Sign up now: Strengthening the rule of law and press freedom in the EU

The rule of law ensures that everyone is held accountable according to the same rules, while a free press keeps a spotlight on the centres of powers. However, we have seen how the erosion of one has led to the weakening of the other, undermining democracy in the European Union.

Now, what can we do about it? How can freedom of the media and the rule of law strengthen each other to help stem the tide?

Join us on Zoom at 9:30 CEST on 24 June 2021 to find out. You can register here.

We will be talking to four people at the forefront of this fight:

Hans Felber-Charbonneau, Communications Coordinator at Democracy Reporting International, will moderate the discussion.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

Photo credit: Diana Robinson / CC BY-NC-ND 2.0

Event: Free elections to resolve the crisis in Belarus

On 1 and 2 June 2021, we held the international conference on “Democratic Elections for Resolution of Crisis in Belarus”.

Our purpose was to bring together Belarusian and international experts on elections to discuss ideas for holding early elections as a means to ending the political crisis in Belarus. 

In spring 2021, almost 800,000 Belarusian citizens took part in an online survey to express their support for negotiations leading to early elections and several international actors have supported the idea of resolving the crisis through an election. 

Our speakers considered ways to establish a dialogue between the society and the current authorities of Belarus to create conditions for early elections. This includes ways to hold such elections and achieve the long-term goal – fundamental electoral reform in Belarus, including the adoption of a new electoral code. More information about the conference can be found in the programme available here.

The working languages of the conference were Belarusian, Russian and English.

The event was streamed live in Russian on Sviatlana Tsikhanouskaya’s official YouTube channel. Watch the English recordings below.

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The conference was organised jointly by the International Foundation for Electoral Systems (IFES), International IDEA, and DRI. 

Photo Credit: Homoatrox – Protest rally against Lukashenko, 20 September 2020. Minsk, Belarus

Power and the covid-19 pandemic: Webinar series

Marking the conclusion of the “Power and the COVID-19 Pandemic” symposium, an upcoming webinar series running from 12-14 May will bring together contributors from around the world to discuss the impact of the pandemic on law and governance, drawing on five cross-cutting  themes:

  • human rights
  • democracy
  • the rule of law
  • science and decision-making
  • the impact of an extended emergency

Find out more and register for the webinars here.

The 2021 “Power and the COVID-19 Pandemic” symposium was hosted by the Verfassungsblog, convened by Joelle Grogan, and supported by Democracy Reporting International, the Horizon-2020 RECONNECT Project and the Bingham Centre for the Rule of Law.

Watch now: Launch of new DRI report on covid-19 and the rule of law in the EU

One year into the COVID-19 pandemic, EU Member States have been among the hardest-hit countries in the world. Suffering from high mortality rates and successive waves of infection, states (re)introduced highly restrictive measures.

To evaluate how the pandemic response has affected the rule of law across the EU, Democracy Reporting International gathered assessments from 35 national experts, covering all 27 Member States.

This analysis is brought together in DRI’s new report Extraordinary or extralegal responses? The rule of law and the COVID-19 crisis, which identifies five critical areas of concern across all EU Member States and provides recommendations on how to address them.

To mark the launch of our new report, we invite met on 5 May 2021, 10:30-12:00 CET  for the discussion of our findings and further perspectives with:

  • Joelle Grogan, Senior lecturer and legal academic at Middlesex University London and author of DRI’s new report
  • Álvaro de Elera, Member of European Commission Vice-President Věra Jourová’s Cabinet, responsible for the rule of law portfolio
  • Veronika Bílková, Member of the Venice Commission of the Council of Europe

The event was moderated by Paul Zoubkov, Manager Europe at Democracy Reporting International.

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Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

Webinar: Power and the covid-19 pandemic

One year on how has the covid-19 pandemic affected the law, and the way states govern? Should we be concerned about the ongoing use of emergency powers? How can we look forward to what lies ahead?

