Dimitry Kochenov* and Laurent Pech**

*Professor of EU Constitutional Law at the University of Groningen and Visiting Professor of Private Law at the Universita degli studi di Torino

**Jean Monnet Professor of EU Public Law, Head of the Law and Politics Department at Middlesex University London

The principle of the rule of law is a cornerstone of the European Union, as stated in Article 2 of the Treaty on European Union. In response to increasing concerns about the weakening of the rule of law in some EU member states, the European Commission introduced a “pre-Article 7” procedure in March. This procedure aims to address potential systemic threats to the rule of law. The Council, however, proposed a yearly “rule of law dialogue” between national governments in Brussels, criticizing the Commission’s initiative for potentially overstepping its authority.

Both the Commission’s and the Council’s proposals, particularly the latter, seem insufficient to tackle the issue of declining adherence to the rule of law following EU accession, as noted by Frans Timmermans, the Commission’s First Vice-President responsible for the Rule of Law, among other things.

The Commission’s proposal is based on the understanding that the current EU legal framework is inadequate in addressing internal, systemic challenges to the rule of law and EU values. Existing mechanisms, such as the infringement procedures (Articles 258–260 TFEU) and the “nuclear option” of suspending a member state’s EU membership (Article 7 TEU), have proven ineffective in addressing systemic violations.

While numerous proposals for stronger measures were suggested, the Commission opted for a more moderate “pre-Article 7” mechanism. This mechanism serves as an early warning system, enabling the Commission to engage in a structured dialogue with a member state suspected of systemic rule of law issues before resorting to Article 7 TEU.

This “pre-Article 7” mechanism unfolds in three stages: (1) The Commission investigates potential systemic threats to the rule of law in a member state and may issue a “rule of law opinion” to the government if deemed necessary. (2) If no appropriate action is taken, the Commission can issue a “rule of law recommendation” with specific instructions and a deadline for resolution. (3) The Commission monitors the member state’s implementation of the recommendation. If deemed unsatisfactory, the Commission may trigger Article 7 TEU.

Although procedurally sound and involving expert consultation, the effectiveness of the Commission’s new procedure, reliant on dialogue, is questionable. In situations where the ruling elite deliberately disregards EU values, such dialogue is unlikely to be productive. Additionally, the confidential nature of the dialogue prevents public scrutiny, and the non-binding nature of recommendations, coupled with the lack of automatic recourse to Article 7 TEU, raises concerns about its impact.

The Council’s response to the Commission’s proposal, proposing an annual rule of law dialogue based on objectivity and non-discrimination, is disheartening. This response, influenced by apprehension among some national governments towards independent scrutiny of rule of law matters beyond EU law, highlights a reluctance to address the issue effectively.

Citing existing mechanisms like the European Council and the Council of Europe as sufficient is unconvincing, as no existing body conducts comprehensive, country-specific monitoring and evaluation of adherence to the rule of law within the EU. Criticisms leveled against the Commission’s proposal mainly stem from the unwillingness of certain governments with questionable rule of law records to subject themselves to effective supranational oversight that could lead to binding recommendations or sanctions.

The Council’s proposal, advocating for a soft, dialogue-based approach, has been criticized for its ineffectiveness in promoting EU values in external relations. The EU’s “human rights dialogues” with third countries, for instance, have yielded limited concrete results. A more robust approach is expected when dealing with member states deliberately undermining EU values.

In conclusion, both the Commission’s and the Council’s initiatives fall short of addressing the gravity of the internal challenges to the rule of law. While the Commission’s proposal is comparatively less inadequate, the Council’s proposal not only prioritizes rhetoric over action but also undermines the legitimacy of the Commission’s new procedure. A more thorough analysis will be available in our upcoming Schuman Foundation policy paper, to be published this spring in English and French.

Barnard & Peers: chapter 9

Photo credit: The Economist