Nothing is possible without men, but nothing lasts without institutions.”



The conditions in EU member states as far as the rule of law is concerned remain problematic. The EU frantically searches for new instruments to ensure member states adhere to its rule of law ambitions. Some form of national capacity building, amongst a whole range of other instruments, has been on the agenda for a long time. However, little attention has been devoted to building the necessary European networks. These networks are important to institutionalise the required professional norms and values across the member states. Countries need to have well- functioning rule of law institutions so that check and balances are part of the national landscapes. These national institutions need to be embedded in the European multilevel system of checks and balances in order to further this aim. This requires the unpacking of rule of law so that it is clear which national institutions are involved. In addition, the EU has to move beyond naming and shaming and to start building dedicated EU networks (creating independent agencies at the national and EU level and setting up inspections of national agencies). The network-building approach has been successful in other EU policies – now is the time to apply it to rule of law.

Rule of law is a persistent problem in Central Eastern and Southern member states. The current political difficulties with Poland and Hungary attract considerable attention but (major) rule of law issues exist in (most) other member states as well. While the EU’s rule of law instrumentation is developing, little attention is devoted to a multilevel public administration approach. A wide range of factors that play a role in ensuring the rule of law has been identified in the many expert and policy documents.‍[154] The core question to be addressed at this point in time is whether, in order to complement the current toolbox, the relevance of building European networks is explored in helping national institutions to become resilient.

European networks, agencies and multi-level governance

Introduction: waves of European institution building

In general, ambitious new policies demand careful attention to ensure that institutions are appropriately designed. In the context of the EU’s multi-level administrative system, new EU policies need careful reflection on the quality of national and EU institutions, and of the networks in which the two levels operate. As has been noted before, the EU has a tendency to suffer from ‘management deficits’.‍[155] Policy makers tend to be less concerned with implementation and organisational design and within the Union it is generally a taboo to discuss each other’s administrative structures.‍[156] Moreover, ensuring EU policies are supported by the appropriate multilevel administrative systems is quite a challenge given the number of national and EU bodies involved and in light of the great many differences between the member states in terms of resources, qualities of administrations and political cultures.

Yet, the EU has quite a strong reputation when it comes to taking on ambitious tasks successfully. One of the explanations for the EU’s successes is that the Union has been able to create the European institutions which in turn improve national institutions through subsidiarity-based networks in which weaknesses of national and European systems are actively addressed.‍[157] EU integration demanded addressing complex problems for which solutions seemed improbable. When major advances were made in the ‘completion’ of internal market policies through the ’1992-programme’, the EU had to learn the hard way that further elaboration of market regulation and enforcement required new (multi-level) networks and institutions. The EU’s internal market ambitions had overloaded the EU´s abilities to act – up to the point that a serious credibility crisis emerged.‍[158] For example, European competition policy became overburdened and had to be redesigned;‍[159] re-regulation of public utilities such as energy and telecoms demanded new regulatory networks; institutions of food safety suffered major economic and trust crises;‍[160] national statistical bureaus varied enormously in terms of quality;‍[161] and regulation and enforcement in aviation safety fell far behind liberalisation of air traffic.‍[162] The EU has been able to solve many of these challenges in the internal market through multi-level capacity building – i.e. setting up EU and national agencies and creating strong networks.‍[163]

The creation of the euro resulted in a similar wave of governance challenges and resulted in a stream of new rules (e.g. Six and Two packs, the Fiscal Compact, the Banking Union) and new EU and national agencies such as the European Fiscal Board, Independent Fiscal Institutions, and National Productivity Boards‍[164], and existing networks have been reinforced (such as the network of statistical offices by formalising the independence of national offices in the Six Pack).‍[165] The Eurozone may now be on its way towards effective multi-level governance.