Marking the launch of the 2021 Power and the COVID-19 Pandemic” Symposium, this webinar will bring together five contributors to discuss the impact of the pandemic on legal systems globally, and offer initial assessments for the rule of law, democracy, and human rights:

  • Fionnuala Ní Aoláin, Regents Professor University of Minnesota Law School; Professor of Law, Queens University Belfast; UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism
  • Martin Scheinin, British Academy Global Professor, Bonavero Institute of Human Rights, University of Oxford; part-time Professor, European University Institute, Florence; Collaborator of the PluriCourts Centre of Excellence, University of Oslo; Member of the Scientific Committee of the EU Fundamental Rights Agency
  • Thomas Bustamante, Professor of Legal Theory at the Federal University of Minas Gerais, Brazil; Research Productivity Fellow of the National Council for Scientific and Technological Development
  • Thulasi K. Raj, Advocate, Supreme Court and Kerala High Court; Equality Fellow, Centre for Law & Policy Research, Bangalore
  • Jakub Jaraczewski, Legal Officer, Democracy Reporting International

The webinar took place on 24 February, 14:00-15:30 CET. It was chaired by Joelle Grogan (Middlesex University London) who is the convenor of the Symposium.

Watch the full video below.

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The Power and the COVID-19 Pandemic Symposium beginning on 22 February 2021 is hosted by the Verfassungsblog and supported by Democracy Reporting International, RECONNECT, and the Bingham Centre for the Rule of Law. The Symposium brings together experts from over 70 countries to reflect on how legal and political systems have adapted to ongoing challenges presented by the pandemic to democracy, human rights, and the rule of law, and to offer recommendations on the future of good governance.

The rule of law in the EU in 2020: What went right? What went wrong?

2020 will go down in history, and not just because of the covid-19 pandemic. This year saw the rule of law emerge from a technical legal issue to the mainstream of European politics. We have seen developments across the EU that invoked hopefulness, anger, satisfaction, and disappointment.

DRI’s Jakub Jaraczewski looks at four trends that highlight what went well on the rule of law, and four that highlight what went very wrong in 2020.

What went right?

1.      Rule of law conditionality in EU budgets: Its final shape is not exactly what many advocates and experts wanted, and the joint threat of a Hungarian-Polish veto was harrowing, but ultimately the EU will impose rule of law conditionality in its budgets for the first time ever.

2.      Support for the rule of law goes mainstream: In public debate, the rule of law traditionally took a backseat to democracy and human rights. 2020 saw this change, as matters related to the judiciary, legality, and transparency went mainstream and enjoyed broad public backing, with the majority of EU citizens supporting the concept.

3.      Across the EU, there has been a pushback against rule of law backsliding: Some countries, such as Slovakia and Malta, saw positive political changes or improvements in how they approach the rule of law. In other EU member states, courts stepped up to oppose attacks on the judiciary, with tribunals in Germany and the Netherlands, as well as rank-and-file courts in Poland, fighting back on efforts to undermine the judiciary in Poland. Local governments also became increasingly invested in the rule of law.

4.  The European Commission’s record on the rule of law in 2020 was far from perfect. But at times, the ‘Guardian of the Treaties’ has lived up to expectations. The actions taken against Malta and Cyprus regarding their ‘golden passports’ schemes and the much-awaited rule of law report on the 27 EU member states were this year’s highlights.

What went wrong?

1.      The situation in Hungary and Poland has deteriorated even further. Despite the efforts outlined above, the governments in both countries – emboldened by the lack of a strong response from the EU (Hungary) and recent electoral victories (Poland) – pushed forward with their bold plans to further subjugate their legal systems and abolish checks and balances to their power.

2.      The European Commission failed to live up to expectations on several occasions. Lack of strong action on Hungary and Poland, but also the failure to respond to worrying developments in countries such as Bulgaria continue to tarnish the record of the von der Leyen Commission. The Commission could have acted faster and, when doing so, brought cases with wider rule of law implications before the European Court of Justice instead of focusing only on narrow issues.

 3. Covid-19 was a massive challenge for all EU member states. From the perspective of the rule of law, the emergency measures introduced by governments in response to the pandemic were all over the place. With questions as to the legality, clarity, proportionality, and necessity of many draconian measures, coupled with a lack of pan-European coordination by the EU, there was much left to be desired about the rule of law stress test the EU endured this year.

4.      Political groups in the European Parliament have not done enough to defend EU values. While many MEPs and the parliament as an institution continued to fight for stronger rule of law in Europe, the biggest political players failed to address the issue in their own ranks. Too often political groups turned a blind eye to what was going on within their member parties, with the European People’s Party continuing to go soft on Hungary’s Fidesz and Bulgaria’s GERB, while the Socialists & Democrats ignored the actions of the Maltese Labour Party.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

The family is growing: DRI joins the European Partnership for Democracy

As part of its efforts to promote and strengthen democracy in Europe and beyond, Democracy Reporting International (DRI) today became the 16th member of the European Partnership for Democracy (EPD).

