A decisive action against Poland and Hungary for violating the Rule of Law has been vocally called by many in Brussels and beyond. However, EU Institutions have failed to take effective action against their infants terribles so far. This can be explained by Member States’ reluctance to accept EU intrusion in national constitutional matters and by the Commission’s unwillingness to create tensions with national public opinions.
As the current Rule of Law crisis of the EU has unfolded, demands for effective sanctions against Hungary and Poland have been increasing exponentially. These demands are rightful, as more action is desirable in order to prevent other countries from believing they could get away with Rule of Law violations. However, faced with very high thresholds to reach, Member States remain reluctant to approve an EU response to protect the Rule of Law. This renders diplomatic dynamics key in explaining inaction by Member States as well as the European Commission.
As far as the Member States are concerned, the so-called ‘Article 7 procedure’ requires three different majorities to be reached before sanctions can be imposed. Member States need to agree on, respectively, a four-fifths majority in the Council to activate the procedure, unanimity in the European Council to confirm it and a qualified majority (meaning 16 out of 28 Member States) in the Council to finally determine the type of sanction to impose. So why are these majorities so difficult to build? Two main reasons can be put forward to explain this.
Firstly, Member States base their decisions on what would happen if the same claim was directed towards themselves. This arguably makes governments more cautious towards taking action against another Member State, especially when it comes to the Rule of Law, so vital to national sovereignty. This is why a handful of Member States have already suggested that they would veto the imposition of sanctions on Poland or Hungary.
Secondly, voting often follows the patterns of well-consolidated coalitions between Member States across policy areas. We have seen this clearly with the current migration crisis, where a group of Eastern European states coalescing together against migrants redistribution schemes is deadlocking solutions at European level. As a matter of fact, Hungary and Poland have already suggested that they’ll veto each other’s procedure, thereby practically blocking any attempt to impose sanctions, since unanimous consensus is needed in the European Council to do so.
Member States are thus not on the collaborative side of the story, or at least some of them are not. And as we have seen above, “some of them” is enough for the procedure to not work out.
But how about the Commission, the institution in charge of conducting dialogues with Polish and Hungarian authorities so far?
On the Commission’s side, geopolitical arguments are also playing against the activation of Article 7. The strategic position of Hungary in the current migration crisis arguably pushes it towards a softer approach. If Article 7 was activated under the Commission’s initiative (which would still require the Council to vote), in fact, the guardian of the Treaties would have to face possible retaliations, possibly to the detriment of the Union as a whole.
More generally speaking, the Commission’s action is further cautioned by the current political climate of national public opinions. In a context of weakening trust towards European institutions, the latter have an interest in avoiding creating more enemies at national level. This is exactly what happened in Austria in 2000, when an EU-led sanctioning action against a newly elected government comprising a somewhat nazi-apologetic party (the FPO) resulted in a Eurosceptic backslash among Austrian citizens.
Hard politics and political reasoning remains thus key to explaining the Commission’s behavior too.
Against the arguments above, one might object that the vital importance of the Rule of Law for the Union should justify the end of any diplomatic concern and require immediate action on behalf of EU institutions. This is a fair claim, especially if we consider the importance that the Union confers to Democracy and Human Rights in its external actions and that the Rule of Law is among the main principles of the Union. However, realpolitik often remains key in explaining how decisions are taken at EU level, all the more so when it comes to delicate areas such as Democracy or the Rule of Law, where Member States regard EU intervention as an illegitimate intrusion in national affairs.
On the one hand, the inaction of Member States has to be considered in the light of the diplomatic dynamics that characterize supranational negotiations when it comes to distinctively national matters. On the other hand, European Institutions such as the Commission cannot overcome Member States’ opposition and are themselves constrained by geopolitical issues in the need to avoid tensions with Member states and national public opinions.
As crude as this is, it makes little sense to deny it. Quite the contrary, it is starting from the awareness of this difficult context that further solutions may be found to effectively tackle the present Rule of Law crisis.