Von der Leyen’s new Commission should strengthen scrutiny over rule of law abuses

There are many questions over how the new EU Commission under chief, Ursula von der Leyen will tackle rule of law problems inside the bloc’s borders.

In a July speech to the European Parliament, von der Leyen asserted there should be no compromise on the rule of law and supported making the rule of law an integral part of the next EU budget. But in a subsequent interview, she hinted at a more ambivalent stance, stating that “achieving the full rule of law is always what we are aiming at. Nobody is perfect.”

Protecting Europe from its autocratic side will be one of the new Commission’s main challenges. During the last decade, we’ve seen multiple examples of EU leaders undermining the checks and balances to preserve human rights and the rule of law against executive overreach.

In Hungary, the authorities adopted a bill on non-governmental organisations receiving foreign funding that eerily – and intentionally – resembles Russia’s “Foreign Agent” Law which criminalised legitimate humanitarian activities under the disguise of curbing migration. The Orbán government forced a university out of the country which it deemed too liberal and increased control over public universities. In Poland, the government eroded courts’ independence and targeted independent groups working on women’s, LGBT and migrant rights. In both countries, media pluralism plummeted. There are further examples from Romania, Malta, Bulgaria and Croatia, too.

Von der Leyen’s Commission should be resolute in defending the values that the EU is founded on. That means keeping up momentum on existing efforts and looking for new tools to complement them.

Re-energise Article 7

Proceedings against Poland and Hungary under Article 7 – the treaty mechanism to deal with EU governments putting the Union’s values at risk – are a mixed bag. In both cases, European Affairs Ministers in the Council spent excessive time on procedural technicalities. But Council scrutiny has reinforced efforts by the Commission and the European Court of Justice (ECJ) and broken the taboo that Article 7 is unusable.

The Commission should ensure the Council is well-informed so it can continue to scrutinise Poland and Hungary’s actions - and consider whether other EU states merit similar referrals.

On Poland, EU states dragged their feet waiting for the ECJ’s decisions on key cases. In two rulings in June and November, the ECJ said that Polish laws violated judicial independence. Judges continue to face harassment and retaliatory disciplinary procedures. The new Commission and the Council should closely monitor whether the Polish government is respecting both their own recommendations and the court’s rulings (it hasn’t so far).

It took EU ministers a year after the European Parliament triggered Article 7 to convene their first review of Hungary with the second one this week. The previous Commission was reluctant to give its full backing to Article 7 proceedings against Hungary. That should change.

Von der Leyen was right when she called the Commission the independent guardian of the EU Treaties. So, it is not enough for her to defend the values of democracy, rule of law and human rights. She needs to back the only treaty-based mechanism to address breaches of those values.

Rule of Law and EU funding

In May 2018, Jean-Claude Juncker proposed a new mechanism to limit states’ access to EU funds if they don’t respect the rule of law. It is an established principle that independent courts and the rule of law are essential to avoid corruption and fraud in the use of EU funds.

This tool could hold to account governments that undermine EU values while benefitting from significant amounts of EU funding. Hungary is among the largest per capita recipients of EU funding, and Poland is the largest overall net recipient.

Von der Leyen and her commissioners should advance these proposals. First, the Commission should set out how it would mitigate any potential impact on the economic and social rights of people in the countries affected if access to funds were to be suspended. People should not suffer the consequence of their governments’ misconduct. Second, criteria for using this tool should be broadened to include government efforts to undermine other institutions that hold the executive to account and promote human rights. This includes independent media and civil society.

Threats to European democratic values are real - but they can be stopped. Juncker’s Commission was far from perfect but it did show a determination to address threats to EU values. Von der Leyen should ensure the same.

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