From bad to worse? On the Commission and the Council’s rule of law initiatives

 

 

 

Dimitry Kochenov* and Laurent Pech**

*Professor of EU Constitutional Law at the University of Groningen and Visiting Professor of Private Law at the Universita degli studi di Torino

**Jean Monnet Professor of EU Public Law, Head of the Law and Politics Department at Middlesex University London

 

The rule of law is one of the fundamental values on which the EU is founded according to Article 2 TEU. Faced with a rising number of ‘rule of law crises’ in a number of EU countries, the Commission adopted a new ‘pre-Article 7’ procedure last March in order to address any instance where there is a evidence of a systemicthreat to the rule of law. Having criticised the Commission’s initiative primarily on the (unconvincing) ground that it would breach the principle of conferral which governs the allocation of powers between the EU and its Member States, the Council proposed its own solution: a rule of law dialogue between national governments and to be held once a year in Brussels.

 

Both initiatives, and in particular, the Council’s, appear grossly inadequate to tackle the problem of ‘rule of law backsliding post EU accession’ to quote Frans Timmermans, the First Vice-President of the Commission in charge inter alia of the Rule of Law.

 

Let us begin with the Commission’s proposal. The rationale underlying its new mechanism is that the current EU legal framework is ill designed when it comes to addressing internal, systemic threats to this principle and more generally, to EU values. The former President of the European Commission himself called in 2013 for a ‘better developed set of instruments’ that would fill the space that exists at present between the Commission’s infringement powers laid down in Articles 258–260 TFEU, and the so-called ‘nuclear option’ (suspension of a Member State’s EU membership) laid down in Article 7 TEU. Both procedures suffer indeed from a number of procedural and substantive shortcomings, with the consequence that Article 7 TEU has never been triggered whereas the Commission’s infringement powers have proved ineffective to remedy systemic violations of EU values.

 

Numerous proposalswere made like prior to the publication of the Commission’s Communication last March. These proposals would appear however to have been were found too ‘radical’ for the Commission which decided instead to put forward an eminently ‘light touch’ mechanism (previous analysis by Steve Peers is available here). This new rule of law mechanism builds on and complements an already existing – albeit never used – procedure, the ‘nuclear option’ referred above and on the basis of which the Council may theoretically suspend certain EU rights of the ‘guilty’ Member State such as voting rights.

 

In a nutshell, the Commission’s new mechanism takes the form of an early-warning tool to enable the Commission to enter into a structured dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law preceding the eventual triggering of Article 7 TEU. This ‘pre-Article 7’ mechanism does not exclude a parallel recourse to the infringement procedure.

 

In practice, the Commission’s new rule of law mechanism rests on three main stages:

 

(1)    The Commission will first have to assess whether there are clear, preliminary indications of a systemic threat to the rule of law in a particular Member State and send a ‘rule of law opinion’ to the government of this Member State should it be of the opinion that there are;

(2)    Commission’s recommendation: In a situation where no appropriate actions are taken, a ‘rule of law recommendation’ may be addressed to the authorities of this country, with the option of including specific indications on ways and measures to resolve the situation within a prescribed deadline;

(3)    Finally, the Commission is supposed to monitor how the relevant Member State is implementing the recommendation mentioned above. Should there be no satisfactory implementation, the Commission would then have the possibility to trigger the application of Article 7 TEU.

 

The Commission’s new pre-Article 7 procedure is anything but revolutionary. In essence it merely requires any ‘suspected’ Member State to engage in a dialogue with no new automatic or direct legal consequences should the Member State fail to agree with any of the recommendations adopted by the Commission. Undoubtedly, Article 7(1) TEU already and necessarily implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis. The criticism expressed by the Council’s Legal Service, which has criticised the Commission for overstepping its powers, would therefore appear particularly misplaced. The Commission’s framework is procedurally sound, no Treaty change is required and for the first time, a wide range of expert bodies is to be consulted: so far so good one may be tempted to say.

