ANNEX

Detailed recommendations for a draft Inter-institutional Agreement on arrangements concerning monitoring and follow up procedures on the situation of Democracy, the Rule of Law and Fundamental Rights in the Member States and EU institutions

DRAFT INTERINSTITUTIONAL AGREEMENT

EUROPEAN UNION PACT ON DEMOCRACY, THE RULE OF LAW AND FUNDAMENTAL RIGHTS

The European Parliament, the Council of the European Union and the European Commission:

Having regard to the preamble to the Treaty on European Union (TEU), in particular the second, fourth, fifth and seventh recitals thereof,

Having regard, in particular, to Article 2, Article 3(1), the second subparagraph of Article 3(3) and Articles 6, 7 and 11 TEU,

Having regard to the articles of the Treaty on the Functioning of the European Union (TFEU) relating to the respect for, and the promotion and protection of, democracy, the rule of law and fundamental rights in the Union, including Articles 70, 258, 259, 260, 263 and 265 thereof,

Having regard to Article 4(3) and Article 5 TEU, Article 295 TFEU and Protocols No 1 on the role of national parliaments in the European Union and No 2 on the application of the principles of subsidiarity and proportionality, annexed to the TEU and to the TFEU,

Having regard to the Charter of Fundamental Rights of the European Union (the Charter),

Having regard to the Council of Europe’s European Social Charter, in particular Article E thereof, on non-discrimination,

Having regard to the Copenhagen criteria, and the body of Union rules that a candidate country must fulfil if it wishes to join the Union (the acquis), in particular Chapters 23 and 24 thereof,

Having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the case-law of the European Court of Human Rights, the conventions, recommendations, resolutions and reports of the Parliamentary Assembly, the Committee of Ministers, the Human Rights Commissioner and the Venice Commission of the Council of Europe,

Having regard to the Rule of Law Checklist adopted by the Venice Commission at its 106th Plenary Session of 18 March 2016,

Having regard to the Memorandum of Understanding between the Council of Europe and the European Union of 23 May 2007,

Having regard to the Council of Europe’s Framework Convention for the Protection of National Minorities,

Having regard to the Council of Europe’s European Charter for Regional or Minority Languages,

Having regard to the Universal Declaration of Human Rights,

Having regard to the UN treaties on the protection of human rights and fundamental freedoms and the case-law of the UN treaty bodies,

Having regard to the publications of the European Union Agency for Fundamental Rights (FRA), including the proposed European Fundamental Rights Information System (EFRIS) in its paper of 31 December 2013 entitled ‘Fundamental rights in the future of the European Union's Justice and Home Affairs’,

Having regard to the UN Approach to Rule of Law Assistance of April 2008,

Having regard to the UN Sustainable Development Goals, in particular Goal 16,

Having regard to the COSAC Twenty-fifth Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny of 18 May 2016,

Having regard to the letter of 6 March 2013 from the Ministers of Foreign Affairs of Germany, Denmark, Finland and the Netherlands to the Commission President,

Having regard to the FRA Opinion of 8 April 2016 on the development of an integrated tool of objective fundamental rights indicators able to measure compliance with the shared values listed in Article 2 TEU based on existing sources of information,

Having regard to the Italian Presidency note on ‘Ensuring respect for the rule of law in the European Union’ of 15 November 2014,

Having regard to the conclusions of the Council and the Member States meeting within the Council of 16 December 2014 on ensuring respect for the rule of law,

Having regard to the Council’s ‘Guidelines on methodological steps to be taken to check fundamental rights compatibility at the Council preparatory bodies’ of 19 December 2014,

Having regard to the Council’s first and second rule of law dialogue during the Luxembourg and Dutch Presidency of 17 November 2015 and 24 May 2016,

Having regard to the Commission’s existing monitoring mechanism and periodic assessment tools, including the Cooperation and Verification Mechanism, the Justice Scoreboard, Anti-Corruption reports and the Media Monitor,

Having regard to the Commission communication of 19 October 2010 entitled ‘Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’,

Having regard to the Commission’s Staff Working Paper of 6 May 2011 entitled ‘Operational Guidance on taking account of Fundamental rights in Commission Impact Assessments’,

Having regard to the Commission Communication of 19 March 2014 entitled ‘A new EU Framework to strengthen the Rule of Law’,

Having regard to the Commission's Annual Colloquium on Fundamental Rights,

Having regard to the Inter-institutional Agreement on Better Law-Making of 13 April 2016,

Having regard to the resolution of the European Parliament of 27 February 2014 on the situation of fundamental rights in the European Union (2012) (1),

Having regard to the resolution of the European Parliament of 8 September 2015 on the situation of fundamental rights in the European Union (2013-2014) (2),

(1) Whereas there is a need for a democracy, rule of law and fundamental rights mechanism that is objective, impartial, evidence-based and applied equally and fairly to all Member States as well as to the institutions of the Union and that includes both a preventative and a corrective dimension.

