Introduction
As a general rule, international law does not interfere with the choice of political, social, economic and cultural system, leaving states free to choose and develop the principles underlying their political system. However, the development of internationalisation and integration processes has led many regional integration organisations to develop a catalogue of principles and values embodied in the course of integration processes. The extent of the obligations arising from these principles and the mechanism for protecting these principles and values varies. The most distinctive, and also the most advanced in this respect, is the European Union (EU).
The EU's mechanism for the protection of common values, while unique in the world and the expression of a consensus among its 27 member states, has been criticised. Critics call for the creation of a new ‘rule of law supervisory body’.
In this blog, I would like to briefly discuss the value protection mechanisms in place within the EU and the new idea of creating a Rule of Law Commission.
Treaty and non-Treaty mechanisms for safeguarding EU values
The basic procedure for the protection of EU values, i.e. respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights (Article 2 TEU), is the mechanism expressed in Article 7 TEU. It can be triggered against a state that violates EU values upon the reasoned request of 1/3 of Member States, the European Parliament or the European Commission. While the request can be made by supranational bodies, the procedure itself is triggered and conducted only by strictly intergovernmental bodies, i.e. the European Council or the Council. The procedure may end with a finding by the Council that there is a clear risk of a serious breach of Union values by the Member State concerned, or by the European Council of a serious and persistent breach of such values. Both decisions are essentially political in nature, although the Treaties attach certain consequences to their adoption. Firstly, the Council may address a recommendation to the state ‘guilty’ of the breach. Secondly, the above decision of the European Council may be followed by a decision of the Council to suspend the ‘offending’ State from certain rights under the Treaties, in particular the right to vote in the Council.
As decisions under Article 7 TEU can only be taken with the agreement of a large majority of Member States (4/5 or unanimity), this gave Member States guarantees that the mechanism would only be triggered as a last resort and would cover the most serious violations of EU values. After all, the decision-making process was entrusted to intergovernmental bodies composed of representatives of states or governments. Above all, however, it will not be used by EU supranational bodies for political purposes, e.g. to interfere in electoral processes in Member States.
Initially, it seemed that Article 7 TEU would be the only mechanism to ‘discipline’ states accused of violating EU values. However, very soon after the entry into force of the Lisbon Treaty, supranational bodies decided to expand their field of activity in protecting the rule of EU law and proceeded to build their own mechanisms to protect EU values.
The European Commission was the first to develop and implement its mechanism. In March 2014. The European Commission published a communication ‘A new EU framework to strengthen the rule of law’[1] , in which it set out its understanding of the rule of law and proposed a three-step mechanism aimed at preventing the occurrence or development of systemic threats to the rule of law. This mechanism does not, of course, presuppose the involvement of EU intergovernmental bodies and runs from start to finish within the Commission itself. Interestingly, it has no basis in the Treaties and goes against the principle of conferring EU competence. It can, however, lead to recommendations being addressed to a Member State and - in the event of non-implementation or implementation not in line with the European Commission's proposals - to sanctions being imposed on the State ‘guilty’ of a breach of the rule of law.
In May 2014. the Council Legal Service considered that the mechanism was contrary to the principle of conferral expressed in Article 5 TEU[2], and that the only mechanism for the protection of EU values was that provided for in Article 7 TEU. As if in response to the Commission's action, the Council developed its own mechanism to protect the rule of law[3].
Ideas for the creation of a ‘rule of law supervisory authority’
One of the earliest initiators of the creation of a ‘rule of law supervisory body’ was the European Parliament. Back in 2013, it called on the EU and its Member States to establish a ‘Copenhagen commission’ or ‘high-level group’, operating within the EU institutional system[4]. The new mechanism should be independent of political influence and be swift and effective and should operate in full cooperation with other international institutions on the protection of fundamental rights and the rule of law. The mechanism would have to regularly monitor respect for fundamental rights, the state of democracy and the rule of law in all Member States. The procedure for monitoring the state of the rule of law should fully respect national constitutional traditions, but should be carried out uniformly in all Member States to avoid the risk of double standards being applied to them. The new body would be endowed with the power to make recommendations to EU institutions and Member States on how to respond to any weakening of the values referred to in Article 2 TEU and to take unspecified corrective action.
The idea of establishing a mechanism has been picked up by the doctrine. In 2017 J. Müller proposed creation a new institution to remedy the EU’s current democracy protection deficit comparable to the CoE’s Venice Commission[5]. A continuation of this idea is the proposal to create, through a multilateral international treaty, a Rule of Law Commission.[6] Interestingly, the idea is broader than the EU itself, and could involve non-EU states (including EU candidates) - so-called ‘politically willing governments’ sympathetic to tougher sanctions on the rule of law.
The Commission would be composed of non-partisan, independent and ideologically diverse legal experts and diplomats who would develop policy proposals to promote democratic values. The Commission would act on a request coming from national governments, on the one hand, and from unspecified ‘actors’, on the other.
The Commission would be equipped with the power to identify persistent deviations from democratic values in specific countries and to make diplomatic and economic recommendations. The implementation of such recommendations would be mandatory for European governments (i.e. members of the ‘penal coalition’) that have signed an international treaty.
The tasks of the new body would be:
1) to identify and analyse in depth the links between the objectives of the rule of law and EU values;
2) To identify and analyse systemic, long-standing problems with the rule of law in a country;
3) the development of economic and diplomatic responses (more specifically, penalties and sanctions) to national governments of countries that do not comply with the multilateral treaty;
4) publishing the content of punitive responses in a form.
Interestingly, the Rule of Law Commission would be established outside the EU structures and its costs would be borne by the governments participating in the new mechanism.