“We admire EPD’s way of bringing together democracy-minded organisations across Europe,” said DRI Executive Director Michael Meyer-Resende. “We live in a time where the meaning of democracy is deliberately blurred and misinterpreted to facilitate power concentration and corruption. It is important to work together to defend and develop the essence of democracy and its institutions in Europe and beyond. We are happy to join the EPD and look forward to teaming up for greater impact.”

“We are delighted to welcome DRI into the network and look forward to learning from their expertise and valuable experience in various sectors of democracy support programme,” added Ken Godfrey, EPD’s Executive Director. “Having worked with DRI on issues of democracy and social media previously already, we also look forward to further deepening our cooperation on advocacy. The times call for civil society to stand united to defend and deepen democracy – DRI’s unique approach and well-acknowledged expertise will be extremely valuable in this joint endeavour.”

EPD is a not-for-profit organisation that brings together a network of 16 organisations specialising in the different parts of a democratic system. Based in Brussels, EPD’s mission is to make a contribution to and reinforce the impact of European endeavours in democracy assistance across the world – including within Europe. EPD fosters cooperation between members through innovative programmes, targeted advocacy and cutting-edge knowledge production.

Democracy Reporting International supports democratic governance around the world with a focus on institutions, elections, constitutions, parliaments, and democratic discourse. DRI is headquartered in Berlin and has offices in Ukraine, Tunisia, Libya, Lebanon, Pakistan, Sri Lanka, and Myanmar.

Photo credit: CC-BY-4.0 © European Union 2020 – Source: European Parliament

Consultations on Belarus Electoral Law Reform – Senior Elections Expert (m/f/d)

Form of Employment: Short-term consultancy

Starting Date: 9 Dec 2020

Duration: Dec 2020 – June 2021

Location: Remote deskwork

Background:

Democracy Reporting International (DRI) and European Exchange (EE) will hold a series of international consultations on electoral reform in Belarus involving Belarusian and international experts. In a participatory process, democratic forces will develop recommendations for the reform of the electoral framework (including electoral law, party law, criminal law, media law, constitution, etc.) for presidential, parliamentary and local elections.

To assist in this work, DRI is recruiting a Senior Elections Expert (m/f/d) who, under the supervision of the DRI contact point, will support the process with the drafting of preparatory materials, informing discussions with international perspectives, and producing the final outcome reports.

Tasks & Responsibilities:

Phase I (Dec 2020)

  • Review existing analysis and recommendations on the electoral framework in Belarus, provide a summary
  • Participate in two online discussions with Belarusian and international experts
  • Draft a summary report on discussion outcomes
  • Contribute to the agenda planning for online events
  • Liaise closely with the DRI contact point to further refine tasks above, and at all key stages of implementation

Phase II (January – June 2021)

  • Conduct a more in-depth review of the electoral framework based on the outcomes of Phase I and working group advice
  • Participate in four online discussions with local Belarus and international stakeholder representatives
  • Provide discussion papers and draft summary reports on discussion outcomes
  • Participate in a limited number of follow-up meetings to promote findings
  • Contribute to the agenda planning for online events
  • Liaise closely with the DRI contact point to further refine the tasks above, and at all key stages of implementation

It is foreseen that the total assignment is likely to take approximately 30 working days, with up 10 days for Phase I, and 20 days for Phase II.

Currently, only Phase I funding is secured, so the contract for Phase II services will be concluded upon confirmation of further expected funds.

Qualifications We Require:

  • University degree in law, political sciences or other relevant fields
  • At least 10 years of work experience in the field of elections and/or good governance and democratisation
  • Proven research experience in the field of elections, encompassing a diversity of contexts/ jurisdictions
  • Familiarity with the Belarus electoral and political context is a strong asset
  • Fluency in written and spoken English
  • Advanced knowledge of Russian and/or Belarusian is a distinct advantage
  • Good communication and negotiation skills and ability to work as part of a culturally diverse team

How to Send Your Offer:

If you are interested in this consultancy, please send the following documents to [email protected]:

  • CV with references to comparable assignments, ideally at international NGOs
  • Financial offer stating the days required and the respective daily rate

Please include “Belarus Electoral Consultations” in the subject line.

