The EU has a problem: it has no effective powers to prevent its own member-states from violating its core values of respect for democracy, fundamental rights, and the rule of law. Last year, as courts, the electoral system, press freedom, and minority rights continued to come under attack in Hungary, national governments in the Council, and the European Parliament requested the European Commission to develop a solution.
Eight months of reflection and consultation later, the Commission has produced nothing new. It has not responded to what the Council and the European Parliament called for, nor what the people of Europe deserve.
The EU already has a mechanism, under Article 7 of the Treaty on European Union, to deal with recalcitrant member-states, which can be activated if there is a "clear risk of a serious breach of" the EU’s fundamental values at national level. Although it is open to the Commission, Council, and the Parliament to activate this mechanism, it has never been used because of a lack of political will by all the institutions and has been referred to as a "nuclear" option. The Commission was requested to propose a new procedure that could actually be put into operation.
The Commission has now announced a "new EU Framework to strengthen the Rule of Law in the EU." The framework establishes a mechanism that has immediate effect and does not require treaty reform. This is a positive step since not all member-states support reform of the treaties and any proposal could have become lost or watered down during negotiations.
The framework sets out a three-stage process to deal with a "systemic threat to the rule of law": an assessment by the Commission, followed by recommendations, and then follow-up on implementation. If the recommendations are not implemented, the Commission may then consider activating Article 7.
Although the Communication concentrates on the "rule of law," the Commission appears to have defined this widely to include respect for democracy and fundamental rights, and not merely judicial independence. While writing in very roundabout terms, the Commission does imply that if violations of fundamental rights, and democratic values such as freedom of expression, cannot be resolved at national level through normal judicial channels, this will amount to a threat to the rule of law.
This suggests that in addition to an effective judiciary, member-states are also required to guarantee fundamental rights in national law. This aspect of the Communication is positive, since threats to the independence of the judiciary in the EU comprise only one of the many problems in its member-states.
However, it will be difficult for the procedure to safeguard fundamental rights in practice. A significant problem with the mechanism is the trigger: how the Commission defines a "systemic threat." According to the document, this is lower on the scale than the threshold required by Article 7 of a "clear risk of a serious breach" of the rule of law.
However, it is doubtful whether the new mechanism offers any real change. The Communication refers to cases from the Court of Justice and Council of Europe standards that define "systemic" problems as meaning that the system in question has ceased to function properly and is producing repeated, identical problems. The paper makes reference to Greece’s asylum system, which has subjected thousands of asylum seekers to appalling conditions in violation of European human rights standards.
Previous examples of countries that would be caught by a new mechanism given by vice-president of the Commission Viviane Reding include Hungary and Romania, which witnessed direct government interference with the judiciary. All of these illustrations look much more like an actual serious breach of fundamental rights, rather than a mere systemic threat. If the new mechanism is to be meaningful and add an effective layer of protection below Article 7, it will need to be triggered by a much lower threshold.
Aside from an excessively high threshold, the framework suffers in three other respects. First, it incorporates no active ongoing monitoring of member-states, despite repeated calls for this from the European Parliament. This means that the Commission is likely to wait passively for information to reach it before it takes any action, and that it will be unlikely to nip emerging problems in the bud. This seriously undermines the preventive capability of the framework.
Second, although its recommendations will be made public, the dialogue with the member-state concerned will remain confidential, and will take place between the member-state and the Commission only. The procedure would have far greater persuasive power—and ensure a more accurate picture of the situation—if all the member-states, the European Parliament, human rights bodies including the EU Agency for Fundamental Rights and civil society organisations were involved in this dialogue.
Finally, the Commission could have included measures to support national human rights institutions and national level NGOs that can help to mobilize public opinion on the ground to prevent governments from enacting damaging reforms in to begin with.
It is difficult to see what the Communication adds. The framework has an equally high threshold to Article 7. And Article 7 already allowed the Commission to issue a "reasoned opinion" to the Council outlining its concerns. If there had ever been the political will to activate the ‘nuclear’ mechanism, this would undoubtedly have been preceded by informal dialogue, just as the Commission already does before taking a member-state to court for breaching internal market rules.
Because the Communication merely announces a change in Commission practice, no further formal steps are needed for it to come into effect. However, member-states in the Council had requested the Commission to come back to it with suggestions for further consideration. Instead the Commission seems to have adopted its own solution and closed the book on the matter. The Council now has the opportunity to send the Commission back to the drawing board and underline that the EU needs rather more than just window dressing around Article 7.