Is the EU Acting Boldly Enough to Defend Civil Society and Democracy?
By Kersty McCourt
Today, the European Commission published its first Rule of Law Report, which will act as the Commission’s annual watchdog report to monitor rule of law developments in each of the EU’s 27 member states. Commission President von der Leyen stated that the report will be a preventive tool to “ensure there is no backsliding,” but many members of civil society and democracy observers have their doubts.
In member states like Hungary and Poland, democratic backsliding is well underway, if not complete. Last year, the independent watchdog Freedom House downgraded Hungary’s democracy ratings to “partly free,” based on Prime Minister Orban’s consolidation of control over the country’s formerly independent institutions. And in July, members of the European Parliament endorsed a non-binding report demonstrating that the rule of law has “seriously deteriorated” in Poland.
In recent years, both countries have faced Article 7 disciplinary proceedings in the EU—a process that can lead to the suspension of voting rights—but there has been no decisive or swift action. The von de Leyen Commission has also resisted taking legal action against Hungary, despite continuous and new violations of EU law. There have been some legal victories. Building on decisive legal action from the previous Commission, the EU’s Court of Justice ruled that Hungary must repeal a 2017 anti-NGO law, yet civil society is still waiting for Hungary to implement the ruling.
In response, NGOs issued a joint call, Civil Society on the Frontline: 5 Points for EU Action, to push the von der Leyen Commission to take decisive and timely action during their 2019-2024 term to protect civil society and human rights defenders.
One year into their term, it is time to evaluate whether the EU is listening to civil society’s five demands for bold action.
- Civil society has called on EU leaders to speak up for them. Von der Leyen’s inaugural State of the Union address stopped short of recognizing civil society as a crucial partner and failed to call out human rights abuses within the European Union. In a welcome move, it was announced that the first-vice president of the Commission was mandated to pay special attention to the protection of the right of peaceful assembly and the freedom of association. The next step would be to expand and set guidance on what this means—and for all Commissioners, including the President, to be more vocal.
- Civil society has asked EU leaders to secure an enabling space to operate, free from attacks. The last year has focused on the EU’s new financial framework. The negotiations have been a rollercoaster for civil society with funding cuts, followed by renewed promises for funding to civil society both within the EU and externally. The EU has committed to a dedicated budget line for organisations in member states working on rights and values but there is not increase in the overall budget.
- Civil society has asked for regular and comprehensive monitoring on civic space and the rule of law. The recent Rule of Law Report is in response to this call, but civic space was not cited as one of the four pillars of the report. The report also needs a clear methodology to ensure transparency, independence of sources, and analysis of the data.
- Civil society has asked EU leaders to protect them from attacks, harassment, prosecution, and violence. As attacks against human rights defenders have increased civil society’s fourth ask was to establish a protection mechanism and ‘Rapid Response System’. There has been no indication of progress in this area.
- Finally, the Commission should be willing to take legal action where there are clear violations of EU law. The recent judgment on Hungary’s foreign funding law is precedent setting and a very important step—but the judgment needs to be implemented and was a long time in coming. Civil society is still awaiting a judgment on the 2018 law criminalizing the provision of legal assistance in Hungary and this Commission needs to sharpen and continue to use infringement proceedings.
Overall, the European Union has taken important steps, but given the scale of the threats against democracy, the rule of law, and civil society—their response have been fragmented and insufficient. They must listen to civil society and escalate their actions.
Kersty McCourt is senior advocacy advisor with the Open Society Justice Initiative.