The EESC welcomes the Commission’s Communication on Further Strengthening the Rule of Law within the Union. It regrets that the short reflection period has not allowed for deeper consultation. The EESC recalls the essential watchdog role played by the civil society, which should be further supported. It reiterates its support for an EU mechanism to monitor rule of law and fundamental rights and proposes to establish an EU stakeholders Forum to debate solutions. The EESC also calls on the Commission to adopt a Strategy on communication, education and citizen awareness concerning these key issues.
The situation regarding respect for fundamental rights and the rule of law is very concerning throughout the EU, especially as it has had to trigger Article 7 TEU in some cases. Therefore, the present Commission Communication is launching a reflection on how the state of the rule of law in the EU could be improved.
The Communication recalls the importance of the rule of law as a founding value of the European Union, which is the basis of the democratic system and a prerequisite for the protection of fundamental rights. The rule of law includes, among other things, principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review, including respect for fundamental rights; separation of powers; and equality before the law.
The Commission sets out three pillars for an effective enforcement of the rule of law in the Union:
- Promotion: Building knowledge and a common Rule of Law culture;
- Prevention: Cooperation and support to strengthen the Rule of Law at national level; and
- Response: Enforcement at Union level when national mechanisms falter.
More precisely, the Commission insists on the need to promote rule of law standards, to recognise warning signs, to deepen a Member State’s specific knowledge, to improve the common capacity to react in case of escalation, and to address shortcomings in the long term through structural reforms.
The EESC welcomes the consultation as it recognises the importance of the recent rule of law challenges in the EU. The number of such challenges has increased in recent years, indicating the risk of a possible full-blown crisis in the rule of law and democracy, especially in some Member States. This crisis should be fully acknowledged and an appropriate response put in place. This includes a bold restatement of the EU values and solid instruments to prevent and correct any further deterioration of the rule of law.
It is important to recall that the European Union is not only a common market; it is a union based on common values, as stated in Article 2 of the Treaty. Furthermore, it recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the EU. These values, on which the European Union is founded, form the basis of integration and are part of the European identity. As well as being criteria for accession, they must be respected in practice by the Member States, thereafter.
The rule of law exists in an interdependent, inseparable, triangular relationship with fundamental rights and democracy. Only by guaranteeing these three values in conjunction with each other is it possible to prevent the abuse of State power. The protection of fundamental rights is a pillar that should be further developed, through the ratification of all relevant instruments (including UN conventions and the European Convention on Human Rights), more robust cooperation between EU institutions and the enhancement of support for grassroot and watchdog organisations across Europe.
We as citizens of the Union should demand that all Member States should satisfy the Copenhagen Criteria and that everywhere in the Union every person shall have the rights to speak and think whatever he wants, without bringing harm to others.
At the moment we can see that several EU institutions do not have sufficiently robust and well-tailored tools at their disposal capable of protecting against threats currently posed to the rule of law, fundamental rights and pluralist democracy in the Member States.
The Union should make more work that existing instruments would have a better impact on the drivers of these challenges. The most severe challenges are present in some Member States, where powerful political actors have turned against the independence of the judiciary, and against institutions and organisations which compose and uphold the pluralist democratic system. The Communication does not consider sufficiently this essential aspect, preferring a perspective in which institutions – Parliaments, governments and ministries, constitutional courts, professional bodies – are separated from political and electoral competition. This “hands off” approach to party politics and elections prevents any explanation of why powerful actors work against the rule of law and democracy and why they seem at the same time popular and unstoppable. The political, cultural and sociological aspects of the rule of law challenges affecting democracies are an essential area which has been ignored in the EU’s analysis and response so far. This partly explains the limitations of the current approach and tools – including the Article 7(1) procedure. Through its connection with civil society in its entirety, including the social partners, the EESC is particularly well placed to offer a space for a better analysis, debate and response to these political, sociological and cultural aspects of challenges to democracy and the rule of law.
It is good to notice that the Commission has moved in the recent years towards building up complementary and cumulative mechanisms to fill the gap between no action and last-resort action. Yet, they seem insufficient for the current challenges – concerted actions for power-grabbing across institutions, including in the judiciary, which have, if not electoral constituencies, strong support within party organisations and party clienteles. Not even the consolidated democracies are safe from creeping authoritarianism and erosion of the rule of law. Security concerns are increasingly used to justify the questioning or suspension of democratic safeguards. Some governments make the work of several frontline CSOs more difficult instead of proposing an enabling space for their activities. It is therefore essential that the EU should take a more proactive and preventive approach.
The independent national courts are the bulwark ensuring that citizens can count on their EU rights being enforced, that European business can do cross-border trade without the concern that legal contracts are not enforced in an impartial and independent manner, and that workers working in a neighbouring country can have their rights enforced, and that CSOs can operate freely across borders, without foreign solidarity funding being taxed discriminatorily.
With good reason CSOs, social partners and foreign investor councils have all expressed concern to the EESC about the deterioration of the rule of law, and its serious economic impact.
The EESC notes the shortcomings of current tools available to the EU institutions to protect Article 2 values. Infringement procedures tend to be too narrow in their focus to prevent or correct concerted attacks on the rule of law. Second, it has proven extremely difficult to marshal sufficient political will to activate the procedure in Article 7 of the TEU.
As regards the 2014 European Commission Communication “A new EU Framework to strengthen the Rule of Law”, although it is easier to activate than Article 7, its effectiveness is questionable when faced with governments unwilling to cooperate. Furthermore, the thresholds required to activate it are too high and too late. The EESC recommends improving the rule of law framework including by defining clearer benchmarks, indicators and deadlines in order to better assess the concerned authorities’ response and the EU’s accompanying measures.
 European Commission, Communication on A new EU Framework to strengthen the Rule of Law, 11 March 2014