As the incoming EU commissioner for justice and the rule of law, Michael McGrath’s first steps will be watched more closely than most. Of the 26 commissioners who sit beside Ursula von der Leyen at the top of the European Commission, the justice job can be one of the more political roles.
The former Fianna Fáil minister comfortably sailed through what at one point might have been a tricky confirmation hearing in the European Parliament. His appointment got the backing of MEPs from all groups bar those on the far right.
The brief is wide, ranging from data protection rules to new regulations planned for online influencers, to police and judicial co-operation issues such as the operation of the European arrest warrant.
The most contentious aspect of the role is upholding the rule of law in the EU. Here McGrath will be tasked with penalising countries who backslide from democratic norms. That could mean tackling populist efforts to undermine judges, political opposition and civil society, as well as the rights of minorities and asylum seekers.
The far right Hungarian government of Viktor Orban is the most pressing concern in this context. Orban has eroded LGBT+ rights and the independent media, and openly disregarded the jurisdiction of European courts. The populist right-wing Law and Justice government in Poland was in the same camp before it was replaced by prime minister Donald Tusk’s Civic Coalition late last year.
McGrath will be centre stage when the commission puts out its annual reports on the rule of law, detailing how each EU country is fairing. The assessments are often subject to behind-the-scenes politicking.
Laurent Pech, a professor at University College Dublin specialising in EU rule of law, says the commission has a tendency to claim progress where there was none. Often “cosmetic” legislation passed by a national government under scrutiny was taken at face value without evidence of the law being followed on the ground, he says.
“We didn’t design a system to deal with backsliding [and] bad faith authorities, so this is where we are struggling. We had always assumed we wouldn’t be facing systemic noncompliance with basic EU rule of law requirements,” Pech says.
Tineke Strik, a leading Green MEP on the European Parliament’s justice committee, is also critical of the commission for pulling its punches in the past. “There is still too much discretion or political consideration about when the commission uses its enforcement power,” she says.
There seems to be “impunity” for countries who breach the rule of law when it comes to migration, she says, pointing out that the commission has shown little appetite to go after frontline states for pushing back migrants and asylum seekers attempting to cross the Mediterranean Sea to Europe.
Hard right Italian prime minister Giorgia Meloni has become an important ally of von der Leyen around the top table of European leaders, leading to criticism that Meloni is getting a soft ride from the commission on her more controversial domestic policies.
You would think the frosty relationship between Orban and von der Leyen would give McGrath a relatively free hand to give Budapest a hefty whack of the stick. But the Hungarian leader has previously been able to leverage lifting his opposition to key proposals – for example to unblock financial support for Ukraine – to get leeway from the EU elsewhere.
That is the complex web McGrath will have to pick his way through in the new role, where his most important constituency may be von der Leyen’s office on the 13th floor of the commission’s Berlaymont building. The centre right German politician, who is starting her second five-year term at the top of the EU executive, has further consolidated power around herself.
When choosing what portfolios to give to commissioners nominated by each capital she sliced and diced parts of roles and spread responsibility for important policy areas across several people. By tying commissioners’ ankles together in groups of two or three you stop someone from being able to go off on a solo run.
McGrath has been hitched to Piotr Serafin, the commissioner from Poland who will be in charge of the EU budget. The pair have been charged with bringing forward plans to link countries’ future drawdowns of EU funding to progress on rule of law reforms. Tabling changes to give the commission greater power to turn off the tap of crucial EU funding will not make McGrath many friends in places such as Hungary, Slovakia and Italy.
If the former Fianna Fáil minister goes out too far on the rule of law he risks deals being cut above his head for political reasons by von der Leyen, leaving him swinging on his own. If he is seen as too meek the commission president could decide to pull some of his workload from him and hand it to Serafin or others.