The European Union's Response to the Rule of Law Crisis and the Making of the New Conditionality Regime
本文回顾了欧盟应对成员国法治倒退的历程，分析了从无制裁行动到新附加条件机制的形成过程，揭示了欧盟政治权威的构建及其面临的挑战。
Democracy has been central to the process of European integration. Even though common values were not explicitly mentioned in the first treaties, political elites sought to confer upon the European project a clear raison d'être beyond establishing the market and economic co-operation between states. The Declaration on Identity, adopted in 1973 by the European Council, underlines the principles of representative democracy, the rule of law (RoL), social justice and respect for human rights as the ‘fundamental elements of the European identity’. The debate on common values intensified in the 1980s and 1990s. Not only was the European Union (EU) preparing its Eastern enlargement, but radical-right parties were also gaining influence in Western Europe (Kitschelt and McGann, 1997). To safeguard the common values enshrined in Article 2 of the Treaty on European Union (TEU), the Treaty of Amsterdam introduced Article 7 TEU, which allows suspending the Council voting rights of Member States failing to respect these values. In 1999, the inclusion of Jörg Haider's far-right Freedom Party in the Austrian government revealed the limitations of Article 7 TEU. The 14 Member States suspended their bilateral relations with Austria but did so outside the framework of Article 7 TEU (Merlingen et al., 2001). Although Article 7 TEU was amended to include a preventive phase1 through the Treaty of Nice (Kochenov, 2017), the question of how and on what basis one can determine the breach of common values remains open to interpretation. These limitations re-emerged later, but in a rather different political context. The 2010s revealed the fragilities of Central and Eastern European democracies when former liberals such as Viktor Orbán turned into supporters of ‘illiberal democracy’ (Buzogány and Varga, 2018), a contradiction in terms because democracy without rights is not democracy at all (Lacroix and Pranchère, 2019). What started as a domestic crisis (in Hungary in 2010 and Poland in 2015) developed into a full-fledged crisis challenging the EU's internal and external identity (Hillion, 2023). After more than a decade of the RoL being a contentious issue on the EU's agenda, in this review, we provide an overview of the EU's responses. Is the EU better equipped to safeguard its values in the context of increasing backsliding in several Member States? Whilst often criticized for a lack of political will and for being slow and ineffective, the EU's emerging RoL regime could be seen as a reflection of political actors' preferences and their power relations in parliamentary, supranational and intergovernmental arenas. The response to the dismantling of the RoL in certain Member States indirectly corresponds to a complex process of building the EU's political authority. Involving key actors with different sources of legitimacy in a complex process of building political authority beyond the nation-state requires time, deliberation and contestation. Designed not ‘by stealth’ but through political debates in different institutional arenas, this new RoL regime strengthens de jure the political authority of the EU vis-à-vis its Member States. Its de facto implementation is open to interpretation, and its effectiveness will depend on both internal and external factors. We discuss this trajectory, focusing on the politics of the RoL crisis, from ‘actions without sanctions’ (Section I) and the incremental choice of hard and soft policy instruments (Section II) to the emergence of a new RoL conditionality regime (Section III) and its challenges (Section IV). We conclude by highlighting five lessons with political implications (Section V). The perceived success of the Eastern enlargement began to crumble in 2010, when Viktor Orbán's Fidesz party won the elections in Hungary by a landslide. Fidesz turned out to be a regional trendsetter, followed by the Romanian and Polish governments in limiting judicial independence – a sine qua non of EU membership (Kochenov, 2008). Evidence of a more profound crisis of liberalism was also seen in Bulgaria, Slovakia and Malta (Dawson and Hanley, 2019). However, EU institutions were slow and divided about what action to take in response, as well as when and how (Coman, 2022). Whilst the European Parliament (EP) repeatedly called on the Commission to trigger Article 7 TEU against Hungary, the Commission and the Council often deplored the lack of tools other than Article 7 TEU and infringement proceedings. The emerging RoL debate focused mainly on policy tools but gradually came to be about the EU's political authority in its relations with the Member States. For EU institutions, the question of RoL became heavily politicized and opened up new institutional conflicts. Scholars argued that the perpetual search for new RoL tools masked the lack of political will to address the issue and that EU institutions have developed a ‘rhetoric of inaction’ (Emmons and Pavone, 2021). In the meantime, the Commission reduced the use of infringements through ‘forbearance’ (Kelemen and Pavone, 2023, p. 781), understood as a ‘deliberate and revocable underenforcement of the law’ that was not driven by a lack of capacity but implied a deliberate political choice not to enforce the law. Party politics partly explain the EU's (in)action (Herman et al., 2021). In national parliaments, populist