Appeasement, ad infinitum

Abstract

Never underestimate the European Commission’s willingness to appease Europe’s pet autocrats. While the EU has made an impressive show of unity in standing up to the murderous dictator Vladimir Putin in response to his unprovoked invasion of Ukraine, EU leaders continue to refuse to stand up to the softer autocrats in their own ranks. The capacity of the von der Leyen Commission (and of Commissions before it) to contrive excuses for refusing to enforce the EU rule of law norms that all Member States have committed to respect is something awesome to behold. The excuses keep changing, but the procrastination and appeasement are consistent. Over the past decade we have seen successive Commissions draw – sometimes explicitly, sometimes implicitly – on an impressive panoply of excuses for their failure to defend the rule of law more robustly. These have included: lacking the necessary ‘tools’ to defend rule of law, needing to allow more time for ‘dialogue’ with backsliders, having to produce reports on rule of law in all Member States to show all were being treated equally, waiting for critical ECJ rulings and waiting for the resolution of a major crisis that must take priority over defending the rule of law – first it was the eurozone crisis, then the refugee crisis, then Brexit and now the Russian invasion of Ukraine. To be clear, all of these excuses were bogus: the EU had robust tools in place to defend rule of law all along and the creation of new tools was mostly used as excuse to delay action; producing toothless reports on rule of law in all Member States was pointless, and scofflaws claimed they were treated unequally in any case; suspending the application of EU regulations pending the outcome of ECJ rulings (i.e. in annulment actions such as Cases C-156/21 Hungary v. Parliament and Council and C-157/21 Poland v. Parliament and Council) is unlawful, and political crises are no excuse for suspending law enforcement. Indeed, it is deeply ironic that while Ukrainians are fighting and dying to defend democracy and the rule of law, the Commission is using the crisis as an excuse to abandon the defence of those very values.