Political scientist Tommaso Pavone on neglect of the rule of law: ‘The European Commission has all too often been a bystander’

Hungary is no longer a democracy, according to the European Parliament, and the European Commission wants to withhold 7.5 billion euro of EU funds destined for Budapest. But simultaneously, the Commission is negotiating with Viktor Orbán’s government to find a way to not punish Hungary at all. Political scientist Tommaso Pavone thinks this is exemplary for the Commission’s approach to rule of law issues in the last decades: political bargaining behind closed doors, instead of using the full force of the law. ‘The guardian of the European treaties has abandoned ship.’

Italian-American political scientist Tommaso Pavone investigates how the European Union defends the rule of law, or rather how it fails to do so. He works in the desert city of Tucson in the United States, as assistant professor of Law and Politics at the University of Arizona.

He discerns a worrying development in Europe that threatens the rule of law, the foundation of democracy. In Hungary and Poland, where under the policies of Viktor Orbán and Jarosław Kaczyński, the judiciary has been gagged and corruption is rampant.

Less and less often, the Commission is rapping Member States on the knuckles when they fail to comply with European law

After the recent election victories of the nationalist parties Fratelli d’Italia in Italy and the Sverigedemokraterna in Sweden, the question is resurfacing whether other countries will also turn away from European values and law. European Commission President Ursula von der Leyen even fired a warning shot ahead of the Italian elections: ‘We will have to wait and see the result of the vote in Italy. If it goes in the wrong direction, we have the means to intervene, as in the case of Poland and Hungary.’

But according to Pavone, we should take these tough words with a grain of salt. Late last year, he and R. Daniel Kelemen, professor of Politics and Law at Rutgers University, turned the spotlight on the ‘means’ to which von der Leyen refers.

In their publication Where Have the Guardians Gone?, they show that the most important task the Commission has – upholding the rule of law – is largely neglected. Less and less often, the Commission is rapping Member States on the knuckles when they fail to comply with European law. What are the possible consequences?

The rule of law is a hot topic in the European Union. Yet, can we say there is a rule of law crisis?

‘Absolutely. In 2010, Fidesz won the elections and obtained a supermajority in the Hungarian parliament. It proceeded to gradually change the constitution, undermine judicial independence, undermine media freedom, start various forms of attacks and harassments of civil society that drove the Central European University out of Hungary.

Even though there are elections in Hungary that are nominally free, since 2014 they have become decidedly unfair. It’s not clear whether the Fidesz government can still be ousted from power via the regular means of democratic contestation. International ratings bodies as well as social scientists who track these things, now agree that Hungary is the first full-fledged competitive authoritarian regime in the EU.

When the Law and Justice (PiS) party then won the elections in Poland, promising to bring ‘Budapest to Warsaw,’ the Polish government mimicked the Fidesz blueprint for autocratization, thereby broadening the rule of law crisis beyond Hungary.

Two weeks ago, the European Commission proposed to withhold 7.5 billion euros of European funding to Hungary. Is this a significant change in course?

‘It appears as if the EU is acting forcefully when it’s actually capitulating’

‘Yes, it’s a step forward, but the devil is in the details, and I’m worried that this is yet another red herring that makes it appear as if the EU is acting forcefully when it’s actually capitulating.

First, let’s remember that the Commission could have triggered the Conditionality Regulation immediately, yet out of deference to Hungary and Poland it waited two years before doing so. Second, there are solid legal arguments for cutting 100 per cent of EU funds to Hungary under the Regulation, yet the Commission chose to pursue a much narrower approach. Third, the Commission opened the door to conciliation on condition that the Hungarian government promises to undertake some anti-corruption reforms.

So in the end, I don’t think  that this signals a significant change of course from the conciliatory, “too little, too late” approach that has characterised the Commission response to the rule of law crisis.’

What do you mean when you say ‘too little, too late’?

‘One of the first things that the Commission did in 2012, when the Hungarian government began undermining the rule of law, was to launch an infringement proceeding against the government over a seemingly technical issue: lowering the retirement age of the Hungarian judiciary. This matters because in a civil service judiciary you get promoted not only on the basis of merit, but also on the basis of seniority. So when you lower the retirement age you cut off the senior leadership, which allows you to then appoint judges who are more in line or more sympathetic to the government and its policies.

