by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor

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Strengthening the rule of law in the EU on the D-Day 75th Anniversary

On 3 April 2019, the European Commission opened a debate to strengthen the rule of law in the EU and setting out possible avenues for future action. The Commission invited the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including legal networks and civil society, to reflect on this issue and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future. Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019. As first Vice-President Frans Timmermans said, the Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of “who we are”. Second, because the functioning of the EU as a whole depends on the rule of law in all Member States. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”.[i]

On this 6 June 2019, D-Day 75th Anniversary, we add more one reason:  European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars. What is important to highlight now is that all the legal-constitutional construction of the post-war in Europe is based on the idea that democracy, in the absent of the rule of law, becomes the tyranny of majority. Without the rule of law, we have nothing, only the nationalist populism and its disastrous consequences. Nationalist populism knows that, being a form of political communication that attempts to reach its goals by breaking the dialectic connection between democracy and rule of law.  So, as the rule of law can be improperly used, the main question in this context is to know what is the substance of the Union based on the rule of law.

The rule of law is normatively enshrined as one of the constitutive values of the European Union (Article 2, TEU). Given the constitutive dimension of this principle, it is understandable that it is not immune to the successive crisis in the EU: national sovereign debt crisis, migratory crisis, constitutional crisis with Brexit and the populist drift. In the last years, the rule of law in Europe has come under increased pressure. More concretely, there is a “systemic deficit” that disturbs the promotion of the rule of law in the legal order of the European Union. Rule of law is threatened when a significant number of agents, in several sectors, cease to ensure normative expectations to the point of creating a deficit in the trust of the law and in public institution.[ii]

The European Commission has a wide range of tools to carefully monitor, assess, and respond to the rule of law issues in Member States, among others infringement procedures, the European Semester, the EU Justice Scoreboard or the Cooperation and Verification Mechanism (CVM). On 11 March 2014, the European Commission adopted a new Framework for addressing systemic threats to the rule of law in any of the EU’s Member States.[iii] The Framework establishes a tool allowing the Commission to enter into a staged dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law.[iv] The most emblematic, yet exceptional, tool for defending the rule of law is the procedure of Article 7 TEU, which allows the EU to act in case of a serious breach of rule of law in a Member State. The Article 7 TEU procedure was triggered in two cases so far: in December 2017 in case of Poland (by the Commission) and in September 2018 in the case of Hungary (by the European Parliament).

However, some of the mechanisms devised by EU in order to assess the performance of the Member States related to rule of law criteria were criticised in the past – another good reason for the reflection process currently in place. The problem with the “systemic approach” is to judge the legal systems of the Member States, so that policies of economic and financial adjustments are legitimised. Such policies made the system of state‘s jurisdiction weaker through countless actions – financial, fiscal, social, labour – derogatory of insurmountable principles of the rule of law (principle of the protection of trust and legal certainty, principle of proportionality, principle of non-retroactivity of tax law and statues restricting fundamental rights). The narrative about the fragility of the principle of the rule of law may be opposed to the one that is subjacent to the doctrine of the “systemic deficit”, highlighting the infringement of fundamental rights by the pack of economic-financial actions imposed to citizens of some Member States.[v]

The principle of the rule of law implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review; and equality before the law. Both the Court of Justice and the European Court of Human Rights confirmed that those principles are not purely formal and procedural requirements. They are the vehicle for ensuring compliance with and respect for democracy and human rights. The rule of law is therefore a constitutional principle with both formal and substantive components. This means that respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights (including social rights): there can be no democracy and respect for fundamental rights without respect for the rule of law and vice-versa. Fundamental rights are effective only if they are justiciable. Democracy is protected if the fundamental role of the judiciary, including constitutional courts, can ensure freedom of expression, freedom of assembly and respect of the rules governing the political and electoral process.[vi]

This is particularly important today because there is no longer any question we are faced with a wave of authoritarian right-wing, intentionally cohesive and highly coordinated, that is taking over control of global politics. Despite such movements behold a short-sighted and materially anti-democratic cosmovision, the fact is that they have gained force and are increasingly coming to power precisely through the instruments of formal democracy. They are phenomena potentially threatening to democracy, nevertheless generated in democracy, based on the fundamental rights that define it – such as freedom of association and of speech.

Thus, in formal terms, a rule of law points to an idea of ​​a government functioning in legal conformity. However, this basic lawfulness –   i.e., specific norms of coherence, generality, clarity, stability, non-retroactivity, etc. – is not in itself an opening for a material conception of justice of the rule of law. In the current state of the Union based on the rule of law we are building, the formal control of legal conformity is not enough as the emergence of a “citizenship of rights” entails its material consolidation. All questions relating to essential constitutional elements, to basic structures, to the adoption of public policies must be presented as justified to all citizens, regardless their philosophical, ideological or political preferences – this is the demand for public-political legitimacy that national and European authorities will increasingly be called upon to safeguard.

[i] See European Commission – Press release “Rule of Law: The Commission opens a debate to strengthen the rule of law in the EU” http://europa.eu/rapid/press-release_IP-19-1912_en.htm

[ii] See J. J. Gomes Canotilho, Dislocations on understanding the rule of law, UNIO – EU Law Journal, Vol. 3, No. 1, January 2017, p. 7.

[iii] See  Press release “European Commission presents a framework to safeguard the rule of law in the European Union” http://europa.eu/rapid/press-release_IP-14-237_en.htm

[iv] In a crisis, the Commission can trigger the rule of law framework to address systemic threats in EU countries. See “Rule of law Framework” in  https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/rule-law/rule-law-framework_en

[v] See J. J. Gomes Canotilho, Dislocations on understanding the rule of law, cit., p. 8.

[vi] See Communication from the Comission to the European Parliament and the Council – A new EU Framework to strengthen the Rule of Law – COM(2014) 158 final, March 11 2014 http://www.ipex.eu/IPEXL-WEB/dossier/document/COM20140158.do

 

Pictures credits: D-day… by Joe Haupt.