The EC will approve the initiative how to better punish serious breaches in the rule of law

,,We are tired and frustrated about our inability to intervene when there is a clear rule of law crisis,” said an official aware of the commission’s plan to legislate on the matter for The Financial Times. So would you say that such initiative is really needed, or not and why? Read few comments.

Simon UsherwoodAssociate Dean, Senior Lecturer, Department of Politics, University of Surrey

This initiative really highlights the limits to the EU’s power to change countries. Historically, the main means it has to produce change has been the lure of membership: new member states have to undergo a lengthy process of adjusting institutions and policies in order to join. However, once in, there is little the EU can do to stop backsliding, hence the introduction of control mechanisms like this.

In practice, I would look on this more as a statement of intent, rather than a plan of action, because the resistance from member states against any ‘interference’ will be strong and the willingness of the Commission to pursue cases is also likely to be limited by the desire to keep working relationships with states alive.

Frank HägeLecturer in Politics, Department of Politics and Public Administration, University of Limerick

The first thing to note is that this is an own initiative report of the EP. One of the last remaining oddities of the EU legislative system is that the EP cannot initiate legislation. This report asks the Commission to initiate such legislation, but it’s up to the Commission to decide whether it wants to, so in the end, nothing might come of it.

In terms of substance, recent events in Hungary and Romania have shown that the EU has already a lot of instruments at its disposal to stop or reverse developments that might undermine democratic principles in member states. The member states are now interwoven in such a dense net of European treaty and secondary law that it is becoming very hard for governments to amass power without infringing those laws; and if they do, the normal monitoring and enforcement mechanisms of Court rulings and financial penalties apply. Often, these laws have not been adopted with protecting democracy in mind, but for a quite different purpose. Just to give an example, it would be impossible for a government of the Euro group to bring the country’s central bank under its political control because that would infringe on the provisions on Economic and Monetary Union.

In many instances, these tools might be sufficient already to prevent the undermining of democratic principles, but they might not work in all circumstances and it might be useful to have some kind of mechanism that addresses these developments explicitly as what they are. Naming and shaming often works as much or better as legal leverage. Of course, the risk of a mechanism short of suspending voting rights (which is already provided by the Treaties) is that the threshold to use it might also be lowered. The EU has to be careful not to be seen as meddling unnecessarily in internal affairs, or even take sides in what domestic actors might perceive as a legitimate internal political dispute.

Christian SchweigerLecturer in Government, Department of Politics, Durham University

I think that this new initiative is crucial for the EU as it currently faces a credibility problem. It is very difficuly to explain why aspiring member states are forced to show that they meet all the areas of the Copenhagen membership criteria (functioning democracy, rule of law, respect for human rights and functioning market economy), which includes things like proving that there no substantial levels of corruption, when existing members are in many cases showing high levels of corruption, a disregard for an independent judiciary (like in the case of Italy and Hungary) and also bad treatment of minority groups (again like in the case of Italy, France, Hungary). If the EU wants to be seriously regarded as a normative community which is based on shared values it will have to do more to make sure that not just aspiring but also existing members meet the basic democratic standards such as fair treatment of minorities and ensuring that the rule of law is ensured through politically independent courts.

The problem is of course how to implement this. From what I can see it seems to me that they want to operate this initiative under the loose open method of coordination framework which means that member states will predominantly be monitored and ‘named and shamed’ if they are considered to be in breach of democratic standards.

As long as the EU does not move to a system where member states who are in breach of these standards are actually facing real sanctions (e.g. in the form of temporary exclusion from decision-making in the Council or through financial penalities e.g. cutting off access to structural funds) I expect that little will change.

Overall I think that this initiative goes in the right direction as the EU can only credibly act as a normative power around the world if it ensures that it upholds these values internally. The recent involvement in Ukraine shows how crucial it is for the EU to be a credible promoter of democratic values.

Pavlos EfthymiouPhD Candidate in Politics and International Studies, St. Edmund’s College, University of Cambridge

Let me start by highlighting that this is not the first example of EU capacity to ‘punish’ member states for their conduct. In the past we have had several instances whereby EU funds and support was delayed and or postponed indefinitely effectively because of the inability of the member states to meet certain standards. A case in point is irregular migration and the treatment of the paperless who reach EU shores. Greece and Italy in particular have often faced extensive EU critique and pressure, primarily through key Commissioners, and now there is a new framework for EU treatment of migrants which includes a tougher rights agenda (though again one may say that to help the m-S in question address these issues better, more funding is in order rather then less; but improving the practice is not always primarily and issue of money).

Now, restricting a member states in the participation of the EU democratic processes is a different story and more tricky. If one assumes that the penalty is imposed by the EU because the member state is in violation of certain key democratic principles and/or the EU’s rules and values, then the penalty cannot be the restriction of the member states’ democratic rights in the EU context. Its contradictory and problematic.

All that said, it is clear that the Union must further develop its mechanisms which give incentives and disincentives to member states on the basis of their performance on all fields. In questions concerning citizen rights and liberties the member states must agree upon a set of policies that may increase the pressure on the member state in question, but not pushing it away from the Union’s processes and its democratic umbrella, but immersing it ever deeper, while guiding it back in the ‘right’ course with targeted measures and policies.

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