This showed that the Commission prefered to bring Hungary to court over a very specific technical violation which it thought it could prove beyond the shadow of a doubt. And as academics Kim Scheppele and Kriszta Kovács argue, the Commission won a formal victory that it didn’t blunt the Hungarian government’s attack on judicial independence, since most forcibly retired judges were compensated rather than returned to their original posts.

‘This chamber enables politically appointed judges to discipline lower level courts when they apply European law’

What's really remarkable is that since then, the Commission has started no infringement proceedings related to the undermining of judicial independence in Hungary. It has been a bit more willing to take Poland to the Court of Justice, particularly in response to the PiS government establishing a disciplinary chamber within the Supreme Court. This chamber enables politically appointed judges to discipline lower level courts when they apply European law, or when they dare to refer cases to the European Court of Justice.

On the 15th of July 2021, the Court of Justice ruled that the disciplinary chamber violated EU law and that it had to be dismantled immediately. Yet, the Polish government ignored this judgement even after a daily penalty of 1 million euros was introduced. Only when the Commission threatened to cut off Poland from the Recovery and Resilience Fund (RRF) over these violations did Warsaw promise to abolish the controversial disciplinary chamber.

So you see a situation where the Court is saying one thing while the Commission is giving the Polish government more room to breathe.’

Isn't there a logic to picking smaller issues against Hungary or Poland where the Commission is pretty sure they can prove their case, instead of making it about a huge issue like the rule of law, with the risk of losing in court?

‘There's definitely a logic to bringing smaller cases before court, but it has historically not been the Commission’s litigation approach.

The first thing we should note is that the Commission has consistently won the vast majority, about 90 percent, of the cases it brings to the Court of Justice. Most of the time, the judges in Luxembourg and the legal service of the European Commission see things in the same way. They are in sync with one another. That brings me to the second point. We know that the Court of Justice has been sending signals to the Commission to be more ambitious in bringing rule of law related infringements. So I don’t think that a desire to improve the chances of winning by bringing relatively small cases before the courts is a persuasive interpretation of the Commission's reluctance.’

So what does explain the Commission’s reluctance?

‘R. Daniel Kelemen and I have seen in our research that the Commission has deliberately pursued a new approach to law enforcement over the last twenty years. That approach is what we call forbearance. Forbearance is when an executive actor with the responsibility to enforce the law, such as the Commission or a Member State government, chooses to deliberately under-enforce the law.

Forbearance is not unique to the EU or to the Commission. Think of a politician or policymaker who wants to gain greater political support, especially before elections. They can rein in prosecutors and back down on enforcement against particular partisan or electoral constituencies, in order to increase their political support.

But it works differently at the European Commission because it is not directly elected by voters. So what the European Commission is worried about instead, is that there will be a decline in intergovernmental support for its policy agenda. The Commission is the sole EU institution legally capable of initiating and proposing legislation. But in order for that legislation to be approved, it needs to receive the support of European member states.

‘As a consequence, the Commission’s approach to enforcement is sometimes not about enforcement or non-compliance at all’

Around 2005, the Commission under the new leadership of President José Manuel Barroso, got worried. There was a proliferation of eurosceptic parties across many member states, and then the Dutch and French voters rejected the European constitutional treaty. This increasing sense of a eurosceptic backlash led to growing concerns within the Commission that intergovernmental support for its policy agenda was in jeopardy.

What the Commission hoped for, at the time, is that by holding back on annoying law enforcement actions against national governments for not complying with European law, it could change the tide.

As a consequence, the Commission’s approach to enforcement is sometimes not about enforcement or non-compliance at all. Enforcement decisions can be about something totally different, like the ability to pursue its legislative agenda and to safeguard political support from member governments.

So the European Commission decided they would rather deal with lawbreaking member states behind closed doors instead of in open court?

