The EU must face up to its rule of law crisis

There are significant challenges to member states of the European Union (EU) working together, and a growing gap between EU capabilities and expectations.

Interview Published 17 May 2023 5 minute READ

Drawing on their article in the March 2023 issue of International Affairs, Stefan Auer and Nicole Scicluna discuss how the European Union (EU) rule of law is being challenged by states such as Poland, whether the EU can manage that challenge, and what the Russia-Ukraine war means for European integration.

EU member states have different goals to each other, so why do they comply with EU policy?

Nicole: Most states comply with EU legal obligations which is why it is described as a ‘community of law’. There may be a particular issue where a state feels it is in its interest not to comply with a rule, but overall the benefits of having a reliable and well-functioning legal order where everyone knows where they stand outweigh the costs. That also relates to reciprocity: there is an expectation to comply because others do.

There are other reasons too. Adherence to the law is a core value of liberal democratic states and the EU is a club of liberal democracies. It is normal for bureaucrats and administrators to apply the law of their own countries. Then they are socialized over many years of EU membership into having the same attitude towards EU law (which, importantly, is integrated into their own national law).

Stefan: The lack of coercive enforcement is important because its absence makes legitimacy more important. Member states comply because they see these rules and laws as legitimate. As soon as this understanding is no longer there, compliance is likely to decline. From the Polish perspective, many recent steps by the EU are not seen as legitimate.

Nicole: Compliance may also be less likely when it comes to core issues of sovereignty. In the Schengen area of borderless travel, there are six member states (five EU member states and Norway) which have reintroduced internal border controls non-stop since 2015. This contravenes the Schengen rules, but these states appear to have prioritized sovereign prerogatives on this issue.

What makes the EU legal system so different from that of other regional groupings?

Nicole: It is standard that regional organizations are created by international treaties. The European Economic Community (EEC) was created by the Treaty of Rome in 1957 and the EU was created by the Maastricht Treaty in 1992. International treaties may empower a court to interpret the treaty and settle disputes, which is what the European Court of Justice (ECJ) does.

Unlike ordinary international organizations, the Treaty of Rome created a scheme of supranational integration. The ECJ took that supranational foundation and attempted to constitutionalize it, in large part through its interpretation of the principles of direct effect and EU legal supremacy. That is really what sets the EU apart.

However, our International Affairs article is somewhat critical of the court’s constitutional narrative, and view it is a ‘partial constitutionalization’. What makes it partial is the mismatch between legal and political constitutionalism, as the member states’ commitment to supranationalism has not matched the bold agenda of the court.

There is unresolved ambiguity over where the ultimate authority lies, with the EU itself, or with the member states?

Our point is that for the EU to be truly constitutionalized, it would require a conscious political choice. And that has not happened and it is not likely to happen. So even though a process of constitutionalization has been initiated by the court and its supporters, there is unresolved ambiguity over where the ultimate authority lies – with the EU itself or with the member states?

That is not to downplay the court’s achievements or deny the EU’s uniqueness as a regional organization. But we do want to point to the limitations that may be forgotten in the haste to celebrate the uniqueness of the EU.

What is the ‘rule of law’ crisis happening in Europe?

Nicole: The rule of law requires everyone to be treated equally before the law. Another important element of the rule of law is the separation of the judiciary from the executive and legislative branches of the government. In Poland that element is being challenged, and it’s threatening the EU rule of law. The EU rule of law problems do not start or end with Poland but this is a visible manifestation of a deeper problem.

The Polish government, led by the Law and Justice party since September 2015, is trying to bring the judiciary more under its control by managing judicial appointments. It is creating mechanisms that would punish judges who fail to uphold the party line, a serious rule of law crisis.

The Polish rule of law crisis is also a rule of law crisis for the EU

In that conflict, EU law is a secondary target. Since national courts can refer cases that touch on EU law to the ECJ for an authoritative interpretation, Polish judges could subvert the government’s agenda by going outside the Polish legal system to EU law. But a controversial decision of the Constitutional Tribunal in October 2021 – essentially asked for by the Polish government as the tribunal is stacked with its loyalists – called into question the primacy of EU law. The point was to block off that route of Polish judges using EU law to undermine the Polish government’s agenda.

