Recap: ESC-YLS Colloquium: The Rule of Law in the EU

In the first event of the European Studies Council and Yale Law School colloquium series, Professors Kim Lane Scheppele of Princeton University and Laurent Pech of University College Dublin provided insights into the European Union’s democracy deficit and the future of the rule of law in the Union. Professor Isabela Mares of Yale chaired the event, which took place on December 5, 2023.

Professor Scheppele opened the event with remarks on Europe’s new democracy deficit, explaining that while Europe professes to be a Union of liberal democracies, the anti-democratic behavior of some of its members threatens the integrity of the EU as a whole. Professor Scheppele pointed to Hungary and Poland as examples – in the former, the regime took dramatic steps to consolidate power, such as changing electoral rules, reshaping the constitution, taking over institutions, and suppressing opposition voices.

“This starts in 2010, which is when Viktor Orban’s government came to power in Hungary, and it ends in 2020. By that time Hungary had gone from being pretty well-entrenched in the category of consolidated democracies falling to the category of semi-consolidated democracies and had become a hybrid regime,” Professor Scheppele said.

Professor Scheppele then discussed measures taken by the EU in response to the erosion of Hungary’s democratic values and practices, which have seen mixed results. After detailing the limitations of past efforts and some areas where there has been some success, Professor Scheppele argued for greater employment of financial instruments to prevent Hungary from sliding deeper into authoritarianism.

“Autocracies inside the EU are not just a problem for those states, but they’re creating problems for the rest of the EU and the EU has not really thought about how to handle that…The future of the EU depends on it and it’s not the end,” asserted Professor Scheppele.

Professor Pech, who later wrote a piece based on his remarks, then shifted the conversation to the future of the rule of law in the EU. He began with an overview of the recent history of the rule of law in the Union, from the 1990s to the adoption of the Lisbon Treaty in 2007.

“Essentially, this first phase of what I have described as the first phase in the history of the rule of law in EU law has been a gradual process of entrenchment and formal enshrinement of the rule of law in the EU treaties,” said Professor Pech.

The next phase, which Professor Pech dubbed the “toolbox decade,” began around 2010 with Hungary’s descent into authoritarianism. It involved the EU’s attempts to address new threats to democracy and rule of law through various tools, but again, with some successes and some failures. Professor Pech predicted a third phase – a “retrenchment phase” – accompanied by a shift in a different direction.

“Essentially, we cannot expect EU institutions to defend the rule of law on their own and of their own volition. So we have to find ways of increasing the cost of inaction, not only at the EU level, but also the cost of disregarding the rule of law at the national level,” said Professor Pech.

After Professor Pech wrapped up his remarks, he and Professor Scheppele took questions from the audience. The event was held in Luce Hall.