The rule of law: Safeguard for European Citizens and Foundation for European CooperationApril 23, 2014 - nr.87
Summary, conclusions and recommendations
The EU should have sufficient instruments to guarantee the proper functioning of the rule of law in the member states. From the outset, after all, the EU was intended as a legal community, based on shared values and aimed at furthering common interests. One of these values is the rule of law. The government’s first question concerned the elements of the rule of law in the EU that the AIV believes to be especially important. The AIV views the rule of law from two perspectives: that of the citizen and that of cooperation within the EU. The core principle of European citizenship is that nationals of one member state who are in another member state enjoy essentially the same rights as the nationals of the latter member state, so that citizens can avail themselves of the EU’s four freedoms: free movement of goods, services, capital and persons. These freedoms can only be guaranteed if the rule of law functions effectively in all the member states. Citizens may be faced in another member state with decisions that affect them, involving, for example, permits or action by the criminal justice authorities. It is thus vital to consolidate and strengthen the confidence of EU citizens in the quality of the rule of law in other member states. Moreover, the member states cooperate very closely, and such a high degree of interconnection can only work if the rule of law functions well in each member state. Lastly, it is also essential for the credibility of the external policy of the EU and the member states – a central value of which is promoting the rule of law – that the member states themselves are governed by the rule of law.
The concept of the rule of law has many dimensions, which cannot be viewed in isolation. All these dimensions combine to define the concept and all are relevant to some extent to the citizens of the member states and to cooperation within the EU. This is the answer to the first part of the government’s first question.
The second part of the first question is whether the definition of this concept in the recent report by the Venice Commission offers any relevant assistance. In the AIV’s opinion, there is sufficient consensus on the standards by which the concept of the rule of law should be measured in the EU. The Council of Europe has played a leading role in developing these standards, particularly through the European Court of Human Rights (ECtHR) and the Venice Commission. These standards have acquired institutional form in varying ways in the different member states, partly depending on their history and philosophical traditions. A supplementary mechanism therefore does not need to develop standards but should promote understanding of whether the rule of law is strong enough in the member states to give substance to the rights of EU citizens and to allow the close cooperation within the Union to proceed smoothly.
The government’s second question concerns how the proper functioning of the rule of law can be promoted in the member states and how shortcomings in member states in this area can be addressed at EU level. The AIV recommends three courses of action in this regard:
• make better use of existing powers, mechanisms and available information;
• open up debate on the culture surrounding the rule of law in the member states;
• set up a supplementary initiative to examine and discuss the functioning of the rule of law in the member states.
These recommendations are elaborated on in the answers to questions 3 to 6. Question 3 asks whether existing instruments in and outside the EU offer sufficient scope and if not, whether these mechanisms could be supplemented or strengthened. In chapter III, the AIV observed that existing instruments do offer scope and recommended that better use be made of existing powers, mechanisms and available information.
As regards existing powers, chapter III argued that the scope offered by European law for promoting the rule of law is not yet exhausted. The AIV sees ways of making better use of infringement proceedings to promote the proper functioning of the rule of law in the member states. The European Commission could deploy this instrument more actively and more strategically. Considering that the proper functioning of the rule of law is essential to safeguarding the rights of the citizens of all member states and to allowing EU cooperation to run smoothly, the principle of Union loyalty implies that the member states have an obligation to ensure that the rule of law functions properly in their territory and that member states may hold another member state to account if there are grounds for suspecting that this is not the case. The obligation to provide effective legal protection – an essential element of the rule of law – could also be enforced where necessary by the Commission through infringement proceedings. In the case of the area of freedom, security and justice or the internal market, it is conceivable that supplementary rules or procedures could be introduced – if it is agreed that they are desirable – pursuant to article 352 TFEU, to help ensure that rule-of-law standards are observed.
As regards the use of available information, the AIV observed in Chapter III that various institutions and organs possess relevant information but that the institutions or organs that promote the rule of law are not always aware of it. Steps should be taken to organize more information transfer, for instance by means of feedback from the courts and other supervisory mechanisms to political forums. The AIV advises the government to press the Commission to pool the information and findings arising from evaluations carried out by the Directorates-General for Home Affairs and Justice, to provide a basis for a more intensive and more strategic use of the infringement procedure.
Responsibility for the proper functioning of the rule of law lies primarily with the individual member state. A democracy governed by the rule of law has mechanisms which should correct any shortcomings in this area. These may include judicial review, parliamentary scrutiny, and the media and non-governmental organisations which can mobilise public opinion. This is not to deny that – as stated above – all EU citizens and member states have an interest in the proper functioning of the rule of law in other member states.
