A New Dawn for the 'Gretchen-Question' of European Union Law?

In our latest blog, Niels Kirst, PhD researcher at Dublin City University focuses on the European Union’s response to the rule of law backsliding in Member States by examining the remit of the Court of Justice, the role of the European institutions, and the broader picture of rule of law enforcement in a federal legal system.

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Niels is a PhD researcher in European law at Dublin City University under the Supervision of Federico Fabbrini. During his academic career he studied at the University Paris II, University Toulouse I, and the University of Heidelberg. His PhD research focuses on the rule of law crisis in the European Union. His general research interests lie in the fields of European constitutional law, internal market law, and competition law.

‘Now tell me, how do you feel about religion? You are a good man, but I don't think you think much of it.’[1]

This short excerpt from the most famous work (Faust) of the German national poet Goethe symbolises an idiom in common German parlance: the so-called Gretchen-question. In Goethe’s drama, this question is ultimately about the protagonist’s religious belief, which his fiancée (Gretchen) is seeking to find out before marrying him. In this way, her inquiry signifies a crucial question that usually has a difficult or unpleasant answer.[2] What would the Gretchen-question in the European Union of 2021 be? In a political community that faces an existential rule of law crisis the Gretchen-question directed to the Member States is ultimately, how do you feel about the rule of law? Lately, the response to this question has not been very encouraging by some Member States in the European Union.[3] The European institutions so far lacked the appropriate tools to remedy this unsatisfactory answer. This dilemma might have changed in 2020 when the European Parliament (the Parliament) and the Council of the European Union (the Council) agreed on a new Rule of Law Conditionality Regulation (the Conditionality Regulation) – the first of its kind.[4] This letter gathers some thoughts on the magnitude of this new piece of legislation.

2020 might turn out as a significant year for the rule of law in the European Union in retrospect. In its historical July Summit, the European Council set the scene for a Next Generation EU Fund (NGEU), the new seven-year budget of the Union and a Conditionality Regulation linked to the disposal of both.[5] This new mechanism will allow the Commission, for the first time, to cut funds of the European budget and the NGEU to Member States that yield significant rule of law deficiencies. Therefore, it could be a crucial tool in the coming years for a Union based on the value of the rule of law.

Until now, the Court of Justice of the European Union (the Court) had been at the forefront to prevent rule of law backsliding in the Member States.[6] Recent landmark decisions have confirmed that the rule of law is an indispensable cornerstone of the European legal order.[7] Nevertheless, it seems that a more comprehensive response by the European institutions is needed. Specifically, the European Commission as the true Guardian of the Treaties – according to Article 17 TEU – has failed to live up to this promise in the rule of law crisis.[8] Frisby highlighted this in an earlier volume of this journal. ‘[J]udicial enforcement of EU values alone will not be sufficient to solve the rule of law crisis and political intervention by the Member States and EU institutions is necessary in order to provide a comprehensive response to democratic and rule of law backsliding in the EU.’[9] The Conditionality Regulation might provide that missing piece for a more comprehensive institutional approach in the future.

The Conditionality Regulation could become a valuable tool for the EU institutions to protect fundamental rights in the Member States via deterrence and financial sanctions. In budgetary matters, the European Commission can sanction Member States for their non-compliance with EU law by rejecting a national spending bill.[10] So far, the Commission lacked this competence regarding rule of law non-compliance. As Fabbrini has pointed out, ‘[…] it is ironic that currently the European Commission enjoys intrusive powers to intervene in the budgetary processes of the member states to correct possible violations of EU fiscal rules, while instead it is largely powerless vis-à-vis member states which flout EU common human rights values.’[11] The Conditionality Regulation is a potential game-changer in this regard. For the first time, it will allow the Union to leverage the disposal of funds to influence Member State governments towards upholding the rule of law.[12]

While the 2010 eurozone crisis enabled the Commission to gain additional competencies in national budgetary matters, an analogy can be drawn to the 2020 pandemic and the corollary of additional competencies in fundamental rights matters. Only the concurrence of, on the one hand, the upcoming negotiation of the seven-year budget, and, on the other hand, the NGEU fund, which was prompted by the economic fallout, enabled the advent of the Conditionality Regulation. In conclusion, the crisis mode of the EU can be seen as a catalyst for sweeping changes in the federal architecture of the EU’s legal framework.[13]

While the author remains cautiously optimistic regarding the new Regulation, the fact that the European institutions assume the competence to reign in Member States rule of law and human rights adherence is a strongly welcomed development. Europe’s Gretchen-question will turn out to be crucial in the coming years if Member States want to enjoy the benefits of membership and the constant flow of funds from Brussels. While the protagonist in Faust eventually turns to the devil in Goethe’s masterpiece, the opposite could happen in the case of recalcitrant Member States. Budget conditionality creates considerable incentives to return to a legal culture based on the rule of law in the EU. Let us hope that the new Conditionality Regulation can keep what it promises.

