COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL A new EU Framework to strengthen the Rule of Law
Date: 2014-03-11
Institutions: European Commission
Subjects: EU Member State, application of the law













EUR-Lex - 52014DC0158R(01) - EN











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52014DC0158R(01)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL A new EU Framework to strengthen the Rule of Law /* COM/2014/0158 final/2 */









TABLE OF CONTENTS
COMMUNICATION
FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL A new EU
Framework to strengthen the Rule of Law
1........... Introduction.................................................................................................................. 2
2........... Why the rule of law is of fundamental importance for the EU.................................... 3
3........... Why a new EU Framework to strengthen the rule of law............................................ 5
4........... How the new EU Rule of Law Framework will work................................................. 6
4.1........ What will trigger the new EU Rule of Law Framework.............................................. 6
4.2........ The new EU Rule of Law Framework as a three stage process................................... 7
5........... Conclusion.................................................................................................................... 9

1.                      
Introduction

The
rule of law is the backbone of any modern constitutional democracy. It is one
of the founding principles stemming from the common constitutional traditions
of all the Member States of the EU and, as such, one of the main values upon
which the Union is based. This is recalled by Article 2 of the Treaty on
European Union (TEU), as well as by the Preambles to the Treaty and to the
Charter of Fundamental Rights of the EU. This is also why, under Article 49
TEU, respect for the rule of law is a precondition for EU membership. Along
with democracy and human rights, the rule of law is also one of the three
pillars of the Council of Europe and is endorsed in the Preamble to the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR)[1] . 
Mutual
trust among EU Member States and their respective legal systems is the
foundation of the Union. The way the rule of law is implemented at national
level plays a key role in this respect. The confidence of all EU citizens and
national authorities in the functioning of the rule of law is particularly
vital for the further development of the EU into "an area of freedom,
security and justice without internal frontiers"[2].
This confidence will only be built and maintained if the rule of law is
observed in all Member States. 
The
different constitutions and judicial systems of the EU Member States are, in
principle, well designed and equipped to protect citizens against any threat to
the rule of law. However, recent events in some Member States have demonstrated
that a lack of respect for the rule of law and, as a consequence, also for the
fundamental values which the rule of law aims to protect, can become a matter
of serious concern. During these events, there has been a clear request from
the public at large for the EU, and notably for the Commission, to take action.
Results have been achieved. However, the Commission and the EU had to find ad
hoc solutions since current EU mechanisms and procedures have not always been
appropriate in ensuring an effective and timely response to threats to the rule
of law. 
The
Commission is the guardian of the Treaties and has the responsibility of
ensuring the respect of the values on which the EU is founded and of protecting
the general interest of the Union. It must therefore play an active role in
this respect[3]. In September 2012, in his annual
State of the Union speech to the European Parliament, President Barroso said:
"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 TEU. In the following year's speech, he said that "experience has
confirmed the usefulness of the Commission role as an independent and objective
referee. We should consolidate this experience through a more general framework
[…]. The Commission will come forward with a communication on this. I believe
it is a debate that is key to our idea of Europe."[4] 

In
June 2013, the Justice and Home Affairs Council underlined that
"respecting the rule of law is a prerequisite for the protection of
fundamental rights" and called on the Commission "to take forward the
debate in line with the Treaties on the possible need for and shape of a
collaborative and systematic method to tackle these issues". In April
2013, the General Affairs Council held a comprehensive discussion on the topic.[5]
In
July 2013, the European Parliament requested that "Member States be
regularly assessed on their continued compliance with the fundamental values of
the Union and the requirement of democracy and the rule of law"[6].  

This
Communication responds to these requests. On the basis of the Commission's
experience, the inter-institutional debate and broad consultations[7],
the Communication sets out a new framework to ensure an effective and coherent
protection of the rule of law in all Member States. It is a framework to
address and resolve a situation where there is a systemic threat to the rule of
law.[8]

The
framework seeks to resolve future threats to the rule of law in Member States
before the conditions for activating the mechanisms foreseen in Article 7 TEU
would be met. It is therefore meant to fill a gap. It is not an alternative to but
rather precedes and complements Article 7 TEU mechanisms. It is also without
prejudice to the Commission's powers to address specific situations falling
within the scope of EU law by means of infringement procedures under Article
258 of the Treaty on the Functioning of the European Union (TFEU). 
From
a broader European perspective, the framework is meant to contribute to
reaching the objectives of the Council of Europe, including on the basis of the
expertise of the European Commission for Democracy through Law (Venice
Commission)[9].   

