Berlin, 17 March 2019

Rule of law must be effectively defended! (FAS, Germany)


The right of democracy: Rule of law must be effectively defended!

‘’Today’s Europe is a coalition of democracies based on freedom. This is our stronghold, our basic understanding, our foundation.’’ These words of Alcide De Gasperi, one of the founding fathers of Europe and of Christian Democracy, no longer cast the same shine as they did sixty years ago. Even within the European Union now, democracy and the rule of law have come under pressure. The decades-long certainty that the fundamental liberal order and European integration go hand in hand is being put to the test. A rule of law procedure has already been opened against two Member States, Poland and Hungary; beyond the usual political attention paid here, some other countries are also experiencing serious problems with respect to the rule of law.While during the first forty years of the European Community, freedom, democracy and prosperity were central to Europe’s promise of the future, these three principles have lately come into question in various ways since the financial crisis. Violations of EU law, corruption, political manoeuvres against the independence of the judiciary and a lax attitude towards fundamental rights seem to be undermining European rule of law. The Maastricht, Nice and Lisbon Treaties have few answers to such erosion. Legal texts are products of their time: neither has Europe’s final political reality been determined nor have Europe’s geographical borders been drawn. Nevertheless, what has always been clear, politically and culturally, is that whoever is a member of the EU club will be democratically strengthened by the club’s community dynamic. Europe’s framers focused more on entry conditions than on effective mechanisms to ensure lasting compliance with the rules. The result was strict accession conditions under the Copenhagen criteria; but a transparent, independent and ultimately effective rule of law mechanism is still lacking. The procedure under Article 7 of the Union Treaty is a strong signal, but in practical terms, it is in effect like a very big gun: not very accurate and difficult to wield. Common values remain abstract as a measurement — and what exactly is meant by the ‘’clear risk of serious breach’’? In addition, at the end of the day, the withdrawal of voting rights can only be decided unanimously in the Council, excepting only the state concerned. But what if there are many bad actors? Would it then be possible to bring a case against two or three Member States simultaneously, to cordon them off as a group? Hardly likely — without breaking the Treaty. In any event, the Art. 7 procedure takes a long time and poisons the political climate in a Union which urgently needs a capacity for collective action under new geopolitical conditions.

Europe as a legal community will only have a good future if there are effective tools to protect it. This is fundamental to Europe’s ability to stick together, to its credibility and acceptance. It is the rule of law — not the prevailing political mood — which is a cornerstone of our European system of values. The rule of law is more easily formulated essentially, its violations more objectively demonstrable, that is the observation of abstract values or even political attitudes. The rule of law ensures a functioning, corruption-free administration, an independent dispensation of justice, the effective guarantee of basic rights essential for the integrity of personhood and for vibrant democracies. The political combination and instrumentalisation of market forces in oligarchies can indicate dangerous situations, too, just as can serious obstructions to freedom of speech and the press. Without a fundamental willingness to comply with the law and the observance of rules as to separation of powers, no internal market can function. In the case of serious shortcomings, people are also unwilling to transfer funds to another Member State or even cooperate more closely on sensitive security issues. Without trust in a reliable legal system, neither a strengthened European budget nor a common currency or common border protection can work.

Every design for Europe’s future must provide an answer to questions about the foundations of a community-based in law. This legal protection, however, must not be influenced by day-to-day political persuasions; it must, rather, be subject to an independent, transparent, binding and effective mechanism. Only if a rule-of-law mechanism follows a clear and comprehensible logic if fixed criteria are applied and its repercussions are clear can the institutional promise of the rule of law be protected in the EU.

Thus far the rule-of-law mechanism has risked being drawn into political disputes. With decisions taken via political majority and compromise, the rule of law can only be provisionally protected in the context of a fair balance between EU and Member-State identity. We do not need new political activism, but professional independence: an analysis based on facts and fairly laid out evaluative criteria. An objective assessment as a basis for decision, for instance by the Commission or Council, can only be reached by an independent committee beyond the scope of party-political calculus, as in a judicial procedure. Such an independent expert council could regularly check for each EU Member State whether the judiciary there is able to work independently and in accordance with the rule of law, whether and how corruption in politics, the judiciary and the administration may be spreading. This basis of evidence and the establishment of a sufficient degree of ‘’constitutional sovereignty’’ could be provided for by the Treaties or by directives and regulations as a condition of undiminished allocation of resources. Certain EU structural assistance could be held back or curtailed should there be corruption in the administration or should the media not be able to work freely.

Such a council having legal expertise could be set up by the European Commission, with perhaps no more than nine members: recognised, no-longer-serving figures from the ranks of national supreme or constitutional courts and former judges from the European Court of Justice. These judges, balanced on the political spectrum, would not only bring professional competence as well as independence but through their professional experience as well as their different backgrounds could counter the reflex that the European examination of national rule-of-law deficits be exploited domestically to the detriment of “Brussels”. The task of developing monitoring for all Member States and the selection of recognised judicial figures could thus reduce mistrust. The committee would have to be selected limited to one term, would determine its own working method and would be completely independent in terms of content. Such an idea is not wholly new. The original version of Article 7 of the Union Treaty had already foreseen a similar such body; the text there spoke of ‘’independent figures’’.

Europe should not be divided into good and bad Europeans. Rather, the EU must muster the courage, wherever necessary, to call abuses by their name and to seek their redress. For this reason, the independent expert council, with a firm mandate every two years, should without exception evaluate all Member States in terms of the independence of their judiciary, their susceptibility to corruption as well as their freedom of the media, and should present their findings in a public report. This report would have to certify whether there are indications in the respective Member State of any serious threat to the free constitutional state. The panel could have its own investigative resources. Its conclusions should lead to clearly outlined solutions — but also to consequences in case of failure. In the case of justified suspicions (‘’yellow card’’), the Commission should continue to provide clarification in a rule-of-law procedure. In case of major, serious breach (‘’red card’’), the respective Member State should be brought before the European Court of Justice. The Commission would moreover, in this case, propose to the European Parliament and the European Council that sanctions be imposed, which — in case of a conviction by the Court — could only be stopped by a (perhaps even qualified) majority decision of one of the two European institutions. Otherwise, the measures thus initiated would automatically come into force following the verdict.

Such an effective control mechanism would provide the EU with a tool to counter the erosion of rule-of-law structures swiftly and effectively — depoliticised and on a more solid legal basis within the framework of European values and basic rights. Such a rule of law mechanism would be an answer to new challenges.


This op-ed was published on the 17th of March 2019 in the Frankfurter Allgemeine Sonntagszeitung in German.