EU Regulatory Polity three point zero for Compliance with the Rule of Law: When Depoliticising Goals Lead to Uneven Politicisation

EU Regulatory Polity three point zero for Compliance with the Rule of Law: When Depoliticising Goals Lead to Uneven Politicisation

Abstract

Since limiting judicial independence in Hungary and Poland, the politics of the rule of law crisis have been examined by various scholars discussing conflicts within and between EU and domestic institutions. The rule of law is no longer a purely national affair - it is of high political salience both for the Member States and the EU polity. The question addressed here is: how has the rule of law crisis reshaped the EU's modes of governance? We argue that to safeguard this common value, the EU is evolving into a regulatory polity three point zero. This development marks a shift from Majone's EU regulatory state's focus on regulating markets one point zero and regulation in core state powers in times of crises two point zero to regulation on the core values of the polity three point zero. The article shows that in a context of growing dissensus over the rule of law, EU institutional actors have sought to strengthen "rulemaking," "rule monitoring" and "rule enforcement" through a regulatory approach anchored in a market logic. It also shows that shifting from the traditional regulatory state one point zero to regulation in core state powers two point zero, the regulatory polity three point zero strengthens the EU's institutional capacity to act when the rule of law is under strain through depoliticised "rule monitoring" and politicised "rulemaking" and "rule enforcement" as illustrated in the cases of Hungary and Poland discussed in this article.

One. Introduction

The year twenty twenty-four marks the twentieth anniversary of the European Union enlargement towards Central and Eastern Europe. In the years following the collapse of communism and preceding the EU's largest expansion, Hungary and Poland were at the forefront as successful candidates, cultivating institutional reforms, stimulating vibrant civil societies and, ultimately, consolidating their transition towards liberal democracy. However, only a few years after their accession to the EU, the common values of the Union came under systemic threat in both countries. Following the electoral successes of Fidesz in Hungary since twenty ten and the Law and Justice Party in Poland from twenty fifteen to twenty twenty-three, the two countries have embarked on a process of de-Europeanisation. Both governments have amended provisions adopted in order to join the EU and replaced these with numerous new and contested measures, limiting judicial independence and blatantly seeking to dismantle the political order established after the collapse of communism in nineteen eighty-nine. The anti-liberal values promoted by Fidesz and the Law and Justice Party have affected not only the domestic

European Journal of Risk Regulation institutions meant to be strengthened and democratised prior to EU accession through the diffusion of the Copenhagen criteria. They have also shaped domestic policies and institutional changes, standing in contradiction to the common values enshrined in Article two of the Treaty on European Union. The foundations of the EU as a polity have thus been under threat. Despite the gradual constitutionalisation of common values, in the face democratic backsliding in Poland and Hungary, the Commission, the Council and the European Parliament have been divided as to how to respond. Political actors of all persuasions have argued that the EU lacked the formal powers and the institutional capacity needed to establish the appropriate rules and to monitor and enforce their compliance and transposition in the Member States. The narrative about the need for new instruments has prevailed, legitimising the "rhetoric of inaction" and masking a lack of political will to confront the Hungarian Fidesz and Polish Law and Justice Party governments. Gradually, in response to Hungary and Poland's de-Europeanisation and paths towards autocratisation, new tools have been established that allow the EU to safeguard the rule of law, by suspending funds in case of breaches that affect the sound management of the EU budget, yet with limited impact on the ground. The establishment of each rule of law policy instrument - ranging from the European Semester and the Rule of Law Framework to the Rule of Law Annual Report and a series of regulations, including twenty twenty/two thousand ninety-two on a general regime of conditionality for the protection of the EU budget - has been a battle between and within EU institutions. While EU institutional actors repeatedly insisted on the lack of appropriate tools prior to twenty eighteen, some academics argued that these new policy instruments - hard and soft - were superfluous as the Union already had the necessary tools to act. Others contended that through these tools the EU has established a rule of law policy, seeking to strengthen its legitimacy in a field touching on the core state powers. Various scholars have analysed the politics of the rule of law crisis, explaining the cautious approach of the Commission or its forbearance, the political divisions in the European Parliament, the silence of the ministers in the Council, the prominent role of the European Council and the decisions of the Court of Justice of the European Union. Against this backdrop, the question is: how has the rule of law crisis reshaped the EU's modes of governance to safeguard the rule of law? Historically, the EU has emerged and developed its main policies in reaction to crises, such as the crises of the welfare state, or in reaction to the rational will of Member States to maximise economic benefits by insulating political decisions from the public sphere, increasing the capacity to attract foreign capital and reducing transaction costs. Without being a classic international organisation, and even less a state, the EU has evolved into something that Majone described as a regulatory state. Not only has the EU expanded its scope in the post-Maastricht era, but also under the impact of the last decade's polycrisis (e.g. sovereign debt, COVID-nineteen and rule of law crises), the regulatory state has diversified its functions, marking a shift from regulating markets to regulation in the core powers of the polity. While the EU's initial regulatory state focused on the market and policy areas such as EU health, safety and environmental concerns, which we can consider as a first stage - regulatory state one point zero, since twenty ten regulation has expanded to new sectors in core powers, responding to challenges such as the financial and economic crisis, migration and cyber security, paving the way towards a new stage - a regulatory state two point zero. The rule of law crisis has marked another shift, with the EU evolving into what we define a regulatory polity three point zero. Regulatory polity three point zero is a new stage in the integration process in which regulation shapes the relationship between the national and supranational levels (as in one point zero) in new areas of core powers (as in two point zero), yet touching on not only the policies but also the values at the core of the polity (three point zero). However, while the traditional regulatory state was based on depoliticisation, the EU's regulatory polity three point zero opens the way towards uneven politicisation. The aim of regulation is not only to respond to national problems but also to strengthen the EU's capacity to act through rule monitoring and enforcement powers. Put differently, to restore the rule of law undermined by the Hungarian Fidesz and PiS-led governments, EU institutions have followed a regulatory approach that emulates a market logic and strengthens the EU's monitoring and enforcement powers in its relations with Member States - but with a twist. While traditionally the logic of regulation is to depoliticise the issue at stake, we show that the regulatory polity three point zero leads to uneven politicisation both at the EU and national levels. As an illustration, not only does politicisation occur at the supranational level in the relations between EU institutions and the Member States concerned, but it also occurs at the national level. During the twenty twenty-three Polish election, the campaign of the PiS opposition, which subsequently won the election and formed a cabinet, was characterised by "the overarching goal of restoring the rule of law and respect for the democratic procedures of liberal democracy in the country."

The article is organised as follows: Section two focuses on the EU regulatory state approach, offering a discussion of its evolution from one point zero to two point zero and theorising the emergence of a regulatory polity three point zero. Sections three and four put forward key features of regulatory polity, respectively, "rule production," "rule monitoring" and "rule enforcement" for the rule of law. Whereas the regulatory approach is meant to depoliticise the issues at stake, Section five illustrates the uneven politicisation at the core of the regulatory polity, with a focus on the relationship between the Commission and the Hungarian and Polish governments.