Better Late than Never? On the Commission's Rule of Law Framework and Its First Activation

Abstract

This article first describes how the election of national governments intent on implementing ‘illiberal’ agendas has led the European Commission to adopt a new instrument known as the Rule of Law Framework. The mechanism’s potential effectiveness and the Commission’s reasoning to justify its activation against Poland, when it has failed to do so against Hungary, are subsequently analysed. It is argued that while the Commission should be commended for seeking to address increasing rule of law backsliding at the EU Member State level, it may also be criticised on five main grounds: its procrastination with respect to Hungary; its lack of consistency in the light of the reasoning used in the case of Poland; its misrepresentation of Article 7 TEU as a ‘nuclear option;’ its continuing failure to trigger Article 7(1) TEU against Hungary; and finally, its unwillingness to more forcefully apply the infringement procedure in a situation where a pattern of systemic breaches of EU values has clearly come to light, as has been the case in Hungary since 2011. More fundamentally, it is submitted that reliance on the Rule of Law Framework alone, if only because of its many shortcomings, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an ‘illiberal’ regime.

Keywords: Article 7 TEU, Rule of Law, backsliding, EU law, democracy, Hungary, Poland, European Commission, enforcement