The Polish rule of law crisis is a rule of law crisis for the EU because it affects the application and functioning of EU law within Poland. More fundamentally, it undermines the EU’s identity. What is the EU if not a community of law in which all members adhere to common rules, principles, and fundamental values?

Is the EU equipped to deal with challenges from states like Poland?

Stefan: Many in Poland believe the EU simply does not have the authority and powers to interfere in Poland’s judicial reforms, which is not far-fetched as the law is being overburdened. The law is tasked to address political challenges, which it cannot do, and that is a major problem for EU constitutionalism.

Nicole: The problems the EU is having in relation to Poland and Hungary were not anticipated when the treaties were drafted, and so effective solutions were not built in. It is well-known it is not possible to expel a member state and, until 2009 with the Lisbon Treaty, it was not possible for a state to voluntarily leave. This leaves the EU with limited tools for dealing with democratic backsliding, a problem compounded by the unwillingness of member states to make use of the tools the EU does have.

The EU has the so-called ‘nuclear option’ of Article 7 which suspends voting rights for a member state in the Council. However, member states are reluctant to punish one another and this is a fundamental impediment to using Article 7. It has been formally triggered against Hungary and Poland but in both cases it has gone nowhere.

More recently, there is a new rule of law conditionality mechanism, which can see EU funds suspended for member states not adhering to the rule of law. Both Hungary and Poland receive a lot of EU funding because they are, overall, poorer than the EU average. Now Hungary has had 6.3 billion euros worth of its EU funding cut, will that financial penalty incentivize massive change?

Stefan: I personally think such financial penalties are likely to achieve the opposite of what they are intended to do, because they are likely to cement the incumbent governments. In Hungary, Prime Minister Viktor Orbán has perfected a nationalist posture of ‘everyone hates us, no-one understands us’. Removing funding only adds credibility to that narrative.

What impact is the Russian invasion of Ukraine having on the EU?

Stefan: I am seriously concerned by the growing gap between the EU’s capabilities and expectations. We are being told Ukrainians are fighting and dying for Europe, for the EU, so Ukraine must become a member of the EU. But the more I research, the more sceptical I become about the viability of that proposal.

In the actual fight against Russia, it is the nation states that have been decisive since day one

Even before the war started, Ukraine did not measure up to expectations on the quality of governance needed for EU membership. So if the EU pursues its normal procedures in terms of enlargement there is no way Ukraine will become a full EU member within the next 10-20 years. But geopolitically Ukraine must become a member, so the EU must change to make that possible.

Another problem is that, from the perspectives of Germany and France, the EU needs to integrate further before enlargement can proceed, but there is no support for that. Poland does not support it and I do not think there would be much support for it in Ukraine either. When you examine Ukrainian debates about national sovereignty or the nature of their fight, yes they fight for Europe but they fight for Ukrainian independence. So, to imagine the Ukrainian preference would be for a ‘United States of Europe’ is utterly misguided.

It should be noted that, particularly at the beginning of the war, Ukraine mostly received support from nation states: the US, the UK, and Poland as a member of the EU, but not the EU itself. The EU got its act together eventually and I applaud its efforts with sanctions, support for weapons deliveries, and humanitarian assistance to refugees. But in the actual fight against Russia, it is the nation states which have been decisive since day one.

The EU must face up to its rule of law crisis 2nd part

If a ‘United States of Europe’ is not likely, what does the future hold for the EU?

Stefan: Central and Eastern European member states incline towards a vision of the EU whereby national governments remain masters of the treaties, which is one of the principles that still rules the EU. The prevalent conception of national sovereignty in Ukraine would likely also place it in this camp. Europe should do less, but better. There is no appetite for further unification, there is a feeling the EU is already trying to do too much.

Nicole: On a more positive note, the EU has good track record of ‘muddling through’ – dealing with crises in a piecemeal way as they come up and just doing enough – so it may continue to do that.

Nicole Scicluna and Stefan Auer’s article ‘Europe’s constitutional unsettlement: testing the political limits of legal integration’ is available in the March 2023 issue of International Affairs.