(Monnet)

Introduction

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:

Annex: EU Rule of law Toolbox

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.