Ramona Coman on the emergence of the EU’s rule of law policy shaped by growing dissensus

In this discussion with Ramona Coman by RevDem managing editor Michał Matlak, they discuss the questions addressed in her recent book The Politics of the Rule of Law in the EU Polity: Actors, Tools and Challenges (Palgrave 2022), including the difference between liberal and anti-liberal ideas and how “dissensus shapes the EU’s rule of law policy and tools.”

Ramona Coman is Professor in Political Science at the Université libre de Bruxelles, President of the Institute for European Studies (IEE). She received her PhD in political science from the ULB and she was post-doctoral fellow at the University of Bologna in 2008. Her research interests relate to Europeanization, European integration, and judicial reforms. Her work has been published in peer-reviewed journals including the Journal of Contemporary European Studies, the Journal of European Integration, Perspective on European Politics and Societies, Revue française de science politique, and Politique européenne.

Michał Matlak: How would you describe the main question of your book?

Ramona Coman: My book examines the gradual establishment of a rule of law policy at the European level since the 2010s, when the governments of some member states have limited the independence of their judiciaries. In the book, the rule of law policy is understood as the gradual institutionalization of policy tools such as the European Semester, the EU Justice Scoreboard, the Rule of Law Framework, the Rule of Law Dialogue in the Council, the Regulation on a general regime of conditionality for the projection of the Union budget, etc. These soft and hard policy tools have been designed incrementally over the past ten years to complement other tools such as Article 7 TEU, with some difficulty, and with little result in practice. The book explains why EU institutional actors have been slow to react and why the rule of law is still a matter of controversy between the EU and some member states. Politics is naturally about disagreement and about competition between different opposing forces reflecting a diversity of opinions, preferences, interests or needs. The book proposes an analysis of these preferences and of the power struggles between EU and domestic institutions and actors, showing “who gets what and how” in different institutional arenas. Starting from this, the book addresses the following questions: How did we get here? How is the EU responding when the rule of law, one of the common values enshrined in Article 2 TEU, is under strain? To do so, the book seeks to shed light on the struggles leading to the adoption of each rule of policy tool – from the European Semester to the Regulation 2020/2092 – both within and between institutions.

My argument is that the explicit assault on judicial institutions by Fidesz in Hungary and PiS in Poland is more than a conflict between politics and law over judicial institutions and their independence; it is more than a conflict between supporters of more EU integration and less EU integration; it is more than a conflict between domestic and supranational institutions, conflicts which have traditionally marked the history of the integration process. What is at stake is a clash between liberal and anti-liberal ideas. I explain the establishment of policy tools at the EU level designed to address rule of law concerns through this lens.  

You’re writing about the clash between liberal and anti-liberal ideas within the EU. Could you tell us how do you define these two blocks?

What I understand as a clash between liberal and anti-liberal ideas is the reflection of antagonist views, in other words different ontological understandings about power, sovereignty, authority, and rule of law and liberal democracy. Liberal democracy is characterized by many scholars by a number of specific features and characteristics, for example, limited governmental power, separation of power, freedom of expression, liberties, freedom of speech, equal treatment before the law, and the rule of law. If liberal democracy encompasses these key features, what we observe in Central and Eastern Europe, but also in other EU member states, is that anti-liberal ideas are pitted against the core ideas of liberalism, against limited government, against judicial independence, and against the idea of pluralism and multiculturalism. Anti-liberal ideas, how I define them very briefly in the book, are also old and new conservative ideas – also beliefs about abortion, about minority rights, about migration, and gender issues. The clash between liberal and anti-liberal ideas is at the center of my explanation. Without this element, we cannot understand the preferences of the actors involved in the development of the EU’s rule of law policy. The preferences of the key actors are rooted in a set of specific ideas, norms, principles and beliefs.

