Facing the rule of law crisis within the European Union

Abstract

Despite ample evidence of breaches of the rule of law by governments in Hungary and Poland, and widespread calls for action, EU institutions have been slow to respond. This paper argues that interinstitutional dynamics create a powerful impediment. Activating the rule of law mechanisms requires the alignment of the decisions of three EU institutions. Internal decision-making responds to different rationales in each institution and factors explaining decisions in one institution may not have the same explanatory power for others. In the European Parliament, partisan politics have hampered the activation of the preventive stage of Article 7. The Commission, in turn, is limited in its capacity to take action, since it anticipates the effects of any possible action and calculates the Council’s support and the effects of a failure to obtain it. This has led to a preference for mechanisms that fell short of sanctioning. The Council, finally, resists any possible encroachment on what can be perceived as discretionary margin for action in domestic democratic politics. These different logics of behavior cancel each other out and explain the reduced EU action to monitor compliance with rule of law.