[1] Johann Wolfgang von Goethe, Faust: Parts One and Two (George Madison Priest tr, Encyclopædia Britannica 1955).

[2] ‘Gretchenfrage’ (Wikipedia, 19 January 2021) <https://de.wikipedia.org/wiki/Gretchenfrage> accessed 10 February 2021.

[3] Laurent Pech and Kim Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of Eurpoean Legal Studies 3.

[4] Parliament and Council Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [2020] OJ LI 433/1.

[5] See Special meeting of the European Council (July 2020) – Conclusions (European Council, EUCO 10/20).

[6] Niels Kirst, ‘The Perspective from Luxembourg: How Does the European Court of Justice Respond to the Rule of Law Crisis within the Member States?’ (2020) 23 Trinity College Law Review 108.

[7] Laurent Pech and Sébastien Platon, ‘Rule of Law Backsliding in the EU: The Court of Justice to the Rescue? Some Thoughts on the ECJ Ruling in Associação Sindical dos Juízes Portugueses' (EU Law Analysis, 13 March 2018) <http://eulawanalysis.blogspot.com/2018/03/rule-of-law-backsliding-in-eu-court-of.html> accessed 10 February 2021; Niels Kirst, ‘The Independence of Judges in Polish’s Courts: the CJEU Judgement in Commission v Poland (C-192/18)’ (DCU Brexit Institute, 19 November 2019) <http://dcubrexitinstitute.eu/2019/11/the-independence-of-judges-in-polishs-courts-the-cjeu-judgement-in-commission-v-poland-c-192-18/> accessed 10 February 2021.

[8] Leonard Besselink, ‘The Bite, the Bark, and the Howl - Article 7 and the Rule of Law Initiatives’ (2016) Amsterdam Centre for European Law and Governance Research Paper 01/2016, 3 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2715943> accessed 10 February 2021.

[9] Kate Frisby, ‘A Study of the Approaches of the Court of Justice and the Commission of the European Union in Responding to Rule of Law Backsliding in the Republic of Poland’ (2020) 19 Cork Online Law Review 19.

[10] The power of the European Commission regarding budgetary control of the Member States is significant. These rules came into effect in the aftermath of the financial crisis. Fabbrini described this process as following: ‘[…] in the aftermath of the Euro-crisis, new EU legislation, and intergovernmental agreements concluded by the quasi-unanimity of the EU member states have entrusted to the Commission extensive authority to surveil states’ fiscal policy. In particular, each member states of the Eurozone must submit its annual budget bill to the European Commission before this is tabled for discussion in the national Parliament, and the Commission can request sweeping changes if it finds that the draft bill fails to comply with the deficit and debt rule of the Stability and Growth Pact (SGP).’; Federico Fabbrini, ‘Human Rights in the EU: Historical, Comparative and Critical Perspectives’ (2017) 1 Il Diritto Dell’Unione Europea 69.

[11] ibid.

[12] Thu Nguyen, ‘The EU’s New Rule of Law Mechanism: How it Works and Why the ‘Deal’ Did Not Weaken it’ (Hertie School Jacques Delors Centre, 17 December 2020) <https://www.delorscentre.eu/en/publications/detail/publication/the-eus-new-rule-of-law-mechanism> accessed 10 February 2021.

[13] Peter Lindseth and Cristina Fasone, ‘Rule-of-Law Conditionality and Resource Mobilization – the Foundations of a Genuinely “Constitutional” EU?’ (Verfassungsblog, 11 December 2020) < https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundations-of-a-genuinely-constitutional-eu/> accessed 10 February 2021; Antonia Baraggia, ‘The New Regulation on the Rule of Law Conditionality: A Controversial Tool with Some Potential‘ (IACL-AIDC Blog, 22 December 2020) <https://blog-iacl-aidc.org/2020-posts/2020/12/22/the-new-regulation-on-the-rule-of-law-conditionality-a-controversial-tool-with-some-potential> accessed 10 February 2021.