 

This bright picture however fades a great deal as soon as one focuses on the likely effectiveness of this new procedure, which is based on the presumption that a dialogue between the Commission and the Member State is bound to produce positive results. The validity of this presumption is highly questionable. Indeed, once we move towards really problematic cases, i.e. the countries where the ruling élite has made a conscious choice not to comply with EU values, engaging in a rule of law dialogue is unlikely to be fruitful. Worse still: the confidential nature of the whole discussion to be held between the Commission and the Member State under investigation will prevent a successful ‘name-and-shame’ environment from crystallising. The non-legally binding nature of the ‘rule of law recommendation’ to be addressed to the authorities of the country under scrutiny, and the non-automatic recourse to Article 7 TEU should the recalcitrant Member State fail to comply, further increase the likelihood of ineffective outcomes.

 

The Council’s negative response to the Commission’s proposal leaves one rather pessimistic about the chance of ever seeing the Commission activating its new rule of law framework. Indeed, rather then supporting the Commission’s rule of law framework, the Council decided instead to establish an annual rule of law dialogue to be based ‘on the principles of objectivity, non discrimination and equal treatment of all Member States’ and to be ‘conducted on a non partisan and evidence-based approach’. The Council’s response is as disappointing as it is unsurprising considering the reported unease of several national governments at the idea of letting any independent EU body looking into rule of law matters beyond the areas governed by EU law. The British government, for instance, has made clear its opposition to the Commission’s framework on three main grounds: It would be superfluous to the extent that the European Council and the Council of Europe would already monitor rule of law compliance within EU Member States; it would undermine the role of the Member States within the Council of the EU and finally, that the Commission and the Council would have already been successful through informal dialogue and lobbying in addressing in recent concerns on the rule of law in Member States.

 

Suffice it to refer to recent events in Hungary to understand that this last point is rather ludicrous. The point about the possible duplication of existing mechanisms is similarly unconvincing. To put it concisely, if multiple bodies gather data and monitor some specific aspects of EU Member States practice in relation to the rule of law, democracy and human rights, no European body currently subjects EU countries to a specific, country-based and permanent monitoring and assessment of their adherence to the rule of law broadly understood (for an overview of existing monitoring mechanisms within the Council of Europe, the EU and the UN, see this very useful report from the Bingham Centre for the Rule of Law). For instance, the Council of Europe’s Venice Commission, whose work is unanimously praised, is primarily a consultative body. In the end, the criticism directed at the Commission’s proposal essentially stems from the reluctance of some national governments, especially those whose rule of law records are highly questionable, to accept any potential effective form of supranational monitoring which could result in the adoption of legally binding recommendations and/or sanctions. 

 

Viewed in this light, it is hardly surprising that while the Commission’s proposal suffers from many a flaw, the Council’s response goes nowhere near enough what is required to address current challenges. The latest buzzwords are used to hide an unwillingness to meaningfully act. For instance, the Council calls for an evidence-based approach but what will this mean in practice and who will in charge of collecting this evidence and analysing it? Similarly, the dialogue is supposed to take place in the Council ‘following an inclusive approach’, the substance of which is nowhere explained. More fundamentally, the Council is seeking to use a soft instrument, which has regularly been criticised precisely for its ineffectiveness when used by the EU to promote its values abroad. To put it concisely, the EU has set up close to forty ‘human rights dialogues’ with third countries but evidence ofsubstantial and concrete achievements is thin on the ground. One would have hoped a different, stricter approach for any Member State whose authorities have made a conscious political choice of undermining EU values.

 

To conclude, the Commission and the Council’s initiatives may leave one deeply disappointed considering the serious nature of the internal challenges faced on the rule of law front. When comparing the two initiatives, one may however argue that the Commission’s is much less half-hearted and, thus, at least less counter-productive, than the Council’s, which does not simply represent the triumph of empty rhetoric over genuine action but also unfortunately undermines the future legitimacy of any Commission attempt to trigger its new pre-Article 7 procedure. For a more detailed analysis, we would refer interested readers to our forthcoming Schuman Foundation policy paper, which is due to be published this spring in both English and French.

 

Barnard & Peers: chapter 9

Photo credit: The Economist

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The new Commission: first thoughts on Justice and Home Affairs issues

Steve Peers

Today’s list of jobs for the next European Commission – and the accompanying major restructuring of the Commission – has major implications for every area of EU policy. But here are my initial thoughts about the impact upon Justice and Home Affairs (JHA) issues.

