Developments in the past year show that the EU is increasingly vulnerable to governments’ measures undermining people’s rights and freedoms and putting under pressure the system of checks and balances that keeps democracies strong and healthy.

Member states are implementing problematic policies that go against the basic values on which the EU is founded, set out in Article 2 of the Treaty on European Union (TEU). These problematic policies include: interfering with the independence of the judiciary; interfering with the independence and pluralism of the media; restricting the activities of civil society organisations (CSOs); restricting the right to peaceful protest; and rhetorical attacks and restrictive policies targeting marginalised groups such as migrants, ethnic minorities, women and LGBTI people. Many EU countries have also introduced overly restrictive measures to respond to the public emergency caused by the coronavirus pandemic, well beyond a genuine and proportionate response to the outbreak. In some cases this is the unintended consequence of short-sighted policies. In others it is the result of deliberate attempts by authoritarian leaders to erode individual freedoms and the democratic process.

To prevent a further turndown for democracy and people’s trust in the EU project, the Commission should use the SOTEU 2020 as a wake up call for governments and EU leaders, to make clear that no more compromise will be accepted on democracy and freedoms. It should warn that any attack to basic Article 2 values will be met with strong sanctions and announce brave initiatives to promote their respect and prevent any further breach.

Ensuring people that COVID-19 recovery includes restoring people’s freedoms

Many EU governments have adopted problematic measures in the name of protecting public health. Temporary restrictions on certain freedoms may be necessary to save lives and protect at-risk groups. But for the most part, human rights provide citizens with the tools they need to ensure that their leaders act to protect people’s wellbeing. Governments have responded to the pandemic by unnecessarily limiting those rights instead. This included disproportionate restrictions on the right to protest, free speech, access to information and freedom of association that are particularly irresponsible during a pandemic, when the public needs tools of civic participation to ensure their representatives are doing their best to protect their wellbeing; discriminatory measures that are likely to exacerbate marginsalisation and polarisation of our communities; as well as police and surveillance overreach that may encroach on our privacy long after the pandemic is over.

Citizens look to the EU to help their governments bring citizens through the pandemic as safely as possible. EU leaders have recognised the importance of securing technical and financial assistance and coordination from the Union to prevent populist authoritarians capitalising on public discontent to stoke Euroscepticism. It is equally important for the EU to use the options available to it to restore and promote people’s rights and freedoms, so that citizens can ensure that their governments answer to and work for them.

In the SOTEU 2020, the Commission’s president should:

• commit to publish a thorough assessment of how governments’ responses to COVID-19 have impacted people’s rights and freedoms, as a result of its dedicated monitoring;
• warn that, where problems are identified, the Commission will address clear recommendations to governments to remedy the situation, and pursue legal, diplomatic and political sanctions as soon as it becomes clear that a member state is unwilling to implement them.
• clarify that national programmes to be funded under the COVID-19 recovery fund will be assessed also in the light of the extent to which they serve to provide meaningful financial support for grassroots CSOs and restore and nurture a vibrant civic space.

Protecting civic freedoms

Many EU countries are actively restricting civic freedoms and the ability of the public to participate in their democracies. This includes censorship on free speech, restrictions on the right to protest, increasingly limited access to information and opportunities for public participation in decision-making. Governments are also creating an increasingly restrictive environment for activists and CSOs through hostile rhetoric and smear campaigns by political figures and allied media outlets, harassment through legal channels such as audits and abusive lawsuits, cuts in public funding and attempts to block private funding, burdensome or inadequate regulatory frameworks. Activists and CSOs that promote the rule of law, democratic pluralism, fundamental rights, anti-corruption and environmental protection are often the deliberate target.

Civic freedoms and CSOs are key to the proper functioning of a healthy democracy as they are the tools through which citizens can put participatory democracy into practice and make sure their representatives listen to and address their concerns. Attacks to activists and CSOs are all the more worrying now that the pandemic has further hampered civil society through practical and financial constraints. The EU should step up its efforts to reverse these trends and nurture a more open and vibrant civic space to improve the state of our democracies.

In the SOTEU 2020, the Commission’s President should:

• be explicit that respect of civic freedoms and the enabling environment for activists and CSOs will be among the key issues of the Commission’s annual rule of law reports, starting from the first report, due at the end of the month;
• commit to identify steps to remedy existing concerns and monitor the implementation of its recommendations, in consultation with grassroots CSOs;
• pledge to make full and strategic use of EU legislation that can protect civic freedoms – including rules on competition, internal market freedoms, public procurement standards or data protection;
• announce EU-wide rules to fill gaps in the protection of civic freedoms, such as rules to prevent abusive lawsuits (known as SLAPPs) aimed at silencing critics such as activists, CSOs and independent journalists;
• urge EU governments to revise up the budget for the future Rights and Values Programme as proposed by Parliament, to make sure that adequate funding is given to activists and CSOs to support their long-term financial sustainability and increase their resilience against attacks and restrictions.

Strengthening the EU’s ability to promote and protect Article 2 values

So far, the EU has only had modest success in persuading authoritarian governments to desist from their deliberate attacks to basic Article 2 values such as democracy, rule of law and fundamental rights.

Initiatives by the Commission and the Parliament against Hungary and Poland, including the activation of the Rule of Law framework and the triggering of the Article 7 procedure, have relied heavily on the Council’s willingness to move along with sanctions. At the same time, legal actions and outspoken concerns by EU leaders were not been matched by action taken by EU political parties to suspend or expel national member parties breaching Article 2 values, as the long debate about the expulsion of Hungary’s ruling Fidesz party from the centre-right European People’s Party (EPP) shows. The respect for Article 2 values seems to fall prey to political games. But it does not have to stay this way.

In the SOTEU 2020, the Commission’s President should:

• be explicit that the Commission’s annual rule of law reports will include clear recommendations for member states whose implementation will be strictly monitored;
• invite the Council to establish a regular peer review system on the respect for Article 2 values;
• commit to support the conclusion of an inter-institutional agreement on reinforcing Article 2 values, as proposed by the Parliament’s Committee on Civil Liberties, Justice and Home Affairs;
• invite EU institutions to reflect on how to ensure a stricter adherence to Article 2 values by EU political parties and their national member parties, building on existing requirements for EU political parties’ registration and funding;
• urge the Council and the Parliament to finalise negotiations on the Commission’s proposal making EU funding conditional on respect for the rule of law. Governments should agree on an effective mechanism to suspend funds that can be triggered by the Commission without the need for qualified majority support by the Member States. They should also ensure that end beneficiaries, including CSOs, can benefit from alternative distribution channels;
• urge EU governments to revise up the budget for the future Rights and Values Programme as proposed by Parliament and prioritise funding to promote grassroots support for Article 2 values.