Avoiding the nuclear option: the EU moves to strengthen the rule of law – Justine Stefanelli

17 March 2014 by

Nuclear1-348x196Within the past week the EU Commission has laid down its plans for protecting the rule of law across Europe and, importantly, for punishing member states that fail to meet rule of law standards.  At first glance this appears to be a landmark in the EU’s regulation of the rule of law, fundamental rights and democracy, but is it the solution it claims to be? 

Between political persuasion and ‘the nuclear option’  

In an effort to prevent more proactively systemic breaches of the rule of law and human rights, the EU Commission has published a Communication on its new Framework to strengthen the Rule of Law. The Framework was largely the product of a consultation which was kick-started by President Barroso when he indicated his desire to develop a monitoring mechanism which would offer a middle ground between “political persuasion” and what he called the “nuclear option” of Article 7 TEU.  Article 7 allows the EU institutions to take action where there is either a clear risk of a serious breach by a Member State, or the existence of a serious and persistent breach in relation to the values enshrined in Article 2, which are respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The new Framework offers a less heavy-handed approach, and is focused largely on dialogue with the member states.

Dialogue and Monitoring

There are a number of mechanisms both within and outside the EU which are devoted to monitoring human rights and rule of law practice in the EU Member States, as this report by the Bingham Centre for the Rule of Law illustrates. Most of the EU mechanisms are limited in that they are only triggered when EU law is at issue. Article 7, by contrast, can be triggered outside this context in order to protect the rule of law when Member States act autonomously.

Like Article 7, the New Framework will also apply outside EU law. It will be triggered when there are clear indications of a systemic threat to the rule of law in a Member State. The Communication points to CJEU case law and a Resolution of the Council of Europe’s Committee of Ministers with respect to the meaning of “systemic deficiencies”. The Framework comprises three stages beginning with an informal dialogue, and escalating to a phase of formal recommendations, and finally, resort to Article 7 if necessary. The Commission will gather evidence from a variety of sources including the Council of Europe and the EU Fundamental Rights Agency. It will then draft a “rule of law opinion” to the member state concerned, and allow the member state an opportunity to respond. If the matter cannot be resolved at this stage, the Commission will issue a “rule of law recommendation” and provide the member state with a deadline for compliance with the recommendation(s). Should this stage also prove insufficient, the Commission will consider whether it should activate Article 7.

Is this the best solution?

While a dialogue-based approach to the protection of the rule of law is welcome, one should question whether this Framework is the result of a considered evaluation of what would be the best way to enhance and protect the rule of law in the member states. Although this new Framework may address rule of law issues at an earlier stage, perhaps it would be more useful to consider how the EU might use its resources to encourage compliance at the local level. Some member states may be experiencing problems with upholding the rule of law because of a difference in legal and political cultures which can lead to a different way of thinking and operating. These kinds of problems cannot be dealt with adequately from the top down but must instead be addressed at the national level. In that regard, the EU may more usefully direct its resources toward supporting national efforts aimed at promoting and protecting the rule of law not only through the dissemination of information and good practice, but also financially, much as it does in the context of civil protection.

The EU could target its financial support at national human rights institutions which could focus their activities toward state compliance with the rule of law and human rights. In this way, the member states would have the primary responsibility for enforcing Article 2 values, under the watchful eye of the EU, which would serve as a guiding, supportive partner. Integrating Article 2 values into the law and policy at the national level is vital to ensuring that situations never reach a point where the nuclear option is best. Ultimately, the EU will always have Article 7 to fall back on, but if national legal cultures don’t change, breaches of the rule of law and human rights will keep surfacing.

While the EU has created something positive, its efforts to promote respect for the rule of law should not end here. The EU should consider ways in which it can enhance the rule of law in a meaningful and lasting way at the national level so that it need not wait for indications of systemic threats to the rule of law. Otherwise what we’re left with is a more watered-down version of the Article 7 mechanism, which, while not nuclear, might not be much more effective.

Justine Stefanelli is a Research Fellow in European Law at the Bingham Centre for the Rule of Law.
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