The EU’s menacing rule of law power grab

Officially the European Union may be a union of sovereign states. But its Commission increasingly has the air of an imperial chancellery, or perhaps the headquarters of some vast conglomerate giving instructions to the directors of its far-flung subsidiaries. The Commission’s annual Rule of Law report, published last week, is a case in point. It is well worth reading if you want to understand the EU mindset.

Nominally a report to the European parliament and a number of central institutions, essentially it is a 30-page memo reminding the EU27 that the rule of law is part of the EU brand — and ordering member states to uphold it without any backsliding. Each country also gets its own report card: ‘good effort’ for Germany, for example, but ‘serious problems: must try much harder’ for Poland and Hungary.

For the EU the rule of law means four things: impartial courts, anti-corruption measures, media pluralism and freedom, and constitutional checks and balances. Of course there’s nothing wrong with any of these things. But the way they are being pushed by the Commission ought still to leave us, and a number of European governments, feeling uneasy.

First, the demands are strikingly detailed. Brussels could have accepted that these matters are a core function of the nation state and — consistently with its vaunted principle of subsidiarity — left member states to get on with the job as they thought best. It hasn’t. On the contrary, the whole exercise is a study in micromanagement and insistence that things be done in the EU-approved way.

There are lots of ways of appointing judges, for example. But Brussels wants it done through specific judiciary councils, as recommended by the Council of Europe. It has also made detailed calls for lobbyist registration rules based on the Brussels model. Also strongly promoted are public asset disclosure rules for all senior officials, transparency laws on the ownership of all media, and detailed rules on the distribution of state advertising.

The report argues that there must be laws protecting journalists from awkward lawsuits. Citizens’ assemblies need to be set up and encouraged. Civil society organisations (EU-speak for pressure groups) need to be favoured and protected: Slovakia, for example, is taken to task for not repressing ‘verbal attacks from public authorities and politicians on activists and civil society organisations’ and reducing the amount of taxpayers’ money given to them.

Secondly, the Commission, rather like the Roman centurion in Matthew’s gospel, clearly expects obedience. This is interesting. Although the EU treaty starts with a generalised commitment to the rule of law (alongside equality, human rights and a host of other things), this doesn’t give the EU carte blanche to tell its members what to do. On the contrary the EU, and the Commission acting on its behalf, are still bodies with limited competences. Article five of the EU treaty makes it clear: any power not specifically conferred on the EU stays with member states.

Now, some of its demands are clearly within the EU’s competence, at least as the Court of Justice sees it. These include the impartiality of national courts, thanks to a bit of legal legerdemain from the Court. This is also the case for aspects of the financing of parties and pressure groups, with the court finding last year that Hungary’s curbs on foreign funding for anti-Orban activists unacceptably limited the intra-EU movement of capital.

But quite a lot of the EU’s current demands are simply outside its scope, at least on a present reading of the law. Citizens’ assemblies, asset disclosure rules affecting public officials, the protection of journalists from lawsuits and pressure groups from attackers may well be very good things. But they aren’t generally the EU’s responsibility, and states would be entirely justified in telling the EU to mind its own business.

It’s fair to say that the Commission seems to regard this as a tiresome technicality rather than a reason to hold back. Section four of its report is low on specifics but high on menace. It contains pointed references to the EU court’s role in enforcing the rule of law as interpreted by the Commission, and to the Commission’s duty to act as guardian of the EU Treaties by suing any backsliders through the court.

The Commission then piles on the pressure by pointing out that it may have other ways to bring refuseniks to heel. Article seven of the EU Treaty allows states’ privileges to be suspended if they are seen to flout official EU values. At present this is an idle threat against Hungary and Poland, because the measure requires unanimity from member states and both countries have informally agreed to stymie its use against the other. But a change of government in either country, or the buying off of one of them by the EU, could change matters.

Nor is this all. Since an EU law change on 1 January a qualified majority can now cut off EU funds to states guilty of any breach of the rule of law, which is fairly vaguely defined. This power is theoretically limited to misconduct potentially risking EU funds, but the smart money is on the EU court finding such risk in almost any case.

And this is before we get to the three-quarters of a trillion Euros earmarked for post-Covid reconstruction. Although this money was technically borrowed on the markets by the EU, its member states are each on the hook for repayment. And here comes the crunch: before any state actually gets a Euro cent of the funds borrowed on its credit, it has to have its recovery plans signed off in Brussels. States: you have been warned.

What will happen to the 2021 rule of law report remains to be seen. But the European Commission’s blood is clearly up when it comes to states whose internal policies it disapproves of — an anger shared by the European parliament.

The fear must be that this will herald a new and extended power grab by Brussels, armed with the twin weapons of a politically complaisant European court and an increasing power to pull the purse strings in the way it wants.

States such as France and Germany probably have little to fear, since they will always be able to bend the ears of the right people in Brussels. But peripheral states with un-European ideas about national prerogatives may well be in for a rough ride.