Rule of Law Backsliding in the EU

Rule of Law Backsliding in the EU: What It Is And What Must Be Done About It? Presented by: Laurent Pech Date: 14 April 2021 What is the rule of law? - Based on Article 2 - For the purposes of this Regulation, the following definitions apply: • 'The rule of law' refers to the Union value enshrined in Article 2 TEU. It includes the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law. The rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU; What Is "Rule Of Law Backsliding"? The process through which: 1. Elected public authorities deliberately implement governmental blueprints which 2. Aim to systematically weaken, annihilate or capture internal checks on power with 3. The view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party The Most Pressing Challenge Currently Faced By The EU? - Jyrki Katainen, VP for jobs, growth, investment and competitiveness at the European Commission, 22 January 2019 said: • "Countries like Poland, Hungary and Romania, they are deviating from the sustainable liberal democratic path this is, to my opinion, the biggest challenge the EU is facing currently” When Was The Problem First Identified? - José Manuel Barroso President of the EU Commission (2004-2014) State of the Union address 2012: • "In recent months we have seen threats to the legal and democratic fabric in some of our European states. [These developments] revealed limits of our institutional arrangements. We need a better developed set of instruments- not just the alternative between the "soft power" of political persuasion and the "nuclear option" of article 7 of the Treaty." Why Should We Worry About It From An EU Law Point Of View? [167] These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a 'process of creating an ever closer union among the peoples of Europe'. [168] This legal structure is based on the fundamental premises that each Member State shares with all the other Member States, and recognizes that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premises implies and justifies the existence of mutual trust between the Member States that those values will be recognized and, therefore, that the law of the EU that implements them will be respected. The Rule Of Law Toolbox Of The European Union - Infringement procedure - Preliminary ruling procedure - Article 7 TEU - <<<< Rule of Law Cycle >>> - Rule of Law Budget conditionality Article 7 TEU - Designed precisely for this kind of situation - Art. 7(1): 4/5 of Member States, clear risk of a serious breach, no sanction - Art. 7(2) and (3): unanimity, serious and persistent breach, suspension of rights - Art. 7(1) initiated by Commission re Poland (2017) and by the European Parliament re Hungary (2018) - Still no vote, hearings suspended due to COVID19, European Parliament not allowed to speak at hearings... << Rule Of Law Cycle >>> - Annual report of the Commission on all Member States - First edition 2019 - Euphemistic / diplomatic language - No consequence - Further reading: Doing more harm than good? A critical assessment of the European Commission's first Rule of Law Report Rule Of Law Budget Conditionality - Suspension of funds in case of rule of law generalized deficiencies - Proposal from the Commission 2018 - Made into a condition by the << frugal >> for acceptance of the Covid recovery pack - Veto threat by Hungary and Poland re recovery fund and multiannual financial framework - Teeth removed by the German presidency (abandon of reversed QMV, direct affectation of budget, <<< appeal >> to the European Council) Claws removed by the European Council (regulation suspended until the Court has ruled + restrictive interpretation guidelines) - Further reading: Scheppele, Kim Lane, Pech, Laurent; Platon, Sébastien: Compromising the Rule of Law while Compromising on the Rule of Law, Ver Blog, 2020/12/13 Infringement Procedure - Values are not enforceable per se but through more specific provisions of the treaties giving <<< concrete expression >>> to Art. 2 values - Infringement rulings can lead to heavy financial penalties - Interim measures to avoid fait accompli - However, depends on the Commission or Member States • Member States rarely initiate infringement proceedings, and they never initiate value- related infringement proceedings • The Commission lacks both a systemic vision and reactivity Preliminary Ruling Procedure - Cooperation procedure between national court and the Court of justice does not require the Commission or a MS Govt - Can be used by national courts of problematic Member States and by national courts of other Member States when EU Law requires cooperation between national authorities - Until recently, the Court has been rather timid under this procedure - The recent ruling in A.B. (2nd March 2021): a game-changer? • The Court goes as far as possible in the determination of a violation of EU law and the consequences to be drawn by the referring court • The Court does not assess the national provision at stake in isolation but in its global context of RoL backsliding → a sign that the Court is willing to address <<< systemic infringements >>>