2.                      
Why the rule of law is of
fundamental importance for the EU 

The
principle of the rule of law has progressively become a dominant organisational
model of modern constitutional law and international organisations (including
the United Nations and the Council of Europe) to regulate the exercise of
public powers. It makes sure that all public powers act within the constraints
set out by law, in accordance with the values of democracy and fundamental
rights, and under the control of independent and impartial courts. 
The
precise content of the principles and standards stemming from the rule of law
may vary at national level, depending on each Member State's constitutional
system. Nevertheless, case law of the Court of Justice of the European Union
("the Court of Justice") and of the European Court of Human Rights,
as well as documents drawn up by the Council of Europe, building notably on the
expertise of the Venice Commission, provide a non-exhaustive list of these principles
and hence define the core meaning of the rule of law as a common value of the
EU in accordance with Article 2 TEU.
Those
principles include legality, which 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 including respect for fundamental rights;
and equality before the law[10]. 
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[11].  
This
means that respect for the rule of law is intrinsically linked to respect for democracy
and for fundamental 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. 
Within
the EU, the rule of law is of particular importance. Compliance with the rule
of law is not only a prerequisite for the protection of all fundamental values
listed in Article 2 TEU. It is also a prerequisite for upholding all rights and
obligations deriving from the Treaties and from international law. 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". Today, a judgment in civil and commercial matters of a
national court must be automatically recognised and enforced in another Member State and a European Arrest Warrant against an alleged criminal issued in one Member State must be executed as such in another Member State[12]. Those are clear examples of why all
Member States need to be concerned if the rule of law principle is not fully
respected in one Member State. This is why the EU has a strong interest in safeguarding
and strengthening the rule of law across the Union. 

3.                      
Why a new EU Framework to
strengthen the rule of law

In
cases where the mechanisms established at national level to secure the rule of
law cease to operate effectively, there is a systemic threat to the rule of law
and, hence, to the functioning of the EU as an area of freedom, security and
justice without internal frontiers. In such situations, the EU needs to act to
protect the rule of law as a common value of the Union.
However,
experience has shown that a systemic threat to the rule of law in Member States
cannot, in all circumstances, be effectively addressed by the instruments
currently existing at the level of the Union. 
Action
taken by the Commission to launch infringement procedures, based on Article
258 TFEU, has proven to be an important instrument in addressing certain
rule of law concerns[13].  But infringement procedures can be
launched by the Commission only where these concerns constitute, at the same
time, a breach of a specific provision of EU law.[14]

There
are situations of concern which fall outside the scope of EU law and therefore
cannot be considered as a breach of obligations under the Treaties but still
pose a systemic threat to the rule of law. For these situations, the preventive
and sanctioning mechanisms provided for in Article 7 TEU may apply. The
Commission is among the actors which are empowered by the Treaty to issue a
reasoned proposal in order to activate those mechanisms. Article 7 TEU aims at
ensuring that all Member States respect the common values of the EU, including
the rule of law. Its scope is not confined to areas covered by EU law, but
empowers the EU to intervene with the purpose of protecting the rule of law
also in areas where Member States act autonomously. As explained in the
Commission's Communication on Article 7 TEU, this is justified by the fact that
"if a Member State breaches the fundamental values in a manner
sufficiently serious to be caught by Article 7, this is likely to undermine the
very foundation of the EU and the trust between its members, whatever the field
in which the breach occurs"[15]. 
Nevertheless,
the preventive mechanism of Article 7(1) TEU can be activated only in case of a
"clear risk of a serious breach" and the sanctioning mechanism of
Article 7(2) TEU only in case of a "serious and persistent breach by a Member State" of the values set out in Article 2 TEU. The thresholds for activating
both mechanisms of Article 7 TEU are very high and underline the nature of
these mechanisms as a last resort.
Recent
developments in some Member States have shown that these mechanisms are not
always appropriate to quickly respond to threats to the rule of law in a Member State. 
There
are therefore situations where threats relating to the rule of law cannot be
effectively addressed by existing instruments[16]. A new EU Framework to strengthen
the Rule of Law as a key common value of the EU is needed in addition to infringement
procedures and Article 7 TEU mechanisms. The Framework will be complementary to
all the existing mechanisms already in place at the level of the Council of Europe
to protect the rule of law[17]. It reflects both the objectives of
the EU to protect its founding values and to reach a further degree of mutual
trust and integration in the area of freedom, security and justice without
internal frontiers.
By
setting up a new Framework to strengthen the Rule of Law the Commission seeks
to provide clarity and enhance predictability as to the actions it may be
called upon to take in the future, whilst ensuring that all Member States are
treated equally. On the basis of this Communication, the Commission is willing
to engage in further discussions with the Member States, the Council and the
European Parliament on these issues.