The EU’s eastward enlargement has highlighted a third wave of ambitions and this time concerning the quality of rule of law.‍[166]

EU governance and the relevance of agencies and agency networks

As underlined by the European Public Administration Network, “hundreds of networks among public administrations” exist to exchange good practices and experiences.‍[167] However, the question is to what extent these networks are merely loosely coupled exchanges of information or structured networks with discipline and a bite. When it comes to upgrading national administrations, many reports are being produced that assess and share best practices.‍[168] They give the impression of efforts to strengthen national administrations individually (through non-binding instruments) while paying little attention to building a multi-level system in which common problems and interdependencies are addressed. This voluntary governance of European networks may be insufficient to solve the EU’s rule of law management deficits. The effectiveness of EU policies depends on the quality and independence of numerous national institutions and on the European networks that bind member states and EU institutions together in the EU’s multi-level system.‍[169]

Ensuring multi-level capabilities involves, first, the setting up of independent institutions (‘agencies’‍[170]) that operate at national and at European levels. The advantage of agencies include distance to national governments, professional management of tasks, and longer-term time perspectives to overcome short-termism from which governments tend to suffer. Agencies enhance the credibility of governments‍[171] that is essential for mutual trust between member states.‍[172] They are part of the checks and balances in national and EU governance. Secondly, in the EU’s multi-level context, national and EU agencies need to be interconnected in European networks and should cooperate across borders. Agency-networks serve to create communities of professional expertise that support the professional values required to be credible. These peer networks help to exchange information and enhance their independence vis-à-vis their national (political) environments.

However, such networks need to be managed. Managed networks perform better than voluntary networks.‍[173] Network management involves setting up quality-control mechanisms, identifying weaknesses in national systems, ensuring transparency of inspections and decisions, facilitating information exchange, etc. Strong networks‍[174] have well-established centres to support cooperation, they have budgets, Codes of Conduct, and can penalise continued lack of conformity. Essential for a strong network is the ability to organise independent inspections. A well-designed EU-network depends on national agencies with comparable tasks, resources and working methods (‘isomorphology’‍[175]). It is ultimately up to the Commission to assess whether the EU has the capacities (i.e. agencies and their networks) to manage its policy ambitions.‍[176]

Two caveats are in order. First of all, agencies are often not very popular among politicians because the former’s independence limits the latter’s room of manoeuvre. More generally, ‘technocracy’ complements but also conflicts with democracy (even though agencies include democratic checks). Secondly, it has to be understood that administrative structures are only one of the many factors determining the outcomes of policies such as political leadership, economic circumstances, national cultures and resistances, personalities, etc. It is important to note here that even an established national agency can be the victim of political interferences. For example, illiberal governments have staffed rule of law agencies with party members and drastically cut their budgets.‍[177] Yet, such examples also underline the need of well-designed EU-networks to act as counterbalance by defending professional values, carrying out independent quality controls and by financially supporting national bodies in case member states suffer from deficiencies or by setting up EU-funded projects as happened in other EU networks.

The EU’s rule of law debate and rule of law instruments

The EU Treaty defines the rule of law principles member states have to respect.‍[178] ´Rule of law´ (Rechtsstaat, État de droit – compared to the more limited concept of ‘legality’) is not just an impersonal application of rules to government and citizens alike. More fundamentally, it is a system of checks and balances that is not up to a political entity (including a political majority), elite or individual to change at will. While mostly linked to independent judiciaries, the rule of law is intrinsically linked to democracy and fundamental rights. Broadly viewed, the rule of law is about political, democratic, legal and administrative, internal and external checks on all kinds of authorities. The aim of these checks and balances is to distribute decision-making and executive powers to ensure legitimate and credible governance.‍[179] In this way adherence can be supported to principles of good governance such as legality, integrity, transparency, accountability, fundamental rights, duty to state reasons, proportionality, and democracy.‍[180]

Although rule of law principles are laid down in the Treaty and, for accession countries, in the Copenhagen criteria,‍[181] the application and elaboration have remained wanting. Conditionality was limited to the formal status of institutions and implementation of rules. EU-accession was mostly a highly political process in which actual compliance and political realities on the ground have been ignored. Since the 2004 enlargement, the EU’s instrumentation concerning the rule of law has made major strides in several directions and included the creation of the Fundamental Rights Agency, even though its mandate has been limited in terms of rights themes and it is confined to an advisory role. The Annex shows the EU instruments that are now in place or on the agenda (see Schout and Luining for more details).‍[182] The Annex shows that, although some hierarchical supervision, dialogue, financial instruments and admonishment have been put in place, the toolbox consists mainly of peer-pressure processes (open method of coordination). Furthermore, several (informal) European (EU and non-EU) network-type of arrangements have emerged, such as the European Judicial Network (EJN), European Public Administration Network (EUPAN), European Network of Integrity Practitioners (ENIP), and the European Network of Equality Bodies (Equinet). The European Parliament now seeks to unite these existing instruments in an inter-institutional framework. This proposed ´EU Pact on Democracy, the Rule of Law and Fundamental Rights´‍[183] is to be based on a broad range of indicators that assess the quality of the rule of law.

