Better late than never: the European Union unveils its new approach to the rule of law

On 17 July the European Commission published its new strategic policy document “Strengthening the rule of law within the Union: A blueprint for action” outlining three major avenues for EU policy on the rule of law: promotion, prevention and response. The introduction of a strategy aimed at preventing the backsliding of the rule of law in the EU and informing citizens on the importance of this issue is most welcome. This strategy clearly defines goals related to the rule of law and introduces tools to achieve these goals. The Commission’s proposed blueprint for action addresses several gaps in existing policy. The fact that this plan was adopted following a consultation process in which Member States, intergovernmental organisations, academia and civil society had the opportunity to present their input will hopefully signal wider buy-in to these measures.

Preventing through regular monitoring

Chief among the proposed tools as a means of prevention is a Rule of Law Review Cycle, aimed at monitoring the rule of law situation in all EU Member States. The cycle is intended as a comprehensive tool, covering different elements of the rule of law, including areas such as judicial independence, separation of powers and fight against corruption, as well as efficiency in the enforcement of EU law in Member States. The proposed mechanism would draw upon a variety of sources, including input from the EU’s Fundamental Rights Agency, civil society, and Member States to present an overview of the rule of law situation across the Union. The review cycle would be linked to an annual Rule of Law Report. The EU would do well to implement some of the best practices from the United Nations Universal Periodic Review to complement this cycle, including  shadow national reports submitted by civil society, a mutual peer-review system and a follow-up mechanism.

Promoting a rule of law culture

In terms of promotion, the Commission sets out steps to increase knowledge of the rule of law as well as a common EU-wide perception of it. This priority is timely and warranted, as a recent Eurobarometer survey shows that 56% of EU citizens believe that they are under-informed about the EU’s core values. The Commission identifies several partners to reach this goal, including civil society, media, academia, European networks of lawyers and judges, national parliaments and other intergovernmental organisations, including the Council of Europe and the Organization for Security and Co-operation in Europe. As a next step, the EU could consider adjusting its long-standing and successful area of cooperation with the Council of Europe, namely the Joint Programmes, towards promoting the rule of law and other core EU values within its Member States.

Firmly responding to challenges

The section of the blueprint concerning responses to rule of law backsliding starts with highlighting the importance of the Court of Justice of the EU (CJEU). The court’s role in elaborating the standards of the rule of law is presented as a vital element of the EU’s response mechanism. Indeed, the recent rulings of the court and reactions of Member States indicate that referring cases to the CJEU is an effective avenue to ensure respect for the rule of law. The Commission also proposes several improvements to the Treaty of the European Union’s Article 7 rule of law procedure, but does not devote quite as much attention to this as to the CJEU. This can be interpreted as an acknowledgement by the Commission that the existing Article 7 procedure is no longer viable as a primary response to rule of law backsliding, given the fact that it requires unanimous agreement of all Member States to go into effect. This begs the question whether the Commission is shifting towards bringing Member States before the Court as a primary means of responding to breaches in the rule of law after political dialogue is exhausted. At the same time, the EU would do well not to let the Article 7 procedure fall by the wayside but rather reform and improve it. Reform of the Article 7 procedure could be implemented as part of a broader move away from the need for unanimous agreement towards qualified majorities as part of the EU’s decision-making processes.

What’s next?

The fact that such a salient and detailed document which outlines a comprehensive strategic approach to a policy area was adopted at the very end of the Juncker Commission’s term likely points to the fact that the Commission will continue to focus on the rule of law in its next term. The implementation of this strategy will likely have to wait until the von der Leyen Commission is fully established in Autumn 2019, when the Commission, the Council, the European Parliament, Member States, other EU institutions and interested stakeholders will discuss the new approach and come up with concrete proposals for implementation. Given the situation of the rule of law in several EU Member States, a prompt and throughout implementation of the new approach to the rule of law could well be one of the top priorities for the new Commission.



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