There has been a lot of talk recently about launching of the EU’s procedure for monitoring compliance with the rule of law in Poland, but not much about what exactly the procedure is.
Observing the rule of law is a condition for joining and being a member of the European Union. Democracy, human rights and the rule of law are also enshrined in the preamble to the European Convention on Human Rights.
Because the rule of law is one of the fundamental values of the EU defined in Art. 2 of the Treaty on European Union (TEU), Art. 7 TEU provides for a procedure for ensuring compliance with the rule of law by EU member states. It includes a preventive mechanism and a sanctioning mechanism.
The preventive mechanism is launched when the Council of the European Union, by a 4/5 majority and after obtaining the consent of the European Parliament, finds that there is a clear risk of a serious breach of the rule of law by a member state.
The sanctioning mechanism may be applied when the existence of a serious and persistent breach of the rule of law by a member state has been found. Its application requires the unanimity of the European Council, and can lead to suspension of the rights of the member state, including the right to vote in the Council of the European Union.
Because launching the procedures provided for in Art. 7 TEU is a last resort, the European Commission issued a communication in 2014 entitled “A new EU Framework to strengthen the Rule of Law” (COM(2014) 158 final), which supplements the existing mechanisms.
New EU framework
The procedure presented by the Commission in its communication is de facto dialogue with the member state to identify a solution preventing launch of the procedure provided for in Art. 7 TEU. The dialogue is thus supposed to head off the creation of “a clear risk of a serious breach of the rule of law.”
The new mechanism constitutes an additional instrument filling the gap between the ordinary procedure for violation of EU law provided for in Art. 258 of the Treaty on the Functioning of the European Union (TFEU) and the more far-reaching procedure provided for in Art. 7 TEU. A proceeding can be launched under Art. 258 TFEU when a member state violates a specific provision of EU law, and thus it is not applied to protect fundamental values like the rule of law. For example, the proceeding commenced in the Court of Justice by the Commission against Hungary following the radical reduction of the retirement age of Hungarian judges (Case C-286/12) was based on an allegation of age discrimination in violation of EU law.
As an institution appointed to ensure compliance with the Treaties, the Commission found that as it is authorised to commence the proceedings provided for in Art. 258 TFEU and to apply for commencement of the procedure provided for in Art. 7 TEU, it is also authorised to conduct dialogue with a member state in support of the rule of law.
Concept of the rule of law
In its communication, the European Commission presented a definition of the rule of law meaning compliance with the following principles:
- Legality, which includes a transparent, accountable, democratic and pluralistic process for enacting laws
- Legal certainty, which requires that rules are clear and predictable and cannot be retrospectively changed
- A prohibition of arbitrariness of the executive powers, meaning that any intervention by the public authorities in the private sphere must have a legal basis and be justified on grounds laid down by law
- Independent and effective judicial review, including respect for fundamental rights, i.e. individuals’ entitlement to judicial protection of their rights
- An independent and impartial judiciary as an aspect of the separation of powers
- Equality before the law.
The Commission stressed the fundamental role of the judiciary in protecting democracy, ensuring freedom of expression, freedom of assembly, and respect for the rules governing the political and electoral process: “Fundamental rights are effective only if they are justiciable.”
The rule of law is also the foundation for the confidence of all EU citizens and national authorities in the legal systems of all other member states, enabling mutual recognition and enforcement of judgments in civil and commercial matters and the functioning of the European Arrest Warrant.
As the Commission concluded, “This is why the EU has a strong interest in safeguarding and strengthening the rule of law across the Union.”
Stages of the procedure
If the Commission finds that there is a systemic threat to the rule of law in a member state, it will begin dialogue with the member state by sending it an alert known as a “rule of law opinion.” In taking this decision, the Commission may consult with the EU Agency for Fundamental Rights, the Venice Commission of the Council of Europe, or experts from the European Judicial Network. The Commission’s opinion is confidential, but the fact that it is issued is announced.
If the authorities of the member state do not take appropriate action to redress the systemic threat and the dialogue does not satisfactorily resolve the matter, the Commission will issue a “rule of law recommendation” to the member state. The recommendation may include specific indications on ways and measures to resolve the situation.
The fact that the recommendation has been sent, as well as its content, will be made public by the Commission. If the member state does not solve the problems indicated in the recommendation by the fixed time limit, the Commission may commence the procedure provided for in Art. 7 TEU.
The framework has been diagrammed as follows:
Source: Communication from the Commission to the European Parliament and the Council: “A new EU Framework to strengthen the Rule of Law,” COM(2014) 158 final, Strasbourg, 11 March 2014, Annex II.
Agnieszka Kraińska, EU Law Practice, Wardyński & Partners