In recent years, the EU has been confronted with constitutional crises in EU Member States, especially in Hungary and Poland. Theses crises pose systemic threats to democracy, the rule of law, and human rights as common values of the European integration process (Art. 2 TEU) and endanger mutual trust among the Member States. Until now, and despite some positive recent developments, these threats have not been sufficiently addressed by current Treaty tools, including most importantly the Art. 7 TEU mechanism and the infringement procedure. The EU is thus called to develop a more structured and consistent approach, also in order address the criticism that it is applying ‘double standards’: while for third countries, and in particular accession candidates, EU institutions have set up robust mechanisms for monitoring and enforcing democratic and rule of law obligations, both the standards applied and the level of scrutiny seem to be more lenient for Union members.

In the last months, two new instruments have been added to the EU toolkit. First, the Commission launched the ‘Rule of Law Reports’, a new monitoring mechanism that covers not only potential culprits, but all EU Member States, and would serve to detect possible threats at an early stage and possibly form the basis for broader peer review exercises. Second, after a long and controversial negotiation and a Hungarian and Polish veto that halted the process for weeks, the Council and the European Parliament approved the so-called ‘rule of law conditionality regulation’, which makes it possible for EU institutions to suspend, under certain circumstances, the distribution of EU money in case of rule of law breaches in a Member State. It is however becoming increasingly clear that there is no silver bullet, and that stronger enforcement may even backfire and contribute to further divisions in Europe between East and West, bolstering support for illiberal leaders at the national level. At the end of the day, what is needed is a strong democratic and rule of law culture that is strongly rooted in the ‘hearts and minds’ of office holders and citizens alike. In this direction, one of the latest initiatives is the European Democracy Action Plan launched by the Commission in December 2020, which envisages ambitious measures to promote free and fair elections, strengthen media freedom and counter disinformation.