Documents considered by the Committee on 24 March 2015 - European Scrutiny Contents

3 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

3.1 In response to calls from some Member States and the European Parliament, the Commission published this Rule of Law framework in March 2014. It was intended to better protect the rule of law in Member States from systemic threats. These, the Commission considered, could not be effectively tackled through Article 258 TFEU infringement proceedings which target specific breaches nor through Article 7 TEU mechanisms which involve high "last resort" thresholds for action.

3.2 The framework seeks to resolve such future threats to the rule of law before conditions are met for activating the procedures in Article 7 TEU. It is only intended to be used where 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".

3.3 The framework consists of a three stage process: 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.

3.4 The Government has been concerned about: the scope for duplication of existing mechanisms; the undermining of the role of the Member States within the Council; uncertainty about the threshold for activating the framework; the Commission's competence to issue the framework and a widening of the remit of the Fundamental Rights Agency. We have also had concerns about the potentially wide scope of the concept of the rule of law envisaged, the lack of oversight of the Commission and the possibility of the framework's extension in future to wider Article 2 TEU values. We thought that if the threshold in Article 7 was set too high, it was a matter for Treaty change and the collective political will of the Member States. We also recommended the document for debate on the floor of the House.

3.5 We have previosuly reported on the joint letter from the Secretary of State for Justice (Chris Grayling) and the Minister for Europe (Mr David Lidington) of 2 March. They informed us that the current document had not been endorsed by the Council in December and that the Council had opted instead to hold annual dialogues on the rule of law. The Government was also unable to commit to organising the recommended debate. However, it did respond to the concerns we had initially raised on the document in May 2014.

3.6 In response, in our most recent Report on this Communication, we urged the Government to hold the debate before the dissolution of Parliament, noting that the Government had conceded that 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". We also asked the Government to comment on the publicly available opinion of the Council Legal Service (CLS) that the Commission had no competence to issue the current document. The Ministers now write in response to that last Report, reiterating their position on our debate recommendation and declining to comment on the CLS opinion.

3.7 We thank the Ministers for their prompt response to our last Report. We regret that the Government's position remains unchanged on our debate recommendation. We hope that our successor Committee will see fit to continue to pursue this outstanding matter with the next Government in the new Parliament. We ask Ministers to continue to provide updates on developments, including any rule of law dialogues.

3.8 In the meantime, the document remains under scrutiny.

Full details of the documents: Commission Communication: A new EU Framework to strengthen the Rule of Law: (35878), 7632/14 + ADD 1, COM(14) 158.


3.9 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.[22]

The Ministers' letter of 19 March 2015

3.10 The Ministers say on the question of the debate recommendation:

    "We note your further comments on the recommendation for a debate but regret that as matters stand we are not in a position to add anything to what we said in our letter of 2 March."

3.11 The Ministers then comment on the issue of the publicly-accessible Council Legal Service opinion:

    "Thank you for drawing our attention to the fact that the opinion of the Council Legal Service (CLS) had been placed in the public domain, which we understand to be highly unusual. As you know, it is not the government's practice to comment on, or, normally, even refer to, CLS opinions, which are usually covered by the Council Rules of Procedure — Article 6 on professional secrecy and disclosure of documents, prohibiting their disclosure. We can say, however, that the government naturally takes appropriate account of such opinions when formulating our policy positions."

3.12 Referring to their previous letter of 2 March, the Ministers recall they considered the Council Conclusions, adopted at the General Affairs Council of 16 December, were "a good result for the UK". They also recall that the Council Conclusions did not endorse the current document "including the questionable proposal the Commission might make recommendations to Member States", but instead "emphasised the principle of conferred competences". The Ministers note that:

    "The CLS opinion states that the Commission's communication was not compatible with that principle which governs the competences of the institutions of the Union."

Previous Committee Reports

Thirty-sixth Report HC 219-xxxv (2014-15), chapter 1 (11 March 2015); Forty-eighth Report HC 83-xliii (2014-15), chapter 1 (7 May 2014).

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

previous page contents next page

© Parliamentary copyright 2015
Prepared 27 March 2015