parties provided flank support for the Polish and Hungarian governments (Granat, 2023). At the EU level, the EP's capacity to act was limited by partisanship. Whilst Liberals, Social Democrats and Greens have called on the Commission and the Council to activate Article 7 TEU against Hungary, the European People's Party (EPP) shielded Hungary's Fidesz for several years (Kelemen, 2017). It took the EP eight long years to trigger Article 7 TEU against Hungary in September 2018, whilst the Polish Prawo i Sprawiedliwość (PiS) government has benefited from the support of its European Conservatives and Reformists (ECR) group. The Social Democrats and the Liberals were less reluctant to detach themselves from their Romanian, Czech or Maltese party members in power when RoL was under debate (Coman, 2022). Despite strong partisanship in the early 2010s, the EP has been the most active institution in publicly discussing the state of democracy, RoL and fundamental rights (Herman et al., 2021). The other part of the story is explained by intergovernmentalism. Whether it was the situation in Hungary or Poland at stake, the Council has tried to mask the divisions between its Member States.2 Despite the acceptance of the RoL as a common value, no rotating presidency was ready to put the Article 7 TEU procedure on the agenda (Hernández, 2023). Instead, the Council created its own tool: the RoL Dialogue. Initiated by the Netherlands in 2014 with the support of Belgium and Germany, this intergovernmental dialogue became ‘a façade tool’ and a repeated source of disappointment in a context of rapid deterioration of the RoL. However, as autocratization advanced in Hungary and Poland, some governments became more inclined to act than others (Blauberger and Sedelmeier, 2024), whilst most newer Member States invoked diplomatic, administrative or political reasons to justify their silence (Coman and Thinus, 2024). Despite the six hearings with Hungary and Poland each and several ‘state of play’ updates, Article 7 TEU came to a standstill and was turned into a ‘long monologue’ (Coman and Thinus, 2024; Priebus, 2022). In May 2023, after the sixth hearing with each country, the Vice President of the Commission, Jurova, concluded that ‘serious concerns remain’ (Agence Europe, 31 May 2023). Moderating between the EP and the Council, the Commission has acted cautiously (Closa, 2019). The Commission avoided triggering Article 7 TEU, which was unluckily termed by former President Barroso as the ‘nuclear option’, even though there was nothing ‘nuclear’ about it (Kochenov, 2017). The metaphor reinforced the unwillingness of EU institutions to act (Pech, 2022), as the Commission was also reluctant to use more conventional tools it had in its hands, such as infringements. The number of infringements launched by the Commission declined by 67% between 2004 and 2018 (Kelemen and Pavone, 2023). Whilst the von der Leyen Commission's contribution to agenda-setting on the RoL was inconsistent, the Court of Justice of the European Union (CJEU) became an active player in response to cases brought by the Member States or to preliminary ruling proceedings addressed by judges and professional associations to confirm the validity of domestic decisions or interpret EU law. According to Mandujano Manriquez and Pavone (2024, p. 1), ‘brick by brick’, the Court ‘imposed novel obligations on EU Member States to safeguard the rule of law while expanding the legal basis for the EU to sanction governments breaching the Union's fundamental values’. In June 2023, the CJEU held that the law on the Ordinary and Supreme Courts adopted in December 2019 in Poland infringed EU law. In October 2021, the Court started fining Poland €1 million per day for ignoring its ruling concerning the suspension of the controversial reforms, but in April 2023, the Court lowered the penalty from €1 million to €500,000, given domestic progress. The RoL crisis has led to the adoption of several new policy instruments, including both preventive/informative soft tools (such as the European Semester, the Rule of Law Framework, the EU Justice Scoreboard and the Rule of Law Annual Report) and hard/sanctioning instruments (such as Regulation 2020/2092 on the general regime of conditionality for the protection of the EU budget). Each instrument has been highly contested and shaped by the preferences of the main EU institutional actors (Coman, 2022; Priebus, 2022). Together, they consolidate the EU's political authority vis-à-vis its Member States. The new soft instruments empowered the European Commission not ‘by stealth’ but by discourse (Coman, 2022). They have strengthened the Commission's influence over the Member States' judicial systems, as well as its expert authority, by gaining monitoring and assessment capacities. Through the European Semester, established in 2010 to co-ordinate the macroeconomic policies of the Member States in the aftermath of the Eurozone crisis, the EU Justice Scoreboard (2013), the Rule of Law Framework (2014) and the Annual Rule of Law Report (2020), the Commission obtained new powers to assess and provide recommendations to Member States for improving the effectiveness and independence of the national judiciary systems or to prevent ‘systemic threats’ by establishing a dialogue before triggering Article 7 TEU (Kochenov and Pech, 2016). The quest for hard instruments emerged as a last resort in 2018, when the Commission proposed the establishment of a general regime of RoL conditionality. Conditionality, as