Of course, the next European Commission still has to be confirmed by the European Parliament (EP). The EP insisted on changes to the planned list of Commissioners in 2004 and 2009, so it might well do so again. But nevertheless, it’s an opportune moment to examine the new Commissioners who will have responsibility for JHA issues – as well as the revised structure of the Commission as it affects such issues.

Migration and Home Affairs

As before, the area of immigration and home affairs (ie policing and internal security) is assigned to a separate Commissioner. Therefore the suggestion in some quarters that there’s a new ‘Commissioner for immigration’ is just not true. There is also still a separate Directorate-General (DG) dealing with these issues. DG Home picks up responsibility for anti-drug policy and security research, and does not lose any policy responsibilities.

The new Commissioner is Dimitris Avramopolous. He has no background in this field, and his current job is Greek defence minister. But that’s misleading: he started out his career as a diplomat, became a popular mayor of Athens and was also an MP (for the conservative New Democracy party), holding ministerial posts for tourism, health and foreign affairs before becoming defence minister. So he has a broad diplomatic and political background.

The most striking thing about his appointment is his nationality. Greece is, of course, at the centre of the debate about the effectiveness of the EU’s ‘Dublin’ policy, which assigns responsibility for asylum applications to (in effect, in most cases) the first country which they enter. That is frequently Greece. So partly as a result of the Dublin rules, the Greek asylum system has broken down in recent years, and both the CJEU and the European Court of Human Rights have ruled that sending asylum-seekers to Greece would violate their fundamental rights.

Since Avramopolous never previously held a job relating to immigration policy, he can’t be blamed directly for these problems. Also, it must be recalled that because Commissioners are independent of the government which appointed them (although Commissioners have been known to forget this), it will not be his job to defend the Greek government, but rather to articulate and enforce EU policy in this area. Hopefully it will be an advantage, not a detriment, to have an immigration Commissioner from a Mediterranean state, given the crucial role which sea crossings play in EU immigration policy.

In light of the external impact of EU immigration policy, it also useful that the new Commissioner has diplomatic experience. In particular, it’s potentially significant that he is credited as one of the authors of the recent Greek-Turkish rapprochement. Migrants who come from Turkey and refugees who travel via Turkey are a significant part of those who come to the EU, and the EU/Turkey readmission agreement will come into force on 1 October. One of his chief tasks will be to ensure EU visa liberalisation for Turkey, as a quid pro quo for the readmission agreement and other changes in Turkish policy. On paper at least, he is the right man for this job.

Justice

Until the last moment, the next Justice Commissioner was going to be the outgoing Home Affairs Commissioner, Cecilia Malmstrom. Instead, Malmstrom has been thrown into the maelstrom (I couldn’t resist) of EU trade policy, being responsible in particular for negotiating the EU/USA free trade agreement (TTIP).

The new Justice Commissioner will instead be Vera Jourova, the Czech minister for regional development, who has a background in that field. Unlike Avramopolous or Malmstrom, there’s nothing in her history which suggests that Jourova is particularly well suited to this job. But there are plenty of historical examples of politicians who did a good job despite not having a background in a relevant field. Let's hope this proves to be another such case.  

In terms of structure, DG Justice first of all loses two roles: anti-drug policy (moved to DG Home, as noted already) and equality policy – apart from gender equality – moved to DG Employment and Inclusion.

The first of these changes makes some sense, since anti-drug policy is not exactly a Justice issue. But that policy is even less well-placed in DG Home, since that wrongly identifies anti-drug policy is primarily a law enforcement issue, rather than a health and social problem.

But the changes to the equality responsibilities make no sense at all. If those responsibilities have to be moved, it would be better to move them all, rather than all except gender equality. True, there’s a good argument for a woman to be in charge of gender quality – but the next Commissioner for employment will be a woman (Marianne Thyssen) as well.  

In any event, those responsibilities shouldn’t have been moved, since there is a better case for keeping equality issues either as part of the Justice DG or assigning them to the new Vice-President dealing with human rights (more on him in a moment). The problem is that the effect of the move might be to focus attention too much on discrimination in employment, whereas discrimination occurs in other fields too. Indeed, a proposal for a Directive to tackle discrimination in other fields has been under discussion for six years. Admittedly, DG Employment is now DG Employment and Inclusion; but that DG is always likely to retain a focus on employment issues.

