be made of.
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