It is important to foster debate on the culture surrounding the rule of law in the member states. Chapter II observed that the rule of law should not be regarded merely as a formal structure; cultural factors also have an important role to play. Authorities should as a matter of course act in the spirit of the rule of law. A culture of this kind should inspire citizens to scrutinise the rule of law. Legal proceedings, complaint and application procedures and other forms of oversight are not enough. The decisive factor is the operating culture among state agencies and officials who play a key role in the rule of law. Thus strengthening the rule of law also depends on vigilance, respect for the independence of the judiciary and constitutional awareness. Politicians and others in positions of authority, such as senior judges and police chiefs, should set a good example. The AIV recommends that a debate be opened on the culture surrounding the rule of law in the member states. However, at present there is no suitable forum for such a debate.
Question 4 asks if there is a need for a supplementary initiative. Since there is no forum that can bring together information from various sectors and oversee all the dimensions of the rule of law, including the culture in the member states, the AIV recommends that a new forum be established for this purpose. The form that such an initiative could take is outlined in Chapter IV. This is also the answer to question 5 (how existing structures could best be deployed) and question 6 (which institutions could play a role).
The AIV would advise the government to seek to convince the Council of the European Union to adopt Conclusions agreeing to conduct periodic peer reviews at EU level of the functioning of the rule of law in all the member states, on the basis of reports drawn up by a committee of independent experts. In Chapter IV the AIV indicated the outlines of a supplementary initiative along these lines to promote the rule of law in the EU member states. This would constitute the first step necessary to open up debate on how the rule of law functions. The EU procedure would be distinguished from other mechanisms in this field by its cross-sectoral and periodic character.
The government’s last question concerned the role the Netherlands can play – either independently or in cooperation with its EU partners – in promoting the rule of law in the EU. First, the Netherlands could once again seek support from other member states for the active and strategic use by the European Commission of infringement proceedings as a way of promoting the rule of law. The Netherlands could also investigate whether other member states support the introduction of a supplementary initiative along the lines indicated above. Even if there is opposition to the institution of infringement proceedings and the holding of peer reviews, it is more important to ensure that the EU itself does not encounter opposition because of failings in the rule of law in one or more member states. The government should therefore continue to stress that the proper functioning of the rule of law is essential to maintaining trust among EU citizens and is the foundation for close cooperation among the member states. The principle of Union loyalty and the obligation to provide effective legal protection are also arguments in favour of peer review of the functioning of the rule of law in the member states.
The Netherlands can also play a role by setting a good example, in other words by being open to criticism and following up on recommendations. There is scope for strengthening the rule of law in every member state. The Netherlands could also fund technical support of the kind provided by the Venice Commission and other bodies. Lastly, when reviewing new EU legislation in the light of the principles of subsidiarity and proportionality, the Netherlands should also consider what influence the new legislation could have on the functioning of the rule of law in the member states. That is essential for EU citizens, in this country and elsewhere.
In his State of the Union address in 2012, the President of the European Commission, José Manuel Barroso, said that the EU needs 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. In this advisory report the AIV has indicated how the gap between ‘soft power’ and the ‘nuclear option’ might be bridged. The introduction of peer review would create a cross-sectoral forum which could discuss questions concerning the functioning of the rule of law and the surrounding culture in the member states. The visible adoption of conclusions at a high political level would increase the pressure on member states. Where necessary, the EU could make greater use of existing options in order to take appropriate measures, without having to resort to article 7 TEU.
Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague
Date: 19 April 2013
Re: Request for advice on the rule of law in the European Union
Dear Mr Korthals Altes,
The EU treaties stress the importance of respect for human rights, freedom, equality, democracy, human dignity and the rule of law, as the fundamental values of the Union. These values are vital to the effective functioning of EU cooperation, for citizens, businesses and member states. The effective rule of law is essential to the Union as a legal community. Achieving the objectives set for policy fields such as the area of freedom, security and justice, the internal market and EMU depends in good measure on mutual trust between the member states. This applies, for example, to the mutual recognition of court judgments ¬and to making investments in another member country. It is essential that rights and obligations can be enforced in an effective justice system based on an independent judiciary.
In recent years various studies have been made of the scope of the concept ‘rule of law’ and of how monitoring takes place in this field both in and outside the EU. For instance, in April 2001 the Venice Commission of the Council of Europe published its ‘Report on the Rule of Law’, which addressed specific aspects of the concept. The Research and Documentation Centre (WODC) has carried out studies into monitoring in relation to justice and home affairs and in other areas. These studies have shown that different definitions and descriptions of the rule of law are used in practice, which gives rise to a lack of focus in policy discussions on this subject. Different monitoring methods are also used for different elements of the concept.
