The publication by the European Commission, on 30 September, of its first annual report on the rule of law in the EU was like a bomb. For the first time, the Commission points its finger, through fault-finding country chapters, at Member States where the rule of law is under threat. Hungary and Poland did not fail to express their anger, even threatening to block negotiations on the EU’s future budget.
Although this annual mechanism is intended to be preventive, to “help Member States find solutions,” it is being launched at a time when the Council and the European Parliament are discussing a procedure on budgetary conditionality. This procedure, proposed by the Commission in 2018, provides for the reduction, suspension or even prohibition of funding in the event of “generalised deficiencies” such as endangering the independence of judiciary. The annual report on the rule of law is likely to serve as a source for this mechanism, although the Commission pretends it will not be the case.
These new steps can only be welcomed as they follow the activation of Article 7 of the Treaty against Poland and Hungary in 2017-18. For too long, once welcomed into the “European club,” the Member States could sleep easy. And it was not the regular reports of the EU Agency for Fundamental Rights (FRA), nor those of the Council of Europe’s Commissioner for Human Rights that woke them up. But if conditionality affects their wallets, it will be a different story as the countries targeted are among the largest net beneficiaries of the EU budget.
Now that the first steps are being taken at home, this conditionality should apply externally as well, because coherence is a two-way street!
For years, human rights organisations have been calling for greater coherence between the EU’s external and internal policies. Now that the first steps are being taken at home, this conditionality should apply externally as well, because coherence is a two-way street! A sanctions regime inspired by the US Global Magnitsky Act is well on track to target those involved in human rights violations around the world (asset freeze and EU travel ban). However, this is a far cry from conditionality that would target regimes that violate human rights in the Mediterranean region and elsewhere.
The principle of “more for more”, i.e. the more you respect human rights, the more money you receive, which was at the heart of the 2011 European Neighbourhood Policy, has not survived as an instrument applying to all countries in the region. What is at stake in the fields of energy (e.g. with Algeria), geopolitics (e.g. with Egypt or Israel), or migration (e.g. the March 2016 agreement with Turkey) is cooling down any willingness to act. Needless to say that Article 2 (known as the “human rights clause”) of the Association Agreements signed with Southern Mediterranean countries – although legally binding – has never been activated.
Yet, budgetary conditionality has not totally disappeared from the EU’s external policy. While it is hardly mentioned in the human rights field, it is used without complex in the field of development aid coupled with the management of migration flows, to encourage countries of origin and transit to align themselves with the EU’s views on the matter. Ironically, these views are strongly inspired by the very countries that do not want to be exposed to conditionality through the implementation of the EU’s mechanism on the rule of law.
The EU is dishing up “conditionality” in every shape. It is time for the EU, as a self-proclaimed champion of human rights, to clean up its own house to be credible externally, while not denying its principles when defending its interests in its relations with non-EU countries. It is even in its own interest to do so!
Vincent Forest
EuroMed Rights Advocacy Director