4.                      
How the new EU Rule of Law Framework
will work

The
purpose of the Framework is to enable the Commission to find a solution with
the Member State concerned in order to prevent the emerging of a systemic
threat to the rule of law in that Member State that could develop into a
"clear risk of a serious breach" within the meaning of Article 7 TEU,
which would require the mechanisms provided for in that Article to be launched.
In
order to ensure the equality of Member States, the Framework will apply in the
same way to all Member States and will operate on the basis of the same
benchmarks as to what is a systemic threat to the rule of law.

4.1.                
What will trigger the new Framework 

The
Framework will be activated in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically
and adversely affect 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
new EU Rule of Law Framework is not designed to be triggered by individual
breaches of fundamental rights or by a miscarriage of justice. These cases can
and should be dealt with by the national judicial systems, and in the context
of the control mechanisms established under the European Convention on Human
Rights to which all EU Member States are parties.
The
main purpose of the Framework is to address threats to the rule of law
(as defined in Section 2) which are of a systemic nature[18].
The political, institutional and/or legal order of a Member State as such, its
constitutional structure, separation of powers, the independence or
impartiality of the judiciary, or its system of judicial review including
constitutional justice where it exists, must be threatened – for example as a
result of the adoption of new measures or of widespread practices of public
authorities and the lack of domestic redress. The Framework will be activated
when national "rule of law safeguards" do not seem capable of
effectively addressing those threats.
The
Framework would not prevent the Commission from using its powers under Article
258 TFEU in situations falling within the scope of EU law. Nor would it prevent
the mechanisms set out in Article 7 TEU being activated directly, should a
sudden deterioration in a Member State require a stronger reaction from the EU[19].


4.2.                
The Framework as a three
stage process

Where
there are clear indications of a systemic threat to the rule of law in a Member State, the Commission will initiate a structured exchange with that Member State. The process is based on the following principles:
- focusing on finding a solution through a dialogue
with the Member State concerned;
- ensuring an objective and thorough assessment
of the situation at stake; 
- respecting the principle of equal
treatment of Member States;
- indicating swift and concrete actions
which could be taken to address the systemic threat and to avoid the use of
Article 7 TEU mechanisms. 
The
process is composed, as a rule, of three stages: a Commission assessment, a
Commission recommendation and a follow-up to the recommendation.
The
Commission's assessment 
The
Commission will collect and examine all the relevant information and assess
whether there are clear indications of a systemic threat to the rule of law as
described above. This assessment can be based on the indications received from
available sources and recognized institutions, including notably the bodies of
the Council of Europe and the European Union Agency for Fundamental Rights[20].

If,
as a result of this preliminary assessment, the Commission is of the opinion
that there is indeed a situation of systemic threat to the rule of law, it will
initiate a dialogue with the Member State concerned, by sending a "rule of
law opinion" and substantiating its concerns, giving the Member State concerned the possibility to respond. The opinion could be the result of an
exchange of correspondence and meetings with the relevant authorities and,
where appropriate, be followed by further exchanges. 
The
Commission expects that the Member State concerned cooperates throughout the
process and refrains from adopting any irreversible measure in relation to the
issues of concern raised by the Commission, pending the assessment of the
latter, in line with the duty of sincere cooperation set out in Article
4(3) TEU. Whether a Member State fails to cooperate in this process, or even
obstructs it, will be an element to take into consideration when assessing the
seriousness of the threat. 
At
this stage of the process, while the launching of the Commission assessment and
the sending of its opinion will be made public by the Commission, the content
of the exchanges with the Member State concerned will, as a rule, be kept
confidential, in order to facilitate quickly reaching a solution. 
The
Commission's recommendation
In
a second stage, unless the matter has already been satisfactorily resolved in
the meantime, 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. 
In
its recommendation the Commission will clearly indicate the reasons for its concerns
and recommend that the Member State solves the problems identified within a
fixed time limit and informs the Commission of the steps taken to that effect. Where
appropriate, the recommendation may include specific indications on ways and
measures to resolve the situation. 
The
Commission’s assessment and conclusions will be based on the results of the
dialogue with the Member State concerned as well as on any additional evidence
on which the Member State would also need to be heard in advance.  
The
sending of its recommendation and its main content will be made public by the
Commission. 
Follow-up
to the Commission's recommendation
In a
third stage, the Commission will monitor the follow-up given by the Member State concerned to the recommendation addressed to it. This monitoring can be based
on further exchanges with the Member State concerned and could, for example,
focus on whether certain practices which raise concerns continue to occur, or
on how the Member State implements the commitments it has made in the meantime
to resolve the situation. 
If
there is no satisfactory follow-up to the recommendation by the Member State concerned within the time limit set, the Commission will assess the
possibility of activating one of the mechanisms set out in Article 7 TEU[21].
Institutional
interaction
The
European Parliament and the Council will be kept regularly and closely informed
of progress made in each of the stages. 
Benefitting
from third party expertise 
In
order to obtain expert knowledge on particular issues relating to the rule of
law in Member States, the Commission may, notably during the phase of
assessment, seek external expertise, including from the EU Agency for
Fundamental Rights[22]. Such external expertise could
notably help to provide for a comparative analysis about existing rules and
practices in other Member States in order to ensure equal treatment of the
Member States, on the basis of a common understanding of the rule of law within
the EU. 
Depending
on the situation, the Commission may decide to seek advice and assistance from
members of the judicial networks in the EU, such as the networks of the
Presidents of Supreme Courts of the EU[23], the Association of the Councils of
State and Supreme Administrative Jurisdictions of the EU[24]
or the Judicial Councils[25]. The Commission will examine,
together with these networks, how such assistance could be provided swiftly where
appropriate, and whether particular arrangements are necessary to that end.
The
Commission will, as a rule and in appropriate cases, seek the advice of the
Council of Europe and/or its Venice Commission, and will coordinate its
analysis with them in all cases where the matter is also under their consideration
and analysis.