A variety of requirements related to the rule of law apply in the EU and various types of monitoring take place. For instance, candidate member states are expected to meet a whole range of requirements pertaining to the judiciary and the protection of fundamental rights (Chapter 23 of the acquis), including effective measures aimed at combating corruption and organised crime. Once a country joins the EU, the Commission can initiate infringement proceedings in response to any violations of the EU acquis, including the Charter of Fundamental Rights. Furthermore, in the event of a serious and persistent breach of the values on which the EU is founded, such as democracy, the rule of law and respect for fundamental rights, it is possible to suspend a country’s voting rights (article 7 TEU). However in political and legal terms this is a very rigorous instrument and one that has not been applied to date. The monitoring instruments associated with the Council of Europe (including the ECHR) have a similar shortcoming; the most serious sanction is a decision ending a country’s membership of the organisation (article 8 of the Statute of the Council of Europe), and such a decision has never been taken in practice. These instruments do not therefore offer an entirely cohesive and effective system for addressing challenges posed to the rule of law, democracy and fundamental rights in Europe. What is currently lacking is an early-stage mechanism for permanently focusing attention on the state of the rule of law in all member states. No provision has yet been made for an EU system for monitoring compliance with the Union’s fundamental values.
The impact of shortcomings in the rule of law on EU citizens, member states and the EU as a whole in key fields such as the Schengen area and the eurozone has recently become apparent. These experiences demonstrate the need for stability in the rule of law, for an effective EU, and for trust to exist both between member states and between citizens and the EU itself.
Developments are afoot both in and outside the EU that could help promote the rule of law and address potential shortcomings. For instance, European Commission President José Manuel Barroso spoke of the EU’s need for a better developed set of instruments in this field in his State of the Union 2012 Address. Furthermore, in the context of the European Semester, the Commission recently took the initiative to examine a number of aspects of the quality, independence and efficiency of justice, in the form of the Justice Scoreboard. In a joint letter of 6 March 2013 to the President of the European Commission, the foreign ministers of Denmark, Finland, Germany and the Netherlands called on the Commission to develop an effective mechanism to safeguard and strengthen the rule of law and fundamental values in the EU. And the EU Agency for Fundamental Rights (FRA), whose task and work programme involve providing EU institutions and member states with ‘assistance and expertise’ in relation to fundamental rights, has been operating for a number of years, publishing reports in this field. The Council of Europe is currently also examining how to make the results of monitoring mechanisms more directly useful and enforceable, thereby improving their effectiveness.
The question is whether more needs to be done to promote the rule of law in the EU, and if so, what? Will initiatives such as those described above be sufficient to address all of the challenges posed to the rule of law in the EU in a timely and structured manner? How can this be built on when enforcing and promoting the rule of law in the EU, and what role can the Netherlands play? For instance, taking into account the sovereignty of the member states, would it be useful to create an instrument to provide an insight into the functioning of the rule of law in other member states as a way of improving mutual understanding and trust, addressing potential shortcomings and preventing problems, including those of a political nature? What monitoring method would be most effective for this purpose?
Questions that the government wishes to submit to the AIV:
- Which elements of the rule of law does the AIV believe to be especially important in the EU, in view of the specific nature of EU cooperation? Does the description of this concept in the recent report by the Venice Commission offer any relevant assistance in answering this question? Are there any elements that are missing from the report, or that are of less relevance to the EU?
- How does the AIV believe that the proper functioning of the rule of law can and ought to be promoted in the EU? And how can shortcomings in member states in this area be addressed at EU level?
- Do existing instruments in and outside the EU offer sufficient scope for this purpose? If not, could these mechanisms be supplemented or strengthened to achieve this aim?
- Besides these instruments, is there a need for the development of one or more supplementary mechanisms in or outside the EU? And if so, what form could they take?
- How could existing structures (e.g. EU institutions such as the Commission, EU agencies such as the FRA, or the Council of Europe) and the results produced by these structures best be involved and deployed in designing these instruments?
- Which institution(s) – for instance the Council, the Commission, or any other or new institutions – could be given an executive or other role in relation to a supplementary instrument?
- What role can the Netherlands play – either independently or in cooperation with its EU partners – in promoting the rule of law in the EU in general and more particularly in promoting existing structures and developing one or more supplementary mechanisms?
I look forward to receiving your recommendations.
Minister of Foreign Affairs
Letter of 28 April 2014 from the Minister of Foreign Affairs enclosing the government’s combined response to the AIV advisory report: ‘The Rule of Law: Safeguard for European Citizens and Foundation of European Cooperation’, the European Commission’s Communication ‘A new EU Framework to strengthen the Rule of Law’ and the 2014 EU Justice Scoreboard
The government has for a considerable time been actively pressing for a mechanism to strengthen the rule of law in the EU member states and to enable dialogue within the Union – on both a regular and an ad hoc basis – on developments relating to the rule of law in the widest sense.1 After all, it is essential for the functioning of the Union and citizens’ confidence in it that the rule of law function properly in all the member states.
