Steve Peers

Concerns about upholding the rule of law within the European Union have arisen lately, particularly regarding government actions in Hungary and Romania. Currently, the EU can address breaches of EU law and penalize severe, ongoing violations of EU values, including rule of law. However, there’s no mechanism to handle potential EU value breaches not directly tied to EU law or not reaching the threshold of a serious persistent breach. Additionally, the bar for punishing a Member State under Article 7 TEU is high, requiring unanimous agreement from all other Member States. While the Council can issue a warning to a Member State at risk of violating EU values under Article 7(1) TEU, this also demands a high threshold and has never been utilized.

To bridge this gap, the Commission introduced a communication outlining a detailed strategy for addressing rule of law concerns falling outside the infringement procedure or Article 7 TEU. Unlike the Commission’s similar papers on Justice and Home affairs policies, this communication doesn’t need European Council approval.

The new framework

The Commission pinpoints key rule of law elements: legality, legal certainty, non-arbitrary exercise of power, independent and impartial courts, effective judicial review, and equality before the law. An annex to the communication further elaborates on these concepts.

The process relies on several principles: engaging in dialogue with the Member State to find a resolution; conducting an objective, thorough assessment; respecting equal treatment; and suggesting concrete problem-solving actions. It unfolds in three stages.

First, the Commission gathers information from sources like the Council of Europe and the EU Fundamental Rights Agency. It remains unclear what might trigger such an investigation. If the Commission perceives a systemic threat to the rule of law, it will issue a ‘rule of law’ opinion to the Member State, outlining concerns and requesting a response. Meetings with the Member State will occur before issuing this opinion. The Commission expects the Member State to cooperate under Article 4(3) TEU (the loyal cooperation rule). The assessment’s commencement and the opinion’s issuance will be public, but discussion content will not. It’s uncertain whether the opinion’s content will be public.

Without a satisfactory resolution, the Commission proceeds to the second phase: a ‘rule of law recommendation’ when objective evidence exists of an unaddressed systemic threat. This will specify the concerns and necessary steps, potentially including specific actions for the Member State. The recommendation’s issuance and its primary content will be public.

The third phase involves following up on the recommendation, evaluating whether issues persist. If the follow-up is unsatisfactory, the Commission might trigger Article 7 TEU.

Comments

Transparency in this process is crucial to address public concerns about potential rule of law violations. While confidential discussions with the Member State are understandable, the Commission should publicly disclose the opinion’s content, the recommendation’s full context, any evidence obtained during the process, and follow-up documents.

Whether the Commission is best-suited for this role is debatable. The proposal mirrors the infringement procedure and the EU’s economic governance process. Still, those processes ultimately result in a judgment by the CJEU or a Council decision. Given that Article 7 involves decisions by the European Council and the Council, perhaps those bodies, along with the European Parliament, are better suited for rule of law determinations.

However, this could politicize the process. Yet, the Commission isn’t immune to politicization, especially if its President’s election hinges on European Parliament election results, as many EP parties suggest.

Entrusting the CJEU with the process could sidestep this but necessitates Treaty amendment for such jurisdiction. During the Hungarian situation, the Commission considered suing Hungary under the infringement procedure, arguing that ‘packed’ courts couldn’t guarantee impartial EU law application. However, a Member State defying the rule of law might disregard the CJEU.

Therefore, the Commission should rely heavily on reports from impartial external observers like the Venice Commission. Ultimately, a new quasi-judicial mediation body might be the optimal long-term solution, circumventing politicization and non-enforcement of judgments.

Barnard & Peers: chapter 9