Closing date for applications: 8 December, 09:00 AM (CET). The position may be filled before the deadline has been reached, so early applications are encouraged.

Please note that only shortlisted candidates will be contacted for an interview.

DRI is committed to diversity and does not discriminate in employment based upon gender (including pregnancy), race, ethnicity, nationality, religion, sexual orientation, age, ability, socio-economic status, political opinion or any other status protected by the laws in the locations where we operate.

Organisation responsible for this vacancy:

Democracy Reporting International gGmbH

Elbestr. 28/29

12045 Berlin, Germany

Data processing of personal data in third countries will not take place. We process your data in accordance with the provisions of § 26 German Federal Data Protection Act. More information about processing your personal data: privacy policy.

Deepfakes and elections: Should Europe be worried?

DRI gathered European policymakers, civil society, academia and tech representatives for a transatlantic, multi-stakeholder discussion on deepfakes and democracy held on 29 and 30 October 2020. DRI’s Madeline Brady shares some of the highlights from the conversation, held under the Chatham House Rule as part of a project financed by the German Federal Foreign Office.  

Until now, no significant political disinformation based on deepfakes has surfaced in the EU. How big is the risk that it will? Could it significantly undermine the integrity of an election in an EU member state? What could and should be done? 

We looked at what is happening in the US elections to try to understand what could happen elsewhere in the future. We discussed the realistic risks to EU countries and possible mitigation strategies. This debate feeds into DRI’s upcoming paper on deepfakes and elections.   

Key takeaways on media manipulation in the US 2020 elections 

Polarisation primes for confirmation bias. The US is extremely polarised, so even when presented with evidence that something is not real, people’s opinions may not change. Examples of this during the 2020 election include spliced videos of Joe Biden taking a moment of silence used our of context to promote the narrative of “Sleepy Joe”. Others include false videos of poll workers colouring in ballots, which promote a narrative of voter fraud. These examples are only effective when an audience is already primed to believe them. This highlights the fact that the broader media ecosystem matters when considering the threat of deepfakes. 

Let’s re-think the jargon. Cheapfakes might be just as effective in deceiving users as deepfakes, so such jargon does not matter to every day users. These terms may even confuse or worry people. A term like “digital forgery” might be more self-evident, especially when it comes to labelling content on platforms. More behavioural research is needed to understand how people interpret and respond to content labels. Does the jargon provide users with the information they need, or does it create more confusion and less trust in online sources? A common labelling language across platforms would provide clearer signals to users. 

Complexity means AI will not solve it all. At this point in time, no AI model works perfectly to detect manipulated media. Models used by social media platforms have clear strengths and weaknesses. For example, they can easily detect nudity, although issues like satire pose added complexity that cannot be easily detected. As a result, companies cannot leave all of the content moderation work to machine learning models. Humans are still incredibly important to identify nuance. 

Strong journalistic norms are critical. Norms are needed to report on potential manipulated media and misinformation more broadly without amplifying it. For example, when then-French presidential candidate Emmanuel Macron’s emails were leaked and shared on social media in 2017, French media placed a blanket ban on reporting them. This was because they did not have time to verify the content of the leaks and the timing made clear that this was an attempt to manipulate the election. 

Is Europe ready for the deepfake threat? 

Increased understanding and specific measures are needed, but a framework is already in place. Deepfakes are not an isolated new element but are considered as part of the EU’s wider framework fighting against misinformation. New threats are always emerging, for example the use of audio messages in Belarus to mislead protesters or the creation of fake political news pages. The entire threat landscape, including the interplay between domestic and foreign actors, should be considered. With this, a better understanding is needed on what the EU can do and prepare for the deepfake threat more specifically. 

Create protocols and communication channels for rapid reaction. Governments should create a response toolbox, which would be different depending on the situation. Such a toolbox would require a methodological approach and further drilling down into hypothetical scenarios. Governments need effective communication strategies to report on facts or to share assessments made by government institutions. If deepfakes flood platforms at scale, government institutions monitoring the issue will need to define thresholds for evaluation before they are overloaded (e.g. looking at all incidents of deepfakes or focusing on the most dangerous ones, for example those that could have direct security implications). This solution assumes that governments value truth and media is independent. As a result, the quality of democratic institutions, particularly amongst various EU member states, must be considered.  

