Olan McEvoy
Research expert covering the European Union for society, economy, and politics.
Get in touch with us nowWithin the European Union, the concept has become a major concern since the early 2010s, when a number of illiberal and populist governments within the union rose to power and have made attempts to implement reforms in their countries which go against the EU's concept of the rule of law. Notably, Hungary and Poland have been locked in disagreement with the European Commission over issues such as changes to the structure of their justice systems, the shutting down or merging of independent news outlets, the lack of protection for ethnic and sexual minorities, and the inability of civil society organizations to operate in the countries. Promotion of the rule of law within the EU has therefore become a key policy aim of European institutions, with several initiatives and mechanisms now being implemented to safeguard it.
The rule of law crisis in the EU
In the period since the 2010s, there has been increasing concern within the EU about the conduct of some member states, notably Poland and Hungary, in regards to respect for the rule of law and the safeguarding of fundamental rights. Poland and Hungary have elected governments labelled by many commentators as being of the illiberal, populist, and nationalist right wing, with Viktor Orbans' Fidesz party ruling Hungary since 2010 and Law and Justice (PiS) ruling in Poland since 2015. The Polish government has consistently come into conflict with the European Commission and European Court of Justice (ECJ) over reforms to its justice system, with changes to the composition and functioning of its constitutional court being seen as an attack on the independence of the judiciary and the separation of powers in the country.The PiS government claims that it is engaging in these reforms to increase the efficiency of its justice system as well as to reduce bias related to the legacy of communism in the Polish judiciary. Hungary's government under Viktor Orban has faced criticism for numerous constitutional changes which have been perceived as concentrating power in the hands of the government, as well as for restrictions on the freedom of the press and civil society groups. The government's attacks on organizations associated with Hungarian-American philanthropist George Soros have gained particular attention internationally, with Soros' Open Society Foundation and the Central European University leaving Hungary due to restrictions on their activities
Mechanisms for dealing with violations of the rule of law in the EU
The most prominent measure for dealing with violations of the rule of law in the European Union is the Article 7 procedure, laid out in article 7 on the Treaty on the European Union (otherwise known as the Maastricht Treaty (1992)). The article outlines the procedure for sanctioning and/or suspending the rights of a member state of the EU when said member state has persistently violated the principle of the rule of law. Article 7 procedures may be triggered by a vote in the European Council (the institution representing the member states of the EU), where a suspension of rights must be voted on unanimously by other member states, while sanctions require a qualified majority of the countries.While there have been numerous attempts to bring article 7 procedures against Hungary and due to the Fidesz and PiS governments' actions, these have been hampered by the mutual support by the two countries, which means that the condition of unanimity cannot be met in European Council vote (i.e. if procedures are brought against Hungary, Poland would veto the move). Due to this impasse with the use of legal procedures against rule of law violations, the EU has introduced a rule of law conditionality mechanism for financial payments from its Multiannual Financial Framework (MFF), which only requires qualified majorities to implement. In December 2022, the EU froze over six billion euros of cohesion policy funds that were to be distributed to Hungary. The conditionality mechanism is yet to be used against Poland or any other member state, but represents a new approach to safeguarding the rule of law through financial incentives in the EU.