(2) Whereas the primary objective of such a mechanism should be to prevent violations and non-compliance with democracy, rule of law and fundamental rights, while at the same time providing the tools needed to render both the preventative and corrective arms of Article 7 TEU, as well as the other instruments provided for in the Treaties, operational in practice.

(3) Whereas the unnecessary creation of new structures or duplication should be avoided and integration and incorporation of existing instruments is to be preferred.

(4) Whereas elaborating definitions, standards and benchmarks regarding democracy, rule of law and fundamental rights is not a one-off decision but, rather, a permanent and interactive process based on broad public debate and consultation, regular review and the sharing of best practices.

(5) Whereas only a mechanism that has the broad support of Union citizens and allows them to take ownership of the process can be effective.

(6) Whereas Member States are primarily responsible for upholding common standards but, when they fail to do so, the Union has a duty to intervene to protect its constitutional core and ensure that the values laid down in Article 2 TEU and in the Charter are guaranteed for all Union citizens and residents, throughout the territory of the Union.

(7) Whereas it is important that all levels of government work closely together on the basis of their competences and responsibilities in order to identify possible systemic threats to the rule of law at an early stage, and to improve the protection of the rule of law.

(8) Whereas there are several instruments for addressing the risk of a serious breach of Union values but clear and objective benchmarks need to be developed for those instruments to be sufficiently strong and dissuasive to prevent infringements of the rule of law and fundamental rights; whereas the Union has no legally binding mechanism in place to monitor regularly compliance of the Member States and Union institutions with the Union values and fundamental rights.

(9) Whereas, in accordance with Art 295 TFEU, this inter-institutional agreement lays down arrangements only for the facilitation of cooperation between the European Parliament, the Council and the Commission and, in accordance with Article 13(2) TEU, those institutions are to act within the limits of the powers conferred on them by the Treaties, and in conformity with the procedures, conditions and objectives set out in them; whereas this inter-institutional agreement is without prejudice to the prerogatives of the Court of Justice in the authentic interpretation of Union law,

HAVE AGREED AS FOLLOWS

Article 1

The core values and founding principles of the Union, namely democracy, the rule of law and fundamental rights, shall be upheld throughout the Union in a Union Pact on Democracy, the Rule of Law and Fundamental Rights (EU Pact for DRF), which provides for the definition, elaboration, monitoring and enforcement of those values and principles, and which addresses both the Member States and the Union institutions.

Article 2

The EU Pact for DRF shall consist of:

— an annual report on democracy, the rule of law and fundamental rights (European DRF Report) with country-specific recommendations incorporating the reporting done by the FRA, the Council of Europe, and other relevant authorities in the field,

— an annual inter-parliamentary debate on the basis of the European DRF Report,

— arrangements for remedying possible risks and breaches, as provided for by the Treaties, including the activation of the preventative or corrective arms of Article 7 TEU,

— a policy cycle for democracy, the rule of law and fundamental rights (DRF Policy Cycle) within the Union institutions.

Article 3

The EU Pact for DRF shall be expanded to incorporate the Commission's Rule of Law Framework and the Council's Rule of Law Dialogue into a single Union instrument.

Article 4

The European DRF Report on the state of democracy, the rule of law and fundamental rights in the Member States shall be drawn up by the Commission, in consultation with the panel of independent experts (DRF Expert Panel) referred to in Article 8. The Commission shall transmit the European DRF Report to the European Parliament, to the Council and to the national parliaments. The European DRF Report shall be made available to the public.

The European DRF Report shall contain a general part and country-specific recommendations.

If the Commission fails to adopt, on time, the European DRF Report, including country-specific recommendations the relevant European Parliament committee may formally call upon the Commission to provide an explanation for the delay and to adopt it forthwith so as to avoid further delay.

