Germany and the EU: Safeguarding the Rule of Law in Troubled Times

This contribution is part of our joint online symposium with the JuWissBlog on the topic: “Protecting the Rule of Law in the European Union – Mechanisms and National Responsibility.”

Click here to view all contribution to our symposium.

A contribution from Dr. E. Prema* and Ragul O.V.*

Introduction

The rule of law is enshrined as a core EU value (Article 2 TEU) and a cornerstone of trust among Member States. Yet recent years have seen alarming backsliding in several countries – notably Poland and Hungary – raising the question that how can the EU’s existing mechanisms (Article 7, sanctions, judicial review, etc.) uphold shared legal standards, and what role should national actors – especially Germany’s institutions – play in this effort? Recent scholarship and policy analysis have examined the EU’s “toolbox” for enforcing rule-of-law norms, and highlight both progress and glaring gaps. Germany’s own constitutional order, with its entrenched commitment to the Rechtsstaat (rule-of-law) under Article 20 of the Basic Law, suggests a special responsibility for Berlin to champion these values. This article surveys the EU’s current enforcement mechanisms, assesses their effectiveness, and explores Germany’s national responsibility – from its courts to its votes in Brussels – in shoring up the rule of law across Europe.

EU Enforcement Tools: Article 7, Sanctions, and Judicial Review

The EU’s primary “nuclear option” for grave rule-of-law breaches is the Article 7 TEU procedure, which can ultimately suspend a Member State’s voting rights. In practice, however, Article 7 has proved almost inert. As one analysis notes, “There has been no movement on the Article 7 procedure” for years.[1] Hungary’s case (triggered in 2018) has barely moved beyond hearings on “the state of play,” and even now has not reached the stage of determining a formal “serious breach.” Likewise, the Article 7 procedure against Poland was quietly closed in mid-2024 – not by imposing sanctions, but only after Poland’s newly elected government pledged to reverse its contested judicial reforms.[2] In short, Article 7 remains a blunt instrument that member-states are reluctant to deploy against each other. In lieu of Article 7, the Commission has relied on infringement proceedings (Article 258 TFEU) against national laws violating EU obligations. However, infringement cases specifically targeting rule-of-law issues have been relatively rare in the past decade. The overall number of infringement actions has “plummeted” since the early 2000s– in part due to the Commission’s preference for dialogue over confrontation with reluctant governments.[3] Only a few headline cases have resulted in fines. For example, Poland was hit with record penalties in 2021 for its attempt to discipline judges,[4] and Hungary was fined in 2024 for asylum-law violations.[5]

But scholars observe that even infringements yield only “partial” compliance in many cases. In recent years the EU introduced a financial conditionality regime to put economic pressure on rule-of-law offenders. Under Regulation 2020/2092, the Commission can suspend or withhold EU funding if a Member State violates EU values.[6] This tool was used decisively against Hungary. In late 2022 the Commission froze €6.3 billion of Hungary’s cohesion funds (and threatened to permanently cancel €1 billion more) unless Hungary met strict benchmarks on corruption and procurement. Similarly, €9.6 billion of Hungary’s Recovery and Resilience (RRF) funds remains suspended for rule-of-law non-compliance.[7]

The Commission also invoked a related mechanism (the “horizontal enabling conditions” in the Common Provisions Regulation)[8] to pause disbursements to Poland and Hungary – €75 billion to Poland and €22 billion to Hungary were frozen under this rule-of-law tie-in in 2022 alone.[9] These measures demonstrate the EU’s ability to translate its values into budgetary leverage.

Finally, the Court of Justice of the European Union (CJEU) has repeatedly stepped in to enforce core principles of EU law. In European Commission v Republic of Poland (Grand Chamber, Judgment of 24 June 2019)[10], the Court of Justice held that national measures undermining judicial independence are incompatible with primary EU law, specifically Article 19(1) TEU and Article 47(2) of the Charter of Fundamental Rights of the European Union, which guarantees “the right to an effective remedy and to a fair trial before an independent and impartial tribunal.”

For example, in Commission v. Poland (2023) the CJEU held that Polish provisions preventing appellate review of court assignments “violate EU law, as they undermine judicial independence and the right to effective judicial protection”[11]. In other cases, the Court ordered Poland to suspend legislation that retroactively lowered judges’ retirement ages (undermining judicial tenure)[12], and struck down rules that sought to curtail the independence of supreme court chambers.[13] In short, CJEU case law strongly reaffirms the primacy of EU law on rule-of-law matters – but it relies on national courts and officials to implement those judgments domestically. In addition, the EU’s institutions exert political pressure. The European Parliament has passed resolutions denouncing rule-of-law breaches and even linking them to budget approval, although it lacks a formal sanctioning power.[14] The Commission now publishes annual Rule-of-Law Reports on each Member State (since 2020) to flag emerging threats. These monitoring tools aim to “nudge” compliance, but critics note that without enforcement they risk being overly diplomatic and politicized.[15] Indeed, one observer concludes that despite the expanded toolbox under von der Leyen, “there was no increase in the use of infringement proceedings and no movement on Article 7”, and conditionality measures so far “have failed to ‘bite’” fully.[16]

