On giving the new 'rule of law instrument' a fair chance
Ms. Viviane Reding now has a seat in the European Parliament. One of her last acts as Commissioner for justice, fundamental rights and citizenship was an instrument on rule of law crises at the national level.
Many will remember, among others, the ‘crisis’ concerning Roma people and the application of the Freedom of Movement Directive in France (2010). The situation of Roma people in France over the summer 2010 had raised the concerns of the European Commission. Over a thousand Roma of Romanian and Bulgarian citizenship were repatriated, as part of a "voluntary return" scheme which included highly criticised payments of €300 for each adult and €100 for each child. EU Commissioner Viviane Reding reprimanded France, saying that a policy of expulsions based on ethnicity "is a situation I had thought Europe would not have to witness again after the Second World War". On the other hand, French politicians described Reding's attack on France regarding Roma expulsions as scandalous and grotesque.
Can such political conflicts between the Commission and Member States be avoided in future? The recently issued Commission Communication on A new EU Framework to strengthen the Rule of Law intends to supersede the ‘ad hoc’ approach followed up until now in such cases, creating a clearer and more structured reference point.
What is meant by ‘rule of law’?
As the Communication emphasises, the principle of the rule of law ensures that all public powers operate within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The principles which define the core meaning of the rule of law are: legality; legal certainty; prohibition of arbitrariness of executive powers; independent and impartial courts; effective judicial review, including respect for fundamental rights; and equality before the law.
The new Framework and Article 7 TEU
The proposed instrument aims at preventing the emergence of a ‘systemic threat to the rule of law’ in a Member State that could evolve into a ‘clear risk of serious breach’ and lead to the application of Article 7 of the Treaty on the European Union (TEU). Article 7 TEU establishes a complex procedure, on the basis of which, in essence two mechanisms coexist: determination, on the basis of Article 7(1) TEU, that there is a ‘threat of a serious breach’ by a Member State of the values of Article 2 TEU (respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities); and determination that there is a ‘serious and persistent breach’ of such common values by a Member State (Article 7(2) TEU). The latter determination may lead to the grave consequence of the suspension of certain rights which the Member State derives from the Treaties, including voting rights in the Council.
How does the instrument work?
On the basis of the new Framework, in the event of clear indications of a ‘systemic threat to the rule of law’ in a Member State the Commission would take the following steps. First, it will assess the situation, including on the basis of the information provided by the EU Agency for Fundamental Rights and the relevant bodies of the Council of Europe, such as the Venice Commission. If the conclusion points to the existence of a systemic threat to the rule of law, a dialogue is started on the basis of an Opinion addressed by the Commission to the Member State. If the question is not resolved and there is objective evidence of a systemic threat and that appropriate actions are not being taken by the Member State, the Commission will then issue a Recommendation, with a deadline and, if necessary, indicate specific actions. Finally, the Commission follows up on the recommendation, monitoring its implementation. An unsatisfactory follow-up within the set deadline might lead the Commission to activate Article 7 TEU.
Will the instrument work?
The Commission itself acknowledged that the proposed instrument touches on a very delicate point. On the other hand, the potential for the EU to tackle effectively certain situations is fundamental. If the European Union is not to be a mere cluster of strictly separate entities, it must give itself (and improve) the means to face those risks whose scale might impact even on the Union as a whole. In this sense, the Framework could help to counterbalance the ponderous and potentially destructive Article 7 TEU.
A consensual approach and clarity for all concerned on what constitutes a ‘rule of law crisis’, will be crucial and there must also be greater mutual understanding: the Commission has to take on board possible genuine reservations of the Member States; the Member States have to show trust and responsibility in allowing the Commission to exercise its role in the most meaningful way.
The ultimate goal is to influence a future broader Treaty change. The process of thinking along these lines cannot be started too early, including by the Church itself. The Church has indicated that it values the topic covered by the initiative: the Encyclical Letter Centesimus Annus (§ 44) stresses that “…it is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the "rule of law", in which the law is sovereign, and not the arbitrary will of individuals”.
How the future Commissioner answerable for justice, fundamental rights and citizenship will carry forward the initiative remains to be seen. Nevertheless, it would be a positive sign if the proposed framework – which might also help avoid political manipulation by national politicians against the Commission itself – could receive a fair chance, without negative prejudices. After all, why be afraid to look beyond the status quo and seek for ways to make frameworks evolve and move forward?