For the first time ever, the European Commission is examining the state of rule of law in each EU member state. Věra Jourová discusses weaknesses in Germany and serious concerns elsewhere.
DER SPIEGEL: Ms. Vice President, does Germany adhere to the principles of rule of law?
Jourová: Unless I missed something significant in the last few days, then yes, Germany adheres to rule-of-law principles.
DER SPIEGEL: We are asking because on the European Commission, you hold the Values and Transparency portfolio. You are now presenting the results of your examination of the state of the rule of law in all European Union member states. It is the first time such an effort has ever been undertaken and the examination looks at things like the state of democracy, the condition of press freedoms and the fight against corruption. Even Germany has come in for some critique.
Jourová: By and large, the German judiciary works well. The vast majority of German citizens have great faith in the independence of the courts, and for me, that is perhaps the most pleasing result.
DER SPIEGEL: But even Germany’s judiciary is not without its flaws. Recently, for example, the European Court of Justice censured the fact that state justice ministers are able to issue instructions to public prosecutors.
Jourová: That is a clear weakness. Justice ministers are politicians, and consequently, they face significant temptation to exert political influence. That is why German public prosecutors are not able to issue European arrest warrants. And even if the judiciary in Germany fundamentally works quite well, our report shows that trials at first instance are taking longer and longer. In general, as a rule of thumb that applies to Germany just as it does to all EU member states: The more independent and efficient the judiciary, the better.
DER SPIEGEL: Germany’s Federal Constitutional Court, the country’s highest court, called into question the primacy of the European Court of Justice in a ruling on European Central Bank bond purchases. When is the Commission going to launch infringement proceedings against Germany?
Jourová: As soon as we are finished with our legal analysis. It is clear, though, that the ruling by the Federal Constitutional Court cannot go unchallenged. If we were to simply accept it, we would provide a boost to the governments in Hungary and Poland. It could have destructive consequences for the EU.
DER SPIEGEL: The idea behind your examination of the rule of law in EU member states is to counteract the argument from countries like Hungary and Poland that they are the victims of a Brussels crusade. But does it not make sense for leaders in those two countries to be in the crosshairs?
Jourová: Don’t worry, our focus remains squarely on these countries. Our report neither supplants the ongoing rule-of-law proceedings against Poland and Hungary, which in the most severe case could result in them losing their voting rights in the Council, nor does it affect the numerous other infringement proceedings ongoing at the European Court of Justice. By undertaking an inaugural comparison of the state of the rule of law in all EU member states, it will help us in our dispute with Hungary and Poland.
DER SPIEGEL: How so?
Jourová: (Hungarian Prime Minister) Viktor Orbán and the Polish government always turn to the same arguments in their defense: Sometimes they point to a Spanish law that they claim is similar to rules they have passed, or they refer to a provision in German law. But they won’t be able to do so in the future. Now, we will be able to compare. The rule of law is not about politics; it’s not about right or left. It is about right or wrong.
DER SPIEGEL: Orbán’s strategy was on full display at the beginning of the corona crisis. Although the restrictions on fundamental democratic values went much farther in Hungary than elsewhere, Orbán consistently pointed to similar rules applied in other EU member states as an excuse.
Jourová: It is understandable that governments want to have additional competencies in such an existential crisis. On the other hand, it makes it particularly clear how important it is for citizens to have access to comprehensive information from independent sources. I hope that here, too, the reports will be enlightening. We are noticing in many EU member states that the work of the media has become more difficult and the space for civil society has shrunk. Such a thing doesn’t happen overnight, but gradually.
DER SPIEGEL: One can hardly speak of a pluralistic media landscape in countries like Hungary. In the EU member states of Slovakia and Malta, journalists have been murdered for their work and investigators have found indications that the governments may have been involved.
Jourová: The image produced by our analysis is clear: The situation for independent media is deteriorating almost everywhere in Europe. In almost all member states, media companies are facing significant economic pressure, because of sinking advertising revenues, for example, and because of the rising market share held by companies like Google and Facebook. On top of that comes growing attempts to exert political influence, including in Western European countries like Malta or Spain. The European Commission will have to focus more attention in the future on the freedom of the press. Because without access to comprehensive information from independent sources, European democracy loses its foundation.
DER SPIEGEL: In Hungary, the Central European Press and Media Foundation (KESMA), which has close ties to the government, now controls a majority of the media outlets in the country. Why doesn’t the EU apply rules governing fair competition and ban such consolidations?
Jourová: The condition of Hungary’s media landscape is alarming. But we have thus far been unable to apply EU competition laws. The sums of money involved in these consolidations have been too small. I believe this approach, which focuses solely on money, is out of date. Of course, the media is also an economic sector. But they aren’t delivering cars or shoes, but ideally they are delivering a product that is much more decisive for democracy: independent information.
DER SPIEGEL: In your reports, you consistently note that all actors must obey the law and adhere to democratic values. This rather weak definition of the rule of law is one to which even Orbán can immediately subscribe to.
Jourová: Mr. Orbán is fond of saying that he is establishing an illiberal democracy. I would say: He is establishing an ill democracy. Criticism of the Hungarian government can hardly be found anymore in the Hungarian media, such that a large majority of Hungarians is likely no longer able to develop an independent view. I am afraid that people in Hungary could one day realize that their last election was also the country’s last free election.
DER SPIEGEL: In spring 2018, Orbán managed to win a two-thirds majority …
Jourová: … I’m not disputing that. His approach apparently strikes a nerve with the Hungarians. But it must be clear that he may not cement his power forever. If Hungarian voters decide one day that Orbán must go, then he has to go.
DER SPIEGEL: Judicial independence seems to be particularly under threat in Hungary, Poland, Bulgaria, Romania, Croatia and Slovakia. Why does this problem primarily crop up in Eastern European countries?
Jourová: In former Eastern Bloc countries, the judiciary is still an easy target for politicians. It has to do with the fact that in parts of the population, the distrust of judges that was prevalent under communism still hasn’t disappeared. On top of that comes the fact that people in this part of Europe still have a lot of patience for politicians who strive for absolute power. I am certain that in a Western European country, someone like Orbán would never have been able to establish such comprehensive control over the media.
DER SPIEGEL: On top of its Multiannual Financial Framework worth in excess of a trillion euros, the EU is soon planning to make an additional 750 billion euros available to combat the consequences of the coronavirus. Why should the EU use this money to support countries like Hungary and Poland when their governments disregard European values?
Jourová: We intend to distribute more money than ever before. But more money also needs more trust, more security and more control. As such, I can only imagine the recovery fund and the Multiannual Financial Framework if we also enact a robust rule-of-law mechanism.
DER SPIEGEL: At the July summit, though, EU heads of state and government agreed that the hurdles should be quite high before funding from Brussels was withheld – and they backed away from making such funding cuts mandatory.
Jourová: Once we have the ability, for the first time ever, to penalize countries financially when they systematically violate rule-of-law principles, that would be a great success. I would have preferred the original proposal. But if we are unable to push that through, then we’ll just start with a model whereby a qualified majority must support this step.
DER SPIEGEL: But the problem is that politicians like Orbán seem to have the upper hand, because the resolutions for coronavirus aid must be passed unanimously. How great is the danger that the EU backs down in the end so that Orbán and the others don’t block funding for countries like Italy and Spain?
Jourová: There is a danger of that happening. But Hungary and Poland want the money too. As such, there is no reason for appeasement. On the contrary, it would be a deadly error if Europe were to now pass up the chance to finally pass an effective rule-of-law mechanism.