Liberalism, which was “unchallengeable” at the beginning of the 1990s, now seems to be “the light that failed”, as Krastev and Holmes (2019) wrote. Again, the emergence of the EU’s rule of law policy cannot be dissociated from this phenomenon. This topic has also been studied by other scholars – see for example the very good book by Jan Zielonka Counterrevolution. Liberal Europe in Retreat, in which he explains very well that some governments in Central and Eastern Europe seek precisely to dismantle the liberal political order established in the nineties. For the readers of RevDem I recommend also the book by my colleagues from the Université libre de Bruxelles, Justine Lacroix and Jean-Yves Pranchere, Les droits de l’homme rendent-ils idiot?, in which they argue that today’s cynicism is not to see human rights hypocritically brandished but to see them bluntly contested, very often in the name of the people and sovereignty, and I would add in the very name of European values.

All the actors involved in this process that I study invoke European values, but in different ways. For example,

both Fidesz and the Law and Justice party are very much in favor of values and rights. Viktor Orban pretends to be the “true” advocate of European values, which are seen as “Christian values”. This deserves an explanation.

As discussed in a paper by Cécile Leconte, Fidesz in Hungary is using a technique which is similar to the one developed by the French Nouvelle Droite in the 1970s. In his study of the Nouvelle Droite, Taguieff showed how ‘neo-rightists’ reclaimed notions or references associated with ‘the Left’, in order to revamp the discursive software of the far-right and make it appear more palatable – a discursive strategy that he presented as ‘the retaliation argument’. This strategy consists of reclaiming the ideological references of your political adversary, while spinning them around so that they eventually convey a message that is the opposite of their original meaning.

The rule of law policy tools that I examine in the book – because the book is about the emergence of a rule of law policy at the EU level– cannot be dissociated from a process of change which started in the region a couple of years ago, that some scholars have defined in terms of de-Europanization. By this they mean attempts to replace the legislation that was adopted in the context of EU accession, for example the establishment of an independent judiciary, with contested provisions seeking to dismantle the liberal political order established in the nineties, or even autocratization.

In your understanding, one of the elements of this anti-liberal wave is that they present some conservative understanding of values, of human rights, and so on. But can a conservative acceptance of limited government and some of the liberal values make them a part of the liberal camp, in their understanding?

It can be. And this question goes beyond the scope of my analysis and requires more analysis. This is why I said that the anti-liberal ideas also cover some conservative values, but it is more than conservative values. The anti-liberal wave, as you call it, is more than just “some ideas” about abortion or migration. It targets the deconstruction of the main pillars and characteristics of liberal democracy in all its dimensions.

And there are conservatives who are against liberal abortion law, but in favor of limited government, for example.

Exactly. In political science, we introduce new concepts in order to underline or to capture a new reality. My aim was precisely to say that this is not only about conservative ideas. It is something new. It is not the first time that liberal democracy has come under strain. As Sheri Berman reminds us in her comprehensive historical analysis of Democracy and Dictatorship in Europe, consolidated liberal democracy most often comes at the end of a long and difficult process that involved missteps and even failure along the way.

Yet, although the critique of liberal democracy is not new and the tension between liberalism and democracy shaped the outcomes of many critical junctures, over the past decade contestation has increased as well as social inequalities, taking different forms, while the actors of dissensus across the EU have become more vocal supporters of anti-liberal ideas.

Discontent was also widespread in other historical contexts, but after WWII liberal democracy was seen as able to respond to the needs of all citizens. Today, as Sheri Berman underlines, the belief in the efficacy and responsibleness of liberal democracy has declined.

Your argument is that the dissensus over the rule of law shapes EU’s policy and most of governance, and that this is dangerous for liberal democracy. Why is it dangerous? There are theorists of politicization who often say that it’s good to have conflict – probably one of the most prominent scholars who is in favor of this kind conflict within the realm of politics is Chantal Mouffe, who thinks that it’s indispensable for democracy. So what makes this dissensus different and why is it dangerous?

I don’t say that this is “dangerous for liberal democracy”, I don’t make this claim as such. I show how what I call dissensus shapes the EU’s rule of law policy and tools. This has of course implications in terms of action. Dissensus shapes the nature of the policy tools, and the book illustrates that. My aim was not to embrace the normative implications like, for example, Chantal Mouffe, in saying that we need more or less dissensus, but to illustrate the forms taken by this current dissensus and to see how dissensus has an impact on the EU’s rule of law policy.  If the use of this concept gives the impression of a normative stance, this was not in purpose. In fact,

the conclusion of the book points out that precisely because there is dissensus over the rule of law in the EU, an open process of debate has occurred over the past decade, and different political actors have had the possibility to debate this very sensitive issue and to translate it into concrete action.

