Petra Bárd
Petra Bárd

Interview Petra Bárd: European law as a calling

She comes from a long line of Hungarian lawyers. Although first trying to resist this family pattern, Petra Bárd eventually gave in and went to law school. She is now a professor of Sustainable Rule of Law at Radboud University. Here she focuses on the European Union’s enforcement of the rule of law in the member states. “It is a privilege to be able to do research in peace.”

“I am a seventh-generation lawyer in my family. And the first woman”, Bárd says. “I tried to resist following in the footsteps of my ancestors and went to medical school. In Hungary, you have to choose a university when you are about sixteen. At that age, I just wanted to help people. But it did not take me long to realise that law is my calling. So I switched to law school.”

After graduating, Bárd spent some twenty years at the Central European University in Budapest. She is an associate professor at ELTE School of Law, the largest law faculty in Hungary, and has a recurring visiting professorship at Goethe University in Frankfurt am Main. She teaches EU constitutional and human rights law, EU criminal justice, criminology and data protection law.

Since September 2022, Bárd is also a professor of Sustainable Rule of Law at the Research Centre for State and Law (SteR) in the Faculty of Law in Nijmegen. “I love it here! The law faculty is relatively small but very collegiate. I have colleagues who are doing the same thing as I do, and we have very fruitful discussions where we just finish each other's sentences. What struck me, is that people are so relaxed here. In Hungary, academic freedom is an issue. You have to be careful what you say, otherwise the government will come after you. It is nothing like that in Nijmegen. Being able to do research in peace is a great privilege.”

Petra Bárd

Blueprint for illiberalism

Bárd’s main focus in Nijmegen is the European Union’s enforcement of the rule of law in the member states. “You could spend a lifetime researching what exactly the rule of law is. I find the views of Martin Krygier [an Australian academic, ed.] enlightening. He says the rule of law is about tempering power. Power in and of itself is not a terrible thing. You can use it for wonderful things, like controlling a pandemic. But when power is untamed and unlimited, it tends to become arbitrary. I like his metaphor about tempered steel. Raw steel is very harsh and brittle, tempered steel is smoother, and at the same time stronger. This is how I see the rule of law. On the one hand, it gives legitimacy to power, but at the same time it takes away the potentiality for arbitrariness.”

In member states like Hungary and Poland, the rule of law is under pressure. “To be honest: I am pessimistic about the rule of law in the EU. Especially Hungary is a textbook example of illiberalism. All illiberal regimes work along a certain blueprint, and Hungary meticulously follows that. The first step is, of course, to get into power. Populism is a great way to do that in a perfectly legal way. Then, if you have a constitution-making majority, you change the constitution. The next step as an aspiring autocrat is to capture the constitutional court, by packing it with people who are loyal to you. After that, you do away with the independence of the ordinary judiciary and the election authorities, you get rid of all types of internal critique – mainly the media – and shrink the space for civil society actors, including academics. Finally, you use a stick-and-carrot approach with regard to the electorate. The carrot is tax exemptions or tax lowering for the potential electorate. The stick is the scapegoating of minorities, such as the LGBTI+-community or the Roma, and of people who turn to international courts to enforce their rights.”

This all happened in Hungary. It leads Bárd to remark that her home country is not a democracy anymore. “Think tanks, such as the World Justice Project and the Freedom House, say the same. Poland and Slovakia are also on the radar. And I think it was a mistake to stop the monitoring mechanism for Romania and Bulgaria. These situations are, however, different. But it means the EU is now harbouring member states that are not democracies.”

Petra Bárd bij Radboud Reflects

Hardcore enforcement tools

What can the European Union do about this democratic demise? According to Bárd, the EU cannot solve illiberalism in itself, changes have to come from within. “But the EU can contribute to this change, it has all the legal tools it needs. It is important to emphasise this because European institutions have claimed for a long time they do not have sufficient tools, and need more. This cycle of tool creation has to stop. And the European Union finally has to use the tools available.”

The tools Bárd has in mind are threefold. “Mind you, I am talking about hardcore enforcement tools, not about the recent soft tools that only give the pretence that the European Union is doing something.” The first tool is starting Article 7.2 procedures. This article of the Treaty on European Union states that in the event of a serious and persistent breach, the European Commission can call a country to answer to the European Council. If the Council unanimously decides that the breach is still occurring, it can vote to suspend rights of the accused country, including voting rights within the Council. “Secondly, we have infringement proceedings, and thirdly conditionality. This last tool consists of several instruments but is basically about the power of the purse. We cannot have the European Union use taxpayers’ money to finance regimes that violate EU values.”

Until now, these tools are “heavily underused”, says Bárd. “Article 7.2 has never been triggered, and we see very few infringement cases with the rule of law element. The Commission often says: ‘We have to be careful, we cannot afford to lose such a case.’ My response is always: the task of the Commission is not to win cases, but to protect Article 2 values: the rule of law, democracy and fundamental rights. Regarding the tool of conditionality, we see a disturbing trend of turning conditionality instruments into a cheap political bargaining tool.”

Citizens can push institutions

Does Bárd also see a role for European citizens? “Absolutely. European institutions tend to react more harshly when citizens push them to do so, for example when human rights are at stake. Declaring LGBT-free zones or toying with the idea of reintroducing the death penalty are for most people much clearer violations – in this case of human rights – than the rather abstract demise of the rule of law.”

There have been attempts to give citizens a more active role in the EU, such as the European Citizens’ Initiative and the Conference on the Future of Europe. “But these have hardly been successful. I think it is a political matter. So, if I was a politician, but this is definitely beyond my expertise, I would emphasise two things. One is that the European Union is a peace project. Thanks to the EU there are now generations of people who have never experienced the horrors of war. The other is that everything we do in member states also has a European component. Unless we recognise that, the EU will not become a world power on the global scene.”

Text: Machiel van Zanten for alumni magazine 'RadboudRechten'. Photo's: Mario Diener & Ramon Tjan.

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Prof. P.D. Bárd (Petra)