1 Rule of Law in EU Member States |
+ ADD 1
|Commission Communication: A new EU Framework to strengthen the Rule of Law
|Department||Justice and Foreign and Commonwealth Office
Deposited in Parliament
Basis of consideration
|11 March 2014
18 March 2014
EM of 31 March 2014
|Previous Committee Reports||None
|Discussion in Council||In May or June, see paragraph 1.11
|Committee's assessment||Legally and politically important
|Committee's decision||Not cleared; further information requested; for debate on the floor of the House
1.1 This is a new document which we have not previously scrutinised.
1.2 Article 7 TEU contains mechanisms to protect
the values on which the EU is founded, as set out in Article 2
TEU. These values, include, but are not limited to respect of
"the rule of law":
"The Union is founded on the values of respect
for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights, including the rights of persons
belonging to minorities. These values are common to the Member
States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail."
1.3 There are two thresholds for activating the procedures
under Article 7: the lower threshold for Article 7(1) procedure
and the higher for Article 7(2). In both procedures, the consent
of the European Parliament (EP) must be obtained before a relevant
determination is made. They are also both initiated on a reasoned
proposal by one third of the Member States, the Commission or,
only in relation to the lower threshold, the EP.
1.4 In the Article 7(1) "lower threshold"
procedure, the Council, acting by four fifths majority:
i) must first give the Member State in question
the opportunity to be heard before making any recommendations;
ii) may then determine that there is "a
clear risk of a serious breach" by the Member State of the
values in Article 2 TEU.
1.5 Article 7(2) contains the higher threshold. The
European Council, acting unanimously, may determine the existence
of "a serious and persistent breach" by a Member State
of the values in Article 2. Such a determination enables the Council,
acting by qualified majority, to decide to suspend certain rights
of the Member State deriving from Treaties, including voting rights.
To date, neither Article 7 mechanism has been used.
1.6 The EU can also sanction infringements of specific
EU law provisions which impact on "rule of law" concerns.
The Commission or Member State themselves (though this is politically
unlikely in the case of the latter) can bring infraction proceedings
pursuant to Article 258-259 TFEU. There are a few relevant examples
of "rule of law" related judgments of the Court: Commission
v Hungary (Case C-286/12) concerning the compulsory retirement
of judges and public prosecutors and Commission v Germany
(Case 518-07) and Commission v Austria (Case C-614/10)
which both concerned the independence of data protection authorities.
However, such actions cannot be brought for "rule of law"
concerns which fall outside of the scope of specific EU law.
1.7 Systemic problems with rule of law may be tackled
using the Cooperation and Verification Mechanisms (CVM) based
on the Acts of Accession for Romania and Bulgaria. These are not
suitable for addressing a threat to the rule of law in all Member
1.8 The Council of Europe has its own system for
monitoring respect for the rule of law in its Member States. Also,
Article 8 of the Statute of the Council of Europe provides that
a Member State that has "seriously violated" the principles
of rule of law and human rights may be suspended from its rights
of representation and even be expelled from the Council of Europe.
Of wider application is the work of the Venice Commission, formally
the European Commission for Democracy through Law which acts as
the advisory body to the Council of Europe on constitutional matters.
It draws on a wider membership than the Council of Europe and
can respond to requests for opinions from the participating states
to help bring their legal and institutional structures into line
with European standards and international experience in the fields
of democracy, human rights and the rule of law. It also fields
requests for advice the Council of Europe itself and or international
organisations or bodies participating in the Venice Commission's
work (including the EU in an observer capacity). The opinions
adopted by the Commission are not binding but are mostly followed
by Member States.
The current document
1.9 The Commission says that the Communication responds
to concerns expressed by several Member States about the lack
of an effective mechanism in place to ensure that new Member States
maintain "rule of law" standards after they join the
EU. The "Copenhagen Criteria" were established in 1993
as a means of assessing whether candidate states were eligible
to accede to the EU. They include compliance with the values in
Article 2 TEU.
