Two things happened in mid-december that can help us understand what the EU’s „Rule of Law” debate is all about.
A much-celebrated deal was reached regarding the EU’s suspension of funds for Hungary. In essence, it kept the door open for Hungary to receive all the money it is entitled to, if it continues to implement a number of reforms in order to „strengthen the Rule of Law”.
But that was not really what the deal was about. The vote in the EU council on Hungary’s funds was purposefully combined with a vote on two other subjects: A global minimum tax on company profits, and an 18 billion Euro aid package for Ukraine. Both aimed at deepening supranational political dependency structures rather than solving a real problem.
There was no need for a common EU loan in order to mobilize those 18 billion Euro for Ukraine. That money can be contributed by the member states themselves. In fact, Hungary succeeded in negotiating a solution that avoided further EU common debt (the Ukraine aid will not be paid from the EU budget). The only reason the EU commission wanted more common debt in the first place was to install a culture of common EU borrowing. So far, they succeeded only once, to finance the socalled Covid relief package. And that was politically „sold” as a „one-off” exception, never to be repeated. Since then, though, the commission keeps trying to repeat it.
The global minimum tax was designed to erase the competitive advantage of smaller countries (who can more easily undercut the tax rates of larger economies in order to attract foreign investment), and to benefit the most powerful European economies. Although it is called a „global” tax, it really is mainly limited to the EU. The US have withdrawn from the deal.
Here, too, Hungary was able to negotiate an agreement that left its own tax structure unchanged. Hungary’s „business tax” – based not on profit, but on turnover – will count towards the „minimum” tax on company profits, which in Hungary thus remains unchanged at a very low nine percent.
The essential point is that in these negotiations the EU (and the leading powers therein) were not mainly trying to strengthen the Rule of Law in Hungary. There were aiming to weaken the powers of member states. Because the question of Hungary’s EU funds could only be settled of the other two matters also were solved, Hungary’s agreement to strengthening supranational structures became a de facto condition for it to receive its money. Hungary did fight a successful rearguard battle. Still, the deal was also a small step forward for EU federalists who strive for a „United States of Europe”.
Meanwhile Germany passed a worrisome law that encourages people to spy on their fellow citizens, and to report on them if they say things that are deemed to be critical of Germany’s „constitutional order”.
Initially, the law was just meant to implement an EU directive for the protection of „whistleblowers”, if they report on infringements against EU regulations. But the leftwing German government, with last-minute changes to the draft law, turned it into an instrument for a political power grab in Germany. You can read the draft and the changes here.
Crucially, the law stipulates that civil servants, such as policemen and teachers, can be fired without a court decision if they are deemed to be in disaccord with Germany’s fundamental law (the constitution). That is a huge change to the legal status of civil servants who, so far, could only be fired if it was proven in court that they oppose the constitution. With the new rule, that doesn’t need to be proven anymore. Allegations will be enough.
But spying on neighbors will not be limited to state organizations. Companies with at least 50 employees are ordered to create – at their own expense - „Meldestellen” – („reporting offices”) were anyone can report anyone if they think they saw, heard or otherwise witnessed something improper. Not something illegal per se – citizens can report incidents that, although not illegal, and perhaps even protected by the fundamental right to freedom of speech, seem to show that someone is critical of Germany’s fundamental law. And that can be enough to fire any civil servant.Victims can fight the decision in court, but at their own expense.
Freedom of speech thus remains protected by the constitution. But if you exercise it, you may lose your job. Not just if you are a civil servant. Or why would the law include private companies? There, as well as in state organisations, „whistleblowers” can denounce their colleagues „anonymously”. And from there on, the whistleblower cannot be fired, as long as the report is investigated.
Imagine you are a teacher, and that you dislike another teacher in your school – perhaps because you are also a leftwing activist, and the other comes across as rather conservative. Maybe he said something disparaging about the EU? Or the government? Or the gender debate? Just report him or her.
Or perhaps, in a private company, you envy the job of a colleague and would like it for yourself? Just report them. If you do this to harm someone, and untruthfully, the law to stipulates that you may be punished. But since accusers can remain anonymous, that may never be proven.
Or perhaps you fear that you are about to be laid off in your company for whatever reason? Just report on someone. From then on, until the matter is investigated, you cannot be fired.
Germany’s „basic law” is a fine and fairminded one. But interpretations can evolve over time. For instance, it prohibits discrimination based on „sex”. What the authors of the basic law meant by that was that there should be no discrimination between men and women. Nowadays, a new interpretation of that passage understands „sex” to mean „gender”, although that is not legally settled. Now, imagine a colleague at work states that in his view, there are only two biological sexes, and that marriage should be for man and woman. Although that is a perfectly law-abiding view, he may now be reported for deviance from the constitution. This will not have to be proven in court: Some state administration official may decide that that person can no longer serve the state.
At private companies, employers may decide that they they do not want to be seen as a place with a corporate culture that tolerates criticism of „diversity”. Although the law says nothing about consequences for anyone deviying from what is regarded to be the spirit of the fundamental law, there may well be very serious consequences in real life.
Finally, for political parties, the law opens up new strategic options in their quest for political power. To pick a party at random, the Greens for instance could decide to strategically place activists in big companies and state institutions (or to activate those who are already there), and then proceed to report anyone who disagrees with them. The result might be a political cleansing of state institutions and big companies.
As for the „Rule of Law”, one of it’s conceptual pillars is the assumption of innocence „until proven guilty”. The German law turns that on its head: Although legally, you will still be presumed innocent, materially your existence can be destroyed of you are suspected of „wrong” opinions.