Professors Laurent Pech and Dimitry Kochenov recognise that in the last decade a growing amount of evidence has emerged indicating “rule of law backsliding”, which they define as “the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party”.

In essence, their definition focuses on deliberate action and the goal of establishing an illiberal democracy as key aspects of the process. They indicate that the struggle of EU institutions to properly deal with threats to the rule of law in Member States can be explained by the longstanding but false assumption that making admission to the EU dependent on compliance with common values would mean only stable democracies based on the rule of law would become members.

The lack of any appropriate counteraction to the rule of law backsliding could undermine the EU integration process as a whole, as the rule of law is one of the main pillars on which the EU is based.

After their general diagnosis, Pech and Kochenov proceed to analyse tools available to the EU for monitoring and enforcing the rule of law. In general, they claim that the “toolbox” is in fact “sufficiently comprehensive and sophisticated”, contrary to the view recently promoted by the media and European politicians.

However, in order for those mechanisms to be fully effective, all of the actors engaged, including all EU institutions as well as the Member States, should be prepared to commit to the process instead of closing their eyes to the severity of the issue. The only aspect they identify as missing is the measure proposed by the Commission in May 2018 of explicitly conditioning of the flow of the EU budget on compliance with the rule of law.

Nonetheless, even in that regard, under the Common Provisions Regulation the European Union can already suspend the distribution of structural funds when evidence of gross breach of judicial independence and the rule of law is found.

In relation to more concrete proposals, the idea of linking oversight of the European Public Prosecutor’s Office with access to certain EU funds is introduced. They also identify strong political leadership aware of the significance of the issue at stake as an essential condition for preventing the “rule of law backsliding”.

Pech and Kochenov make a number of recommendations aimed at improving the mechanisms for monitoring and enforcing the rule of law in Member States. First of all, in regard to the Commission’s Rule of Law Framework, they suggest that it could be enhanced by having the period of “dialogue” preceding the formal opinion last a maximum of six months.

Furthermore, a maximum of one formal recommendation is to be issued within the following two months. Article 7 should be made a default option in case of non-compliance with the issued recommendation within a period of two months.

A number of other recommendations are proposed concerning mechanisms ranging from the EU Justice Board to the Council’s Annual Rule of Law Dialogue. Regarding treaty-based instruments, such as the infringement procedure, Pech and Kochenov propose several actions aimed at improving the effectiveness of such measures.

Firstly, they recommend that the Commission identifies rule of law issues explicitly as either a problem with judicial independence or a systematic violation of the principle of sincere cooperation, as proper identification provides a greater range of options for taking action.

Furthermore, Pech and Kochenov point out that time is of the essence when a breach of the rule of law is occurring, as a Member State could continue harmful activities even after deadlines for compliance with EU recommendations are set.

Therefore, they propose that the infringement procedure become the default option when a Member State is found to openly violate the rule of law. Moreover, application of interim measures should be systematically considered by the Commission. Generally, the actions taken in the case against Poland and the changes in the Polish Supreme Court should be “the new template to follow”.

One further improvement is proposed – the introduction of “systematic infringement” actions, which, according to Professor Scheppele of Princeton University, would help identify patterns of violations and get a fuller view of the situation.

On the other hand, Pech and Kochenov criticize some proposals such as Manfred Weber’s suggestion of creating a new panel composed of nine experts. Although they do not oppose the increased involvement of experts in the process of defending the rule of law in general, they find Weber’s proposal problematic, as it could potentially delay actions and undermine the authority of the Commission.

In addition, matters such as the selection of such experts might lead to conflict among the Member States and further delay much-needed actions. They label Weber’s plan “rushed, blue sky thinking” and call on the Commission to disregard it.

Overall, Pech and Kochenov conclude that what is needed is active dialogue and firm measures against the rule of law backsliding; however, radical reforms of existing mechanisms and tools should be avoided as to not create distractions from fundamental and pressing problems.

[by Martyna Olejnik]