The COVID-19 pandemic has placed a great burden on our society. Measures imposed by governments across the EU have severely restricted citizens’ rights. Limiting the number of people who can gather in closed spaces is a reasonable and legitimate means to contain the pandemic. But a blanket ban on demonstrations, as is the case in Hungary for example, is disproportionate and illegal.

Authoritarian leaders in Hungary, Poland and Slovenia are exploiting the pandemic to grab more power. They have used the state of emergency to fast-track new laws without consulting citizens’ groups. Critical activists and journalists are intimidated, smeared and harassed. Public funds intended to support the health system have been diverted by corrupt politicians to increase their wealth. These and other worrying developments are covered in the EU-wide report drafted jointly by Liberties and 14 national member and partner organizations.

Using citizens’ rights to steer the democratic ship in the right direction

In countries with strong democratic institutions, governments are more likely to take decisions that are in the public interest. Public consultations and open dialogue mean that lawmakers listen to a wide range of stakeholders. Media pluralism and freedom of information ensure greater transparency. Independent watchdogs and citizens’ groups make sure that governments stick to the law. This is particularly important in times of crisis, when government decisions have the potential to save or place at risk thousands of lives.

A strong and independent justice system is necessary to prevent governments from abusing their powers. Like referees on a football pitch, judges must be impartial for the game to be fair. During the pandemic, courts in functioning democracies have been able to revoke unlawful decisions by authorities. In April 2020, Germany’s highest court ruled a blanket ban on freedom of assembly unconstitutional. The judges decided that local authorities and courts must assess case by case whether restrictions on the right to protest are proportionate.

The right to assemble and freedom of speech are fundamental rights that can influence the course taken to contain the pandemic. People must be able to voice their concerns and criticize government policy. In healthy democracies, citizens can pressure governments to change or cancel poor law proposals. In France, for example, the government presented a new draft law that would seriously restrict the right of journalists to report about police interventions. Nationwide protests and fierce public pressure forced the French Parliament to amend the bill.

Freedom of information and our right to come together and form associations make it harder for governments to impose ineffective and disproportionate measures. In Croatia, civil rights groups informed the public about the government’s secret intentions to monitor citizens’ phones. After the story was shared in the media, the government abandoned its plans.

In some countries, however, governments have deliberately weakened democracy over the years. As a result, there are insufficient safeguards in place to prevent those in power to exploit the pandemic for their own benefits. And that’s where the EU must step in.

What the EU should do to preserve our rights

The EU has a whole set of tools it can use to prevent governments from undermining the rule of law. The European Commission’s decision to carry out an annual audit of member states’ democratic records starting with 2020 is a step in the right direction. But it will not stop populist authoritarians from undermining democracy, or effectively prevent others from going down the same road. To make sure that governments address the shortcomings identified in the audit, more concrete measures are needed. Here are three recommendations.

First, the EU must stop lending EU money to governments which deliberately attack democracy and the rule of law. The rule of law conditionality mechanism approved in December 2020 has the potential to be a game changer. But the Commission is now reluctant to trigger it – once again, playing the game of those very governments that would be the first in line to be targeted. After voting for the mechanism, Hungary and Poland have launched legal action against it before the Court of Justice of the EU. And despite being confident that the mechanism will stand the Court’s scrutiny, the Commission promised not to use it until the Court makes its decision. Until then, Poland’s ruling party can keep on persecuting independent judges and dismantling the country’s last remaining public watchdog. And Prime Minister Viktor Orban can continue to crackdown on free press to cover up the misuse of EU funds in the run up to Hungarian elections in 2022. The Commission’s inaction is at odds with its obligation to protect European values. Just this week, the Parliament warned that it would take matters to court if the Commission failed to act.

Second, EU institutions should make better use of EU law to prevent and address rule of law challenges. The Commission has the responsibility to act when EU law is violated. It should be braver in making use of EU rules and principles to take member states to court when they undermine democracy. The Commission should also use its power to propose new legislation to come up with new rules filling the gaps left by inadequate national laws. For example, it could propose rules to oblige states to protect media actors and rights groups from abusive lawsuits (known as SLAPPs).

Third, the EU should provide better support to independent watchdogs, such as rights and democracy groups. The Commission must ensure that funding made available within the framework of the new Justice, Rights and Values fund is disbursed so as to easily get to grassroots organizations active at local and national level. The Commission and the other EU institutions must also prioritise, including within the rule of law annual audit and the annual reports on fundamental rights, actions to better monitor and protect rights defenders and civil society groups from attacks across the EU.

About the report

The report EU 2020: Demanding on Democracy covers 14 EU countries. It is the most in depth exercise of this kind by an NGO network covering developments in 2020. The report was prepared by Liberties together with its member and partner organisations, to feed this year’s consultation by the European Commission on the state of the rule of law in the EU.

Previously on Liberties

Governments Facilitating Corruption During COVID Put Lives at Risk

EU Governments Squeeze Citizens' Groups, Protests and Media Freedom in 2020: Analysis

Health of Our Democracies Compromised by Many EU Leaders During 2020: Liberties Report