5.                      
Conclusion

This
Communication sets out a new EU Framework for the Rule of Law as the
Commission’s contribution to strengthening the capacity of the EU to ensure
effective and equal protection of the rule of law in all Member States. It
thereby responds to requests from the European Parliament and the Council. While
not excluding future developments of the Treaties in this area – which will
have to be discussed as part of the broader reflections on the future of Europe –, it is based on Commission competences as provided for by existing Treaties. In
addition to the action of the Commission, the role of the European Parliament
and the Council will be crucial in reinforcing the EU's determination to uphold
the rule of law. 
[1]               See the Preamble of the ECHR and Article 3 of the
Statute of the Council of Europe (http://conventions.coe.int/Treaty/en/Treaties/Html/001.htm).
[2]               See Articles 3(2) TEU and 67 TFEU.
[3]               See the speech of Vice-President Reding, EU Justice
Commissioner, "The EU and the Rule of Law – What next?"(http://europa.eu/rapied/press-release_SPEECH-13-677_en.htm).
[4]               See http://europa.eu/rapid/press-release_SPEECH-12-596_en.htm
and http://europa.eu/rapid/press-release_SPEECH-13-684_en.htm
[5]               In March 2013, the foreign ministers of Denmark, Finland, Germany and The Netherlands called for more European safeguards to ensure
compliance with fundamental values of the Union in the Member States. On the
discussion in the General Affairs Council see http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/genaff/136915.pdf.
On the conclusions of the Justice and Home Affairs Council see    http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/137404.pdf
[6]               See the EP resolutions setting out various
recommendations to the EU institutions on how to strengthen the protection of
Article 2 TEU (the Rui Tavares Report of 2013, the Louis Michel and the Kinga Göncz
Reports of 2014 - http://www.europarl.europa.eu/committees/en/libe/reports.html).
[7]               At the Assises de la
Justice, a high level
conference on the future of justice in the EU in November 2013 which was
attended by over 600 stakeholders and interested parties, one session was
specifically dedicated to the topic "Towards a new rule of law
mechanism". A call for input was organised before and after the conference
that attracted numerous written contributions (see http://ec.europa.eu/justice/events/assises-justice-2013/contributions_en.htm).
[8]               As
President Barroso highlighted in his State of the Union address of September
2013, the framework "should be based on the principle of equality between
Member States and activated only in situations where there is a serious and
systemic risk to the rule of law, and triggered by predefined benchmarks"
(see http://europa.eu/rapid/press-release_SPEECH-13-684_en.htm).
[9]               The Venice Commission, officially named the European
Commission for Democracy through Law, is the Council of Europe's advisory body
on constitutional matters (see http://www.venice.coe.int/WebForms/pages/?p=01_Presentation).
[10]             For an overview of the relevant case law on the rule of
law and the principles which the rule of law entails see Annex I.
[11]             The Court of Justice does not refer to the rule of law
as simply a formal and procedural requirement, but also highlights its
substantive value by specifying that a "Union based on the rule of
law" means that the EU institutions are subject to judicial review of the
compatibility of their acts not only with the Treaty but "with the general
principles of law which include fundamental rights" (see ex pluribus, Case
C-50/00 P, Unión de Pequeños Agricultores [2002] ECR I-06677, para 38 and 39;
Joined Cases C-402/05 P and C-415/05 P, Kadi, [2008], ECR I-06351, para
316).This has been also confirmed by the European Court of Human Rights which
gives the rule of law a substantive nature by establishing that it is a concept
inherent in all articles of the ECHR (see for example ECtHR Stafford v United
Kingdom, 28 May 2001, para 63). It must be highlighted that in the French
