After the summer holidays the dispute over the rule of law is likely to gain new momentum in the European Union. Nonetheless, it is still possible that political pragmatism will prevail because of the need to adopt large aid packages for member states. Governments that are primarily concerned with funds from the EU budget may be interested in silencing ideological conflicts.
However, this may prove difficult, or impossible. The dispute over European values has been gaining significance for a long time now and cannot simply be stopped. It is also evolving in a certain direction: with focus on the rule of law. So those who were hoping that issue was solved after the last EU summit in Brussels may end up very disappointed. There are new ideas circulating within the EU on how to execute the rule of law in member states and how to punish them. The new solutions are, of course, designed primarily for Poland, which every now and then is providing new cases of breaching the rule of law. Interestingly it is not necessarily concerned with Hungary anymore. Politically, Berlin and Paris respect Budapest more than Warsaw these days.
One of the proposals is to turn the European Court of Justice (EJC) into a guardian of the rule of law, the most important principle of the functioning of the Union, on the basis of Article 19 of the EU Treaty. This would not be the first time that European lawyers have conjured up a completely new mechanism of governance from a single sentence drawn from the treaties. In practice, the new solution would take the power to assess the rule of law (and cut funding for member states) from the European Council, as defined in the Article 7, and hand it over to the European Court of Justice. The EJC would also set out the criteria for the rule of law.
If this were to happen, it would mean a real revolution in the EU carried out by legal means. It would completely change the understanding of European values described in Article 2, making the rule of law a real axiological foundation of the Union. The other values mentioned would necessarily have a “lower” rank, as issues on which political compromises can be made. This way, the Union would clearly move towards legalism. Let’s not have any illusions here though: this is just another system of governance where one group dominates the other.
The author is Professor Collegium Civitas