Monday 9. December 2019
#165 - November

 

Commissioner Reding puts respect for the ‘rule of law’ into hyperdrive

 

Commissioner Reding believes that the European Union should be as ambitious with regard to the rule of law as it is on financial and banking issues if it is to win the hearts of EU citizens.


Countries like France, Hungary and Romania know all too well what it means to cross swords with the European Commission on rule of law issues. The ‘Roma crisis’ that exploded in France in 2010 with regard to the application of the Freedom of Movement Directive to Roma people is only one notable example. Taking inspiration from these situations and aiming at disposing of even greater clout in the future, Commissioner Reding recently suggested the creation of a sort of EU ‘rule of law bazooka’.

 

Four pillars for a solid instrument

The new mechanism would be founded on four guiding principles: 1. Legitimacy: digging deep into the functioning of the rule of law in a given Member State goes to the very core of national sovereignty and therefore the Commission would require ‘enhanced legitimacy’; 2. Bolstered sources of expertise (e.g. the new EU Justice Scoreboard, the national judicial and European networks with which the Commission cooperates, the EU Fundamental Rights Agency); 3. Equality of Member States (‘no’ to double standards); 4. Accommodation of the special role and complementary work of the Council of Europe (in particular: the Venice Commission).

 

No elements are cast in stone for the moment

The approach proposed by Commissioner Reding is based on two steps. The first step would fully exploit the potential already offered by Article 7 of the Treaty on the European Union (TEU): the provision allows the EU to react quite incisively to threats by a Member State to the values of Article 2 TEU. However, the majorities which are required make the triggering of the procedure challenging. In such cases, the Commission could in the future preemptively address first warning ‘formal notices’ to Member States when there are reasons to believe that a systemic rule of law crisis is developing.

 

The second (and more ambitious) step would require Treaty changes, with different options: lowering the demanding requirements for activating the Article 7 TEU procedure; expanding the role of the European Court of Justice; beefing up the powers of the EU Agency for Fundamental Rights, which at the moment can only analyse fundamental rights issues at EU level, but not at a strictly national one; abolishing Article 51 of the EU Charter of Fundamental Rights, which states that the provisions of the Charter are addressed to the Member States only when they are implementing Union law. From its deletion it would follow that all fundamental rights would become directly applicable in the Member States (the Commission could start infringement procedures even when Member States are not acting in the implementation of EU law).

 

Commission wants to ‘fly’ but Member States will have to be reckoned with

One has to give credit to Commissioner Reding for being able to fearlessly open up multiple contemporary battlefields, including vis-à-vis subsidiarity-obsessed national governments. The question is whether the excessive ambition shown in this case will bear the expected fruits.

The idea of ditching Article 51 of the Charter has to be carefully pondered. The provision is undoubtedly important in the delicate balancing required by the architecture of the Charter. The suggestion made is wildly futuristic, but is it also realistic? How can it be reconciled with national identities, which often boast specific and long-standing traditions (including at the Constitutional level) on the areas at issue? And what would the abolishing of Article 51 imply? It is a good guess that not even the Commission has a comprehensive vision of all the ramifications.

 

The suggested enhanced role of the Fundamental Rights’ Agency’s is also a bit perplexing, as the quality of its work over the years has left something to be desired. The reference to more ‘bullet-proof’ solutions (e.g. stronger involvement of the European Court of Justice; adaptation of practices already used for infringement procedures) is certainly preferable and commendable.

 

Whatever follows after this first, bold intervention by Commissioner Reding, the impression is that the legislative life of such a potentially ‘explosive’ set of tools will be less difficult only in the context of a much larger package featuring some sizeable ‘candy’ to keep the Member States contented. Will a ‘small steps’ policy ultimately prove the key to success? The Commission admits that some of the suggested ideas would point in the direction of federalism. In this regard, once again, the matter ultimately boils down to the will of the citizens with regard to paving the way to deeper integration…

 

Alessandro Calcagno

COMECE

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