Law Academics Explore the Impact of New Tools on the Rule of Law and Democracy in the European Union

On 29 March 2024, HEC Paris organized a seminar on “Conditionality and the Rule of Law in the European Union” as a part of the European project RED-SPINEL (“Respond to Emerging Dissensus: SuPrantional Instruments and Norms of European Democracy”). The participants discussed challenges raised by new tools, called “spending conditionality,” to ensure the respect of the rule of law. The discussions mainly focused on conditionality in the Conditionality Regulation framework (Regulation 2020/2092), the cohesion funds, the European Semester, and the Recovery and Resilience Facility. 

“Spending conditionality”: connecting European funds allocation with rule of law conditions

As an opening lecture, Saskia Hollander (Clingendeal Institute) presented a state of art of “Economic Governance and the Rule of Law in the European Union.” Following the Covid-19 crisis and the adoption of the current multi-financial framework, the European Union has added new instruments to its rule of law toolbox. These tools connect European funds' granting to compliance with rule of law conditions, known as spending conditionality. As they are recent, it is difficult to assess their effectiveness. However, the presentation showed that spending conditionality has led to dissensus between the EU institutions and between the EU institutions and Member States. 

The dissensus mainly derives from the legal and technical nature of these instruments – the application of which is largely in the hands of the Commission. On the one hand, there is a lack of clarity as to which instruments and measures apply under which conditions. On the other hand, the context in which decisions regarding spending conditionality are made is highly political, and such decisions have far-reaching consequences for targeted Member States. The presentation concluded with three avenues for research on the output legitimacy of spending conditionality, the democratic legitimacy of spending conditionality, and its impact on intra-EU relations. 

Exploring fundamental rights in EU funding mechanisms

The opening lecture was followed by three roundtable discussions. The first roundtable welcomed a presentation by Cecilia Rizcallah (Université catholique de Louvain and FNRS), and was chaired by Louise Fromont (HEC Paris). It was the occasion to analyze how fundamental rights, including social rights, are taken into consideration in the cohesion funds, the Recovery and Resilience Facility, and the Conditionality Regulation. 

The discussion focused on the current Common Provisions Regulation as it includes a horizontal principle and an enabling condition related to the protection of fundamental rights and allows for ex ante and ex post conditionality. 

Examining the intersection of Rule of Law and budgetary instruments

In the second roundtable, chaired by Pauline Thinus (Université libre de Bruxelles), Roïla Mavrouli (CNRS/EUI) explained the “economization” phenomenon of the rule of law in the European Union – i.e. the process by which the rule of law is protected by economic and budgetary instruments. She analyzed the extent to which economic objectives shape the inception of the rule of law protection by establishing the influence of economics in the rule of law compliance and through the specific rule of law dimensions protected by these instruments. 

Rethinking European economic governance: insights on politicization, democratization, and responsiveness

The third roundtable, led by Amandine Crespy and Dimitrios Argyroulis of the Université libre de Bruxelles, was on the politicization and democratization of European economic governance. 

During the discussions, Amandine Crespy explained how the COVID-19 pandemic has led to an important reconfiguration of European economic governance. This reconfiguration necessitates to rethink the dilemma between responsibility and responsiveness – highlighted by Peter Mair. It seems that deeper economic integration followed the emergence of a form of “responsive responsibility”, which has led to the incorporation of responsiveness imperatives in prevailing notions of “responsible government”. 

Dimitrios Argyroulis presented the preliminary conclusions of an ongoing research on the European Semester, as a potential tool for the management of dissensus. To answer this question, this research uses case studies to determine, on the one hand, if macroeconomic conditionality in the Recovery and Resilience Facility brings continuity or change compared to the pre-pandemic conditionality and, on the other hand, if conditionality triggers dissensus at the national level. 

The concluding remarks of the seminar were given by Arnaud Van Waeyenberge and Louise Fromont of HEC Paris. They identified the main findings of the presentations and discussions and paved the way for future research activities.