1.10 It also outlines the history of the development
of the new mechanism that it now proposes:
September 2012, President Barroso in his annual State of Union
speech to the EP said: "We need a better developed set of
instruments, not just the alternative between the 'soft power'
of political persuasion and the 'nuclear option' of Article 7
· in March 2013,
the Foreign Ministers of Germany, Denmark, Finland and the Netherlands
wrote to President Barroso calling for a "new and more effective
mechanism to safeguard fundamental values in Member States"
and "address deficits in a given country at an early stage";
· the June 2013
Justice and Home Affairs Council adopted Conclusions asking the
Commission to take forward an inclusive EU-wide debate in line
with the Treaties on the need for and shape of a collaborative
and systemic method to tackle rule of law issues; and
· in July 2013,
the EP requested that "Member States be regularly assessed
on their continued compliance with the fundamental values of the
Union and the requirements of democracy and the rule of law".
1.11 The Commission Communication states that experience
has shown that systemic threats to the rule of law in Member States
cannot, in all circumstances, be effectively addressed through
Article 258 TFEU as it is being limited to specific breaches of
EU law; nor through Article 7 TEU procedures, given the high "last
resort" thresholds for action. The Commission therefore sets
out a framework to better protect the rule of law in all EU Member
States by addressing and resolving situations where there is a
"systemic threat" to the rule of law. The Commission
says that as the guardian of the Treaties, including the Article
2 TEU values, it "must play an active role in this respect".
THE THREE STAGE PROCEDURE
1.12 The framework consists of a three stage process
based on Commission-led dialogue with the relevant Member States.
It is to be initiated in situations where the authorities of a
Member State are "taking measures or are tolerating situations
which are likely to systematically and adversely affect
the integrity, stability or the proper functioning of the institutions
and the safeguard mechanisms established at national level to
secure the rule of law". The new framework is "not designed
to be triggered by individual breaches of fundamental rights or
by a miscarriage of justice" these are to be addressed
by Member States' judicial systems. The Commission adds that the
framework will only be activated where national "rule of
law" safeguards do not seem capable of effectively addressing
those issues. It also gives some very general examples of what
might satisfy the risk threshold for action:
"the political, institutional and/or legal
order of a Member State as such, its constitutional structure,
separation of powers, the independence or impartiality of the
judiciary or its system of judicial review including constitutional
justice where it exists, must be threatened for example,
as a result of the adoption of new measures or of widespread administrative
practices of public authorities and lack of domestic redress."
1.13 The Communication explains that the framework
seeks to resolve future threats to the rule of law in Member States
before conditions are met for activating the procedures in Article
7 TEU. The framework is intended to precede and complement Article
7 TEU, and is without prejudice to the Commission's power to initiate
infringement procedures. The Commission argues it will provide
clarity and enhance predictability as to the actions the Commission
may take, whilst ensuring that all Member States are treated equally.
It will complement all existing Council of Europe mechanisms.
1.14 During the three-stage process the EP and the
Council would be kept regularly informed. The three stages are:
1: The Commission collects
and examines relevant information, including reports from the
Council of Europe, the United Nations and the Fundamental Rights
Agency. If the Commission considers that there is a systemic threat
to the rule of law in a Member State it will initiate a dialogue
by sending an opinion to which the Member State can respond. The
sending of the opinion would be made public but its content kept
· Stage 2:
If the matter is not resolved, the Commission issues a recommendation
to the Member State that it solve the problem within a fixed time
and inform the Commission of the steps taken. The recommendation
may include indications of the steps that the Member State could
take. The content of the recommendation will be made public.
· Stage 3:
The Commission monitors the Member State's follow-up of the recommendation.
If the follow-up is not considered satisfactory within the time
limit set, the Commission will consider activating one of the
procedures under Article 7 TEU.
1.15 The Communication states that the framework
is based on Commission competences in the existing Treaties.
