Strengthening the Resilience of the Rule of Law through Democracy
For almost a decade now, the European Union (EU) has been struggling with the erosion of the rule of law in some of its Member States. To explain these multifarious distortions in the EU, the IEP explored the various pillars of the rule of law resilience, culminating in the recent RESILIO report. Based on data from 27 Member States, unsurprisingly, the independent judiciary and effective public administration prove to be key for the functioning of the rule of law. To remain resilient, the rule of law needs a solid democratic political culture anchored in a robust civil society, independent media, and a sound public debate. Henceforth, a long-term investment in democracy is the best way to strengthen the resilience of the rule of law.
Problems with the rule of law resulted from the dismantling of democratic foundations
The rule of law has become a buzzword in recent years due to the conflict between the European Union and its Member States Poland and Hungary. This led European institutions to introduce the conditionality mechanism and eventually freeze EU funds. Nonetheless, time will tell how effective these new defence mechanisms are.
The governments of both countries, led by Viktor Orbán and Beata Szydło and later Mateusz Morawiecki, respectively, were defending their reforms in the name of national sovereignty. The capture of the public national media by individuals or institutions close to the ruling parties, the flow of public funds to the so-called GONGOs (government-organised non-governmental organisations), nepotism in state-owned companies and interference in the EU’s single market rules, or even intrusion in university curricula and the independence of science was met with criticism home and abroad. However, it was the assault on the systemic foundations of the state − the separation of powers and the independence of the courts − that brought the Hungarian and Polish governments on a collision course with EU institutions and made the rule of law a mainstream topic.
In a nutshell, the dispute over the rule of law began in earnest when the United Right government in Poland followed the footsteps of Fidesz in dismantling the democratic foundations of the state. Accordingly, the rule of law crisis became a systemic problem for the EU. Article 7 of the Treaty on European Union (TEU), which allows for suspending voting rights in the Council of the European Union, was first triggered against Poland by the European Commission in December 2017. Paradoxically, the same procedure against Hungary was followed at the request of the European Parliament only in September 2018. Arguably, the past membership in the largest group in the European Parliament − the European People’s Party − extended the safety umbrella over Orbán.
Defending the rule of law from the EU level: preventive and corrective measures
For almost a decade, the European Commission, the European Parliament, and the Council of the European Union have tried to influence both governments and set an example for potential copycats. In the meantime, the EU’s rule of law toolbox has grown considerably. The European Union is not only an economic project but also a union of values. As the guardian of the Treaties, the European Commission should act whenever EU law is broken, including the values and principles enshrined in Article 2 TEU. The initial reluctance to resort to hard measures and the scarcity of specific tools dedicated to rule of law problems suggest it never crossed the minds of the founding fathers and mothers of the EU that, having gone through the arduous accession procedure, and in view of the many benefits of EU membership, any Member State could ever go backwards in its democratic standards.
The instruments to uphold the rule of law include preventive measures (which aim to identify risks in order to prevent actual breaches of EU law) and corrective measures (which aim to prevent further breaches of the rule of law in a Member State). Preventive measures include reporting (the EU Justice Scoreboard or annual Rule of Law Reports) and formal channels of political dialogue. Corrective measures are legal tools (infringement procedures before the European Court of Justice) and financial tools (penalties and the recently introduced conditionality mechanism). Article 7 falls in between, containing both a deterring element (initiating a procedure and calling for a corrective action) and a sanctioning element (which can end up in suspension of a member state’s voting rights).
None of the above instruments is a silver bullet for intentional rule of law breaches, as the applied measures follow the principle of proportionality depending on the scale of identified problems. Their goal is also primarily to act as deterrents when the severity of the consequences outweighs ad hoc political gains of possible rule of law violations. The effectiveness of the conditionality mechanism is yet to be tested. However, it seems that direct attacks on the rule of law are only a symptom and not the cause of the problem, which is the autocratisation and erosion of democracy.
