Evaluating democracy, the rule of law and fundamental rights in the EU

The defence of universal norms needs to be broadened beyond Hungary and Poland and beyond the rule of law.

There is currently a lot of discussion in Europe about democracy, the rule of law and fundamental rights. The European Commission and the European Parliament have submitted their proposals, on what should examined, in what framework—and by whom.

But to understand what is at issue, the concept of ‘rule of law’ must first be considered more closely. The English term seems clearly expressed: laws lay down what is permissible—and what is not.

This is a definition favoured especially by the Hungarian prime minister, Viktor Orbán, the leader of the Polish Law and Justice party, Jarosław Kaczyzński, and their supporters. In every case, it is said, appropriate Hungarian or Polish laws exist for all that is criticised by the European Parliament and the commission, by the Council of Europe and indeed by many judges, lawyers and citizens in their own countries.

In reality such a definition falls short. In the narrow sense, it could apply to many autocracies and dictatorships, which none too seldom have laws for discrimination, exclusion and persecution.

Democratic rules

But the European Union is an association of democratic states. Of course, laws determine what is possible—and what is not. At the same time, however, our laws also have the function of protecting democracy and the democratic rules of the game, as well as the fundamental rights of all.

Today, coalitions of two or more parties rule in many European countries. Orbán and Kaczyzński can rely on absolute majorities in their parliaments. Yet, wherever they are, democratic governments are bound by the rules of the game—for example, orderly procedures, which pay attention to the rights of the opposition, the parliamentary minority, sustaining democracy and diversity of opinion.

The same applies to the allocation of funding. Public monies must only be used for the purposes envisaged in each case. And all municipal and social organisations must be able to receive such funds—independent of whether they affiliate to the governing party, support it or associate with the opposition, adopting a stance critical of the government.

Special role

In this context, the judiciary has a special role to play. On the one hand, it must be able to apply the laws of a democratically constituted state in a manner independent of parties and governments. On the other hand, it must be able, in the light of the constitution, to examine independently whether new instruments protect its principles, the democratic rules of the game and the rights of the citizenry.

The media also have a special responsibility on all these issues. They should report freely and critically, ask questions, highlight abuses and where necessary touch a raw nerve. This is an important element of democratic control and an important contribution to an informed public. Only thus can we get a comprehensive picture, compare our opinions and experiences with others and so continually scrutinise our own positions, consolidating or changing them.

The rule of law is thus much more than the mere existence of laws as the foundation for the conduct of a government. In a democratic constitutional state, it is always also about the protection of democracy and the defence of fundamental rights—about equal opportunities, combating discrimination and the cohesion of society.

Infringement procedures

At the European level, in the context of critical disputes, there were initially attempts to correct developments, stemming from the Hungarian and Polish governments in particular, by means of infringement procedures. Evidently these met little success, given the continuing dismantling of democracy in these member states and the increasing curtailment of rights.

Moreover, the so-called article 7 procedure, introduced via the Amsterdam treaty and supposedly sharpened by the Nice treaty, has proved ineffective. Under the article, the European Council can decide by unanimity to suspend certain rights of a member state deemed to be in ‘serious and persistent breach’ of the values inscribed in article 2 of the Treaty on European Union.

At first, representatives of the European People’s Party in the parliament disdained this procedure—comparing it to a political ‘atom bomb’—and thus denied for years a clear parliamentary decision. (This only changed in the run-up to the last European elections, when the EPP’s leader, Manfred Weber, presented himself as its Spitzenkandidat.) And the European Council did not see itself as in a position to recognise the developments in Poland and Hungary as problematic and draw the consequences—although the treaty expressly foresaw this, with the support of only four-fifths of the member states needed to declare the ‘risk’ of such a ‘serious breach’.

The commission, as guardian of the treaties, is responsible for the implementation and practical application of commonly adopted laws, but also for the protection of democracy and fundamental rights, as laid down in article 2. But only the council can decide on real consequences—which it has not done so far.

Falling short

The European Parliament is therefore convinced that the debate on the rule of law must always be about the triad of democracy, rule of law and fundamental rights. We certainly welcome the annual report on the rule of law, which the commission presented for the first time this year, but we believe that it falls short, as the areas of democracy and fundamental rights are not explored.

The experience of recent years also shows that it is not enough to consider developments only in individual countries. For the current situation, with infringement procedures and article 7 proceedings against Poland and Hungary, makes it all too easy for Kaczyzński and Orbán to claim that criticism of their governments is unfair—that is, a purely political calculation.

This is why the European Parliament has long called for a comprehensive mechanism for the evaluation of democracy, the rule of law and fundamental rights in all member states, building on the parliament’s 2016 proposal and the commission’s annual report on the rule of law. It should be governed by an agreement among the three institutions (including the council) and lead to an annual monitoring cycle of all member states for all aspects of article 2, including recommendations with clear targets and timetables for implementation.

Failure to implement the recommendations should then lead to concrete measures, including article 7 infringement procedures but also conditional application of budget allocations, to which the parliament is also committed in the negotiations on the Multiannual Financial Framework 2021-27.

That way broad, objective and fair consideration and evaluation of national rules and developments should be secured. It would be a step towards finally breaking the deadlock in the council.

Overall picture

This is not just about the isolated consideration of individual decisions or laws but always an overall picture. For example, in the appointment of judges or top officials, it is not only a question of who plays the role of signing the instrument of appointment. It is also important to know who can propose the appointments to begin with and whether and to what extent judges or top officials can be controlled or really restricted in their work. All these aspects, taken together—the independence, quality and efficiency of national justice systems—determine whether an effective administration of justice is secured in which citizens can trust.

In its demand for a mechanism for democracy, the rule of law and fundamental rights in all member states, the parliament is therefore, not without reason, committed to the consultation of external experts. We can draw on a wide network of different experts in human-rights institutions, equality bodies and other institutions and associations.

In addition to the Venice Commission of the Council of Europe or the United Nations Refugee Agency, UNHCR, there are for example associations of judges and lawyers, associations of journalists such as Reporters Without Borders, the EU Fundamental Rights Agency, the European Data Protection Board, European welfare associations, Eurojust and networks against radicalisation. These are all organisations in which people from different countries and with different experiences and competences can be found.

All these competences and experience should be brought together in one panel. This should play a decisive role at all phases of the annual monitoring cycle, from the preparation of contributions flowing into the cycle to support in the application and monitoring of country-specific recommendations. Of course, such a panel should not be in competition, for example, with the commission as guardian of the treaties. However, the commission itself often engages external experts, in such a way that good co-ordination and co-operation is ensured.

Public consciousness

The debate thus enabled could go far beyond consideration of the conduct of governments and states. In a continuous process, at the end greater mutual knowledge and common recognition could emerge, as to how—united in diversity—we strengthen our democracies. A broad public debate is also an opportunity to instil the significance of democracy, the rule of law and fundamental rights more meaningfully in the public consciousness. For our democracy needs more active democrats. We often take our democracy too much for granted, and we are perhaps too uncritical of individual manifestations in our own country—because things are ‘still going very well’ in comparison with others.

The debate on universal norms should therefore not only take place as an exchange among institutions and experts but should reach as many people as possible and demonstrate what democracy, the rule of law and fundamental rights—and their restriction—mean for people and social cohesion. The planned Conference on the Future of Europe could be one element of that. Democracy, the rule of law and fundamental rights are indispensable foundations—as for other pressing questions about the future.