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Brussels, 21 May 2018
The Bratislava Joint Declarations established in September 2016 lays peace, democracy and prosperity at the foundations of the common history of the European Union (EU) the Member States. Today, the emergence of division between these ideals put their existence and respect at risk. The EU is currently going through numerous crisis revealing some flaws in the European construction. It shows how complex these challenges can be when it comes to putting together the approval of the 28 Member States. Brexit, the rise of Eurosceptic regimes and far-right political forces: How did we get there?
Foundations of the EU are weakened: solidarity is forgotten when it comes to respecting the quota for migrants adopted by European organisations. Since 2010, Hungary has come to disregard its own constitutional values, and hence the inherent values of the EU. The same is happening today in Poland, where the rule of law is under threat.
The 1973 Declaration on identity identifies the common values shared by all Member states. These values now appears in the treaty on European Union (Article 2): “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.”
These values legitimate the gathering of all Member States and must be respected by both European law and national law. Any Member State wishing to join the EU is bound to the “Copenhagen criteria”, which imply the respect by national governments to democratic principles, fundamental rights and the rule of law. However, even within European borders, these values have been under threat for several years with no effective response from the EU.
The EU therefore faces the “Copenhagen dilemma”: while it is necessary to fulfil conditions for accession to the EU, there is no subsequent control over the respect of these democratic principles within the existing Member States, as if EU values where assumed to be acquired by all the EU countries. The possible risk of violation of the rule of law by some Member States has not been taken seriously enough by European leaders; the article 7 of the TEU introduces a mechanism to preserve the integrity of the EU’s values. Yet, the question remains: is the simple registration to a sanction mechanism – with no real consideration on its implementation – sufficient?
Following Hungarian’s infringements of the Union’s democratic principles committed since 2010, the Commission -reluctant to activate article 7 – established in 2014 a “new EU framework to strengthen the rule of law” initiating a dialogue between the EU and the State. It is only if this process fails that the triggering of article 7 is inevitable.
This mechanism implies 3 steps. It is first a question of carrying out an evaluation, then making recommendations and finally doing a follow-up between the European Commission and the Member State whose actions are called into question. It was set up with Poland and eventually led to two years of unsuccessful dialogue. Finally, the European Commission decided to trigger the article 7 on 20 December 2017.
Described as a “nuclear option” by the former President of the Commission Mr. José Baroso, this recourse is difficult to activate. An overly incriminating reaction would provoke even more rejection of the EU by the Eurosceptic governments and would give them a lot of trouble to discredit the EU among the citizens. Rather than improve the situation, it will make it worse.
The article 7 provides two possibilities: a preventive measure (paragraph 1) establishing that “the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.” and a sanction measure (paragraph 2) in which the Council “may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2”. In this second option, the Council must act by unanimity. We are currently waiting for the Council to take a decision on paragraph 1 of the article 7.
This procedure constitutes a succession of obstacles. The sanction measure – i.e. the withdrawal of that Member State’s right to vote – must be adopted by a majority of the Council. In the case of Poland, or even if such a proposal would be made against Hungary, these two states have promised to support each other, since they follow the same political line. Thus, the required unanimity will never be achieved. Article 7 is therefore ineffective.
How then is it possible that there is no effective instrument to condemn who violates the rule of law?
There is indeed an action for failure, which condemns a Member State’s failure to fulfil its obligation under the Treaties.To do, there must be a violation of a specific provision of Union law. Also, all the rules laid down by the treaties protecting the rule of law have limits. The Article 2 TEU could be invocable before the ECJ, it has already used it. The problem is that this article is too general to be directly invocable before the ECJ. As regards the Charter of Fundamental Rights protection the rule of law, it could also be invoked before the ECJ. We face the same situation: under Article 51 of the Charter, the Charter is only invocable when the Member States are implementing EU law.
The former Justice Commissioner, Viviane Reding, had made a proposal in 2013 in her speech on the State of the Union, which had been much raised. She proposed a “federalisation” of the Charter leading to the extension of the ECJ’s jurisdiction. Finally, Article 51 of the Charter should be deleted and its scope extended ration material so that it can be invoked against the Member States at any time, and not just when they are implementing Union law. This ambitious approach could only be achieved by revising the Treaties, which is not possible in the current context.
Do new possible and effective solutions exist?
The European Commission has recently presented its multiannual financial framework for the 2021-2027 period in which a fundamental proposal link the allocation of European funds to the respect for the rule of law. The obstacles previously analysed would be circumvented. It would also resolve the fact that the Member States, which currently do not respect the fundamental values of the EU, are nevertheless those which continue to be the biggest beneficiaries of European funds.
“The new proposed tools would allow the Union to suspend, reduce or restrict access to EU funding in a manner proportionate to the nature, gravity and scope of the rule of law deficiencies.” Also, part of the European Social Fund (ESF) will be earmarked for the integration of migrants. Therefore if states refuse to receive migrants, they will not receive these funds.
The Commission considers that the link between the allocation of funds and respect for the rule of law is justified. Indeed, respect for EU values must be respected in all EU policies. “Only an independent judiciary that upholds the rule of law and legal certainty in all Member States can ultimately guarantee that money from the EU budget is sufficiently protected.” The challenges remain whether this mechanism will be more dissuasive than those already in place.
In addition to this mechanism, it is essential that respect for the rule of law and fundamental rights within the EU is guaranteed in depth and consistently within the Union.
Proposals are emerging from leaders of the Member States themselves regarding the current situation. Mrs Nathalie Loiseau, French Minister for European Affairs, followed by other Member States, notably Belgium, presented a mechanism for monitoring respect for fundamental rights based on economic governance model. Thus, a Member State which does not respect the European foundations will have to come to the institutions every six months to give explanations. This proposal would ensure that fundamental rights are respected in the long term. In fact, it will be not possible anymore to comply with the Copenhagen criteria for accession and then, once a member, no longer respect them.
In order to ensure a constant respect for the foundations of the EU, it also seems essential that the EU should include more representation of civil society and the defence of fundamental rights in its decision-making process, as provided by the Article 11 EU. The Commission considers that through its consultations this article is respected. This still remains insufficient. The EU must start taking a real interest in the issue of democracy and the consideration of civil society, which remains one of the EU’s main shortcomings.
Eventually, one reality is indisputable. The EU – with its institutions and actions – is just what member states do with it. If member states don’t decide to tackle the problems – then no effective mechanism will emerge.