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Understanding the EU Rule of Law Mechanisms

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Understanding the EU Rule of Law Mechanisms Briefing January 2016 Understanding the EU Rule of Law mechanisms SUMMARY The European Union is founded on values common to all Member States. These are supposed to ensure a level of homogeneity among Member States, while respecting their national identities, and so facilitate the development of a European identity and their integration based on mutual trust. Article 7 of the Treaty on European Union provides mechanisms to enforce EU values, based on a decision by the Council with the participation of the Commission and Parliament. The current mechanism is said to be unusable due to the high thresholds needed to adopt a decision in the Council, as well as Member States' political unwillingness to use it. Various new approaches have been proposed by academics and by political actors, from a new independent monitoring body – the 'Copenhagen Commission', through extending the mandate of the EU Fundamental Rights Agency (FRA), to introducing the possibility for the EU to suspend national measures suspected of infringing EU law. In 2014, the Commission adopted a new 'Rule of Law Framework' featuring a structured dialogue between the Commission and the Member State concerned and Commission recommendations and follow-up. On 13 January 2016, the Commission decided for the first time to initiate such an assessment of the situation in a Member State, with regard to two Polish laws – on the powers of the constitutional court and on the management of state TV and radio broadcasters. The European Parliament launched the idea of a 'European fundamental rights policy cycle' with the cooperation of the EU institutions, Member States and the FRA, as a 'new Copenhagen mechanism' to monitor the situation in Member States. At present, Parliament's Civil Liberties and Justice Committee is drafting a legislative own-initiative report on an EU mechanism on democracy, the rule of law and fundamental rights, relying on common and objective indicators. In this briefing: A Union of values The Article 7 TEU mechanisms The Commission Rule of Law Framework Proposals for further new instruments The EP: consistent advocate of protection of the rule of law Further reading EPRS | European Parliamentary Research Service Author: Eva-Maria Poptcheva Members' Research Service PE 573.922 EN EPRS Understanding the EU Rule of Law mechanisms Key events regarding the EU rule of law 1997, Amsterdam Treaty: Article 7 sanctioning mechanism for violation of rule of law, fundamental rights and other basic principles is established. 2000: Bilateral sanctions against Austria in response to the arrival in government of the Freedom Party (FPÖ). 2009, Lisbon Treaty: EU values are introduced into the Treaties, replacing the previous 'principles'. 2010-2012: Several Member States under scrutiny for possible rule of law violations: France for collective expulsions of Roma, Romania for non-compliance with Constitutional Court decisions, Hungary for measures affecting the independence of its judiciary. March 2013: Commission presented the EU Justice Scoreboard, including statistics on the justice systems in the Member States and data on the relationship between compliance with the rule of law and the functioning of the internal market. March 2013: Letter from the Foreign Affairs Ministers of Denmark, Finland, Germany and the Netherlands to the Commission President, calling for a new mechanism to safeguard fundamental values in the EU. March 2014: Commission adopts a Communication on a Rule of Law Framework as an earlier phase, complementary to the Article 7 TEU mechanisms. December 2014: Council decides to hold an annual 'dialogue' in the General Affairs Council on the 'rule of law' in Member States. 2015/2016: EP legislative own-initiative report 'EU mechanism on Democracy, the Rule of Law and Fundamental Rights' (LIBE Committee). 13 January 2016: European Commission launches structured dialogue with Poland under the Rule of Law Framework. A Union of values EU values and national identity The EU 'values' were enshrined in the Treaties only with the Treaty of Lisbon, replacing the previous, less extensive 'principles'. However, it has been clear from the very beginnings of the Communities that, to succeed, the European integration process needs a common basis of values to secure a degree of homogeneity amongst the Member States.1 The EU values are supposed to be the basis for a common European 'way of life', facilitating integration towards a political, not just 'market', Union. They support the development of a European identity, while ensuring the legitimacy of the EU as founded on democratic values. The EU values enjoy two-fold protection. First, since the 1993 Copenhagen European Council, they form part of the accession criteria for candidates for EU membership (Article 49(1) TEU). Second, Member States must, following their accession, observe and promote the EU values. Article 7 of the Treaty on European