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Annex I -An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights

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An EU mechanism on democracy, the rule of law and fundamental rights Annex I -An EU mechanism on democracy, the rule of law and fundamental rights AN EU MECHANISM ON DEMOCRACY, THE RULE OF LAW AND FUNDAMENTAL RIGHTS Annex I - An EU mechanism on democracy, the rule of law and fundamental rights Abstract This Research Paper provides an overview of the existing EU mechanisms which aim to guarantee democracy, the rule of law and fundamental rights within the EU itself, as set in Article 2 TEU. It analyses the scope of these mechanisms, the role of EU institutions and other relevant actors, and identifies gaps and shortcomings in the current framework. The Research Paper also includes illustrative case-studies on several key challenges, including the limits of infringement actions in addressing the threats to judicial independence in Hungary; the shortcomings of the Cooperation and Verification Mechanism in Bulgaria; and the consequences of a weak fundamental rights proofing of the Data Retention Directive. The Research Paper briefly examines the monitoring mechanisms existing at international level, including the UN and the Council of Europe before considering how the EU institutions interact to protect and promote Article 2 TEU values and the role of national authorities and individuals in fulfilling this objective. An analysis of the impact of the gaps and shortcomings identified in this Research Paper is also offered, with a particular focus on the principle of mutual trust, socio-economic development and fundamental rights protection. The impact on mutual trust is discussed in an illustrative case-study on the consequences of the unequal enforcement of the European Arrest Warrant framework decision. Finally, the Research Paper proposes and assesses a set of vertical and horizontal options in order to overcome these gaps and shortcomings PE 579.328 1 AUTHORS This study has been written by Laurent Pech, Erik Wennerström, Vanessa Leigh, Agnieszka Markowska, Linda De Keyser, Ana Gómez Rojo and Hana Spanikova at the request of the Impact Assessment Unit of the Directorate for Impact Assessment and European Added Value, within the Directorate General for Parliamentary Research Services (DG EPRS) of the General Secretariat of the European Parliament. LINGUISTIC VERSIONS Original: EN DISCLAIMER The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Manuscript completed March 2016 Brussels © European Union, 2016. PE 579.328 2 Contents Abbreviations.................................................................................................................... 4 Executive summary ......................................................................................................... 5 1 Introduction ............................................................................................................... 11 2 EU legal and policy framework .............................................................................. 19 2.1 Overview of existing EU mechanisms (Internal dimension) ................................... 20 2.1.1 EU values ............................................................................................................ 20 2.1.2 Mechanisms set out in the TEU and TFEU .................................................... 37 2.1.3 General soft law mechanisms .......................................................................... 55 2.1.4 Soft law mechanisms of limited scope ............................................................ 85 2.2 Overview of mechanisms in EU foreign policy (External dimension) ................. 101 2.3 International monitoring and reporting mechanisms within the framework of the Council of Europe and the UN mechanisms ..................................... 102 2.4 Interplay between relevant actors ............................................................................. 104 2.4.1 Coordination among EU institutions and with international actors ........ 104 2.4.2 National actors ................................................................................................. 105 2.4.3 The role of the individual ............................................................................... 107 2.5 Cross-cutting issues limiting the effectiveness of current EU mechanisms ............................................................................................................................ 114 2.6 Conclusions: current ‘State of Play’........................................................................... 115 3 Current shortcomings and their impact .............................................................. 118 4 Potential added value of a new EU mechanism on democracy, rule of law and fundamental rights .............................................................................. 135 4.1 Methodology for selecting and assessing the legislative and non- legislative options to address the identified gaps and shortcomings ............................ 135 4.1.1 Horizontal options ........................................................................................... 139 4.1.2 Vertical options ................................................................................................ 147 4.2 Assessment of the selected options ........................................................................... 153 4.2.1 Horizontal options ........................................................................................... 155 4.2.2 Vertical options ................................................................................................ 160 4.3 European Added Value .............................................................................................. 165 4.3.1 National level ................................................................................................... 166 4.3.2 International level ............................................................................................ 166 4.3.3 Subsidiarity ....................................................................................................... 167 Concluding remarks ........................................................................................................ 167 5 Overall conclusions ................................................................................................. 169 Annex 1: Overview of relevant provisions and mechanisms to uphold democracy, the rule of law and fundamental rights in the EU ........................ 171 Annex 2: Assessment of the Rule of Law Framework ............................................ 179 Annex 3: Table of options ........................................................................................... 198 PE 579.328 3 Abbreviations CFR EU Charter of Fundamental Rights CJEU Court of Justice of the European Union EAV European Added Value EAW European Arrest Warrant EU European Union ECHR European Convention on Human Rights ECtHR European Court of Human Rights EU FRA EU Fundamental Rights Agency DRD Data Retention Directive PNR Passenger Name Record TEU Treaty on European Union Treaty on the Functioning of the European TFEU Union PE 579.328 4 Executive summary Existing mechanisms to protect EU values Different mechanisms and processes exist at EU level to promote, protect and safeguard EU values laid down in Article 2 TEU, in particular, democracy, the rule of law and fundamental rights1. These include legally binding mechanisms such as Article 7 TEU, which allows relevant EU institutions to act in situations where there is ‘a clear risk of a serious breach’ of EU values by a Member State or where there is a serious and persistent breach of EU values laid down in Article 2 TEU; and the traditional infringement procedure set out in Articles 258 to 260 of the TFEU2. There are also non-binding or soft law tools, including annual reports prepared by EU institutions covering matters related to Article 2 TEU values3. In 2014, both the European Commission and Council introduced two new additional mechanisms: the Commission adopted a new Rule of Law Framework4 and the Council committed itself to organising a new annual rule of law dialogue between Member States5. Data on respect for democracy, rule of law and fundamental rights in Member States is also collected by other international organisations including the Council of Europe (CoE) and the United Nations (UN), to which all EU Member States are parties. This data is used as a basis for monitoring Member States’ compliance with Article 2 TEU values6. Limitations of the current framework Developments in some Member States have led to criticism regarding the EU’s ability to act upon serious threats or breaches of EU values by Member States. Relevant examples include the situation of Roma minority rights in France in the summer of 2010, the measures adopted by Viktor Orbán’s government in Hungary concerning for example the independence of the judiciary, as well as the non-respect for constitutional court judgments in Romania in 20127. A number of non-governmental organisations, academics, foreign ministers, international organisations and representatives of EU institutions have stressed the need to address the limitations of the current EU framework, in particular to prevent any ‘backsliding’ of Article 2
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