such, is not a new principle of governance and has been used in the EU since the end of the 1980s to encourage structural reforms, following the model of international financial institutions (IFIs) such as the World Bank and the International Monetary Fund (IMF). The Commission has gained considerable experience using conditionality in the enlargement process, even if, in hindsight, conditionality was no cure against corruption or democratic backsliding. Despite the political and academic controversies regarding its limited impact (Jacoby and Hopkin, 2020), conditionality has been mainstreamed in the EU, moving from macroeconomic conditionality in the Economic and Monetary Union to the respect of the Charter of Fundamental Rights under Cohesion Policy (Baraggia and Bonelli, 2022; Becker, 2024). Regarding the RoL, the Commission waited until May 2018 to propose a regulation on a general regime of conditionality. Suspending EU funds when Member States fail to respect the RoL has remained politically and legally disputed. Initially strongly focused on RoL, the Commission's proposal underwent a significant shift by becoming a regulation about the EU's budget (Baraggia and Bonelli, 2022; Coman, 2022, p. 195). Whilst the EP supported the Commission's proposal, it was met with scepticism in the Council, not only by Poland and Hungary but also by other Member States, which seemed to be more ‘interested in discussing the limits of the Commission's powers rather than addressing potential or actual systemic breaches of EU values amongst its members’ (Kochenov and Pech, 2016, p. 1072). Whilst successive Council presidencies kept discussing the Commission's proposal at the technical level without much progress, only 2 years later the fate of this proposal was decided: in July 2020, amidst the COVID-19 pandemic, the European Council agreed to establish the Next Generation EU programme. In the Council, the German presidency tried to accommodate the preferences of all Member States by keeping Poland and Hungary aboard. Yet, the more it tried to satisfy the two countries, the greater the risk that the regulation would be rejected by the Member States supporting strong RoL conditionality. Not only did the Commission's initial proposal get significantly watered down (Baraggia and Bonelli, 2022; Hillion, 2023), but once adopted in December 2022, the European Council postponed the long-awaited application of Regulation 2020/2092 establishing a general regime of conditionality for the protection of the EU budget by inviting the Commission to put the COVID-19 pandemic, the and has brought all under the of a new complex and To for Next Generation EU Member States and The is to including macroeconomic conditionality and with the European Semester, and is by the Commission in with Regulation on the Commission's assessment of the by the Member In this new conditionality the and suspension of funds under the Cohesion Policy by the In under the and Regulation decisions by the Council on the basis of the Commission's The Commission both a political and a whilst the EP's has remained rather conditionality to debates and the assessment process under clear and In these 2024). in the the implementation of the conditionality regime not only on domestic but also on power relations in the Council and between the Commission and the Member States The have the of EU institutions and the incremental policy process in the of the RoL Whilst such of through of EU institutions, how can we for the policy from ‘actions without sanctions’ to the use of conditionality against Poland and Hungary under the new conditionality the incremental policy process at the EU level created the tools for (Kochenov, at the time, it also the of RoL debates in some Member States (Blauberger and Sedelmeier, 2024), with implications for the parties the of populist of which were in with Fidesz and Law and Justice in a populist (Granat, 2023). The of intergovernmental policy co-operation even reluctant Member States to support the application of the conditionality regime in the Council (Blauberger and Sedelmeier, 2024). did not intergovernmental domestic political will is The between the Commission and the Hungarian government was when vis-à-vis the EU et al., 2023). However, the of the EU Cohesion and the opened of for Hungarian to with the Commission rather than its authority. this the Hungarian government a process of to the and agreed upon with the In before the elections in Poland, the government had been less inclined to to the independence of the judiciary or to with the Charter of Fundamental Poland and Hungary to decisions the funds were not The of the of the EU's Framework in July is in this The two their on the of the the external context has also the EU's response to the RoL After launched its against on 2022, the RoL debate was to the and was partly (Coman, 2022, p. and p. led to a between Poland and Hungary before the of with the Commission the response to the over to RoL and 2024). Whilst the Polish government supported in the Hungarian Fidesz government not only with but in also – or to – decisions to against to the EU's support for in the European Council, or regarding and Treaty membership and 2023). The new instruments strengthened the EU's contested legitimacy in with the RoL concerns of the Member States. they the EU has to resort to power of the to of Cohesion the of and to the Union budget in the of breaches of the RoL the EU In the of Poland, on June 2022, the Commission