The government’s aim is for the mechanism to bring about specific political dialogue among member states on the functioning of the rule of law. The member states should have primacy here, since they are responsible for the functioning of the rule of law, but there is also a clearly defined role for the European Commission. The government believes it is important to achieve synergy with existing instruments within the EU – such as the Justice Scoreboard, infringement proceedings and the Schengen evaluation mechanism – and outside it, particularly in the Council of Europe. Old and new mechanisms should complement and reinforce one another. Unnecessary duplication and excessive administrative burdens should be avoided.
This position is based on the government’s task, enshrined in article 90 of the Constitution, to promote the development of the international legal order. The House of Representatives too has repeatedly called on the government (in motions introduced by MPs Henk Jan Ormel and Klaas Dijkhoff in 2012 and Mark Verheijen in 2013) to press actively for a rule-of-law mechanism in the European Union.2
In mid-February 2014, at the request of the government, the Advisory Council on International Affairs (AIV) published an advisory report entitled ‘The Rule of Law: Safeguard for European Citizens and Foundation of European Cooperation’.3 On 11 March, a year after a joint letter from the Netherlands, Germany, Denmark and Finland calling for the development of a new mechanism to protect the Union’s fundamental values, the European Commission (‘the Commission’) published its Communication ‘A new EU Framework to strengthen the Rule of Law’.4 Lastly, the 2014 EU Justice Scoreboard (‘the Scoreboard’) appeared on 17 March 2014.5 This letter constitutes the government’s combined response to these three publications, thus replacing the usual Assessment of New Commission Proposals (BNC) file on the Commission’s Communication. The government’s response to the AIV’s advisory report and the Communication are combined because these two documents contain overlapping ideas on a supplementary EU mechanism, while the response to the Scoreboard appears in a separate section.
It should be observed here that the Scoreboard, as a non-binding instrument, is mainly designed to present information on the functioning of legal systems in relation to the functioning of the internal market, while the Commission’s Communication puts forward an ad hoc mechanism to address systemic threats to the rule of law and the AIV recommends the introduction of a permanent peer review mechanism for monitoring the rule of law.
The European Parliament (EP) and many NGOs have also called for a supplementary EU rule-of-law mechanism.6 The government is pleased at the attention being paid to this subject, as an important priority for the next few years, especially in the run-up to the new terms of office of the Commission and the EP.
Importance of safeguards for the rule of law
Both the AIV and the Commission devote a good deal of attention to the importance of protection for the rule of law at EU level. The Commission refers to the rule of law as the backbone of any modern constitutional democracy. Respect for the rule of law is a precondition for accession to the EU and is recognised in article 2 of the Treaty on European Union (TEU) as one of the values on which the Union is founded. The AIV observes that from the outset the EU was intended to form a legal community, based on shared values and aimed at furthering common interests. The AIV also argues that the rule of law forms the constitutional basis for European integration and that the EU should therefore have sufficient instruments to guarantee the proper functioning of the rule of law in the member states. In addition, the AIV points out that the proper functioning of the rule of law is not only essential for cooperation among the member states in many policy areas, such as the internal market and police and judicial matters, but is also important from the point of view of citizens and their confidence in the Union, for example because of its contribution to effective legal protection for citizens and a level playing field for business. EU citizens wishing to travel to or work in other member states and companies wishing to do business in other member states must be able to have confidence that they will be treated correctly and without discrimination by the authorities there and have access to independent courts.
The AIV also contends that safeguarding the rule of law internally is relevant to the credibility of the EU’s external policy and the EU’s normative international identity in the field of human rights. Hence the importance of coherence between the EU’s internal fostering of the rule of law and its external agenda.
The government endorses the analyses provided by the AIV and the Commission, which reflect and underline the fact that the rule of law has not only an essential instrumental function with regard to achieving the Union’s objectives, but also a significant intrinsic value. The rule of law is an important European value which must be cherished and strengthened, quite apart from its functional role, both within the EU and in external policy. Developments in Ukraine on the EU’s borders particularly demonstrate the vital importance of the proper functioning of the rule of law. The rule of law is a major achievement, requiring both constant vigilance and continuous effort. It is therefore important to be open to criticism and to take heed of it.
Standards, dimensions and scope
The AIV and the Commission agree that sufficient consensus on the concept of the rule of law exists among academics, the judiciary and national and international instruments. Neither body believes it necessary to develop additional or more elaborate standards to be able to conduct a dialogue on the functioning of the rule of law in the member states. The meaning of the concept can be inferred, for example, from the case law of the Court of Justice of the EU (ECJ), the European Court of Human Rights (ECtHR) and the work of the Council of Europe’s Venice Commission. The precise safeguards afforded to the rule of law may then vary from one member state to another, depending on their constitutional systems. Rule of law standards allow for different polities. Nevertheless, the AIV argues that there is a sound basis for referring to a common European legal culture.