Taken together, the EU’s instruments that are being developed are mostly informal and include ad hoc top-down interventions. As such, the rule of law policy resembles the failed Lisbon Process and European Semester which were and are still designed to support the Economic and Monetary Union in the 2000s and 2010s.

Conclusions and recommendations

The EU has been creating quite an impressive range of instruments to strengthen rule of law in member states. However, these instruments fall mostly in the category of soft governance. We therefore argue in this article that the relevance of networks of agencies has to be explored to complement the EU’s rule of law policies. A complementary public management approach is in order based on dedicated EU agencies and networks of national agencies. Such agency-based approaches have contributed to the success of the internal market and are now being developed in the context of EMU. This leads to the following recommendations:

The limitations of benchmarking exercises or providing funds for national reforms have to be recognised. These instruments will remain weak if they are not part of wider institution-building efforts explicitly aimed at creating independent national agency arrangements and if the independent national institutions are not part and parcel of European agency networks in which the necessary professional values are monitored and defended.
A commitment is needed to explore in a systematic way the usefulness of an EU-agency-based network. This will have consequences for the tasks and resources of Fundamental Rights Agency (FRA) and possible additional agencies are needed.
A strong network requires independent quality controls and measures to address weaknesses.
Agency networks that can be used as aspiration for the further development of the governance of rule of law include the networks of competition authorities, of environment agencies and of food authorities.
The Commission, or the FRA, needs to make a first assessment of the independent national agencies or institutions that are urgently required and/or that have to be reinforced in European networks.

Annex: EU Rule of law Toolbox




Enforcement (sanctions)

Article 258-260 TFEU Infringement procedures.

Binding judgments by the European Court of Justice, including financial penalties with regard to specific violations of EU-law.

The narrow doctrinal interpretation of infringement procedures ignores trends, patterns and the combined effect of measures on the rule of law.a

Article 7 TEU procedure

Political condemnation and the possibility of sanctions, including the suspension of voting rights.

Unanimity has to be established by all member states to consider a breach of European values.

Evaluation and recommendations

European Commission Rule of Law framework

Ad-hoc mechanism to assess rule of law threats and to take into account patterns and ongoing developments. Non-binding recommendations are issued while enforcement is based on infringement procedures and the threat of Article 7.

There are some definition issues, the dialogue is confidential, there are no clear deadlines and only the Commission can formally invoke the framework, thereby risking an image of arbitrariness.b

Cooperation and Verification Mechanism

Through benchmarking the mechanism supports and reports on effective administrative and judicial systems reforms.  

Temporary mechanism and only applicable to Romania and Bulgaria. A more strategic involvement of civil society as a permanent partner of the EU has also been deemed desirable.c

European Semester

Country Specific Recommendations (CSRs) include issues relating to justice and public administration.

Non-binding and top-down in relation to central national governments.

Reports by the European Parliament

Annual reports on fundamental rights are issued. Specific resolutions are made in case of specific threats or country situations.

Ultimately decided by party politics (the large political families often do not condemn their own members in government). Since the suspension of the network of independent experts on fundamental rights there is no longer a systematic input about the rule of law in member states.

Evaluation of the Area of Freedom, Security and Justice; Schengen

Evaluations, with the involvement of Frontex, are based on how rules of the Schengen-acquis are implemented and how the responsible authorities function, including rule of law elements.

Until now evaluations have been conducted by member states (peer reviews) only.

Thematic evaluation within the framework of Justice and Home Affairs

Evaluation of the implementation on national level based on questionnaires and visitations. Evaluations are made public after discussion in the working committee.

Focuses primarily on the implementation at national level of international efforts to combat organised crime.

EU Anti-Corruption Report

The report provides a picture of corruption policies in each Member State: measures in place, outstanding issues, policies that are working and areas that could be improved.