The rule of law resilience through democracy
A broader definition of the rule of law, also adopted by the European Union, requires “all public authorities to act within the limits set by the law, in accordance with the values of democracy and respect for fundamental rights (…) and under the control of independent and impartial courts”. It also means legal certainty, prohibition of arbitrariness of power, transparency, and pluralism in law-making. However, when the rule of law is violated, how can one protect it?
While the rule of law is the backbone of any democratic system, the erosion of democracy makes it vulnerable to attacks. Wannabe autocrats often invoke democratic justifications to legitimise attacks on the rule of law that constraints their claim to express “the will of the people”. If democratic erosion can lead to attacks on the rule of law, then – vice versa – its resilience depends on many factors that contribute to a functioning democracy. Systemic foundations, social phenomena, and contextual circumstances can strengthen or weaken the resilience of the rule of law. According to the recently published report “What makes the rule of law resilient? Evidence from EU27”, summarising the 2-year-long research project “RESILIO” carried out by the Institut für Europäische Politik in Berlin and funded by Stiftung Mercator and the Citizens, Equality, Rights and Values Programme of the European Commission, the rule of law resilience is grounded both in sound legal and institutional foundations of the state and the condition of democracy. The study did not focus on the functioning of the rule of law but on its resilience from the perspective of a wider democratic system. It aimed to identify factors supporting the resilience of the rule of law in EU member states. The conceptual model, which builds on three resilience dimensions (the systemic, the subsidiary, and the contextual one) and comprises nine empirically measurable resilience factors, was filled with data for EU27 obtained through desk research: existing databases and indicators. A standardised ordinary scale was developed to measure the rule of law resilience on a spectrum from zero to ten, when 0 meant no resilience at all and 10 stood for perfect resilience. The analysis not only ranked EU Member States according to the rule of law resilience, but also gave an overview of the strength of different resilience factors across the EU.
Unsurprisingly, the most important resilience factors turned out to be institutions: public administration and the judiciary that adhere to the principles of independence from political pressure, good governance, transparency of appointments, and absence of corruption. However, the resilience of the rule of law also requires something more. The agency proactively addresses violations. The responsiveness to react immediately. And bouncing back to defend and rebuild the weakened rule of law. Civic space – understood as informed, active citizens and freedom of association and assembly – is an essential foundation for protecting the rule of law, as the Polish experience has shown.
Other key resilience factors are independent and pluralistic media and a sound public discourse. The media not only protect the quality of public debate but can also perform a monitoring function as watchdogs, ensuring access to information and accountability of the authorities. These factors were crucial in Poland after 2015 when the rule of law made its way into the public debate and mobilised opposition voters. Political pluralism and a functioning electoral system that enabled the change of power also played an important role. In contrast, the growing concentration of media markets in the EU and specifically in Hungary threatens the space for public deliberation and accountability. Henceforth, to protect the rule of law, one must safeguard access to information, raise the rule of law awareness, exercise political pressure from the bottom up on decision-makers, and mobilise the voters to enable democratic rotation and transition of power. Finally, the most crucial factor in defending the rule of law turns out to be the attitudes and reactions of people: citizens, judges, journalists, and politicians.
The RESILIO report provides food for thought not only at the national level but also at the European level. The defence of the rule of law has so far responded to specific attacks on independent courts, the division of power, and legal certainty. However, one should not forget long-term efforts to strengthen its democratic bedding: civic education, creating space for independent civic initiatives, supporting the independent media, and countering disinformation in the public debate.
Today, problems with the rule of law are emerging in other EU Member States, not only in Hungary, where the consequences of democratic backsliding for the rule of law are painfully vivid. Slovakia, Italy, and Greece reveal some worrying trends and the rule of law issues appear in France and Spain, too. The recovery from the rule of law crisis in Poland will be slow for legal reasons and due to political obstacles. In view of the enlargement plans, according to which the EU would prospectively grow to more than 30 Member States in the near future, these issues should be addressed as soon as possible. The defence and strengthening of the rule of law in EU Member States should be the priority for the new European Commission after the 2024 EP elections, especially in view of the growing popularity of populists with autocratic inclinations in many European countries.
