Rule of law European Union

Looking back and forward at the rule of law in EU

2022 was a dramatic year for European politics. The year that many predicted to be dominated by Hungarian parliamentary elections instead quickly became the year of EU facing war at its doorstep. Russia’s full-scale invasion of Ukraine upended many political calculations and dynamics on the continent. At the same time, the bloc continues to struggle with the key challenge of the rule of law crisis in several Member States and its direct financial consequences – that of the European Commission applying economic pressure on Hungary and Poland, finally bringing its enforcement powers to bear.

The positive in 2022: The rule of law remains a priority despite the war

Some developments in the last year were undoubtedly positive. The EU rule of law conditionality – the mechanism for withholding EU funds towards a Member State over the rule of law concerns - was finally used in November 2022 - late, only towards Hungary, with a last-minute danger of EU Member States sacrificing it (and EU credibility) to overcome the Hungarian threat of veto on aid to Ukraine, but after a long journey, the EU finally was able to apply financial pressure on a Member State that is no longer a fully democratic country and whose government has captured its formerly independent institutions. Unfortunately, the conditionality mechanism was not used towards the other problematic country – Poland.

Despite the media cycle shifting from hemicycles to HIMARS, the rule of law was not entirely cast aside and remained a priority for EU institutions and EU Member States. A real danger of the war pushing other topics completely out of the public debate did not materialise. The rule of law continued to be an essential part of public debate in the EU and will hopefully continue to be so in 2023. The horrible war launched by an autocratic regime and should not lead to a loss of focus on the importance of democracy.

Concerning Poland, the pressure from the European Commission and its various financial measures have brought some improvement:  Poland dismantled the Disciplinary Chamber of the Supreme Court. The replacement is not perfect, but it is an improvement. However, Poland struggles to move towards unlocking the EU covid-19 recovery fund, with a new law facing uncertain fate at a deeply conflicted Constitutional Tribunal. The clock is ticking, and the Polish government is stuck with an increasing internal conflict preventing it from fulfilling Berlaymont’s requirements and receiving the recovery fund money or lifting the 1 million EUR/day fine over not complying with an order from the European Court of Justice.

The European Court of Human Rights continued to be a vital player in the rule of law crisis, having now a triple-digit number of pending/communicated cases concerning courts and judges in Poland. The Strasbourg court also issued important rule of law-related judgments in 2022 regarding Romania, Bulgaria, and Slovenia, among others. Framing the rule of law as a vital element necessary for proper respect for the right to a fair trial, the Court expanded its case law on encroachment on the independence and impartiality of the judiciary.

The negative in 2022: Dashed hopes in Hungary and uneven EU action

Not all was right with the rule of law in the EU, however. The Russian aggression shook the regional legal order, entrenched in the works of the Council of Europe and OSCE. Vladimir Putin’s complete disregard for international law not only led to Russia’s expulsion from the Council of Europe but to questions as to whether the rule of international law that was meant to ensure peace in Europe is still relevant.

The Hungarian parliamentary elections in April brought about high hopes for the united opposition to wrestle power away from Fidesz and turn the country around on the rule of law. These hopes have flopped as Orban managed to win and secure a supermajority again – as usual in an unfair election. It seems that the Fidesz rule will be cemented for years to come, and the ruling party will continue to reshape the Hungarian legal landscape to the detriment of the rule of law.

The European Union was able to apply pressure on Hungary and Poland regarding the rule of law, but these reactions were uneven and, at times, incoherent. For example, in December 2021, the European Commission launched an infringement procedure concerning the Polish Constitutional Tribunal. It took over a year for the Commission to finally take Poland before CJEU over the state of the Tribunal, which has been since 2016 taken over by the ruling coalition and abused to attack EU law and the European Convention on Human Rights, further eroding the rule of law in Poland.

The European Court of Human Rights and the Court of Justice of the EU have played a vital role in protecting the rule of law. But both courts face increasing resistance in the form of countries refusing to follow their judgments, and in some cases, such as with the abovementioned Polish Tribunal, openly attacking these crucial regional courts. The lack of respect from ECtHR and CJEU is a worrying sign and will increase in the coming years.

What to watch out for in 2023: Poland’s elections and keeping the rule of law high on the agenda 

The rule of law in EU in 2023 will be dominated by a single political flashpoint: Poland’s upcoming parliamentary elections, scheduled for autumn. This crucial vote could lead to at least a partial pivot in the rule of law crisis in the country, but even if the Polish opposition prevails, it will face two significant hurdles: President Andrzej Duda and the Constitutional Tribunal, both loyal in their own ways towards the currently ruling coalition.

The EU will continue with its attempts to improve the rule of law in EU Member States, but just as strengthening values is a long game, so is Russia’s imperialist ambition and the economic fallout of the war in Ukraine. Can Brussels keep the rule of law high on the agenda despite the threat of recession in the EU? The recently inaugurated Swedish presidency of the Council looks promising as far as values go and hopefully will be able to keep these items high on the agenda – and so will the next Spanish take on leading the Council.

The European Court of Human Rights will continue its work on cases concerning courts, judges, and the individual’s right to a fair trial. Its biggest challenge comes from the sheer amount of such cases, with Poland alone generating a triple-digit number, and the Court’s ability to address them swiftly. Paradoxically, Russia’s exit from the Council of Europe might prove a boon, freeing up the resources in the long term and removing deadlocks in decision-making concerning the Court. Yet even with no new Russian cases to tackle and no obstruction from the Russian Federation, tackling the volume of rule of law cases will be a tall order for the Strasbourg Court.

2023 will be another challenging year for the rule of law in EU as the crisis of European values plays out with a war in its background. A determination from all relevant actors to ensure that the rule of law and human rights do not end up eclipsed by other crises will be necessary, perhaps more so than ever.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

This work is supported by

Stiftung Mercator