version the Court does not use only the terms "pre-eminence du droit"
but also "Etat de droit".
[12]             See Case C-168/13, Jeremy F v Premier Ministre, not yet
published, para 35 and 36.
[13]             See, for example, cases C-286/12 Commission v Hungary, not yet published (equal treatment as regards the compulsory retirement of judges and
public prosecutors); C-518/07 Commission v Germany [2010] ECR I-01885 and
C-614/10 Commission v Austria, not yet published (independence of data
protection authorities).
[14]             The Commission's action to ensure compliance with the
Charter of Fundamental Rights illustrates this legal limitation stemming from
the Treaty itself. As explained in
its Communication "Strategy for the effective implementation of the
Charter of Fundamental rights" of 19 October 2010 (COM(2010) 573 final), the
Commission is determined to use all the means at its disposal to ensure that
the Charter is fully respected by the Member States. This concerns in
particular Article 47 of the Charter which provides that everyone whose rights
guaranteed by EU law are violated has the right to an effective remedy before
an independent tribunal. However, this can be done by the Commission vis-à-vis
Member States "only when they are implementing Union law", as set out
explicitly in Article 51 of the Charter. See for
example Case C-87/12, Kreshnik Ymeraga and Others v Ministre du Travail, de
l'Emploi et de l'Immigration, not yet published, C-370/12 Thomas Pringle v Governement
of Ireland, Ireland and The Attorney General, not yet published and C-617/10,
Åklagaren v Hans Åkerberg Fransson, not yet published.
[15]             Communication from the Commission of 15 October 2003:
Respect for and promotion of the values on which the Union is based, COM(2003)
606 final.
[16]             In some
cases, systemic deficiencies related to the rule of law may be tackled using
the Cooperation and Verification Mechanisms (CVM) based on the Acts of
Accession for Romania and Bulgaria. However, these mechanisms, which have their
basis directly in primary EU law, address pre-accession-related and therefore
transitional situations. They are therefore not suitable for addressing a
threat to the rule of law in all EU Member States.
[17]             Article 8 of the Statute of the Council of Europe
provides that a Member State that has "seriously violated" the
principles of the rule of law and human rights may be suspended from its rights
of representation and even be expelled from the Council of Europe. Like the
mechanisms set out in Article 7 TEU, this mechanism has never been activated.
[18]             With regard to the notion of "systemic
deficiencies" in complying with fundamental rights when acting within the
scope of EU law, see, for example, Joined Cases C-411/10 and 493/10, N.S., not
yet published, para 94 and 106; and Case C-4/11, Germany v Kaveh Puid, not yet
published, para 36. With regard to the notion of "systemic" or
"structural" in the context of the European Convention of Human
Rights, see also the role of the European Court of Human rights in identifying
underlying systemic problems, as defined in the Resolution Res(2004)3 of the
Committee of Ministers of 12 May 2004, on Judgments Revealing an Underlying
Systemic Problem, (https://wcd.coe.int/ViewDoc.jsp?id=743257&Lang=fr).
[19]             See also the Commission Communication of 15 October
2003 (footnote 15).
[20]             See in particular Article 4(1)(a) of Council Regulation
(EC) No 168/2007 establishing a European Union Agency for Fundamental Rights
(OJ L 53, p.1).
[21]             See also the Commission Communication of 15 October
2003 (footnote 15).
[22]             The FRA can give advice within the scope of its tasks
as defined by Council Regulation (EC) No 168/2007 (see footnote 20).
[23]             Network of the Presidents of the Supreme Judicial
Courts of the European Union (see http://www.networkpresidents.eu/).
[24]             Association of the Councils of State and Supreme
Administrative Jurisdictions of the European Union(see http://www.aca-europe.eu/index.php/en/).
[25]             European Network of Councils for the Judiciary (see http://www.encj.eu).