There is this passage where you say dissensus goes beyond disagreement, it can be disruptive if it challenges the variation of liberal democracy or precisely because it targets liberal democracy itself. That’s why I understood that as a normative statement to a certain degree.

It is my way to define dissensus and to illustrate it empirically.  The book distinguishes between dissensus, contestation and consensus. Consensus is when there is an agreement on the fundamental principles. Contestation is more controversial, is more critical, but not of the key principles of liberal democracy. There is an agreement on the core, but there are some differences on matters of emphasis or detail. Then I say

dissensus goes beyond disagreement, because it is precisely contesting the principles of liberal democracy.

Dissensus is an extreme case of politicization in the sense that the positions which are pitted against each other are irreconcilable. I try to apply  this grid – consensus, dissensus and contestation – to the analysis of the actors’ positions within EU institutions.

The book in the end intends to show how dissensus shapes the EU’s capacity to act, both within each EU institution and between them; how dissensus has an impact on how EU institutional actors understand and shape the EU’s rule of law policy and ultimately, how dissensus also determines who governs, who manages to translate ideas into concrete policy tools, which has implications for the EU polity and its modes of governance.

Do you think that the new conditionality mechanism will be a major game changer within the EU? We organized a debate about this mechanism at RevDem in which we had there Dimitry Kochenov and Antonia Baraggia among the speakers. Antonia was close to your line in a sense that the result is, to a certain degree, narrow because it’s about funds and the rule of law with the very concrete kind of definition that makes it impossible just to block funds because rule of law is in crisis in a given country. Dimitry Kochenov thinks that, based on what’s in this regulation, it is still possible to block funds. So he has kind of a broad understanding of what was put in the regulation. This demonstrates that even the rule of law lawyers are not on the same page completely.

It is difficult to say at this stage, the process is ongoing. What I can tell is that the content of this Regulation – between May 2018 when it was proposed by the Commission until December 2020 when it was adopted by the EP and the Council –  gave rise to both contestation and dissensus. The political desirability and legal feasibility of such a policy tool has been disputed. What is illustrated in the book is that the outcome (Regulation 2020/2092) had been shaped by tensions and conflicts within and between institutions, both political and legal. Because of legal contestation and increased dissensus over the rule of law, its content underwent a major shift: it went from a piece of legislation about how to deal with rule of law violations in EU member states to a text about the sound management of the EU budget.

What is important is that this tool had been adopted through the ordinary legislative procedure, it had been discussed in the Commission, in the Council, in the European Parliament, in the national parliaments, etc. Regulation 2020/2092 establishes the EU’s authority in its relations with member states through the budget, establishing conditions for its sound management. It complements what is called in my book the EU’s rule of law policy through a process of multiple legitimacies. With this regulation, we move from what I call soft governance (or soft tools) to hard tools. This shift is important. Ultimately, regarding the EU’s rule of law policy as a whole, the Regulation provides a definition of this disputed principle which is essentially anchored in the rulings of the Court of Justice. It also established a clear process to be followed when breaches of the principles of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the Union budget.

If I may move to the way you describe power plays within the Council of Ministers. You show here how many of the decisions are being blocked not only by Poland and Hungary, because they are not always able to block, but also by a large block of other countries, mostly from Central and Eastern Europe. Why do you think it is the case?

In the beginning, EU member states were very reluctant to address rule of law concerns or to discuss them, not only Central and Eastern European member states. One thing is to put the rule of law in the program of the rotating presidency of the Council for example, another thing is to put it on the agenda of the Council meetings per se, or to support the Council’s presidency to do so. The position of member states also varies depending on the angle through which the rule of law is discussed in the Council. For example, member states were very much in favor of organizing a rule of law dialogue in the Council (proposed in 2014). But all the other tools proposed by the Commission or the Parliament – like the Rule of Law Framework or the Annual Rule of Law Report and even the EU Justice Scoreboard not to mention Article 7 TEU – have triggered many discussions. When we look at the rotating presidencies of the Council over the past decade, some member states have been reasonably disposed to act as agenda setters in shaping the rule of law policy. Others have only reluctantly accepted to do so at the request of other member states or of the Commission. I would say that the rule of law agenda is driven by the EU15, acting in different coalitions including: Benelux, the “frugal four” with the support of Germany, and the Franco-German duo, with uneven support from Southern Eastern European member states joining some or all of these alliances at different times.