EU Sanctions: Assessing Their Effectiveness

Recent research analyses the EU’s sanctions “toolbox” – Article 7, infringements, and funding conditionality – and identifies two key factors for success: the credibility of imposing sanctions, and the economic pain they inflict.[17] They find that Article 7 has been thoroughly studied and shown largely ineffective, and that the newer conditionality and infringement routes have only partial effectiveness. In practice, the EU’s actions have sometimes yielded political concessions (e.g. forcing Polish authorities to reverse illiberal laws when budget payments were at stake) but often fall short of systemic reform. It was observed that even bold steps like freezing funds can be blunted by political deals – for instance, €10.2 billion was eventually released to Hungary after nominal judicial reforms and to secure Hungary’s veto-free support on other EU goals.[18] In sum, scholars conclude that “infringement procedures and funding conditionality are only partially effective” at mitigating democratic backsliding.[19] The EU has powerful legal and financial tools on paper, but it often lacks the unified political will to apply them rigorously. Political considerations – from coalition needs within the Commission to member-state alliances in the Council – frequently dilute enforcement. The result is a patchwork of actions that have increased pressure on rule-of-law offenders, but not yet restored resilient rule-of-law culture in the worst-affected countries.

German Constitutional Law: National Safeguards

Against this EU backdrop, Germany’s Basic Law provides a strong national rule-of-law foundation. Article 20 of the Basic Law identifies the Federal Republic as a “democratic and social federal state” and imposes that the legislature must conform to the constitutional order, and all public powers are bound by law and justice. The Basic Law explicitly protects “democracy, republicanism, social responsibility, federalism and rule of law” as core state principles (the so-called Ewigkeitsklausel or eternity clause in Article 79(3) BL bars their amendment). The Rechtsstaatsprinzip is thus inviolable: it demands independent courts, separation of powers, legal certainty, and fundamental rights protection at every level of government. German public law is steeped in this tradition, ensuring that even federal states and municipalities must implement laws in ways that respect due process and anti-corruption principles.[20] In addition, Article 79(3) (the eternity clause) makes the rule-of-law principle as entrenched as human dignity. This means that German legislators and courts cannot undermine core rights and procedures without violating the constitution. In practice, the Bundesverfassungsgericht (Federal Constitutional Court, in short: BVerfG) has developed a robust jurisprudence on the Rechtsstaat, striking down legislation for breach of fundamental rights or for lacking judicial guarantees. For example, when reviewing emergency COVID measures or criminal law reforms, the BVerfG has insisted on precise legal bases, proper safeguards, and parliamentary approval for any limits on rights. The overall effect is that Germany’s national legal order remains a strong bulwark against authoritarian backsliding.

Germany’s Role in European Rule-of-Law Enforcement

Germany does not face internal rule-of-law abuse of the kind seen in Warsaw or Budapest. Nevertheless, as the EU’s largest member and a leading voice in the Council, Germany wields significant influence on how EU tools are used. The German Federal Constitutional Court has generally accepted the primacy of EU law, provided that EU institutions themselves respect fundamental rights and offer effective remedies. In its landmark 2020 PSPP ruling on the European Central Bank, the BVerfG reminded that EU decisions must meet the “principle of proportionality” and be subject to genuine judicial review – a rule-of-law concern.[21] This stance signals that German courts will monitor EU action closely; if they find that an EU measure exceeds its powers (“ultra vires”), they have not hesitated to challenge it. In short, Berlin’s judiciary requires the EU to uphold the Rechtsstaat even as it defers to EU law’s overall authority. On the political side, Germany’s federal legislature and government have acted in line with the country’s rule-of-law ethos. German MPs and parties have often taken a firm stance toward Poland and Hungary. Notably, in late 2022 the ruling coalition (SPD/Green/FDP) moved a Bundestag resolution urging Chancellor Olaf Scholz to “thoroughly assess” whether Hungary’s reforms genuinely address EU concerns, and to vote for suspending billions in funds if not.[22] The motion framed this stance not as punishment but as fulfillment of Hungary’s voluntary commitment to EU values, and as protection of the EU budget from misuse. The German parliament thus explicitly saw itself as a guardian of EU rules. Germany has generally supported using the new conditionality mechanism to withhold funds from backsliding states. Similarly, German officials have publicly declared that protecting the rule of law is vital for the EU’s unity and credibility (e.g. former Chancellor Merkel warned that EU skepticism grows if abuses go unchecked). Moreover, Germany’s national bodies must implement and honor EU judicial decisions on rule-of-law issues. If the CJEU orders a state to repeal an illegal law or resume normal judicial procedure, German courts and administrations carry a duty (by the Basic Law’s Article 23 on EU integration) to uphold that ruling across the Union. German courts have often cited EU Charter rights as binding domestically[23]; any hint that Poland or Hungary would ignore CJEU orders would likely prompt scrutiny in German legal circles as well. At the same time, the Bundesrat (representing Länder governments) participates in EU decision-making; rule-of-law violations in one country can become topics in Bundesrat debates on EU funds distribution, indirectly influencing German federal policy. In sum, Germany’s national responsibility in the rule-of-law dialogue is twofold: first, to model a thriving Rechtsstaat at home, reinforcing the Union’s democratic foundations; and second, to use its political weight in EU institutions to insist on compliance. The German government can vote in the Council for strict enforcement measures (and indeed have signaled willingness to do so), while the German judiciary stands ready to ensure EU instruments are applied consistently. Some analysts have argued that without such national-level backing, the EU’s own tools cannot fully function.[24]

