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.

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