In some cases, there is an East-West divide. We see it to some extent when hearings are organised in the Council as part of the Article 7 TEU triggered against Poland and Hungary. Most of the questions asked during the hearings, if not all of them, are raised by the old EU15, rarely (with some exceptions) raised by the member states which joined the EU in 2004, 2007 or 2013. Another example: in June 2021 the Hungarian government wanted to ban the portrayal of homosexuality in schools, educational material and TV. Belgium, supported by Benelux, and followed by 17 member states, condemned the Hungarian legislation in a letter. The Baltic countries signed the declaration, but no other Central and Eastern European country has done the same.It seems that the East-West divide is variable, depending on the issues at stake.

Why is that the case?

There are political reasons, but also, I would say that the more exposed a country is to rule of law criticism, the less inclined it is to support developments at the EU level. If you look at the European Semester which focuses on the efficiency and the quality of the justice systems, you will observe that several member states have received Country Specific Recommendations. Italy is the country which has received the most since 2011, followed by Slovakia, Croatia, Poland, Bulgaria, Cyprus, Latvia, Portugal, Slovenia, Hungary, Malta, Spain, Romania, and Ireland. While member states usually agree with the assessment of the Commission, the Council tends to avoid too prescriptive recommendations or negative assessments.

The chapter in my book which is focused on the European Parliament responds, I hope, to this question. This chapter shows that the East-West divide tells only part of the story. Arguments often put forward by political actors from Central and Eastern Europe are shared by political actors from the old member states. Beyond the geographical East-West divide, we see rather an ideological divide. Analysing political debates in the EP and votes on rule of law issues since 2010, I can say that partisanship plays a key role, as well as the discursive coalition of the right with the radical right. Due to the prevailing partisanship in the EP, it took almost eight years – from the first debates in 2010/2011 until September 2018 – to see Article 7 TEU triggered against Hungary with the support of the majority of the EPP group. To that, one can add different views on EU integration (more or less integration). But in the rule of law debate, I would say, partisanship and the discursive or ideological alliance of the EPP, ECR and the radical right prevailed in some contexts. This is more powerful in terms of explanation than a pure East-West geographical divide.

How do you see the role of the rule of law scholars in this dissensus within the EU? They often take strong normative positions and are very critical of the EU. Where is the political science in all that?

The role of scholars in the rule of law debate (not in the dissensus, I would say) is very important. Political science is – broadly speaking – about explaining (why) and understanding (how). Our role is to provide informed analyses, guided by theory and supported by empirical evidence. Indeed, some research topics have a strong normative dimension. The best example is the literature on democracy in EU studies, discussion about what the EU should do implies also normative debate, which leads to a normative response. The Eurozone crisis is a good illustration, many academics have argued that the EU was doing “too little too late”, for example. This expression was also used in relation with the management of migration. Normative views are often expressed when we are invited as academics to comment on recent developments and more importantly on the violation of rights. But the question is more complex than that. There are also theories in political science and in EU studies which allow us(?) to conduct critical analyses with analytical and methodological rigor, based on solid empirical evidence.  

Is it possible not to take a normative stance in such an ideological conflict?

We all have personal views.

In political science, in studies on democracy and on European integration it is very difficult to avoid normative questions. Yet, my research that we are discussing here is oriented by why questions. In other words, in the book I illustrate the preferences of the main EU political actors, their views and visions on the issues at stake, their ideas, and their institutional power, as well as their ability to shape outcomes.

I think my modest contribution from a political science perspective is the empirical analysis of ten years of debates in institutional arenas at the EU level, not the normative debate, which is equally important.

In collaboration with Loren Drakula and Karen Culver

Leave a Reply

Contact Us