Documents considered by the Committee on 11 March 2015 - European Scrutiny Contents

1 Rule of Law in the EU

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; recommended for debate on the floor of the House (decision reported on 7 May 2014); further information requested; drawn to the attention of the Foreign Affairs Committee, the Justice Committee and the Joint Committee on Human Rights
Document detailsCommission Communication: A new EU Framework to strengthen the Rule of Law
Legal base

Document numbers

Foreign and Commonwealth Office and Ministry of Justice

(35878), 7632/14 + ADD 1, COM(14) 158

Summary and Committee's conclusions

1.1 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". There are two thresholds for activating the procedures under Article 7: the lower threshold for Article 7(1) procedure (the Council acting by four fifths majority to determine "a clear risk of a serious breach" of those values) and the higher for Article 7(2) (the Council acting by unanimity to determine "a serious and persistent breach" and by QMV to decide to suspend certain EU membership rights). 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. To date, neither Article 7 mechanism has been used.

1.2 There are also other existing mechanisms to tackle rule of law problems in Member States. The Cooperation and Verification Mechanisms (CVM) can be used to address the rule of law in Bulgaria and Romania (set up as part of the accession process). There are also the Council of Europe's own systems for monitoring respect for the rule of law in its Member States, including the work of the Venice Commission.[1]

1.3 The Commission Communication, published in March 2014 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 limited to specific breaches of EU law[2]; 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 such a 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".

1.4 The Communication responds to specific calls from particular Member States (Germany, Denmark, Finland and the Netherlands) for a new and more effective mechanism to safeguard fundamental values in Member States and to address problems at an early stage. More widely, June 2013 JHA Conclusions asked the Commission to take forward an inclusive EU-wide debate in line with the Treaties on the need for a collaborative and systemic method to tackle rule of law issues. In July 2013 the European Parliament called for Member States to be regularly assessed on their compliance with the rule of law.

1.5 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. 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". It is only intended to be used whether those national mechanisms are no longer capable of addressing the difficulties. It gives some indication of the threshold for action under the mechanism: "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".

1.6 The framework consists of a three stage process: based on information collected from the Council of Europe, the Fundamental Rights Agency and the UN, the Commission would send a confidential reasoned opinion to the Member State concerned; if the matter remained unresolved, the Commission would set out a timetable for recommended action; if this was not complied with, the Commission would consider activating one of the Article 7 procedures.

1.7 The Government told us in March 2014 that it had concerns about the proposed framework, in particular the scope for duplication of existing monitoring and compliance mechanisms and for undermining the role of the Member States within the Council. It was also concerned about uncertainty about the threshold for activating the framework, believing that it is principally for Member States to secure the rule of law domestically. It questioned whether considering the proposed framework fell within the Commission's competences within the Treaties and was concerned about a possible widening of the remit of the Fundamental Rights Agency.

1.8 In our Report of 7 May, we noted these concerns and outlined some additional concerns of our own: the potentially wide scope of the concept of the rule of law as set out in the Communication, the partial displacement of the Council and European Council from their established roles, the lack of oversight of the Commission in operating the framework, the possibility of the framework's extension in future to wider Article 2 TEU values and the transparency of the initial stage of the process. We thought that if the threshold in Article 7 was set too high, it was a matter for Treaty change depending on the collective political will of the Member States. We also recommended the document for debate on the floor of the House, for the document to be drawn to the attention of the Foreign Affairs and Justice Committees and the Joint Committee on Human Rights and for the Government to comment on our additional concerns before the debate.

1.9 The Government now responds to the concerns we raised in our Report and to provide an update on discussions in the Council on the Rule of law, but is still not able to commit to organising the debate.

1.10 We thank the Ministers (Chris Grayling and Mr David Lidington) for their letter. We note the developments on the issue of rule of law monitoring and compliance within the EU.

1.11 We remain extremely disappointed that, after a period of some ten months, it has still not been possible for the Government to schedule the debate we have recommended. As the Government acknowledges, the issue of rule of law monitoring and compliance within the EU remains a live one: not only is there the prospect of further dialogue in the Council in 2015 but we agree that it would be "complacent to imagine that the Commission will not try to take further action in relation to the rule of law in future". In the light of these continuing ambitions to enhance the existing mechanisms for addressing rule of law issues within the EU, we urge the Government to schedule this debate before dissolution.

1.12 In doing so, we also ask that the Government respond, in time for consideration by the Committee before dissolution, with its view of the opinion of the Council Legal Service of 27 May[3] on the proposed framework. As the document is now publicly available on the Council's own website (its original limité classification having been removed since at least early January), we are at a loss to know why the Government now fails to mention this important document which concludes:

    "The Council Legal Service is of the opinion that the new EU Framework for the Rule of Law as set out in the Commission's Communication is not compatible with the principle of conferral which governs the competences of the institutions of the Union. The possibility exists, however, for Member States to agree among them on a review system of the functioning of the rule of law in the Member States and on the possible consequences to draw from that review."