Annex II to the Communication contains an overview of these standards as derived from ECJ case law and the standards formulated by the Venice Commission, to which the AIV refers. This reveals a close similarity between the two sets of standards.
The Commission emphasises in this connection that the rule of law has both formal/procedural and substantive components. This means that the rule of law is intrinsically linked to respect for democracy and fundamental rights. For its part, the AIV stresses the interaction between a state’s institutional structure and its political and legal culture. In addition to constitutional issues, societal conditions are also of great importance if a country is to function as a state governed by the rule of law. In other words, the rule of law is not just a formal structure; it also requires a social context, vigilance and constitutional awareness. Moreover, the AIV believes that a debate should be opened on the culture surrounding the rule of law.
The government agrees with the AIV that the concept of the rule of law has many dimensions, for both citizens and member states, which cannot be viewed in isolation and which together define the concept. In this connection the government concurs with the definition of the concept proposed by the Commission and the AIV as the touchstone for a generic dialogue mechanism, for example the principle of legality, the prohibition of arbitrariness, access to independent courts and the non-discrimination principle. In individual cases, however, it must be possible to address the problem on a broader basis where necessary, embracing the values enshrined in article 2 TEU, such as democracy and fundamental rights. After all, as confirmed in the JHA Council Conclusions of June 2013, these values are inextricably linked. This is also related to the conditions imposed on candidate countries in the Copenhagen criterion (i.e. the country must have stable institutions guaranteeing democracy, the rule of law, and respect for human rights and minorities). The government agrees with the AIV that the obvious course of action is to keep the Copenhagen criterion as a permanent yardstick for all EU member states and to continue to monitor whether it is being fulfilled. This means not only having the right rules on paper but applying and enforcing them correctly: after all, that is what determines the functioning of the rule of law.
Role of the EU, need for stronger instruments
The AIV is right to argue that responsibility for the proper safeguarding of the rule of law lies primarily with the individual member state, in its own interests and those of its citizens. However, as stated above, both citizens and member states have an interest in the proper functioning of the rule of law in other member states. In other words, the functioning of the rule of law has cross-border effects. The government shares the AIV’s conclusion that the member states should therefore also regard maintaining the rule of law in every member state as a shared responsibility and a shared interest, which should be given form within the EU. The government also agrees that safeguarding the rule of law can thus not be viewed as a purely domestic and national matter; it also has an EU dimension, for example in the interests of the proper functioning of the internal market. And – precisely because the member states bear primary responsibility – the forum for this should be the Council of the European Union. The Commission, too, points out that in times of crisis in countries like Hungary and Romania, it is the EU, and in particular the Commission as guardian of the Treaties, which is expected to take action.
The AIV and the Commission conclude that a supplementary EU rule-of-law instrument is required. The present array of instruments has not proved adequate to tackle the problems observed recently in a systematic, coherent and effective manner. This conclusion is similar to the government’s position on the matter, as set out in the State of the European Union.
In addition to a supplementary mechanism (see below), the AIV recommends that better use be made of existing powers, mechanisms, instruments and available information. For example, more intensive and strategic use could be made of infringement proceedings for breaches of EU law (article 258, Treaty on the Functioning of the EU (TFEU)) by more frequently invoking the principle of Union loyalty, the EU’s Charter of Fundamental Rights and the principle of effective legal protection. The findings of evaluations (deriving from the Schengen evaluation mechanism, thematic evaluations and anti-corruption reporting) conducted under the responsibility of the Commissioners for Justice and Home Affairs could be pooled as a basis for infringement proceedings.
The government has the impression that the Commission already deploys the infringement procedure effectively where it can, but where this is not yet the case the government would encourage the Commission to make full use of the existing instruments, so that the new rule-of-law mechanism can play a supplementary role. However, as the Commission itself observes, some situations constitute not a breach of EU law but a systemic threat to the rule of law in a member state. In such cases the infringement procedure is not the answer. Moreover, in the government’s view, the general principles cited by the AIV – Union loyalty and effective legal protection – probably do not offer a sufficient legal basis in specific cases without running the risk of extensive interpretation. Furthermore, infringement proceedings are long drawn out and procedural, legally speaking, which means they cannot provide a rapid and effective solution. Accordingly, the government’s aim with the rule-of-law mechanism is to bring about a specific dialogue among member states at Council level on the functioning of the rule of law.