Evaluation of the new mechanism
The evaluation of the creation of the Rule of Law Commission (RLC) should start with the unmistakable observation that states can conclude a treaty on any issue, as they enjoy in principle unlimited treaty-making capacity. However, while it is easy to conclude a treaty and, on the basis of such a treaty, create a body to uphold an undefined idea such as the rule of law, it is more difficult to set a framework for the operation of such a body within which the states-parties do not lose control over the international obligations arising from such a treaty and shaped in the course of the operation of the RLC. States parties are, after all, the hosts of the treaty and should retain the ability to anticipate what international obligations they have under the treaty in force. Meanwhile, states that would bind themselves to an international treaty establishing a RLC would be giving a blank cheque to such a body, i.e. unlimited power to decide both the substantive meaning of the rule of law and the consequences imposed on a state ‘guilty’ of violating the rule of law.
The idea of the rule of law, although providing a guarantee against unlimited and unwarranted action by state bodies, remains unspecified. The European experience shows that, in principle, there is only consensus on a general understanding of what the rule of law is. The rule of law is defined by recognising that all activities of the state and its organs should take place on the basis of the law. The exact content of the principles and norms derived from the rule of law is also not clear. Moreover, it may vary depending on the constitutional system of the state. The idea of the rule of law applies to every area of law and in principle to every - legally regulated - aspect of life of society. The RLC would be given a de facto super-competence, whereby it would have an unlimited right of influence over every area of law. Thus, the legislative competence of the State would be significantly reduced. The state, upon becoming bound by the treaty establishing the RLC, would surrender to the international body one of its fundamental attributes, i.e. the competence to define the principles governing the foundations of the political, economic, social or cultural system. Many national constitutions, including those of Poland and Hungary, do not allow such a profound transfer of state competence to an international body.
The discussion of the RLC ignores the nature and extent of the consequences imposed on a state ‘guilty’ of a violation. Identification by the RLC of deviations from democratic values would result in the formulation of a ‘recommendation’ to ‘guilty’ states, which would de facto take the form of a criminal sanction. The criminal nature of the sanction would require - in accordance with the principle of nullum crimen/nulla poena - that the types of criminal sanction, their nature, their duration and the rules for their imposition be precisely defined. Is this requirement fulfilled by indicating that the sanctions would be economic and diplomatic in nature and would be imposed according to the ‘capacities of the Member States’? If criminal sanctions imposed on individuals for the commission of a crime were to be defined in national law on this basis, this would be met with a justified, harsh reaction from all human rights groups. In the meantime, it is proposed to grant the Rule of Law Commission the unspecified power to punish States for committing a violation that it could not foresee occurring. Member States participating in a multilateral treaty would, for example, be obliged to suspend or break off diplomatic relations with the ‘guilty’ state or to restrict/terminate economic relations with it. Against this background, it would be interesting to see financial penalties that should not only meet the requirements of individual prevention (compel the ‘guilty’ state to implement the recommendations of the RLC and deter it from similar violations in the future), but also deter other states from emulating the ‘guilty’ state. Since no state can know in advance exactly what recommendations the RLC will make and how it will assess its ‘capabilities’, the RLC would enjoy enormous discretion.
The new mechanism to combat deviations from democratic values will also be outside any democratic control. It is intended to be a ‘non-EU body of non-partisan, independent, ideologically diverse legal experts and diplomats’. However, they will not be democratically elected and their election will not be influenced by the citizens of the states-parties, who will instead be directly affected by the sanctions imposed by the RLC. Thus, the RLC will not be endowed with democratic legitimacy coming directly from the Nations. Even if they will be nominated by the states parties to the treaty, its members should represent values close to liberal democracy (since the RLC is supposed to analyse violations of the rule of law embracing liberal democratic states). The requirement of independence and ideological diversity of the RLC's members may turn out to be an empty slogan in practice, with the RLC being the promoter of only one systemic model.
There is also no provision for any influence of any national popularly elected bodies, e.g. national parliaments, on how the RLC is created, how it operates, or on the implementation of the criminal sanctions developed in the recommendations. There is also no provision for any redress procedure to be implemented by a state found ‘guilty’ of a violation.
Last but not least, the new mechanism for the protection of the rule of law raises the question of its relation to EU law in both the substantive and institutional spheres. Since the RLC will be able to analyse the legislative activity of states, it will also be able to analyse the activity resulting from the implementation of EU law. Although it is intended to be located outside the EU, given the scope of integration processes, the RLC's powers will undoubtedly enter the sphere reserved for EU institutions, in particular the Court of Justice of the EU. The CJEU is the only judicial body with the power to settle disputes concerning the interpretation and application of EU law. The process of the EU's accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms has shown how many legal problems can arise from subjecting EU law to the jurisprudence of other international bodies, even one as well-established in Europe as the European Court of Human Rights.
[1] Communication from the Commission to the European Parliament and the Council A new EU Framework to strengthen the Rule of Law,COM/2014/0158 final.
[2] Opinion of the Legal Service of the Council of the EU, Communication from the Commission on a new EU framework for strengthening the rule of law. Compliance with the Treaties, 27 May 2014, http://data.consilium.europa.eu/doc/document/ST-10296-2014- INIT/en/pdf.
[3] Conclusions of the Council of the European Union and the Member States, meeting within the Council, on ensuring the respect of the rule of law (17014/14)
[4] European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)), OJ C 75, 26.2.2016, p. 52–78.
[5] Müller, Jan-Werner. “Democracy Commission of One’s Own, or What it would take for the EU to safeguard Liberal Democracy in its Member States.” In The Enforcement of EU Law and Values: Ensuring Member States' Compliance edited by Jakab, András and Kochenov, Dimitry. Oxford University Press, 2017.
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