Union (TEU) establishes a procedure to sanction a Member State which does not uphold the values, through the suspension of membership rights. Moreover, the Union exports its values outside its territory, with the EU values underlying the international relations of the EU (Articles 21, 3(5), and 8 TEU). On the other side of the coin are the national constitutional identities of Member States. According to Article 4(2) TEU, the Union must respect Member States' national Members' Research Service Page 2 of 10 EPRS Understanding the EU Rule of Law mechanisms identities. This provision sets out a vision of a Union EU values founded on values common to all Member States but According to Article 2 TEU, 'the Union is which preserves the diversity of Member States' founded on the values of respect for political and organisational systems. This so called human dignity, freedom, democracy, 'constitutional individuality' of the Member States can equality, the rule of law and respect for be reflected inter alia in state-organisational, cultural, human rights, including the rights of including language, and historical heritage aspects.2 persons belonging to minorities. These Hence, the common EU values represent limits to the values are common to the Member States in a society in which pluralism, diversity of Member States, reflected in their non-discrimination, tolerance, justice, constitutional identities; limits that Member States solidarity and equality between women have agreed in order to forge mutual trust among and men prevail.' The preamble to the themselves and in their legal systems, for which the Treaties recalls that these values have observance of the rule of law is of upmost importance. developed from the cultural, religious Rule of law challenges in practice and humanist inheritance of Europe. Although the Article 7 sanctions mechanism was introduced with the Amsterdam Treaty, as a precursor to the Union's enlargement, it has never been activated. However, use of the procedure was first considered well before the 2004 enlargement, in the case of Austria, in response to the arrival in government of the Freedom Party (FPÖ) of Jörg Haider in 2000. In the end, however, bilateral sanctions were imposed on Austria by the other 14 Member States, outside the EU framework, rather than using Article 7.3 More recently, in 2010, the expulsion of Roma to their Member State of origin by the French authorities was discussed as a possible violation of the EU values. Since then, Hungary's constitutional reforms as well as the impeachment procedure against the former Romanian President have been subject to scrutiny based on the rule of law principle. Two recent Polish laws have again sparked the discussion on the upholding of the rule of law in the Member States, prompting the European Commission to trigger, for the first time, its 'Rule of Law Framework' procedure, consisting of structured dialogue with Polish authorities, as a prior phase in advance of any future action under Article 7 TEU. The Article 7 TEU mechanisms Legal vs political approach The difficulty in ensuring that national constitutional identities respect the EU values derives, inter alia, from the fact that political choices are seen by some as the legitimate result of a democratic debate, whereas others regard them as a breach of EU values. Some commentators and political actors tend to see the outrage of other Member States or EU institutions over specific developments in a given Member State as ideologically motivated, as the battle between left-wing and right-wing convictions, or as a battle between different cultures (Kulturkampf). Some argue that there is no single model of liberal democracy, common to all Member States, which can be used to decide whether Member States fall below a common standard, and therefore they call for greater respect for the plurality of political values in the EU.4 In this context, it has been argued that possible EU intervention needs to be based on a legally founded decision subject to review by the Court of Justice of the EU (CJEU). This would reduce the risk of, on the one hand, discretionary and opportunistic decisions, and on the other, Member States refusing to act against each other. Others claim that legal criteria alone cannot determine whether there is a breach of values, so legitimising EU intervention, and see the more political approach as a step towards democratisation of the Union through its long-demanded politicisation.5 Members' Research Service Page 3 of 10 EPRS Understanding the EU Rule of Law mechanisms The political approach was chosen in the EU, with proposals to involve the Court of Justice in the The CJEU has a very limited role in Article 7 procedures. According to sanctions procedure of Article 7 TEU being discarded Article 269 TFEU, it can be called upon during discussions on the Amsterdam Treaty, and the 6 by the Member State concerned to Council instead taking centre stage. review only the procedural require- Procedure and requirements ments stipulated in Article 7 TEU.
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