Raise the general level of resilience. The EU already has some structures and initiatives in place to promote media literacy and social cohesion. Further investment in such programmes is important to prevent a culture of disbelief by default where people no longer trust anything they see. In particular, not only school-age children but older internet users should be targeted by such programs. When it comes to video media, a more specific curriculum or set of tools may be needed for internet users to identify credible sources. 

Empower research and civil society cooperation. More research is needed to understand the problem of deepfakes and build technical solutions. The European Digital Media Observatory (EDMO) holds great potential to shed light on the use of manipulated media in Europe and build solutions. However, the institution is still new and will require financing and time to grow. Homegrown innovation should also be fostered within the private sector. Several startups like Netherlands-based Sensity are working on monitoring deepfakes and developing solutions within Europe. 

In summary, it is quite clear that disinformation trends are changing quickly. Actors around the world can learn from each other to identify emerging trends. Ensuring conversations through various actors and stakeholders, such panels provide a valuable opportunity for a collaborative exchange of solutions. 

We thank our panellists from TikTok, WITNESS, Partnership on AI, European External Action Service (EEAS) and Global Public Policy Institute (GPPI) for their contributions.

Regulating online platforms in Europe: learning from Germany’s experience

As the European Commission is working on the new European Democracy Action Plan (EDAP) and the Digital Service Act (DSA), DRI gathered experts from civil society, academia, and policymakers on 29 September to discuss Germany’s experience in regulating technology companies. DRI’s Helena Schwertheim shares some of the highlights from the conversation, held under the Chatham House Rule as part of a project financed by the German Federal Foreign Office 

The EDAP and the DSA will update how online platforms are regulated in the EU. They will tackle topics such as online disinformation, hate speech, illegal content, online political financing, and the transparency and accountability of tech platforms.  

While all eyes are on Brussels, some EU member states such as Germany have already experimented with platform regulation.   

Lessons learnt from Germany’s hate speech regulation  

Since coming into force in 2017, the Network Enforcement Act (Netzwerkdurchsetzungsgesetz, or NetzDG) has proven that platforms can indeed be held accountable. German policymakers saw that platforms were willing to apply the law. This is a positive finding, given that Brussel’s ambitious DSA and EDAP packages will likely ask online platforms to comply with new laws and regulations. Another lesson from Germany’s NetzDG experience is that more can be done. The 2017 regulation is already outdated: notice-and-takedown regimes are limited in efficacy and efficiency, and new technologies exist to move beyond this.  

In addition, the NetzDG empowers the end-user of platforms, citizens themselves, in myriad ways. Under this regulation, users hold online platforms accountable via user-friendly reporting mechanisms. The NetzDG also empowers victims of hate speech by entitling them to information and data from platforms on their case, to refer it to courts and to identify the perpetrator. Another way in which users are empowered is via the law’s requirement for the legal representation of each online platform in Germany itself, not in another distant or inaccessible country. Given this success, any meaningful regulation should consider putting people, or users, at its centre 

The NetzDG is a law that has had some success in Germany, a country where checks and balances protect freedom of expression. However, it has created a momentum forcopycat” laws in other states with limited rule of law. In these countries, such laws instead threaten to shrink public spaces online and offline, undermining democratic principles and rights. To avoid this, a European countermodel should be considered. This model should ensure platform transparency, safeguards for freedom of expression (such as complaint systems), encourage diversity and user choice, and promote more reliable information from authoritative sources. 

Other critiques of NetzDG should also be drawn upon by Brussels and policymakers elsewhere. While platforms report no occurrence of over-blocking of non-harmful content under this regulation, this is self-reported data which lacks independent scrutiny to confirm whether this really is the case. Adding to this, German national law has no regulative priority over the platforms’ community standards, which themselves are enforced rather arbitrarily. The requirement for even and more predictable enforcement of such standards should be considered by the EU. 

Other lessons learnt: transparency and access to data 

An overarching theme of the workshop’s discussion was meaningful transparency and access to online platforms’ data for public interest research. Experts on disinformation, online political advertising, and algorithmic transparency shared recommendations on what this could mean: 

Regulating disinformation: platform curation decisions (ranking some content higher than other or recommending certain content) are not a direct infringement of freedom of speech but they impact the availability and quality of information for people. However, to meaningfully discuss content curation, an existing information asymmetry must be overcome. Platforms hold data on their users and society, but public interest researchers have no access to this information. This not only makes independent research to inform regulation impossible but also impedes regulation enforcement and the sanctioning of non-compliance. Algorithm audits need to be put in place to address this core problem of online discourse. 