Article 5

The European DRF Report shall incorporate and complement existing instruments, including the Justice Scoreboard, the Media Pluralism Monitor, the anti-corruption report and peer evaluation procedures based on Article 70 TFEU and replace the Cooperation and Verification Mechanism for Bulgaria and Romania.

Article 6

The European DRF Report shall be drawn up using a variety of sources and the existing tools for assessment, reporting and monitoring of Member States’ activities, including:

— contributions from the Member States authorities regarding respect for democracy, the rule of law and fundamental rights,

— the FRA, in particular the EFRIS instrument;

— other specialised agencies of the Union, in particular the European Data Protection Supervisor (EDPS), the European Institute for Gender Equality (EIGE), the European Foundation for the Improvement of Living and Working Conditions (Eurofound), and Eurostat,

— experts, academics, civil society organisations, professional and sectoral associations of, for example, judges, lawyers, and journalists;

— existing indices and benchmarks developed by international organisations and NGOs;

— the Council of Europe, in particular the Venice Commission, the Group of States against Corruption (GRECO) and the Congress of Local and Regional Authorities of the Council of Europe, and the European Commission for the Efficiency of Justice (CEPEJ);

— international organisations such as the United Nations, the Organization for Security and Co-operation in Europe (OSCE) and the Organization for Economic Co-operation and Development (OECD);

— the case-law of the Court of Justice and of the European Court of Human Rights and of other international courts, tribunals and treaty bodies;

— all resolutions or other relevant contributions by the European Parliament, including its annual report on the human rights situation in the Union;

— contributions by the Union institutions.

All the contributions by the sources referred to in this Article as well as the draft European DRF Report prepared by the DRF Expert Panel, including the country-specific recommendations, shall be made available to the public on the website of the Commission.

Article 7

The European DRF Report shall be presented in a harmonised format and accompanied by country-specific recommendations and elaborated with a specific focus on the following aspects:

— the separation of powers,

— the impartial nature of the State,

— the reversibility of political decisions after elections,

— the existence of institutional checks and balances which ensure that the impartiality of the State is not called into question,

— the permanence of the State and institutions, based on the immutability of the constitution,

— the freedom and pluralism of the media,

— freedom of expression and freedom of assembly,

— promotion of civic space and effective mechanisms for civil dialogue,

— the right to active and passive democratic participation in elections and participatory democracy,

— integrity and absence of corruption,

— transparency and accountability,

— legality,

— legal certainty,

— the prevention of abuse or misuse of powers,

— equality before the law and non-discrimination,

— access to justice: independence and impartiality, fair trial, constitutional justice, where applicable, an independent legal profession,

— particular challenges to the rule of law: corruption, conflict of interest, collection of personal data and surveillance,

— Titles I to VI of the Charter,

— the ECHR and the protocols thereto.

Article 8

The assessment of the state of democracy, rule of law and fundamental rights in the Member States, as well as the development of country-specific draft recommendations, shall be carried out by a representative panel of independent experts (DFR Expert Panel) on the basis of a quantitative and qualitative review of the data and information available.

8.1. The DRF Expert Panel shall be composed of the following members: — one independent expert designated by the national parliament of each Member State, who is a qualified constitutional court or supreme court judge not currently in active service; — ten further experts appointed by the European Parliament, with a two-thirds majority, chosen from a list of experts nominated by: (i) the federation of All European Academies (ALLEA); (ii) the European Network of National Human Rights Institutions (ENNHRI); (iii) the Council of Europe, including the Venice Commission, GRECO and the Council of Europe Human Rights Commissioner; (iv) the CEPEJ and the Council of Bars and Law Societies of Europe (CCBE); (v) the UN, the OSCE and the OECD.

8.2. The DRF Expert Panel shall elect its Chair from among its members.

8.3. In order to facilitate the development of the draft European DRF Report and draft country recommendations, the Commission shall provide the DRF Expert Panel with a secretariat, enabling it to function efficiently, in particular by gathering data and information sources to be reviewed and assessed, and by providing administrative support during the drafting process.

Article 9

The DRF Expert Panel shall assess each of the Member States with regard to the aspects listed in Article 7 and shall identify possible risks and breaches. That assessment shall be carried out on an anonymous and independent basis by each of the panellists in order to safeguard the independence of the DRF Expert Panel and the objectivity of the European DRF Report. The members of the DRF Expert Panel may, however, consult each other with a view to discussing methods and agreed standards.

