Commission adopts tougher rules to protect rule of law

Procedure allows gradual response to systematic threats to fundamental values by the member states.

The European Commission has adopted a new procedure to discipline member states that are found to be in violation of the rule of law. The procedure took effect with its adoption by the college of commissioners in Strasbourg today (11 March).

Even though the new procedure is not legally binding on the member states, Commission officials are hoping that its use will generate political momentum that would be difficult to ignore for a member state that has come under Commission scrutiny for breaching the rule of law.

Viviane Reding, the European commissioner for justice, fundamental rights and citizenship, said in presenting the procedure that it would allow the Commission to enter into a friendly dialogue with a member state that is suspected of breaching the rule of law and that it would provide an opportunity for the amicable resolution of problems before they reach the stage where Article 7 of the European Union treaties might be invoked.

“If no solution is found, then Article 7 remains the last resort to ensure compliance with European values,” Reding said.

Article 7 sets out a cumbersome procedure involving difficult-to-obtain majorities in the Council of Ministers and unanimity in the European Council to discipline a member state if there is a “clear risk of a serious breach” of the “values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human right, including the rights of persons belonging to minorities”.

The European Parliament has repeatedly called for a less cumbersome and less drastic procedure than that set out in Article 7, which could theoretically lead to a member state losing its voting rights in the Council of Ministers.

The Commission was likewise concerned by the shortcomings of the existing procedure highlighted by recent experiences with Romania and Hungary, two cases explicitly mentioned by Reding when she presented the new rules.

Under the new procedure, the Commission will assess whether there is a systemic threat to the rule of law in a particular member state, and share its opinion with that member state. If the member state fails to respond or its response falls short of the Commission’s expectation, the Commission can escalate the dispute and issue a rule of law recommendation, with deadlines for specific measures. The Commission will subsequently monitor implementation of the recommendation by the member state, and invoke Article 7 if that falls short.

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