Rule of law has become a buzzword in the European Union. This week, the Council of the EU will meet to evaluate its annual Rule of Law Dialogue, and Belgium and Germany have proposed a Periodic Peer Review Mechanism for rule of law matters. The Commission and some Member States want conditions tying rule of law to funding decisions. The Commission announced the introduction of a Rule of Law Review Cycle to monitor developments in Member States, and the Commission and the Parliament have initiated procedures under Article 7 against certain Member States. Hungary is one of them.
Such enthusiasm and haste leave no room for questions. For fear of sounding politically incorrect, many are reluctant to ask even the most basic questions about rule of law and its protection in the EU. So to help out, here are a few facts about the rule of law that you always wanted to know but never dared ask.
Is rule of law a set of universally applicable objective criteria? No. It lacks well-defined rules and remains the subject of much debate internationally and among national constitutional bodies and academia. Concern for the rule of law should pay greater respect to the specifics of Member States and not try to impose an artificial, one-size-fits-all framework.
Is rule of law really under pressure in the EU? Yes, but not for the reasons that many claim. On the contrary, no longer a constitutional principle, rule of law is increasingly used, as Prime Minister Orbán has said, “as a political weapon” which will eventually discredit it as a generally shared value.
Does the EU have general competence in rule of law matters? No, in fact the plan by the outgoing Commission to introduce a regular rule of law review runs completely contrary to the Treaties. Primary responsibility rests with Member States and national institutions. Article 4 of the Treaty specifically says that the Union shall respect the national identities of the Member States, inherent in their constitutional structures. This enthusiasm in the EU for imposing rule of law criteria looks like Brussels asserting control in areas where it has no competence. The fact that you want to do something doesn’t give you the right to do so. Those who set out to defend rule of law should know this best.
Is the debate actually about issues related to rule of law? Not really. A Member State can have a strict migration policy and still hold fast to the rule of law. Restoring the natural balance between individual liberty and community interests does not violate the former. We have differences in: how we relate to the Christian roots of Europe, on the role of nations and national cultures; how we see the nature and mission of families in our societies; and in our approaches to migration. But to claim that a Member State no longer belongs to the community of values at the heart of the EU simply because it holds different positions on issues like this would create a dangerous precedent and undermine the very foundations of European integration. “I wouldn’t recommend we reach a situation in Europe when a prime minister or any other official visits another country to scold them about the rule of law,” said Prime Minister Orbán recently, “because that can be conducive to many things but certainly not to European unity.”
Are rule of law criteria necessary for the protection of the financial interests of the EU? No. The proposed conditionality in its current form runs contrary to the Treaties and mixes the protection of the EU’s financial interests with safeguarding rule of law in a way that it ultimately achieves neither one. And when the EU already has tools to protect its financial interests, we don’t have to reinvent the wheel. Amidst budget negotiations, it seems like just another bargaining chip.
Have rule of law related initiatives in the EU contributed to the community of values so far? No, as the Article 7 procedures have clearly shown. Many allegations raised by the European Parliament as rule of law issues were simply incorrect. They had already been resolved with the Commission, the Venice Commission or the Court of Justice. Trust among Member States is the foundation of the Union. Most proposals replace trust with institutionalized mistrust, constitutional dialogue is replaced by expectations of unilateral alignment and cohesion is further weakened by divisions.
Am I a bad European, if I say no? No. Europe stands at a crossroads – because of the new institutional cycle and the budget negotiations and because of the broader challenges we are facing. The EU must focus on the real tasks before us. Sometimes this requires not only the courage to ask the right questions but also the courage to say no.
Judit Varga is Hungarian Minister of Justice.
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