‘You're absolutely right. And that is because within the old system, the Commission found itself continuously in embarrassing situations. During meetings of the European Council, its Commission’s President, José Manuel Barroso, would routinely be lambasted by heads of government. German Bundeskanzler Gerhard Schroder and French president Nicolas Sarkozy would routinely pull Barroso aside during Council summits and say: what is up with all these infringements that you’ve launched against our country?

To avoid this kind of confrontation, which undermined his and the council’s policy agenda, Barosso desperately needed a new way of approaching infringement issues with Member States.’

Talks instead of proceedings

Under Barroso’s leadership, in 2007 the European Commission launched what has become known as the EU Pilot procedure. It is a voluntary, informal procedure between the Commission and EU Member States designed to resolve non-compliance issues without having to open a formal infringement proceeding. This procedure, argues Pavone, is partly to blame for the dwindling number of infringement cases launched by the Commission.

Today, the Commission’s referrals to the European Court of Justice are at the lowest rate since the 1970s: only two or three cases per member country each year.

Yet, perhaps more importantly, according to Pavone, it illustrates the fundamental shift in how the Commission deals with rule of law issues. ‘Publicly, the Commission touts this procedure as a problem-solving tool: it basically says member states want to comply with the law, but sometimes they are not aware of their legal obligations. So rather than coming in and immediately slapping a country with a lawsuit, it decides: let’s talk with them. But what this system really does is allow the political leadership of the Commission to substantively intervene to block particular investigations.’

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What are the consequences of this approach, that prefers talks over proceedings?

‘The EU Pilot procedure completely cuts off complainants – citizens, interest groups, civil society – from this dialogue with member governments. But complainants provide really important fire alarms for the Commission to become aware of potential non-compliance. So if a national government claims that it is actually in compliance, it would be really useful for the Commission to turn to the complainant to ask, do you have any counter evidence? But it does not do so.

Since the EU Pilot was established, civil servants in the Commission are often informally urged to take the member governments’ word that they are not breaking any rules, rather than to engage in a public confrontation over any potential non-compliance issues.’

You think that the Commission is neglecting its task of protecting the rule of law. How can the Commission be held to its obligation?

‘“The guardian of the Treaties” has abandoned ship. And when the guardian stops guarding, I think there are two ways to exert pressure on the Commission. The political avenue is to find creative ways to use the European Parliament to apply more and more pressure on the Commission. I think the Parliament has really woken up in the past three or four years, and is increasingly naming and shaming the Commission for not doing more to enforce the law by asking pointy questions and publicly criticising the Commission’s behaviour.

The second avenue is through court. Just in the past couple of weeks four associations of judges brought an action of annulment before the EU’s General Court, challenging the approval of Polish recovery funds by the Commission and the Council.’

Judges take action

Early September of this year, four organisations representing European judges filed a lawsuit against the Council of the European Union over its decision to agree to Poland’s Covid-19 recovery plan, while Poland refuses to implement changes in its rule of law.

These organisations – the European Association of Judges, the Association of European Administrative Judges, Judges for Judges and MEDEL, an association representing European judges and prosecutors – argue that the Council approved Warsaw’s Recovery and Resilience Plan despite the Polish government’s non-compliance with judgments from the Court of Justice regarding judicial independence.

Another organisation, The Good Lobby Profs, an NGO aimed at protecting the EU rule of law, which provided legal support for the case, issued a statement saying that ‘judgments of the Court of Justice’ should not be used as ‘bargaining chips’ and that the European Commission and the Council of the EU have both breached their duties ‘for reasons of political convenience’.

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‘What we're seeing is that civil society organisations and associations of judges and lawyers increasingly take on the role of “guardian of the Treaties” themselves.

There are a lot of legal scholars that are sceptical about whether these sorts of initiatives will succeed. But since the autocrats in Hungary and Poland are very creative in circumventing their EU legal obligations to undermine the rule of law, it takes creativity and quick thinking to keep up with them.’

Is the European Commission partly responsible for the rule of law crisis in which the EU finds itself?

The Commission cannot be accused of supporting the undermining of the rule of law – that responsibility lies squarely with the Hungarian and the Polish government. But the Commission has all too often been a bystander, and it has not realised that in doing so it is letting down citizens and civil society who rely on the Commission to serve as a vigorous “guardian of the Treaties”.’