A Feminist Review of the New Rule of Law Mechanism
Francesca Di Fazio, Translation Editor at the Civil Society Review, reveals the tension between formal institutional conformity and the rule of law, and the need to uphold European values on a more fundamental societal level.
One year after taking office, the European Commission led by Ursula Von Der Leyen appears more than ever committed to keeping its promises. Building on the political success of the Recovery Fund approval, the President opened her first State of the European Union address on 16 September 2020 by laying out a European-wide plan to mitigate the fallout of COVID-19. However, the Commission’s priorities clearly went beyond the ongoing health crisis, expanding to the geopolitical as well as the internal political realm. On the one hand, the President made explicit judgements on the conduct of a number of external countries. On the other hand, she did not refrain from addressing important political and institutional issues that have traditionally been considered internal affairs of the Member States. Two key moments in the speech highlighted the Commission’s renewed assertiveness, and perhaps suggested the possibility of a shift within the relative power balance among European institutions. The first moment was the introduction of an annual review on the status of the rule of law within Member States.
The second one was the President’s clear stance against the discrimination of minorities. Both items directly impact two groups whose politics often overlap in the European context: the nationalists and the ultraconservatives. Admittedly, the rule of unanimity for deliberation in the European Council will not grant the supranational EU bodies much agency to deal with the Member States ranking poorly in the assessment. Still, the initiative has important political implications: the activity of single member governments will be measured against the collective values of liberty and democracy underpinning the Union.
However, the effective weight of such values in the review is at least questionable. While the European democratic ideal rests primarily on the principles of liberty and respect for human dignity, the review’s parameters focus on mostly formal institutional indicators, and aims to assess government’s conformity with them. This reflects a common trend in the praxis of European governance that has become increasingly familiar since the management of the eurozone crisis, when adherence to economic parameters demanded neoliberal policies for internal adjustment in indebted Member States. This
approach is reductive, and particularly surprising given President Von Der Leyen’s firm statements about racism and anti-LGBTI discrimination. She went as far as openly calling out individual Member States on their policies, first and foremost the self-designation of some areas in Poland as LGBTI-free zones. Moreover, a look to the wider context through feminist and intersectional lenses reveals that the Polish case is merely the shocking tip of the iceberg within a wider emergency in Europe. According to the EU Agency for Fundamental Rights (FRA) and independent NGOs such as ILGA-Europe, the advancement of LGBTI equality across the EU has generally slowed down over the last years, while in some countries the situation has even worsened. As for women’s rights, the picture is not encouraging either. Poland, for instance, is attempting to clamp down on its already limited abortion rights. In Italy, where access to abortion should be granted by law, doctors and clinics are increasingly resorting to conscientious objection in order to prevent women from exercising their reproductive rights. As these issues intersect with further discrimination, such as racism, they increase the vulnerability of already underprivileged people in the EU, especially migrants and asylum seekers.
Hence, the data suggests that any review of Member States’ conduct that does not systematically account
for the status of women and LGBTI rights, and for the intersection with other sources of discrimination, is incomplete. In fact, decline in the rule of law and institutionalised discrimination of non-conforming gender identities often go hand in hand. The correlation is evident in those EU countries where democratic institutions have been undermined the most. In Hungary, immediately after seizing dictatorial powers, Prime Minister Orban outlawed gender reassignment, effectively criminalising transgender people. In Poland, the surge in LGBTI discrimination and anti-abortion legislation has occurred in conjunction with reforms curbing the independence of the judiciary. And yet, the institutional-oriented bias underpinning the rule of law review does not acknowledge this reality, exposing European citizens to the threat of increasing intolerance. The Von Der Leyen Commission must expand the ruleof- law parameters beyond the institutional dimension. Otherwise, it will fall back into a recurring mistake in the history of European governance, namely fixating on Member States’ institutional conformity with formal rules and not on their commitment to European values, which are grounded on respect for human rights and dignity. Including feminist and intersectional perspectives into the evaluation of Member States’ internal politics would arguably rebalance the EU’s priorities. In turn, success in doing so could create the conditions for a new era of European integration under the leadership of an ambitious and ground-breaking Commission.
 Sergio Fabbrini, “Intergovernmentalism and Its Limits: Assessing the European Union’s Answer to the Euro Crisis,” Comparative Political Studies 46, no. 9 (2013): 1003-1029.