The Government's view
1.16 In their joint Explanatory Memorandum of 31
March 2014 the Secretary of State for Justice (Chris Grayling)
and the Minister for Europe (Mr David Lidington) address both
the scope for duplication of existing mechanisms and for undermining
the role of the Member States within the Council of the proposed
"The Government is committed to promoting
the rule of law, both within the EU and elsewhere, but it remains
unconvinced of the need for a new EU rule of law framework. There
are mechanisms in place that already cover EU common values, including
the rule of law. The Council of Europe plays a role in upholding
the rule of law, and Article 7 TEU exists to address the risk
of serious breaches in EU Member States. As recent concerns on
the rule of law in Member States have been addressed successfully
through lobbying by, and dialogue with, other Member States, as
well as pressure from the Commission, it is not clear that the
proposed mechanism covers a genuine gap.
"The Government is of the view that constructive,
consensus-seeking dialogue between Member States is the most appropriate
and effective means of addressing any obvious deterioration in
the rule of law in a Member State. We therefore have concerns
about the purely Commission-led nature of the framework, and consider
that recommendations on action to address rule of law concerns
would carry greater weight if endorsed by the Member States.
"The Treaties confer clear roles on the
Council and the European Council in relation to the rule of law;
the Government does not want to see these undermined by the proposed
framework. It is the Council and the European Council that make
determinations under the procedures in Article 7 TEU. Moreover
before determining that there is a "clear risk of a serious
breach" by a Member State of the values in Article 2 TEU,
the Council may already address recommendations to the Member
State concerned. The Commission in contrast is one of three actors
that can initiate the procedures under Article 7 TEU. So while
the Commission has a legitimate role in assessing whether a referral
needs to be made under Article 7 TEU and formulating a process
that guides this work, this should not supersede the Council's
1.17 They add on the question of duplication:
"The Government considers it appropriate
that the proposed framework only uses existing monitoring tools
and sources of expertise: there is no shortage of institutions
and organisations involved in assessing the rule of law in Member
States. Council of Europe monitoring and submission of opinions
is already undertaken by the Venice Commission. We would be opposed
to any moves by the Commission to initiate new or additional monitoring
in support of their framework; we consider that the expertise
of the Council of Europe should be the primary source of analysis
to inform any framework and must under no circumstances be undermined.
We would also note that the Fundamental Rights Agency is limited
to providing EU bodies and institutions and Member States with
assistance and expertise on fundamental rights and its remit is
limited to matters formerly falling within Community law."
1.18 The Ministers also address the uncertainty about
the triggers for using the proposed mechanism:
"The Communication states that the purpose
of the framework is to address systemic threats to the rule of
law. It indicates that such a threat exists where the mechanisms
established at national level to secure the rule of law "cease
to operate effectively". The Communication also states that
the framework will be activated in situations where Member States
take action or tolerate situations which are "likely to systematically
and adversely affect" such mechanisms. There is therefore
a lack of clarity as to the threshold for activating the framework.
The Government does not consider that a remote threat to the rule
of law should be sufficient to initiate Commission dialogue, and
believes strongly that it is principally for Member States to
secure the rule of law domestically."
1.19 The Ministers says that the Government is also
considering carefully whether the proposed framework falls within
the Commission's competences within the Treaties.
1.20 On the question of compliance of the current
document with the subsidiarity principle the Ministers say:
"The Communication states that the framework
is intended to precede and be complementary to the procedures
under Article 7 TEU. Should it exceed this function the government
would have subsidiarity concerns. The framework should not undermine
the principal responsibility of Member States to secure domestic
adherence to the rule of law."
1.21 On the future discussion of the current document,
the Ministers inform us that:
"The Communication was published on 11
March 2014. It was raised at the General Affairs Council on 18
March 2014. The proposed framework may be raised for discussion
at subsequent General Affairs Council and Justice and Home Affairs
Council meetings later in 2014. Member States will have the opportunity
to endorse the proposal and raise any concerns at these meetings.
