Turning the EU's technocratic procedures into national political issues. Proposals for tackling both the European rule of law and the democratic deficit

On March 26, Arnaud Van Waeyenberge, Professor of Law at HEC Paris, faced the highest authorities of the European Union at a COSAC plenary session to present solutions for improving the protection of the rule of law, based on his recent research. His speech was a strong plea for greater involvement of national parliaments in mechanisms to protect the rule of law, as this can also help strengthen the democratic legitimacy of the European Union.

When Arnaud Van Waeyenberge declared in December 2023, at an academic conference he was organizing in Brussels, that he was confident the results of his research on the rule of law in the EU would be heard by European decision-makers, perhaps he hadn't quite imagined the impact they would have.  

Four months later, on March 26, at a COSAC (Conference of Parliamentary Committees for EU Affairs of the Parliaments of the European Union) plenary session in the European Parliament, he presented solutions for a more effective protection of the rule of law to the highest representatives of the European Union among whom: the First Vice-President of the European Parliament, Othmar Karas, the European Commissioner for Justice, Didier Reynders, the President of the Court of Justice of the European Union, Koen Lenaerts, members of the European Parliament and parliamentarians from the 27 member states.

Led by a consortium of European researchers, Arnaud Van Waeyenberge's research project (MEDROI) aims to overcome the ineffectiveness of legal mechanisms for protecting the rule of law. He showed that where the political and judicial approach to enforcing the rule of law had failed in recent years, the mechanism that had so far been most successful was economic sanctions on the one hand, and what he called a techno-managerial strategy on the other.

Both the general recommendations of this research and the specific solutions he presented to COSAC were aimed at enhancing the deployment of these techno-material mechanisms while overcoming their main shortcomings, namely: a reduction in the very notion of the rule of law, a lack of legal clarification and a problem with the political legitimacy of these mechanisms.

When the Belgian EU Presidency turns to research as a response to the crisis in the rule of law

It was at the invitation of the Belgian Presidency of the EU that Arnaud Van Waeyenberge was heard within the Conference of Parliamentary Committees for EU Affairs of the Parliaments of the European Union (COSAC)

Since January 2024, Belgium holds the presidency of the Council of the European Union, and it has made the defense of the rule of law, democracy, and unity one of its top priorities.

The success of a rotating presidency of the European Union involves crucial political stakes for a member state and for the dynamics of the European project. This is all the more true when it is exercised by a founding member, which is the heart and soul of European institutional life. In this respect, the fact that the Belgian Presidency is turning to Van Waeyenberge's work to advance its political agenda shows the high impact potential of his findings.

How can national parliaments be involved in protecting the rule of law?

Addressing an assembly - the COSAC - whose role is to enable national parliaments to contribute actively to the European democratic process, by promoting cooperation within the EU's institutional framework, Van Waeyenberge chose to address a specific question: How can national parliaments become more involved, at Union level, in the upholding of the rule of law?

Over the years, the EU has endeavored to address the crisis in the rule of law by deploying various mechanisms. However, the involvement of national parliaments in these mechanisms has often been marginal or entirely absent. This is a missed opportunity, considering the wealth of experience, expertise, and legitimacy that national parliaments bring to the table, stressed Professor Van Waeyenberge.

A point that deeply resonated with the the COSAC’s members who’s mission is to strengthen the involvement of national parliaments in EU affairs, contribute to the European democratic process, fostering dialogue, oversight, and cooperation within the EU institutional framework. reinforces the democratic legitimacy of the European Union, fostering a more inclusive and participatory governance system.

Leveraging European Commission's reports on the rule of law

One avenue for enhancing national parliaments' involvement lies in the strategic utilization of the report on the rule of law released by the European Commission since 2019 to examine developments across all Member States, in four key areas for the rule of law: the justice system, the anti-corruption framework, media pluralism and freedom, and other institutional issues related to checks and balances.

The latest COSAC report indicates that the 2023 report on the rule of law has been scrutinized and debated in all national parliaments, a development worthy of commendation. Building on this foundation, there is potential for national parliaments to play a more proactive role both upstream and downstream in the process.

Upstream, national parliaments could engage more actively when the Commission gathers information for the report. As attacks on the rule of law in the Union often come from the executive, rather than relying solely on the executive branch, national parliaments could ensure their participation or oversight, thereby providing a clearer and more comprehensive perspective on the situation. For instance, in the case of Belgium, parliamentary involvement could have shed greater light on the failure to implement court rulings regarding refugee reception, a crucial issue given scant attention in the 2023 report.

Furthermore, national parliaments could undertake systematic follow-up on the European Commission's recommendations, transforming them into political issues at the national level. COSAC could serve as a platform for sharing best practices among assemblies, fostering greater coherence in addressing rule of law concerns.

Secondly, the national parliament representatives could also contribute to improving the methodology and the scope of the rule of law report. Methodologically, a more nuanced approach that considers the intensity, seriousness, and systemic nature of violations is warranted. Recommendations should also be accompanied by implementation deadlines to enhance their efficacy. Regarding the scope of the reports, it is imperative that the rule of law report encompass all values outlined in Article 2 of the EU Treaty, recognizing their interconnectedness. Additionally, a country-by-country approach may overlook transnational issues such as corruption and organized crime, necessitating a broader perspective.

Addressing the european crisis of values

In his conclusion, Van Waeyenberge underlined that clarity regarding the legal status of the rule of law mechanism is crucial.

By empowering national parliaments and refining existing mechanisms, the European Union can bolster its commitment to upholding the rule of law across its member states.

"Responding to a crisis of values with technocratic and economic mechanisms has undoubtedly proved to be quite effective, but it raises fundamental questions about the political philosophy underpinning the European project," said Arnaud Van Waeyenberge.  

After this hearing, strengthening the role of national parliaments in safeguarding the rule of law within the European Union is one of the serious options currently on the table for European leaders to strengthen the legitimacy of the EU. Let's take a look at what European parliamentarians have to say as the European election campaigns get underway.

Learn more

To learn more about Arnaud Van Waeyenberge research project "The New EU Instruments For The Protection Of The Rule Of Law: Towards A Techno-managerial Strategy?" (MEDROI), watch:

HEC Paris x Red Spinel research seminar: Conditionality and the Rule of Law in the European Union - Seminar, March 29.

Find the report of the seminar here: Law Academics Explore the Impact of New Tools on the Rule of Law and Democracy in the European Union.