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The liberal pushback (hopefully) begins: boosting the rule of law


BRUSSELS – The rule of law in the European Union is in danger. That was the message from “The State of Democracy, the Rule of Law and Fundamental Rights in the EU,” a seminar held in the European Parliament on 9 January.

Hosted by the Alliance of Liberals and Democrats for Europe (ALDE), the seminar featured chilling stories of EU-wide corruption and media repression. In particular, Polish government efforts to politicise its judiciary have provoked great alarm among EU leaders, particularly among MEPs. The seminar’s main take-away: EU institutions must develop mechanisms for punishing member states that violate the rule of law and, moreover, be prepared to use them.

Guy Verhofstadt, Belgian MEP and ALDE’s president, more than hinted at this challenge to wayward EU member states. “Ultimately, there is no place in the union for countries that take our money, but do not share our values,” he said. “You accept everything.”

European Ombudsman Emily O’Reilly delivered the event’s keynote address. “None of us can pretend that we don’t know where the problems are, or where the gaps are in the fabric of EU democracy,” she said. “Populists divide and exclude, and that’s the dynamic from which they draw their power.” She stressed that rather than ignoring those attracted to populist rhetoric – as Hillary Clinton did by dismissing then-US presidential candidate Donald Trump’s followers as “deplorable” – a better tactic is to focus on delivering concrete results to the people.

“Most voters don’t care about political theory,” observed O’Reilly. “They do understand what their lives are like from the time they wake up in the morning to the time they go to bed. [Thus] fighting the pushback against liberalism, against the rule of law, against democracy itself means paying attention to what people need in their immediate lives.”

But confronting member states over human rights violations implies measuring who violates the EU’s norms, and how. Gabriel Toggenburg, senior legal adviser at the EU’s Fundamental Rights Agency, said many reports exist that document state transgressions. The key is putting them all together. “Every year, around 50 reports by the Council of Europe and the United Nations are delivered about member states, but they are hardly read, and not in combination,” he said. “If you add up all the existing mechanisms [for identifying human rights and rule of law violations], you end up with close to 70.”

Constructing “mechanisms” was a recurring theme during the discussion. After all, even if one is sure that an EU member state has violated accepted political norms, what should the European Commission do in response?

For Alison Coleman, policy officer at Transparency International, the response is obvious: turn down, or turn off, the faucet of EU money. Referring to Azerbaijan’s recent ‘laundromat’ scandal where its government used shell companies based in the UK to pay off politicians and journalists willing to act as apologists for its human-rights abuses, she said that was example of how corruption is spreading through the EU, and how only financial punishment can spur countries to combat it.

“This is an escalating rule-of-law crisis in the EU that the Commission, to date, has proved powerless to address,” she said. “Infringement proceedings have not tackled the underlying causes and the [EU’s] so-called nuclear option [of suspending a country’s voting rights in European institutions] may reveal itself to be nothing more than a damp squid.”

Instead, Coleman wants a focus on structural funds. She said that the EU must establish a “rule of law assessment mechanism” that would evaluate factors such as the independence of a country’s judiciary. Rather than triggering the Lisbon Treaty’s punitive Article 7, negative assessments would lower levels of EU funding for the country in question. “If there’s a problem, funding could be suspended or frozen until the member state implements Commission or Council recommendations,” she said, adding, however, that some funds would continue to be delivered “to vulnerable people”.

Concern for the security of journalists was another recurring theme during the seminar. Pier Luigi Parcu, director of the Centre for Media Pluralism and Freedom, warned of the increasing difficulty of the journalistic profession.

“Media autonomy is under strong threat,” he said. “The state’s role in media and advertising becomes an instrument for threats, blackmail [etc.]. It’s not just fake news. People are not exposed to a diversity of opinion, but only to a bubble of what they want to see.” Part of the problem, he said, is the media’s corporate structure. “The media is very concentrated in most EU member states,” he said. “In some countries, we don’t know who owns the media. It’s a transparency issue.”

To reinforce the point, Matthew Caruana Galizia of the International Consortium of Investigative Journalists spoke soon after. Galizia’s mother, Daphne Caruana Galizia, was the Maltese journalist and blogger killed by a car bomb after she left her home in October 2017. Her family and supporters assert she was murdered because her writing exposed corruption in Maltese politics.

“The rule of law doesn’t exist when you have impunity,” her son said. “And [in Malta], there is complete impunity when it comes to [killing] journalists.” He described how his mother’s murder was only the culmination of a series of threats – including “countless” death threats – with the family house vandalised twice in a decade. “We as a family call for an end to impunity for crimes against journalists,” he said. “They should not have to die to raise the alarm.”

     THE UPSHOT: Poland, Hungary and Malta and their political leaders are flirting with authoritarian stances while benefitting from billions in EU structural funds and kicking sand in the EU’s face at the same time. Calls to respect the EU’s values won’t do it. Cutting off the hose of EU money to those countries that do not respect rule of law or protect their journalists would.
     The seminar’s topic also raises immediate questions about the EU’s preparations for its next wave of enlargement. While some argue that enlargement is a way to ensure that new member states do not backslide on issues related to fundamental human rights, it is glaringly obvious today certain of the EU’s youngest member states have backslid anyway. Could that be because their democratic and social reforms prior to membership were not deep enough, meaning enlargement came too quickly? Buyer beware as Brussels contemplates who to bring into the union next…


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