The Commission will likely seek Council conclusions responding
to the proposal at a General Affairs Council in May or June 2014,
possibly followed by consideration at the June 2014 European Council."
1.22 We thank the Ministers for their joint Explanatory
Memorandum and we note the following concerns about the proposed
Rule of Law Framework:
i) the unnecessary duplication of existing
compliance and monitoring mechanisms, including those of the Council
ii) the risk of widening the remit of the
Fundamental Rights Agency;
iii) the uncertainty of what nature and remoteness
of systemic risk can trigger intervention under the new mechanism,
impliedly questioning how the inadequacy of national "rule
of law" safeguards is to be judged;
iv) the basis of the Commission's competence
to propose the mechanism, albeit only political and not legally-binding
in nature and effect; and
v) linked to that, the partial displacement
by the Commission of the established roles of the Council and
European Council in the general policing of respect for the rule
of law by Member States.
1.23 We have also identified additional questions
which we set out in the following paragraphs.
1.24 We consider that the scope of the Framework
is not limited to a narrow or formalistic view of the rule of
law. It is aimed at protecting the rule of law in Member States
in its fullest, substantive sense, requiring the protection of
human rights by a judiciary system. This is recognised by the
Commission in the Communication when it says:
"Both the Court of Justice and the Court
of Human Rights confirmed that those principles are not purely
formal and procedural requirements. They are the vehicle for ensuring
compliance with and respect for democracy and human rights
This means that
there can be no democracy and respect for
human rights without respect for the rule of law and vice versa".
1.25 We therefore question whether the mechanism
could be used by the Commission to address a systematic approach
of national courts to the application and adjudication of human
rights; not just those rights derived from EU law (now codified
in the Charter of EU Fundamental Rights) or other international
human rights instruments (most notably, the European Convention
on Human Rights), but rights independently derived from national
constitutions. We further question, given the link the Commission
makes to democracy, whether that intervention might extend to
national measures altering democratic processes in a Member State,
if adversely perceived by the Commission. Its political impartiality
could not necessarily be assumed in interventions under the mechanism,
particularly given the possibility of the next Commission President
being one of the nominated candidates of the European political
1.26 We would also expand on the Ministers' concern
about the sole role of the Commission in the proposed process.
We are concerned not only about the partial displacement of the
Council and/or European Council from their established roles,
but also the lack of any proposed oversight of the Commission's
operation of the new "rule of law" mechanism.
1.27 We note the differing scopes of the proposed
mechanism and the mechanism which it is supposed to precede, Article
7 TEU. Given that Article 7 extends to the question of compliance
of all values set out in Article 2 TEU, we wonder to what extent
this new mechanism, although limited to rule of law in its current
form, could be developed in future to address the wider scope
of Article 2 values.
1.28 We recognise the inevitably politically sensitive
nature of the circumstances that would form the context of an
intervention by the Commission but question whether this argues
for, as opposed to against, a greater degree of transparency in
the first stage of the new procedure.
1.29 We accept the importance of addressing ongoing
respect for the rule of law by Member States and note that it
is a precondition for membership of the Union (as set out in Article
49 TEU). We also understand that there are deficiencies in existing
mechanisms outlined by the Commission. However, we think
that such intervention must be driven by political will within
the Council and/or European Council as is currently the case under
the Article 7 mechanisms. Even if it is arguable that the "political
will" threshold currently is set too high in Article 7, then
that should be a matter for Treaty change and, in the interim,
"rule of law" problems should be resolved by collective
political dialogue at Member State level.
1.30 We therefore retain the document under scrutiny
i) draw this document to the attention of
the Foreign Affairs Committee, the Justice Committee and the Joint
Committee on Human Rights;
ii) recommend this document for debate on
the floor of the House; and
iii) request the Ministers to comment on the
questions we have identified in paragraphs 1.24-1.30 above before
that debate takes place.