Albena Azmanova, Bethany Howard – Binding The Guardian

Following recent articles by Carlo Clericetti and Wolfgang Streeck on the political arbitrariness of the “EU Rule of Law”, this is an excerpt from a study that raises the question if the EU Commission is complying with the rule of law
while supervising member states’ compliance with this golden rule?

Albena Azmanova – Associate Professor of Political Theory, University of Kent, Brussels School of International Studies and Bethany Howard – Researcher, European Parliament

Bethany Howard is Accredited Parliamentary Assistant for MEP Clare Daly

Read the full report here

The rule of law is the foundation of European societies’ legal order and political culture. Its core precept—prohibiting the arbitrary use of power—has provided the invaluable combination between freedom and security that has enabled our societies to thrive. The rise of autocratic rule across Europe since the turn of the century has triggered a crisis in the rule of law and an epidemic of abuse of power. This erodes the essential security that comes from power being held in check on which our personal and collective well-being depends. That is why the fate of the rule of law is no longer an academic issue or an elite preoccupation—ordinary citizens are engaging in the battles over its meaning, its implementation, and its future. Citizens are calling governments to account: from the widespread demonstrations in France against the global security law proposed in 2020, activism in multiple European countries against bans on civil assembly during the Coronavirus lock-downs, to the year-long anti-corruption protests in Bulgaria in 2020–2021.

The European Commission’s annual “Rule of law report – the rule of law situation in the European Union” hereafter, Report) is the latest addition to a substantial EU rule of law toolbox’ ). By adding a new element to the rule of law infrastructure, the European Commission has both exercised its mandate as a guardian of the rule of law in the Union and has further consolidated this competence: the 2020 Report initiated a new annual Rule of law Review Cycle led by the Commission, which starts with surveying the state of the rule of law in each member state in an annual report. This process involves an exchange of information between member states through a network of national authorities and civil society contacts, and a follow-up on the annual report with the Parliament and the Council. Such a comprehensive and consistent rule of law monitoring of all member-states (which had previously been confined to the enlargement process) is a very welcome development. However, as it expands its mandate as the ultimate guardian of the rule of law in the EU (together with the ECJ, the European Parliament and the European Council), it is important that the Commission itself be bound by it.

Here is why this is important: The rule of law is not violated when the law is broken, but when breaking the law is not punished, when the sanction is not uniform, and when there is no legal and institutional framework to enable that inequities be challenged and corrected. This whole process is enabled by a hierarchy of supervision that calls to account both the perpetrators of violations and those who sanction them. Up there at the peak of the hierarchy of accountability stands the ultimate authority: the Guardian.

This mandate of rule of law guardianship is highly exacting as it contains a double imperative: supervising effectively the respect of the rule of law doing so by conforming to rule of law principles (which we clarify below) in the course of exercising its supervisory function. Whilst examining whether the Commission complies with the rule of law in its deployment of the annual reports as a rule of law monitoring device, we will comment on the first objective only in light of the second objective.

Asking to what extent the Commission complies with the rule of law would be meaningless. Any public authority that has the duty of safeguarding the rule of law but fails to do so effectively, fails the rule of law entirely—it then becomes part of the problem it is meant to solve. This is because an inconsistent protection from arbitrary rule itself amounts to arbitrary rule, even if no apparent law is broken. The guardian of the rule of law can either safeguard the rule of law or betray it by allowing its violation—there is no third option.

Read the full report here