DG Justice has also picked up some new responsibilities: most consumer affairs issues, as well as social responsibility (corporate governance). The first of these changes takes account of the de facto reality, as the outgoing Commissioner, Viviane Reding, already took a big role as regards consumer legislation.  The second change risks corporate social responsibility becoming detached from the rest of substantive company law. Again, it’s a role that could have been better suited to the Vice-President responsible for human rights.

Fundamental Rights

The new Vice President (VP) responsible for better regulation, inter-institutional relations, the rule of law and the Charter of Fundamental Rights is Frans Timmermans. He is the outgoing Dutch minister for foreign affairs. Like Avramopolous, he began his career as a diplomat, and then became a politician. He held ministerial posts in the Dutch government, including the minister for European affairs. Also, he was a member of the ‘Convention on the Future of Europe’ which drafted the ill-fated Constitutional Treaty, later approved in a decaffeinated form as the Treaty of Lisbon.

While Timmermans is meant to steer the work of the Commission generally on these issues, and particular the Commissioners for Justice and Home Affairs, he has no specific responsibilities, and no dedicated bureaucracy. So his post is one of President Juncker’s great innovations in the design of the Commission: creating five Vice-Presidents in charge of thematic issues, who don’t have specific tasks. (Two other Vice-Presidents – the High Representative for EU foreign policy and the VP in charge of budgets – do have specific tasks).

Time will tell whether this innovation is a brainwave or a foolish gimmick. The risk is that it replicates the problems of the US Vice-Presidency, which also comes with no specific tasks (besides waiting for the President to die). As one US Vice-President didn’t quite say, the job was ‘not worth a bucket of warm spit’. And now the Commission will have five such jobs.

Having said that, at least some of the new VPs might be able to make the job work. Much will depend on their personalities and the clout of the senior officials in their cabinet. Timmermans might be in a better position to make it work than others, being designated as the ‘First Vice President’ and the President’s ‘right-hand man’, and having fewer (and less high-profile) other Commissioners to supervise.

Certainly, it seems like a good idea to designate a Commissioner specifically responsible for human rights and the rule of law, given their overarching importance and application to all fields of EU law. The original plan (dropped at a late stage) was to give these responsibilities to the home affairs Commissioner, but this was a bad idea. It would have been awkward to mix up the responsibility for carrying out a specific policy with the role of ensuring that human rights are respected in all areas of EU law. Moreover, human rights are too important an issue to entrust to any of the (de facto) junior Commissioners.

Some wanted a Commissioner purely concerned with human rights, but we did not get that. What about Timmermans’ other two responsibilities? First of all, in principle the ‘better regulation’ task logically falls instead within the scope of the activities of the new VP for Jobs, Growth and Competitiveness. This task may well have been handed to Timmermans because of the Dutch government’s particular interest in this issue. Giving this task to him could have the positive result of reminding  everyone that some parts of Justice and Home Affairs law, just like EU economic law, is also a morass of overlapping and confusing legislation that ought to be cleaned up.

Finally, his most important task as the Commissioner for inter-institutional relations will be to try again to open up the EU, by amending its legislation on access to documents. Again, it might be helpful that he is Dutch, given that country’s strong tradition of transparency. But equally it might have been thought that a Swedish Commissioner would deal with that issue well – yet Mrs. Wallstrom produced a dreadful proposal back in 2008.

Her (presumed) intention to enlarge access to documents was frustrated by Commission officials who had exactly the opposite objective, resulting in a text which would have reduced access, not increased it (by redefining a ‘document’ narrowly, for instance). We will probably only have a good proposal on this issue if it’s drafted by someone who doesn’t work for the Commission. Just for the record, Mr. Vice President, I could draft that proposal for free.

Barnard & Peers: chapter 3, chapter 9, chapter 25, chapter 26

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Protecting the rule of law in the EU: should it be the Commission's task?