Likewise, online political advertising needs more public interest scrutiny. Self-regulation has not worked in this area. Despite some efforts to set up advertising archives and libraries, the available information remains incomplete, differs from country to country and is not user-friendly. This undermines counter speech and the collective accountability seen in offline political advertising. Regulation should make advertising archives mandatory and prescribe the required level of detail and user-friendliness. Disclaimers on political advertisements online should be expanded and become mandatory across platforms. Likewise, parties and candidates posting ads should be obliged to publish all paid advertising on their websites including information on targeting. An independent body should have oversight over these actions 

Lastly, when it comes to providing data access for research, platforms do provide limited access to some selected researchers, but it is a time-intensive process. In some cases, once acquired, it is impossible to verify the accuracy of the data, and the explanatory power of the data is limited, given that some parameters are not available. A more robust data access framework is needed, with clear steps and requirements for access 

We discussed these findings with a high-level official from the European Commission. The two Acts are expected to be unveiled on 2 December.  

We thank our panellists from the German Foreign Federal Office, the German Federal Ministry for Justice and Consumer Protection, the Jacques Delores Centre, the Free University of Berlin, the Stiftung Neue Verantwortung, AlgorithmWatch, and Reporters Without Borders for their contributions.

EU budget conditionality: Is the rule of law being sold short?

On Monday 28 September, the German Presidency of the Council of the European Union (‘the Council’) shared with its fellow member states a new proposal on how to connect respect for the rule of law to access of EU funds.

The proposal, still formally under wraps but leaked to press, seeks to bridge deep divisions inside the EU and is based on the results of the July’s extraordinary European Council summit that we analysed earlier this summer.

DRI’s Jakub Jaraczewski examines the key points from the German proposal and its implications for the EU.

Why does this proposal matter?

The EU’s financial future is linked to this proposal, as the proposed conditionality would apply to the EU’s multi-annual budget for 2021-2027 and the Next Generation EU covid-19 emergency recovery package. The intention here is to protect these common funds from the consequences of rule of law backsliding, such as corruption.

Yet just as importantly, this is the first time that the EU is attempting to address deficiencies in the rule of law by linking funding to the respect of core EU values. This is even more significant given that so far, neither political dialogue nor the Article 7 procedure, which enables a suspension of voting rights, have produced any progress in halting the rule of law backsliding in some member states.

How exactly would rule of law conditionality work under this proposal?

The European Commission would be in charge of identifying breaches of the rule of law in member states. Where it finds them, it would first enter a dialogue with the concerned country. Should this dialogue fail, the Commission would then propose to the Council to adopt appropriate measures against the member state. These can include a suspension of payments, as well as other ways of applying financial pressure.

How does this compare to the proposal made by the Commission in 2018?

The German presidency’s proposal builds on an earlier text put forward by the European Commission in 2018, but there are some significant differences. One is the fact that the 2018 proposal speaks of “general deficiencies” in the rule of law, while the 2020 proposal refers to “breaches” of the rule of law, which may change the type of rule of law issues it captures.

Another difference is the proposed mechanism to vote on these breaches in the Council. The 2018 proposal foresaw the use of reverse qualified majority voting, under which a proposal to sanction a member state would need to have most votes against it for the sanction to fail. In practice, this would have made it harder to stop the sanctioning mechanism.

Germany’s proposal only uses qualified majority voting, which is the exact opposite: a majority is needed to adopt the measures against a member state. In practice, this makes it harder to decide on a sanction because most states would need to commit to sanctioning a fellow member, something they have been very reluctant to do in the past.

What are the biggest points of contention so far?

The change of terminology from “general deficiencies” to “breaches” in the rule of law and the voting procedure change are two major points of contention. Additionally, the proposal introduces a “brake” mechanism, which would allow a country facing this procedure to call upon the European Council if it feels that it is being treated in a discriminatory or unfair way. While the German proposal only mentions the European Council “discussing” the matter and does not call for any vote there, such a mechanism would inevitably slow down the procedure. By including the new voting procedure and the “brake” mechanism, this proposal is significantly weaker than the 2018 Commission document.

The European Parliament has been eager to pursue far stronger conditionality and has already repeatedly expressed its disappointment with the earlier European Council conclusions. As such, we expect that many parties will object to these elements of the German presidency’s proposition.