1.13 As this document has been recommended for debate, but that debate has yet to be held and a House resolution therefore yet to be agreed, it remains under scrutiny.

Full details of the documents: Communication from the Commission to the European Parliament and the Council: A new EU Framework to strengthen the Rule of Law: (34878), 7632/14, COM(14) 158.


1.14 A full background to and account of the current document, together with the Government's view are set out in our Report of 7 May 2014.[4]

The Ministers' letter of 2 March 2015

1.15 The Minister for Europe (Mr David Lidington) and the Secretary of State for Justice (Chris Grayling) first provide a recap of the Government's initial view of the document.

    "The Government's view was that the scheme set out in the Communication was problematic in various respects. Not least was the intention expressed by the Commission that, in certain circumstances, it might make a recommendation to a Member State in relation to the rule of law. Under Article 7, the power to make recommendations in relation to the rule of law and other founding values of the Union is for the Council, not the Commission."

1.16 The Ministers update us on discussions which have taken place in Council on the rule of law as follows:

    "As a Commission Communication, the document is not amendable by Member States or the Council. It might have been expected that the Council would, nonetheless, take a stance in relation to the communication. It was not until December that significant discussions in the Council took place on the rule of law.

    "The General Affairs Council of 16 December adopted Conclusions on the rule of law, which we enclose. These were mixed conclusions under which the Council and the Member States committed themselves to an annual dialogue on the subject of the rule of law. Among other things, the Conclusions note that this dialogue will be developed in a way which is complementary with other EU Institutions and International Organisations, avoiding duplication and taking into account existing instruments and expertise in this area. The Conclusions also emphasise the principle of conferred competences and respect for Member States' national identities.

    "We expect, therefore, that at some stage in 2015 there will be a dialogue among Member States within the Council on the rule of law.

    "The Government considers that this is a good result for the UK. While it would be complacent to imagine that the Commission will not try to take further action in relation to the rule of law in future, the Conclusions draw the current phase of discussions to a close without endorsing the mechanism set out in the Communication."

1.17 The Ministers then comment on the failure of the Government to schedule a debate on the document, which the Ministers acknowledge, we have raised with them during evidence sessions (the Justice Secretary on 12 January and the Minister for Europe on 15 January):

    "It has not yet proved possible to arrange a debate, but the scheduling of debates is constantly reviewed and should this change we will write to the Committee at the earliest opportunity."

1.18 The additional concerns we raised in our report of 7 May are next addressed by the Ministers:

    "You expressed concern that the concept of rule of law as set out in the Communication could be read widely. One of the difficulties that the Government does see with the Commission's Communication is that there is no clearly accepted single definition of rule of law - certainly there is none in the Treaties. We agree that the potentially wide scope of activities described in the Communication could be a matter of concern; however it is notable that under Article 2 TEU, rule of law, democracy and respect for fundamental rights are separate values, and that the Commission has focused this Communication specifically on rule of law.

    "You expressed concern about the 'partial displacement' of the Council and the European Council from their established roles. This was one of the Government's principal concerns about the Communication shared by a number of other Member States. It is no coincidence that the Conclusions adopted at the December General Affairs Council assert the important role of the Member States and the Council in addressing concerns with the rule of law and stop short of endorsing the Commission's Communication. The Government has been clear from the beginning that rule of law concerns are principally matters for Member States themselves.

    "You raised concerns about the differing scope of the mechanism set out in the Communication and that set out in Article 7 TEU. It has not been suggested by the Commission that the former would be used to promote values other than the rule of law. Nonetheless, cross-over to other values is certainly not impossible. The Government will, naturally, remain vigilant.

    "You asked whether greater transparency in the system would be desirable. As you acknowledge, these matters are sensitive, and in our view it would be difficult to set out firm rules as regards transparency. It would be better to approach these matters on a case by case basis.

    "Lastly, you expressed the view that interventions on the rule of law should be driven by political will within the Council and that if the bar was set too high in Article 7, that was a matter for Treaty change. The Government agrees, which is one of the reasons we consider that the conclusions adopted in December represent a good outcome."

Previous Committee Reports

Forty-eighth Report HC 83-xliii (2014-15), chapter 1 (7 May 2014).

1   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. Back

2   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. Back

3 Back

4   Forty-eighth Report HC 83-xliii (2014-15), chapter 1 (7 May 2014). Back

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Prepared 20 March 2015