Time for rigour: What's behind the EU rule of law debates?

Ahead of MCC Brussels' upcoming debate at Press Club Brussels on the real disagreements underlying the EU rule of law discussions, event speaker Dr Ákos Bence Gát outlines the need for a new approach to thinking and arguing about the rule of law. 

On the 21st of March, MCC Brussels will hold the event Time for rigour: What’s behind the EU Rule of Law debates? which will ask whether certain EU Member States really have serious rule of law problems? Should the EU take a firmer line on rule of law breaches? Or are these attacks often politically motivated? Why does the rule of law matter, and is the concept being abused? 

Dr Ákos Bence Gát (Head of Communications and Foreign Affairs, Danube Institute; author, European Policy on the Rule of Law ) will be joined Dr Ashley Frawley (Visiting Research Fellow, MCC Brussels; author, Significant Emotions: Rhetoric and Social Problems in a Vulnerable Age) and Dr Gladden Pappin (Associate Professor, University of Dallas and Visiting Senior Fellow, MCC). 

Join MCC Brussels for this timely debate on a contentious issues, where all perspectives can be freely aired and debated. Find out more information at the event web page. 

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Time for rigour: What’s behind the EU Rule of Law debates?

Dr Ákos Bence Gát, Head of Communications and Foreign Affairs, Danube Institute; author, European Policy on the Rule of Law 

Since the early 2010s, rule of law has become a major political topic in the European Union, with the scholarly literature on the topic proliferating. So far, a large majority of studies dealing with the EU’s rule of law instruments have focused exclusively on how the EU could more efficiently control the Member States. However, this way of asking the question does not allow for a proper understanding of what exactly is happening in the EU under the pretext of the rule of law. Broader critical analyses of EU rule of law instruments are needed, especially in the recent context in which EU institutions are putting pressure on national economies and risk creating ever more division inside the Union.

To date, mainstream authors who have analysed the EU’s tools for protecting the rule of law have all started, explicitly or implicitly, from the premise that the rule of law is in peril in certain Member States. This premise, however, makes it impossible to gain a comprehensive picture of the reality of European rule of law debates. It leads to a sort of intellectual tunnel vision by focusing solely on how the European Union could act against Member States that are considered to be “trampling on the rule of law”. Such analyses only differ from one another in the type of tools they recommend for the European Union to sanction “guilty” Member States. They are unable to get us closer to a solid understanding of the European rule of law debate, since they serve as intellectual support for only one of the parties to the debate – the one that wants to establish a European rule of law control over the Member States.

A common characteristic of such mainstream analyses is that they cannot deal with suggestions that in any way question whether the rule of law is indeed violated in a given Member State. They overlook a very important detail: that rule of law criticism is often formulated by politicians against their political opponents or institutions fighting for political power. The point of view expressed in such analyses should therefore be treated with caution. Mainstream studies rule out, as if by fiat, the idea that certain rule of law criticisms are imprecise or baseless and the argument that rule of law criticisms in reality target fundamentally political decisions by sovereign democratic institutions, the sort of institutions that the EU is unable and unqualified to judge objectively. 

It is no coincidence that such rule of law studies also just ignore documents in which Member State governments address their criticisms point by point, and that they cite instead a “general” or “structural” problem related to rule of law. If analysts, whose studies are based on the premise that some Member States are violating the rule of law, were to accept that some rule of law accusations could be baseless or politically motivated, their entire analytical framework and reasoning could turn out to be imperfect.

No matter how unpopular the position may be in mainstream academic literature, an objective analysis of European rule of law debates must consider the possibility that European rule of law criticisms against Member States may be partly or entirely unfounded, and it must suppose, at least hypothetically, that in a debate both parties could be right or wrong – especially in political debates.

In order to gain a comprehensive and realistic picture of EU debates on the rule of law, it is advisable to choose a more neutral starting point. Instead of taking questionable premises, setting them in stone and simply accepting that European institutions dispassionately involve themselves in rule of law discussions, genuine research should look at the background of these discussions. Research should focus on questions such as, what political and institutional actors, underpinned by what political interests and views, have shaped European policy on the rule of law? Since rule of law oversight by EU institutions over Member States is by no means as straightforward as many portray it to be, critical comparative scholarly analysis is needed on different EU rule of law instruments. Research should also place a special emphasis on how rule of law debates, and their translation into institutionalised EU instruments, relate to broader political fault lines in the EU such as the concurrence between federalism and intergovernmentalism, or liberalism and democracy.

This new approach is especially needed at a time when different rule of law instruments serve to withdraw EU funding from Member States during periods of serious global crises. Although the Covid-19 pandemic has shaken economies all over Europe since 2020, in 2023 EU institutions are still refusing to transfer to Poland and Hungary the amounts they are entitled to under the Recovery and Resilience Facility, intended to mitigate the economic and social impact of the coronavirus pandemic. In parallel, the EU’s most recent rule of law instrument, the conditionality regulation, is used to suspend part of the cohesion funds due to Hungary under the Multiannual Financial Framework, in a period of extreme inflation and energy supply difficulties caused by the war in Ukraine. These moves by EU institutions raise serious concerns about the legality, legitimacy and morality of EU actions in the field of the rule of law.

Today, Poland and Hungary are the main targets of EU rule of law instruments, but tomorrow other Member States could be victim to arbitrary political action by EU institutions under the cover of rule of law protection. Therefore, legal and political scientists should concentrate their efforts on better understanding the background of rule of law debates. To achieve this, they will have to change the general approach which is currently dominating studies on the EU’s rule of law toolbox.