- The European Commission wants to introduce a new framework mechanism to protect the rule of law in the EU more effectively.
- The Commission considers the rule of law to be a constitutional principle with both formal and substantial components. The formal components are the basic procedural requirements, while the substantial elements are democracy and the respect for fundamental rights.
- The new framework is based on a three stage process: (I) the Commission’s assessment (ii.) the Commission’s recommendation (III.) and a follow-up to the Commission’s recommendation.
- If a Member State fails to perform the necessary steps outlined in the recommendation, the Commission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU.
On March 11, the European Commission addressed a Communication to the European Parliament and the Council in which it informed them about the introduction of a ‘New EU Framework to strengthen the Rule of Law.’ This proposal is interesting from several points of view; therefore its details are worth examining.
In the justification of introducing the new framework, the Commission points out a problem which currently exists and is not solved by the EU treaties. This problem is that although the rule of law is one of the most fundamental values of the EU and it also serves as a basic principle to its functioning, currently there are no proper instruments at the disposal of the EU institutions to address a systematic threat to the rule of law in Member States. Since the ratification of the Lisbon Treaty the institutions of the EU, especially the Commission, have to choose between the delicate methods of political persuasion and the radical methods outlined in Article 7 TEU, which go as far as restricting the rights of a Member States if the breach of a fundamental value is noticed. Apparently, in some cases, for example when a Member State strongly refuses an EU critic against its national constitutional arrangement due to national interests or value-based beliefs, political persuasion might not be effective enough while applying Article 7 would be too strong and inadequate because of its politically unpredictable nature. This situation was recognized by the Commission, thus it argues for the creation of an ‘intermediary’ mechanism.
Besides the usual references to the rule of law as a common European value (such as the shared constitutional tradition of the Member States, one of the Union’s fundamental values, high importance in the Council of Europe etc.) there is another interesting statement about rule of law, which is new. This is the argument of the Commission that besides the above mentioned roles the rule of law has a distinguished function in making the EU ‘the area of freedom, security and justice.’ In order to achieve this goal a mutual trust in the EU institutions is indispensable, and the problems in the rule of law can undermine, thus endanger the above mentioned purpose. Therefore, protecting and strengthening the rule of law could help in developing a mutual trust between the Member States.
It has to be highlighted that the Commission tries to at least partially define what rule of law means. Its starting point is that rule of law consists of formal and substantial components. The formal elements include, for example, legality, legal certainty, prohibition of arbitrariness of the executive powers, independent and impartial courts, effective legal protection and equality before the law, thus the fundamental procedural features of modern legal systems. However, the Commission endows the rule of law with two substantial requirements: compliance with and respect for democracy and fundamental rights. A democratic functioning and a respect for fundamental rights are intrinsically linked and inseparable for the Commission, this is the reason for linking them when talking about the rule of law.
The European Commission also refers to ‘recent events in some Member States’ during which these states did not show respect for the rule of law and, as a consequence, for the fundamental values of the EU. These events revealed the above detailed lack of framework for an appropriate action from the part of the Commission. Regrettably, the Communication did not specify which Member States and events it refers to. It would have been useful to get to know these events and the problems lying behind them.
The purpose of the new framework created by the Commission is to avoid situations in which resorting to Article 7 would be clearly necessary, namely the violation of fundamental values and the rule of law. The framework is focusing on addressing threats to the rule of law in Member States which are of a ‘systemic nature.’ Those Member States actions belong here which might endanger (I.) the political or institutional and legal order of a Member State as such (II.) its constitutional structure (III.) the separation of powers (IV.) the independence or impartiality of the judiciary (V.) or the system of judicial review including constitutional justice. It is important to note that the Commission’s procedure will only be activated when national ‘rule of law safeguards’ do not seem capable of effectively addressing those threats. Thus, the Commission primarily expects the Member States and their national mechanisms to tackle the problems arising concerning the rule of law, and it considers its own role, in concordance with the principle of subsidiarity, to be secondary in this respect.
The effective functioning of the process is ensured by the following principles (I.) the solution has to be find through a dialogue with the Member State concerned; (II.) an objective and thorough assessment of the situation at stake has to be ensured; (III.) the principle of equal treatment of Member States should be respected; (IV.) swift and concrete actions have to be applied. The process itself consists of three stages.
1. The Commission’s assessment. If any of the above mentioned problems arise in a Member State, the Commission will firstly review the situation. It will aim at collecting and examining all the relevant information from reliable sources and recognized institutions, such as the Council of Europe (mainly the Venice Commission), the European Union Agency for Fundamental Rights and different judicial networks, for example the networks of the Presidents of Supreme Courts of the EU. If the preliminary evaluation reveals that ‘there is indeed a situation of systemic threat to the rule of law,’ it will initiate a dialogue with the Member State concerned, and will give the Member State the possibility to respond. During this phase some exchange of correspondence and official meetings could occur. In line with the ‘duty of sincere cooperation’ the Commission expects the Member State to refrain from ‘adopting any irreversible measure in relation to the issues of concern raised by the Commission.’ A Member State’s failure to cooperate during the procedure ‘will be an element to take into consideration when assessing the seriousness of the threat.’ The Commission will make the launching of its assessment and the sending of its opinion public, while the content of the exchanges with the Member State concerned will, as a rule, be kept confidential.
2. The Commission’s recommendation. If the consultation during the first stage did not solve the problem and the Commission considers that a systemic threat to the rule of law is still objectively present, the Commission will issue a ‘rule of recommendation’ addressed to the Member State concerned in the second stage. This recommendation will contain the reasons for the Commission’s concerns, the fixed time limit within which the Member State should solve the problems and specific indications on ways and measures to resolve the situation might also be added. The sending and the main content of the recommendation will be made public.
3. Follow-up to the Commission’s recommendation. In the third stage, the Commission will monitor the follow-up given by the Member State. During this phase both the legal changes and the modifications in practice are examined. If the follow-up to the recommendation by the Member State within the time limit set is not considered satisfactory by the Commission, it will assess the possibility of activating one of the mechanisms set out in Article 7 TEU.
This new framework cannot be thoroughly evaluated due to the fact that it has not yet been applied in practice. However, I propose two preliminary statements about the mechanism. First of all, it is evident that the procedure reflects a ‘mediatory’ understanding of the Commission’s role. The Commission does not want to judge a Member State alone, but it wants to include the Member State itself, experts and informal channels as well in order to be able to effectively solve the arising problems. This method is supported by the possibilities for consultation, such as the problem-revealing or the follow-up stages. In other words, the new framework stays within the already frequently applied and often successful method of political persuasion, it does not step out of the box despite the creation of the three stage process.
My second statement is somewhat related to the previous one. In my view, despite the fact that the main objective of this new framework was to create a mechanism which stands in-between the political persuasion and the radical option of resorting to Article 7, this goal of the Commission could not be achieved. The reason for this is that the mechanism lacks the element of effective legal sanction, and the precise and predictable explanation of what happens if the Member State concerned does not accomplish the Commission’s recommendation. Threatening with applying Article 7 drives the handling of Member State actions and malpractices to the political arena, thus many political aspects might arise which distort the evaluation of the debated legal questions (purely constitutional, legal, thus professional), so they undermine and politicize the whole procedure. Therefore, in its current form, without an effective legal sanction, this new framework is nothing more than the sophisticated, institutionalized instrument of political persuasion for the sake of the rule of law.
The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.