The report has only been issued in 2014 and has been suspended in 2017 (the EU´s own institutions were also supposed to be on the agenda for the suspended report).

Annual EU Council Rule of Law Dialogue

Annual rule of law dialogue on (thematic) rule of law related issues set by the EU’s rotating presidency.

Limited to best practices exchange, prone to self-appraisal. Not systematically integrated within existing EU policies.

Monitoring (information provision)

EU Agency for Fundamental Rights.

Reporting on several thematic fundamental rights issues in the EU, also on request. Sharing best practices and maintaining a network with human rights institutions and civil society.

Limited scope of issues, excluding the broader European values, including the rule of law.

Annual Media Pluralism Monitor

The Monitor assesses the risks for media pluralism based on a set of twenty indicators

The monitor is not linked to a concrete EU policy mechanism.

EU Justice Scoreboard.

Comparative overview of the quality, independence and efficiency of justice systems in the EU.

Mainly quantitative analysis. It does not include a qualitative examination of key factors as de jure and de facto independence of the judiciary. It focuses on civil matters, not penal, administrative and constitutional matters.

Support and capacity building

Structural Reform Support Service and Structural Reform Support Programme (SRSP).

Provides targeted reform assistance to the Member States, at their request, to assist them with the design and implementation of institutional, structural and administrative reforms, including reforms that are recommended in CSRs.

Dependent on the application and political will of central (and sometimes regional) governments.

European Structural and Investment Funds.

Thematic objective 11 of the funds is: Enhancing institutional capacity of public authorities and stakeholders and efficient public administration. Member State can apply for funds with proposals.

Dependent on the application and political will of central (sometimes regional) governments.

a    See e.g. Pech, L. and K. L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (August 23, 2017). Cambridge Yearbook of European Legal Studies, Forthcoming

b    Kochenov, D. and L. Pech, ‘Upholding the Rule of Law in the EU: On the Commission’s ‘Pre-Article 7 Procedure’ as a Timid Step in the Right Direction’, European Constitutional Law Review 11 (April 2015); pp. 512-540.

c    Dimitrova, A., ‘The Effectiveness and Limitations of Political Integration in Central and Eastern European Member States: Lessons from Bulgaria and Romania’, MAXCAP Working Paper Series No. 10 (June 2015).

This is a shortened version of Schout, A., M. Luining (2017), The missing dimension in the rule of law policy: From EU policies to multi-level capacity building, Clingendael: Policy Brief. See the long version for full details and statistics.