Steve Peers

For some time now, in particular in light of disputes about the behaviour of governments in Romania and Hungary, there has been concern about the protection of the rule of law within the European Union. While the EU can sanction infringements of EU law as such (via means of the Commission or Member States bringing infringement proceedings pursuant to Articles 258 and 259 TFEU), and can punish a Member State for serious and continuing breaches of EU values, including the rule of law (Articles 2 and 7 TEU), there is no means to address possible violations of EU values which are not directly connected to EU law and which fall short of such a serious and persistent breach. Moreover, the threshold to punish a Member State pursuant to Article 7 TEU is very high - the unanimity of all other Member States is required. While it is possible for the Council to address a warning to a Member State that it there is a 'clear risk' of it breaching EU values (Article 7(1) TEU, this also requires a high threshold (four-fifths of the Member States in favour, not counting the State concerned), and has never been used either.

The Commission has now issued a communication which aims to fill that gap. It sets out a detailed strategy which it will follow in future to address concerns about the rule of law which fall neither within the scope of the infringement procedure nor which call for the use of Article 7 TEU. Unlike the Commission's parallel discussion papers on the future of Justice and Home affairs policies, this new communication does not depend on endorsement by the European Council.

The new framework

The Commission identifies key features of the rule of law: legality, legal certainty, non-arbitrary exercise of power; independent and impartial courts; effective judicial review; and equality before the law. These concepts are further explained in an annex to the new communication.

As for the process, it is based on a list of principles: a dialogue with the Member State concerned to find a solution; an objective and thorough assessment; respect for the principle of equal treatment; and the indication of concrete actions to solve the problem. It consists of three stages.

In the first stage, the Commission will collect information, including from the Council of Europe and the EU Fundamental Rights Agency. There is no reference to what might trigger such an initial investigation. If the Commission believes that there is a systemic threat to the rule of law, it will send a 'rule of law' opinion to the Member State concerned, setting out its concerns and asking the Member State to respond. But there will be meetings with the Member State concerned before issuing this opinion. The Commission believes that the Member State will be under an obligation to cooperate, pursuant to Article 4(3) TEU (the loyal cooperation rule). The start of the Commission's assessment and the sending of the opinion will be public, but the content of the discussions will not. It is not clear whether the content of the opinion will be public.

If there is no satisfactory settlement, the Commission will move to the second phase: a 'rule of law recommendation', where is there objective evidence of a systemic threat which that Member State is not addressing. This will indicate the reasons for the concerns and the steps to be taken, which may include specific actions which that Member State should adopt. Sending the recommendation and its main content will be public.

In the third phase, there will be a follow-up to the recommendation, examining whether problems continue to recur. If the follow-up is not satisfactory, the Commission might trigger Article 7 TEU.

Comments

First of all, in order to address public concern about the possible infringement of the rule of law, it is important that the process be transparent. While it understandable that discussions with the Member State concerned remain confidential, the Commission should have committed itself to publishing the content of its opinion and the full context of the recommendation, any evidence received during the process, and the documents relating to follow-up.

Secondly, it might be questioned whether the Commission is the best-placed institution for this task. Its proposal broadly resembles the infringement procedure (a letter to a Member State, followed by a reasoned opinion, then seizing the Court of Justice), but that procedure ultimately results in a judgment by the CJEU, if it reaches that stage. The procedure also resembles the EU's economic governance process, but that process culminates in a decision by the Council. Given that the Article 7 process entails decisions by the European Council and the Council, perhaps those bodies (alongside the European Parliament) could be best placed to become involved in the rule of law determination.

Of course, that would entail a risk of politicisation of the process (as is clear from the application of the effective deficit procedure in practice). But the Commission is not immune to politicisation either, in particular if its President is in effect elected pursuant to the results of the European Parliament elections, as many EP parties presently suggest.

This could be avoided by handing the process over to the CJEU, but such new jurisdiction cannot be conferred without Treaty amendment. During the arguments concerning Hungary, the Commission considered the prospect of suing Hungary pursuant to the infringement procedure on the basis that 'packed' courts could not guarantee the effective and impartial application of EU law. Of course, there is a catch-22 here: a Member State flouting the rule of law may not care what the CJEU says.

It would therefore be best if the Commission relies, as heavily as possible, upon the reports of impartial outside observers such as the Venice Commission. In the long run, the best solution might be for some form of new quasi-judicial mediation body to be set up, avoiding both the charges of politicisation and the risk of non-enforcement of judgments.


Barnard & Peers: chapter 9

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