Documents considered by the Committee on 7 May 2014 - European Scrutiny Committee Contents

1 Rule of Law in EU Member States



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COM(14) 158

Commission Communication: A new EU Framework to strengthen the Rule of Law

Legal base
DepartmentJustice and Foreign and Commonwealth Office
Document originated

Deposited in Parliament

Basis of consideration

11 March 2014

18 March 2014

EM of 31 March 2014

Previous Committee ReportsNone
Discussion in CouncilIn May or June, see paragraph 1.11
Committee's assessmentLegally and politically important
Committee's decisionNot 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; and

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 States.

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:

·  in 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 TEU";

·  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".


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:

·  Stage 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 confidential.

·  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 framework:

    "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 role."

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 of Europe;

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 parties.

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 and:

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.

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