As an example of an existing power that could be put to better use to promote respect for rule-of-law norms, the AIV suggests that it would be possible to introduce supplementary rules or procedures pursuant to article 352 TFEU (perhaps giving it a generous interpretation), in the interests of improving the organisation and functioning of the internal market and the area of freedom, security and justice.
The government would take a cautious approach here. As the AIV states, rule-of-law standards are already in place, there is already a wealth of information available on this subject and the only thing lacking is an effective instrument which would ensure effective consequences.7 Article 352 TFEU is intended for situations where action is needed to attain one of the objectives set out in the Treaties but the Treaties do not provide the necessary powers. The use of article 352 should be regarded as a last resort. What is more, the use of article 352 is a highly sensitive matter in many member states, and broad political consensus should therefore be achieved in the EU before considering action on the basis of this article.
As regards making better use of the available information, the AIV recommends improvements in its transfer and application, for example by means of feedback to political forums of evaluation findings and judgments given by the ECJ and the ECtHR.
The government endorses this recommendation, which is related to the principle that the maximum possible use should be made of existing information and sources in order to create synergy and prevent unnecessary duplication. In this connection the government would refer to the existing practice whereby before publishing a new proposal, the Commission reviews it in the light of the EU’s Charter of Fundamental Rights, naturally with due regard for recent relevant ECJ case law. In addition, the government regards this recommendation as a way of taking responsibility in the Council itself and conducting a political dialogue about developments related to the rule of law. This already happens in the EU, both regularly at Coreper and Council Working Party level and, in the case of major judgments, at Council level. An example is the ECtHR’s judgment in the case of M.S.S. v. Belgium and Greece (30696/09 of 21 January 2011), which was discussed in the Justice and Home Affairs Council of 24 and 25 February 2011.
Power and subsidiarity in the Commission’s Communication
The government takes the view that the EU’s power to act derives from article 7 TEU, which provides a mechanism for exposing the existence or risk of serious breaches of the EU’s values and ultimately for the possibility of suspending the voting rights of the member state in question.8 The first step is to determine that there is a clear risk of a breach of the values referred to in article 2 TEU. In the government’s opinion, this means that prior to such a determination information and arguments can – and indeed should – be exchanged. In determining that the EU has the power to act, it should be remembered that there is no question of legislative action. The Communication imposes no legal obligations on the member states.
In its Communication the Commission emphasises that the EU should take action if national structures fail, for example if the independence of the judiciary is at stake. After all, a systemic threat to the rule of law in a member state poses risks to the functioning of the EU as a whole. In that event the EU has a role to play. In this way, the Commission is reflecting the principle of subsidiarity. The government concurs with the line taken by the Commission here and thus takes a positive view of the Communication’s reflection of the principle of subsidiarity. The next section considers proportionality as reflected in the Commission’s Communication.
Conditions for and design of the supplementary mechanism
There are a great many similarities between the proposals put forward by the Commission and the AIV when it comes to the basic principles of the supplementary mechanism. Both stress that the supplementary mechanism can and should be introduced within the framework of the Treaties as they stand, that it must complement existing instruments and that it must avoid unnecessary duplication, particularly with the activities of the Council of Europe and the EU’s Fundamental Rights Agency. In addition, both stress that the mechanism should be concerned with constructive dialogue rather than imposing sanctions and both emphasise the importance of equal treatment of all member states and assessment in accordance with the same clear criteria. These ideas accord perfectly with the government’s views.
However, the AIV and the Commission have different ideas on the actual form of the mechanism. While the Commission understandably concentrates on what it itself can do, the AIV places its emphasis on the Council. The government believes that primacy in debate on this issue should lie with the member states in the Council, because they bear primary responsibility for the functioning of the rule of law. The supplementary mechanism should be more than a bilateral matter between the Commission and the member state in question; it should enable genuine political dialogue in the Council. The Council should take responsibility for this without wishing to detract from the Commission’s tasks as guardian of the Treaties in this area. In addition, the Council should be able to discuss developments relating to the rule of law without the Commission activating the mechanism. The Commission states that it regards the Communication as a basis for further discussion and points out that the role of the European Parliament and the Council in strengthening the rule of law in the EU is a crucial one. The government endorses the importance of the Council’s role in this field, even if the Commission takes no steps, and is already working actively to put this role into effect, on both an ad hoc and a regular basis. In the government’s view, the Commission’s role can be limited to gathering information, processing it into reports, and preparing the debates in the Council. In view of the primacy of the member states, the government is not in favour of the Commission’s being able to make binding recommendations or to impose sanctions on the member states. The government wants to see a forum where specific political dialogue among member states can take place about the functioning of the rule of law.