Conclusion: A Shared Burden, A Shared Future

The evidence is clear that no single mechanism is a silver bullet for Europe’s rule-of-law crisis. Article 7 TEU, despite its drama, has yielded little movement beyond formalities. Infringements have produced landmark judgments, but commission enforcement has slackened. The new conditionality regime has teeth on paper – it persuaded reforms in Poland and briefly starved Hungary of funds – but its efficacy depends on unified Council action and can be softened by political deals. As one expert notes, “the EU’s rule of law toolbox is comprehensive… but what is often missing is the political will to use it effectively”.[25] What, then, can be done? Observers suggest that the existing tools must be used proactively and early.[26] The Commission should promptly initiate infringement actions or conditionality triggers at the first sign of backsliding, rather than awaiting formal crises. If needed, Article 7 should not be shelved forever; even the threat of it – if credibly pursued – may galvanize reform. At the national level, Germany (and other like-minded Member States) must continue pressing for strict implementation of EU rules, even when domestic politics make this uncomfortable. The German Bundestag’s push to tie budget votes to the rule-of-law, and its public declarations of solidarity with EU standards, exemplify this approach. Revisiting the research question, the EU’s legal framework lays down rule‑of‑law norms, but its success ultimately hinges on member-states- that provide the will and means to enforce them. Germany – whose Basic Law enshrines the Rechtsstaat, whose courts respect EU primacy (within constitutional limits), and whose government leads within EU institutions – has a particular role to play. By aligning its national practices (justice, transparency, compliance with Charter rights) with European principles, Germany sets a standard. By using its votes and influence, it helps ensure that EU mechanisms are sharpened rather than blunted. If Berlin seizes this role, it could help transform the partial measures of today into an effective regime of mutual accountability for tomorrow.

*Dr. E. Prema is a professor of law at VIT School of law, Chennai, whose international legal scholarship focuses on the intersection of International law, EU law, sovereignty, and rule-of-law enforcement.

*Ragul O.V. is an international law researcher at the Madras High Court, focusing on the rule of law and EU laws. His work explores how legal pluralism and national courts shape compliance with supranational norms.

[1] Zselyke Csaky, The EU and the rule of law: Much movement, little change, Centre for European Reform (07.10.2024).

[2] European Commission, Poland’s efforts to restore rule of law pave the way for accessing up to €137 billion in EU funds, Regional Policy Newsroom (29.02.2024).

[3] Zselyke Csaky, The EU and the rule of law: Much movement, little change, Centre for European Reform (07.10.2024).

[4] Reuters, Poland says it will appeal after EU court dismisses complaints over fines, Reuters (05.02.2025).

[5] Jennifer Rankin, ECJ to fine Hungary €1 m a day until it complies with EU refugee laws, The Guardian (13.06.2024).

[6] Antonia Baraggia/Matteo Bonelli, Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges, German Law Journal (23.03.2022).

[7] International Monetary Fund (European Dept), Hungary: 2022 Article IV Consultation – Press Release; Staff Report; and Statement by the Executive Director for Hungary, IMF eLibrary (03.02.2023).

[8] Zselyke Csaky, Freezing EU funds: An effective tool to enforce the rule of law?, CER Insights (27.02.2025).

[9] Bloomberg News, How EU Is Withholding Funding to Try to Rein in Hungary, Poland, Bloomberg (30.12.2022).

[10] ECJ, European Commission v. Republic of Poland, Judgement of 24 June 2019, Case C‑619/18,  paras 1 and 4.

[11] ECJ, Commission v Republic of Poland, Judgement of 5 June 2023, Case C‑204/21, para 601.

[12] Matteo Bonelli, Infringement Actions 2.0: How to Protect EU Values before the Court of Justice, European Constitutional Law Review (17.03.2022).