See e.g. Adviesraad Internationale Vraagstukken, De wil van het volk? Erosie van de democratische rechtsstaat in Europa, No. 104, Juni 2017.
Metcalfe, L.M., ‘Building capacities for integration; the future role of the Commission’, Eipascope, 1996/2: pp. 2-8.
Jordan, A., A. Schout, The coordination of European Governance: exploring the capacities for networked governance, Oxford: Oxford University Press, 2006.
Kassim, H., ‘Revisiting the management deficit’, in: E. Ongaro, Multi-Level Governance: The Missing Linkages, Bingley: Emerald, 2015; Schout, A., ‘Framework for assessing the added value of an EU agency’ Journal of Public Policy, Volume 31(3) (2011): pp. 363–384.
Majone, G., ‘Nonmajoritarian Institutions and the Limits of Democratic Governance, Journal of Economic and Theoretical Economics, no.157 (2001): pp. 57-78.
Kassim, H., K. Wright, ‘Network governance and the European Union: the case of the European Union competition network’, paper for ‘The Transformation of the Executive Branch of Government in Europe’, ARENA Workshop, University of Oslo, 4-6 June 2009.
Vos, E., ‘EU Food Safety Regulation in the Aftermath of the BSE Crisis’, Journal of Consumer Policy, Volume 23.3 (September 2000): pp. 227-255.
Sverdrup, U., ‘Administering Information: Eurostat and Statistical Integration’, in M. Egeberg (ed.), Multilevel Union Administration, Palgrave, 2006.
Schout, A. (2011) ‘Framework for assessing the added value of an EU agency’ Journal of Public Policy, 31(3), 363–384; Kassim, H., and H. Stevens, (2010,) Air transport and the European Union, Palgrave Macmillan.
Kassim 2015, ibid.
Schout, A., A. Mijs, ‘Wat de Europese CPB’s zeggen over economic governance’, Internationale Spectator, 69/2, 2015; Mijs, A., The unsustainability of independent fiscal institutions, Clingendael Policy Brief, April 2016.
Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States, O.J.L. 306.
As the First Vice-President of the European Commission, Frans Timmermans, stated: “the rule of law is not just an inspiration, it is also an aspiration; a principle that guides both our internal and external actions; it is what we are and what we want to be.” The European Union and the Rule of Law - Keynote speech at Conference on the Rule of Law, Tilburg University, 31 August 2015.
EUPAN, Thematic Paper: Enhancing institutional and administrative capacity, 5 February 2015 link, p12.
E.g. European Commission, Quality of Public Administration – A Toolbox for Practioners (April 2015).
Everson, M., G. Majone, L. Metcalfe and A. Schout, The Role of Specialised Agencies in Decentralising EU Governance, Commission of the European Commission, 1999.; E. Vos (ed.), European Risk Governance: its Science, its Inclusiveness and its Effectiveness, Connex Book Series: Mannheim University Press, 2008.
Agencies can be defined as ‘a part of government that is generally independent in the exercise of its functions’. Majone, G., ‘Functional Interests: European Agencies’, in: J. Peterson and M. Shackleton (eds), The Institutions of the European Union, Oxford: Oxford University Press, 2002: pp. 292-325.
Majone, G., Regulating Europe, Routledge: New York, 1996.
Schout, A., M. Holderied, Public support for European integration: Not an EU problem, Clingendael, Policy Brief, July 2017.
Maccio, L., and D. Cristofoli, ‘How to support the endurance of long-term networks: The pivotal role of the network manager’, Public Administration. 2017;1–17.
Schout, A.,.and A. Jordan, ‘Coordinated European governance: self-organising or centrally steered?’, Public Administration, 83(1) (2005): pp. 201-220.
Sorensen, E., J. Torfing (2007), Theories of Democratic Governance, Palgrave/Macmillan.
Metcalfe, L. ‘After 1992: Can the Commission Manage Europe’, Australian Journal for Public Administration 51, no.1 (1992): pp. 117-30.
Bugarič, B., Protecting Democracy and the Rule of Law in the European Union: The Hungarian Challenge, London: LSE discussion paper series. 79/2014.
See e.g. Articles 2, 4.3 and 7 TEU, Charter of Fundamental Rights, and Hillion, C., ‘Overseeing the rule of law in the European Union. Legal mandate and means’, SIEPS European Policy Analysis (January 2016).
Kochenov, D., ‘EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?’, Yearbook of European Law (2015): pp. 1-23.; Everson, M., et al., The Role of Specialised Agencies in Decentralising EU Governance, Commission of the European Commission.
The rule of law is intrinsically linked with fundamental rights and democracy and as such implies good governance, see e.g. AIV, De wil van het volk? Erosie van de democratische rechtsstaat in Europa, No. 104 Juni 2017. This is also notable in linkages/overlap between rule of law and governance indices. Rule of law and good governance are often mentioned together in reports.
Elbasani,A. and S. Sabic, ‘Rule of law, corruption and democratic accountability in the course of EU enlargement’, Journal of European Public Policy (May 2017). The accession process has encouraged and (financially) supported judicial and public administration reform and the professionalisation of (autonomous) institutions.
Schout, A., M. Luining (2017), The missing dimension in the rule of law policy: From EU policies to multi-level capacity building, Clingendael: Policy Brief.
‘EU Pact on Democracy, the Rule of Law and Fundamental Rights’, see e.g. link andlinkt=e&l=en

About the authors

Adriaan Schout is Senior Research Fellow and Coordinator Europe at the Clingendael Institute. He combines research and consultancy on European governance questions for national and European institutions. He has worked on projects addressing issues of the EU presidency, EU integration and Improving EU regulation, amongst others.

Michiel Luining is lecturer at the faculty of governance and global affairs of Leiden University. He formerly served as a junior researcher at the Europe and the EU cluster of the Clingendael Institute, where he focused on Rule of Law and the social dimension of the EU.