The ideas of the Commission and the AIV also differ on the scope of the mechanism. The Commission’s proposals are restricted to systemic threats to the rule of law, which are to be prevented – through structured dialogue with the member state in question – from developing into article 7 TEU situations (‘serious’ or ‘persistent’ breaches of the EU’s values). The aim of the Commission’s Communication is to provide a framework for action that can fill the gap between soft power and article 7 TEU.
The Commission mechanism applies to situations created or tolerated by member states which are likely to systematically threaten the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law. The political, institutional and/or legal order of a member state, such as its constitutional structure, the separation of powers, the independence and impartiality of the judiciary, or its system of judicial review (including constitutional justice where it exists), must be threatened. The mechanism does not apply to individual cases. These should be addressed within the national context, or before the European courts (the ECJ or the ECtHR) or via infringement proceedings.
The Commission outlines a procedure divided into three stages, during which the EP and the Council will be kept regularly informed:
- An assessment of whether a systemic threat exists, on the basis of objective sources such as Council of Europe bodies and analyses by the Fundamental Rights Agency, possibly resulting in a ‘rule-of-law opinion’ being sent to the member state in question. The launching of the Commission assessment and the sending of the opinion will be made public, but the content of the exchanges with the member state will be confidential.
- If the subsequent dialogue with the member states does not produce a solution, the Commission will issue a ‘rule-of-law recommendation’ addressed to the member state concerned if it finds that there is objective evidence of a systemic threat and that the authorities of that member state are not taking appropriate action to redress it. The main points in the recommendation will be made public.
- In the third stage, the Commission will monitor the member state’s follow-up to the recommendation. If this is not satisfactory, the Commission may initiate an article 7 TEU procedure.
The government welcomes the Commission’s ideas. The proposal involves a light-touch mechanism, designed to bring about constructive dialogue without binding recommendations or sanctions and guaranteeing coherence and complementarity with existing instruments. It also complies with the proportionality principle. However, it is important to ensure that the role of the Council is developed to complement that of the Commission, for example through debate in the Council whenever the Commission applies the mechanism, but also at other times. At present it is unclear what information-sharing with the EP and the Council will involve. The government takes the view that the Commission should be as generous as possible in sharing information in the interests of the best possible debate in the Council.
The Commission is concerned with situations involving a systemic threat to the rule of law in a member state, the aim being to achieve swift, concrete results. The AIV, on the other hand, recommends introducing a permanent, early-stage mechanism for periodically focusing attention on the state of the rule of law in all the member states.
The AIV points out that this supplementary initiative is required because current monitoring is fragmented and/or only addresses specific dimensions of the rule of law. The AIV is of the opinion that the EU needs a forum that can bring together information from various sectors and oversee all the dimensions of the rule of law, including the culture surrounding the rule of law in the member states. To this end the AIV opts for peer review: an exchange of best practices between equals in the interests of improving policymaking. The AIV proposes that member states reach agreement in the Council, in the form of Council Conclusions, on conducting regular peer reviews on the basis of reports on member states, drawn up by a committee of independent experts.
The AIV also proposes a three-stage procedure:
- A committee of experts draws up a report on the basis of consultations with relevant organisations, covering a number of cross-sectoral issues (a restricted number to keep the peer reviews manageable in scope), and a number of focal points for specific countries. The European Commission should provide the secretariat for the committee of experts.
- The report is discussed by representatives of the member states at official level (the actual peer review), leading to draft operational conclusions/recommendations.
- These draft conclusions/recommendations are adopted by the Council. The results of the reviews should also be submitted to the Justice and Home Affairs Council, which will supervise the follow-up. The EP should be informed of both the recommendations and the follow-up.
The peer review procedure generally appeals to the government, which favours a light-touch, non-punitive mechanism that will permit constructive dialogue on the basis of objective information.
In the government’s view, both types of mechanism are desirable – an ad hoc mechanism as proposed by the Commission and a regular peer review procedure – to promote the functioning of the rule of law. The government therefore backs a mechanism which will make it possible first to respond on an ad hoc basis to acute threats to the rule of law in a particular member state and second to monitor all the member states on a regular basis, resulting in reports to and discussion in the Council.
EU Justice Scoreboard 2014
In March 2014 the Commission issued the second EU Justice Scoreboard. Like the first, it contains a summary of core data on the efficiency and quality of civil and administrative law proceedings in the various courts in the EU member states.
The results for the Netherlands in this year’s Scoreboard, like last year’s, should be regarded as highly positive, since the Netherlands is shown to be among the EU’s leaders in a large number of areas relating to the quality and efficiency of its judicial system.
The Scoreboard’s findings are used as input for country-specific recommendations in the framework of the European Semester. Last year 10 member states received a recommendation of this kind. A separate section of the 2014 Scoreboard monitors the follow-up to these recommendations. In addition, the Commission uses the Scoreboard’s findings to help set priorities for EU structural funds in the 12 member states for which the Commission identified justice as a priority area. The findings also offer concrete support to member states in their efforts to improve the functioning of their justice systems.
