Hungary and Poland are the most serious examples of the deteriorating state of rights, democracy and the rule of law in the EU. But they will not be the last (keep an eye on Croatia) and they are not the only EU governments flouting the EU’s ‘fundamental values’.

The EU needs to be better equipped

The European Commission responded to this worrying trend in 2014 by creating a ‘rule of law framework’ that allows it to start talks with offending governments. In 2015, ministers from the 28 EU governments in the Council began their own procedure: an annual ‘rule of law dialogue’. But neither measure has kept the EU’s fundamental values safe. The Commission will only trigger its framework in extreme cases and has applied it selectively - to Poland, but not to Hungary. And the Council’s dialogue has so far been a superficial and meaningless exercise.

Yesterday, the European Parliament adopted a resolution setting out its vision for a new system - a pact on democracy, the rule of law and fundamental rights (or ‘DRF’) - that would assess all EU countries, and the EU itself, annually. MEP, Sophie in ‘t Veld of the Liberal group was responsible for the original text, which largely survived political wrangling.

European Parliament takes up the challenge

To summarise the DRF pact: an independent body of experts (the DRF panel) would compile a report assessing each country. The report would be adopted by the Commission and then debated by the European Parliament together with national parliaments, as well as by ministers in the Council. The Commission would be obliged to open talks with governments identified by the DRF panel as problematic. If the DRF panel finds particularly serious issues, all three institutions would be obliged to hold a formal debate on whether to activate Article 7 of the EU Treaty, which allows for sanctions.

The DRF pact: a big improvement

The DRF pact would significantly enhance the EU’s ability to protect Europe’s fundamental values. Currently, the question of whether the EU even discusses a member’s rights record (let alone takes action) is highly politicised. Consequently, offenders are often able to escape criticism, such as Hungary’s ruling party, which has been protected from censure because it belongs to the largest political group in the European Parliament, the EPP.

Problematic governments only get examined by the EU when a fortuitous constellation of factors align to remove political obstacles. For instance, Poland’s current government belongs to a far smaller group in the European Parliament that has not been able to shield it from criticism. Similarly, the Commission has been unwilling to trigger the rule of law framework in relation to Hungary. Doing so could be seen as an embarrassing admission that the previous Barroso Commission had failed to investigate the government properly. More generally, the Article 7 procedure has never been triggered because neither the European Parliament, nor the Council nor the Commission has ever mustered enough political will.

As Ms in ‘t Veld points out, current procedures are ‘vulnerable to criticism of being politically motivated’. In contrast, she continues, under the DRF pact, ‘all Member States… should be treated equally and assessed on the same basis. The mechanism should be objective, evidence-based and permanent instead of incident driven.’

The DRF pact would clear political blockage because it makes assessment and discussion of all countries compulsory. Furthermore, it places the decision over follow-up action - that is, whether the Commission’s framework will be triggered, and whether the three institutions will discuss activating Article 7 - with the DRF’s independent panel.

Although the DRF pact doesn’t contain new sanctions and can't automatically trigger sanctions under Article 7, it would improve on the current situation. First, it would create stronger political pressure on problematic governments. This is because the DRF panel is likely to trigger the Commission’s framework more frequently than the Commission would if left to its own devices. And because the DRF panel will be able to oblige each institution to discuss formally whether to activate Article 7, which rarely happens now.

Second, the DRF pact would lead to political pressure being applied in a more focused and concerted manner than presently, because it would pull together and improve existing tools. The Commission would be obliged to use its framework more systematically. The Council’s rule of law dialogue would become more meaningful because it would be based on publicly available DRF country reports and Commission recommendations. This would already be a huge improvement on what happens at present where governments’ rights records are not even discussed. And the DRF pact adds a new player: the European Parliament would also discuss the DRF reports with national parliaments.

This kind of concerted political pressure might not be enough by itself to force a determined government to alter course. But together with EU measures to promote support among the general public for the EU’s fundamental values, something the European Parliament's resolution also calls for, the DRF pact could make a real difference.

But parliament may need a ‘Plan B’

The parliament’s resolution setting out the DRF pact is not legally binding. The resolution requests the Commission, which is responsible for initiating law-making, to put a legislative proposal on the table to create the new procedure. Unfortunately, Frans Timmermans, First Vice President of the Commission, has repeatedly opposed creating a new mechanism. In addition, the Commission is unlikely to back a procedure that sees it lose control over when to activate its rule of law framework. And although some governments are keen to strengthen their rule of law dialogue in the Council, many capitals strongly oppose genuine scrutiny.

The sad reality is that if the European Parliament wants to improve protection for the EU’s fundamental values, it may need a ‘Plan B’ that allows it to go it alone, like the interparliamentary dialogue previously suggested by this author.