How are member states likely to react to the proposal?

The member states are split on the issue. The so-called “Friends of the Rule of Law” group, which includes countries such as Belgium, Finland and Sweden, has decried the perceived watering down of the European Council conclusions. On the other side, countries most frequently associated with a backslide of the rule of law – notably Hungary, which has reportedly rejected the proposal  – see the proposal as going too far, and will continue to threaten to halt the EU budget-making process over any conditionality linked to values.

Southern European countries, in particular, could be worried that this conflict will slow down the covid-19 emergency recovery package, which is badly needed by Italy, Spain and other countries hit hardest by the pandemic.

The German proposal is an attempt to reconcile these conflicting positions, but it once more gives too much leeway to states to continue undermining the rule of law without sanction.

What needs to happen for this proposal to become reality?

The German presidency needs to reach an agreement with the European Parliament, which it aims to achieve by mid-October. This would enable a positive vote on the proposed budget and on the conditionality regulation in both the Council and Parliament.

It would also ensure that member states will ratify the EU Own Resources Decision, an additional legal instrument authorising adjustment to the EU financial framework, which is needed to unlock the 2021-2027 budget and the covid-19 package.

If all this were to happen, Germany’s proposed conditionality would be enshrined in EU law.

Would not adopting this proposal block the entire covid-19 financial response and the multi-annual budget?

Given the importance both sides of the debate attribute to this conditionality, if there is no agreement on whether and how to include it, there could be a budget deadlock. There is an extra spanner in the works this time around: national economies have been battered by the covid-19 pandemic and a large group of member states are eager to see the EU pass the budget as soon as possible.

The Hungarian government is using this economic pressure to weaken any rule of law mechanism, as it faces international criticism of massive corruption. While the regulation on conditionality could be adopted by a qualified majority, the Hungarian government is threatening not to ratify the changes to the Own Resources Decision.

What should be done?

The German presidency and the EU institutions should not cave to this pressure. Letting EU countries descend into corruption and authoritarianism will present even worse and more fundamental challenges to the EU if it is not halted immediately.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign-up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

Photo credit: European Union

Belarus: What would be needed to hold new elections?

On 24 September we met for an online debate with a dozen election experts from Belarus and beyond to discuss conditions for future elections. The discussion was held under the Chatham House Rule in cooperation with our partners from the European Platform for Democratic Elections (EPDE).

While it currently does not look likely that the protesters’ demands for repeat presidential elections will be heeded, it is too early to rule out this scenario – or other electoral scenarios for that matter.

Discussion participants agreed that the baseline for electoral conduct in Belarus is low. Ever since the OSCE Office for Democratic Institutions and Human Rights (ODIHR) began observing elections in Belarus, it has found all of them to violate essential commitments that the Belarusian authorities had made in the OSCE context. Although ODIHR was unable to observe the 2020 presidential elections, Belarusian observer groups have come to similar conclusions for the August vote.

Every nook and cranny of Belarus’ electoral framework is designed to prevent free and competitive elections, including the set-up of election commissions, the registration of voters and candidates, the coverage by state media and the lack of transparency for counting and aggregating electoral results.

Participants were divided between two schools of thought on how to make the electoral framework fit as a basis for a democratic election. One group felt that a complete overhaul of the election law and the election administration was required. Others feared that the momentum for another election could be broken if a detailed law review and amendment were considered as a necessary first step. This second group argued that on an interim basis, only basic principles would need to be introduced for elections to take place. These include essential transparency safeguards (such as unhindered election observation, the transparent counting of ballots and aggregation of results), changing the members of the Central Election Commission and the unfettered right for people to stand in elections as candidates.

Participants also discussed which developments distinct from holding another a presidential election could provide avenues for change. As Lukashenko publicly discussed making constitutional amendments, a constitutional referendum could become an issue. Some wondered if the Russian government may press him to devolve powers from the presidency to the parliament and the prime minister. Some felt that new parliamentary elections may become relevant and that local elections next year could become another mobiliser of public engagement for democracy. Others argued that in a cemented authoritarian regime, incremental change was not an option and that real change could only come from a change in the presidency.

This discussion is part of DRI’s on-going analysis of the situation in Belarus. You can read a summary of our recent discussion on reforming the Belarusian constitution for more information.

Photo credit: Homoatrox / CC BY-SA 3.0