The assessment methods shall be reviewed annually by the DRF Expert Panel, and where necessary, further elaborated, refined, supplemented and amended, where necessary, by common accord between the European Parliament, the Council and the Commission, after consulting the national parliaments, experts and civil society.

Article 10

The adoption of the DRF European Report by the Commission shall initiate the interparliamentary debate and debate in the Council, which shall aim to address the results of the European DRF Report and the country-specific recommendations by way of the following steps:

— The European Parliament shall organise an interparliamentary debate on the basis of the DRF European Report and shall adopt a resolution. That debate should be organised in such a way as to set benchmarks and goals to be attained and to provide the means to evaluate changes from one year to another within the existing Union consensus on democracy, the rule of law and fundamental rights. The relevant procedures should be accelerated in order to create such means, which will not only allow the immediate and effective monitoring of annual changes, but also ensure compliance with commitments by all relevant parties.

— The annual interparliamentary debate shall be part of a multi-annual structured dialogue between the European Parliament, the Council, the Commission and national parliaments and it shall also involve civil society, the FRA and the Council of Europe.

— The Council shall hold an annual debate, building upon its Rule of Law Dialogue, on the basis of the European DRF Report and shall adopt Council conclusions, inviting national parliaments to provide a response to the European DRF Report, proposals or reforms.

— On the basis of the European DRF Report the Commission may decide to launch a ‘systemic infringement’ action under Article 2 TEU and Article 258 TFEU, bundling several infringement cases together.

— On the basis of the European DRF Report, after consulting the European Parliament and the Council, the Commission may decide to submit a proposal for an evaluation of the implementation by Member States of Union policies in the area of freedom, security and justice under Article 70 TFEU.

10.1. On the basis of the European DRF Report, if a Member State complies with all the aspects listed in Article 7, no further action shall be necessary.

10.2. On the basis of the European DRF Report, if a Member State falls short on one or more of the aspects listed in Article 7, the Commission shall start a dialogue with that Member State without delay, taking into account the country-specific recommendations. 10.2.1. If the country-specific recommendation on a Member State includes the assessment by the expert panel that there is a clear risk of a serious breach of the values referred to in Article 2 TEU and that there are sufficient grounds for invoking Article 7(1) TEU, the European Parliament, the Council and the Commission, shall each discuss the matter without delay and take a reasoned decision, which shall be made public.

10.3. On the basis of the European DRF Report, if the country-specific recommendations on a Member State include the assessment by the expert panel that there is a serious and persistent breach — i.e. increasing or remaining unchanged over a period of at least two years, of the values referred to in Article 2 TEU and that there are sufficient grounds for invoking Article 7(2), the European Parliament, the Council and the Commission shall each discuss the matter without delay and each institution shall take a reasoned decision which shall be made public.

Article 11

Fundamental rights shall be included as part of the impact assessment for all legislative proposals by the Commission in accordance with Paragraph 25 of the Interinstitutional Agreement on Better Law-Making.

The DRF Expert Panel referred to in Article 8 shall assess compliance with democracy, rule of law and fundamental rights by the European Parliament, the Council and the Commission.

Article 12

An interinstitutional impact assessment working group (Working Group) shall be set up with a view to improving interinstitutional cooperation on impact assessments, and creating a fundamental rights and rule of law compliance culture. The Working Group shall consult national experts at an early stage in order to be able better to predict the implementation challenges in Member States, as well as to help overcome different interpretations and understandings by the different Union institutions as regards the impact of fundamental rights and rule of law on Union legal acts. The Working Group shall build on the Council’s Guidelines on methodological steps to be taken in order to check fundamental rights compatibility by the Council preparatory bodies, the Commission’s Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, the Commission’s Operational Guidance on taking account of Fundamental rights in Commission Impact Assessments, Tool No 24 from the Better Regulation Toolbox and Rule 38 of the Rules of Procedure of the European Parliament to ensure compliance with and promotion of democracy, rule of law and fundamental rights.

Article 13

The following annual reports of the European Parliament, the Council and the Commission relating to enforcement and compliance with the rule of law and fundamental rights by the institutions of the Union shall be presented alongside the annual DRF Policy Cycle of the European DRF Report:

— Annual report on the application of the Charter;

— Annual report on the application of Union law;

— Annual report on the application of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (3)

Article 14

This agreement shall enter into force…