and which the Council on June of the had been adopted by the Polish government in that the President of the to the for However, the Commission also to Poland to the CJEU for the of EU law by the Commission, 2023, p. The political in Poland in October has relations between the government and the In December 2023, the Polish government the of the Rule of in the Council and its to end the Article 7 TEU procedure by the RoL in the a in the Commission the of under the a of following domestic that the independence by the At the time, the Commission Poland to be the to the Charter of Fundamental Rights and provided to up to of Cohesion In in May the Commission that Poland had launched a of and to the independence of the judiciary and that there is no a clear risk of a breach of the RoL in Poland the of Article TEU. EU Member States in the Council this with the of that a conditionality regime not be in the of domestic political but also that domestic political will and rather than at the EU In the of Hungary, not only was the in and in but the Commission also suspended of Cohesion Policy In under the Regulation the Commission in EU funds for the of The Hungarian government to to the independence of the which were adopted by the Hungarian Parliament in May In December 2023, the Commission Hungary's judicial as some of its in terms of judicial independence and it to of up to as part of the Cohesion Policy Court of p. or this was before the European Council in December 2023, which will be as the one before which a of EU and of Member States a to Viktor Orbán in to a on EU support for that to In the EP on to take the Commission to Court over its to EU funds for It remains to be seen Article 7 TEU will be on the agenda the controversial Hungarian from July to December at the of the Commission other Member States. Despite the to EU the effectiveness of with the new conditionality regime remains open to interpretation. much in the of the Eastern enlargement, what the Commission can assess is rather than a at elites and in backsliding the of in the (Buzogány and Varga, and 2023). the question of the new RoL conditionality regime will and it so often the academic debate regarding the the one there about and political to EU and 2017). the other EU provide with to question their democratic et al., 2023). not to amongst the domestic because of EU et al., 2024). Whilst of is strong and 2023), the EU's domestic support and to for et al., 2024; et al., 2023). a decade into the RoL the autocratization in one of the EU's Member States a in the of democracy in What have we from this crisis and its political and implications and outside the We conclude by highlighting five The first is that Member States often into about the of the EU the debate about respect for the RoL a in the EU's political authority. debate has brought to the fundamental not only about the of the RoL and its at the European level but also about respect for the RoL by the EU Although the conditionality regime can be as being it an incremental institutional seen as an of building political authority in a by What is is that this new regime emerged from about common values several institutional – the the Commission and the Member States in the Council, as well as national – each with its own source of the academic RoL debate often these whilst the EU of being the and RoL regime on more than EU crisis that while the EU acted the crisis, the of decisions kept the EU the following The is that RoL policy instruments from their implementation on a of both internal (in relations between the main EU institutions and the of power the and external (such as the in or the challenges of to about their The political context in the Member States be Article 7 TEU was introduced when far-right populist parties were emerging in Western Europe and Eastern We following the European elections and several national elections all over de in the in in in Germany, in Fidesz in Hungary, the and get not only in the EP but also in the these parties will the domestic political context will determine the fate of the EU's political authority in the conditionality regime to safeguard its values. to a concerning the for RoL and an early The Polish and Hungarian that once the the of democratic backsliding in a systemic that is to is even more as the of the Polish in that once the RoL be without democratic For is a The concerns the effectiveness of the conditionality The power of the new conditionality regime not be What we about the EU's enlargement conditionality and other conditionality in is that conditionality often it on rule was no cure for the RoL to EU and have given to or Instead, to provide more and and whilst the effectiveness of the EU's RoL conditionality regime mainly concerns the internal of the EU, we not about its external et al., 2024; Hillion, 2023). The RoL crisis and the of democratic backsliding the EU have about its as a democratic into question the of the regime that Eastern enlargement, which was as the most instrument of external It is not only the emergence of in such as Poland and Hungary that but so the of the main EU institutions to with the internal will the influence of EU policy as it in with in its a Whilst RoL has been a of EU external the long silence of the EU over the last decade has ruling elites in to RoL it is the in that the of the EU in the – more by than by its own We would to the of the Annual – of and as well as Priebus, for their on The of on this was supported by the Hungarian of