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The EU Framework for Enforcing the Respect of the Rule of Law and the Union’S Fundamental Principles and Values

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The EU Framework for Enforcing the Respect of the Rule of Law and the Union’S Fundamental Principles and Values The EU framework for enforcing the respect of the rule of law and the Union’s fundamental principles and values Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, examines the EU founding values and principles set out in Article 2 TEU and the instruments at the EU’s disposal to uphold them, in particular Article 7 TEU and Article 258 TFEU, as well as the Rule of Law Framework launched by the European Commission. Focusing on rule of law, the study also examines how these instruments have been used, in particular, in the cases of Poland and Hungary. The study also looks into the proposals put forward by the European Parliament and the Commission and gives recommendations: It proposes, in particular, the signing of the European Convention on Human Rights by the EU, as well as the introduction of economic conditionality into EU Cohesion Policy and its funds as a sanction mechanism. Policy Department for Citizens' Rights and Constitutional Affairs _____________________________________________________________________________________ ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Constitutional Affairs and commissioned, overseen and published by the Policy Department for Citizen's Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] RESPONSIBLE RESEARCH ADMINISTRATOR Eeva PAVY Policy Department for Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHORS Diego LÓPEZ GARRIDO, Universidad de Castilla - La Mancha Antonio LÓPEZ CASTILLO, Universidad Autonoma de Madrid LINGUISTIC VERSION Original: EN Manuscript completed in January 2019 © European Union, 2019 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. 2 The EU framework for enforcing the respect of the rule of law and the Union’s fundamental principles and values _____________________________________________________________________________________ CONTENTS EXECUTIVE SUMMARY 7 1. THE FOUNDING VALUES AND PRINCIPLES OF THE EUROPEAN UNION 9 1.1. The founding values and principles 9 1.2. Rule of law ‘’government by laws not by men’' 10 2.THE EFFECTIVENESS OF THE EU MECHANISMS AIMED AT PROMOTING AND SAFEGUARDING VALUES AND PRINCIPLES 14 2.1. EU mechanisms on enforcing the rule of law and other founding values and principles 14 2.1.1. Article 7 TEU 14 2.1.2.The Commission and the Court of Justice: the infringement procedure 17 2.1.3. Rule of law framework 17 2.2. Other instruments for promoting and protecting the values of the EU 19 2.3. The enforcement of the law in the fields of immigration and tax policies 19 2.3.1. Immigration 19 2.3.2.Tax Policies 20 3. THE REAL ENFORCEMENT OF THE RULE OF LAW FRAMEWORK 21 3.1. Overview and analytical approach 21 3.2. The case of Poland 22 3.2.1. Background 22 3.2.2. Recent Infringement procedure 23 3.2.3. Article 7 TEU procedure 26 3.2.4. Rule of Law Procedure 28 3.3 The case of Hungary 29 3.3.1. Background 29 3.3.2. Recent development and their analysis 31 3.4. Hypothetical assumptions 32 3.4.1. Direct and indirect breach of Article 6 TEU 32 3.4.2. Loyalty among Member States 33 4. WAYS TO IMPROVE THE PROTECTION OF RULE OF LAW IN THE EU 34 4.1. Proposals to safeguard the rule of law and values of the EU put forward by the EU Institutions 34 4.1.1. Proposals of the European Parliament 34 3 Policy Department for Citizens' Rights and Constitutional Affairs _____________________________________________________________________________________ 4.1.2. Commission and Parliament proposals amending the Treaties 36 5. RECOMMENDATIONS 38 REFERENCES 40 4 The EU framework for enforcing the respect of the rule of law and the Union’s fundamental principles and values _____________________________________________________________________________________ LIST OF ABBREVIATIONS AFSJ Area of Freedom, Security and Justice CEAS Common European Asylum System CJEU Court of Justice of the European Union CPR Common Provisions Regulation CVM Cooperation and Verification Mechanism ECHR European Convention of Human Rights and Fundamental Freedoms EMU Economic and Monetary Union EU European Union EURODAC European Asylum Dactyloscopy Database QMV Qualified Majority Voting TFEU Treaty on the functioning of the European Union TEU Treaty on the European Union VAT Value Added Tax 5 Policy Department for Citizens' Rights and Constitutional Affairs _____________________________________________________________________________________ LIST OF TABLES TABLE 1 22 Timeline in 2016 and 2017 TABLE 2 30 Timeline up to 2018 6 The EU framework for enforcing the respect of the rule of law and the Union’s fundamental principles and values _____________________________________________________________________________________ EXECUTIVE SUMMARY The rule of law, democracy and fundamental rights are all key values among those listed in Article 2 of the Treaty on European Union (TEU). They have a “constitutional” nature. The EU pledges to promote these values (Article 3 TEU) and to protect them through various instruments, in particular through the two-phase mechanism laid down in Article 7 TEU: Firstly, Article 7 (1) TEU provides for a prevention mechanism which can be initiated by the Parliament, the Commission or one third of the EU Member States if the Council determines that there is a risk of a serious and persistent breach of EU values. Secondly, Article 7 (2–3) TEU provides for a sanction mechanism which can be triggered by the Commission or one third of the Member States. In addition to Article 7 TEU mechanism – which could lead to the withdrawal of the voting rights of a Member State in the community institutions – there is another Treaty-based mechanism to safeguard the respect of the founding values and principles: according to the infringement procedure (Article 258–260 TFEU), the Commission, as the “guardian of the Treaties”, can report a breach of the EU law by a Member State to the Court of Justice of the European Union. If the Court finds that the Member State concerned has failed to fulfil its obligations under the Treaties, the Member State must “take the necessary measures to comply with the judgment”. To complement the above-mentioned mechanisms, in 2014, the Commission adopted the so- called Rule of Law Framework “to resolve future threats to the rule of law in Member states before the conditions for activating the mechanisms foreseen in Article 7 TEU would be met”1. The mechanism is based on a prior dialogue with the Member State concerned with the aim of avoiding any recourse to Article 7 TEU. This study offers an overview and analytical approach of these mechanisms, also in light of the recent Polish and Hungarian cases where there has been a breach of the Treaty values. In addition, it examines the proposals made by the European Parliament and the Commission to improve the situation. It concludes that all initiatives have been positive. However, they either represent relatively insignificant advances on the measures already adopted by the EU or imply reforms of the Treaties that are highly unlikely to be undertaken now. In our view, two truly useful measures could be taken without modifying the Treaties. First, the signing by the EU of the European Convention on Human Rights, submitting to the jurisdiction of the European Court of Human Rights in Strasbourg; and second, establishing an economic economic conditionality in the Cohesion Policy as a coercive means towards those States that seriously, flagrantly and repeatedly violate the rule of law, democracy or fundamental rights, once Article 7(1) TEU has been applied to them or in the event of a final decision from the Court of Justice of the European Union. 1 European Commission, Communication “A New EU Framework to strengthen the Rule of Law” of 19 March 2014, COM(2014)158 final-2, p. 2. 7 Policy Department for Citizens' Rights and Constitutional Affairs _____________________________________________________________________________________ The rule of law and other values and principles such as democracy and fundamental rights set out in Article 2 TEU are the true “constitutional” principles of the EU. Hence the importance of promoting and safeguarding them. No state can join the EU without respecting these founding values and principles, and a Member State can be sanctioned if it violates them. However, over the last few years, there have been cases in which, unfortunately, some Member States have violated in a serious and persistent manner the founding values and principles of the EU, particularly the rule of law. Therefore, it is urgent to ensure that there are efficient mechanisms available to guarantee their
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