The second Scoreboard is not very different from the first in terms of its choice of indicators and how information is presented. As in the first Scoreboard, there is only a very limited examination of the relationship between economic development and the quality and performance of national judicial systems. Despite the fact that few changes can be seen in the format of the 2014 Scoreboard, some positive developments can be identified. For example, the member states are to be closely involved in the further development and improvement of the instrument through the establishment of an EU network of contact persons, i.e. representatives of the justice ministry and judiciary of each member state. The aim is to provide a platform for exchanging knowledge and experiences on national justice systems and devising specific recommendations on how to improve the Scoreboard. On the basis of the two meetings of contact persons to date, it can confidently be said that the Commission is sufficiently prepared to take concrete measures to adjust the instrument so as to be able to present an improved version in 2015.
The government believes in the need for and the value of the Scoreboard, particularly because – as stated in the 2013 BNC file – the instrument supports the government’s policy initiatives on increasing mutual trust in judicial cooperation among EU member states and on promoting economic growth (Parliamentary Papers, House of Representatives, 2012/13, 22112, no. 1615). The government still takes a positive view of the Scoreboard with regard to subsidiarity, as it said in the May 2013 BNC file. After all, the core of the Communication on the Scoreboard concerns an instrument with which member states can compare certain aspects of the functioning of their respective justice systems on the basis of selected indicators. The Scoreboard’s particular added value will lie in the identification by the EU of trends in these areas. It is important to note here that the Scoreboard is a voluntary instrument with which the EU seeks to enter into open dialogue with the member states on developing better policies on justice and the courts. The Scoreboard shows how well-functioning justice systems help the internal market to function well, since the comparisons in the Scoreboard can lead to the member states exerting peer pressure on one another, thus helping to identify and resolve problems in the functioning of national justice systems.
The government’s assessment of the Scoreboard’s proportionality is also positive. When drawing up the Scoreboard, duplication of effort is avoided and the maximum possible use is made of existing sources of information, including data published by the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ), the World Economic Forum, the World Bank and Eurostat. This keeps the administrative burden low.
The AIV’s advisory report provides a valuable contribution to the debate on the functioning of the rule of law in the EU member states and makes a number of interesting suggestions. The government also welcomes the Commission’s Communication and sees it as a good basis for the development of a rule-of-law mechanism. The government will work in particular to give substance to the primacy of the member states in the Council. In addition, the government will remain closely involved in the further development of the Scoreboard in order to make it more effective.
The rule of law cannot be taken for granted; it requires constant maintenance, in the Netherlands as elsewhere. Mindful of the Constitution and its 200th anniversary, the government will therefore continue to work actively with like-minded partners to strengthen the rule of law within the EU. This will not happen overnight; it is a long-term project. The power of European cooperation lies in the fact that we – including in the Netherlands – are able and willing to take a critical look at ourselves and to keep working towards improvement.
1 Parliamentary Papers, House of Representatives 2013-2014, 22 112, no. 1650, p. 1 and Parliamentary Papers, House of Representatives 2013/14, 33 877, no. 1, p. 19.
2 Parliamentary Papers, House of Representatives, 2011-2012, 33001, no. 10 and Parliamentary Papers, House of Representatives, 2012-2013, 33551, no. 2.
3This AIV advisory report was submitted to the House of Representatives on 30 January 2014, see annexe to Parliamentary Paper 33750-V no. 61.
4 COM (2014) 158.
5 COM (2014) 155.
6 ‘Situation of fundamental rights: standards and practices in Hungary’ (Tavares) 2012/2130(INI) and ‘Situation of fundamental rights in the European Union (2012)’ (Michel), 2013/2078(INI).
7 This is in line with the government’s stance on the Dutch position on a future EU JHA policy framework (post-Stockholm), Parliamentary Papers, House of Representatives, 2013-2014, 32 317, no. 196 and the government assessment of the Communication ‘The EU Justice Agenda for 2020 – Strengthening Trust, Mobility and Growth within the Union’ and the Communication ‘An open and secure Europe: making it happen’, which will shortly be submitted to the House, in which the government calls for consolidation, implementation and evaluation.
8 Article 7 TEU provides for a procedure in the event of a serious breach of the EU’s values by a member state. First, the member state is warned if there is a risk of a serious breach (paragraph 1). If subsequently the existence of a serious and persistent breach is determined (paragraph 2), sanctions may be imposed, including the suspension of the member state’s voting rights in the Council (paragraph 3). These measures may be revoked in response to changes in the situation which led to their being imposed (paragraph 4).