COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL Further strengthening the Rule of Law within the Union State of play and possible next steps
Date: 2019-04-03
Institutions: European Commission, Secretariat-General
Subjects: access to the courts, administrative transparency, corruption, democracy, fundamental rights, independence of the judiciary, infringement of EU law, interinstitutional cooperation (EU), rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 3.4.2019  COM(2019) 163 final  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL Further strengthening the Rule of Law within the Union      State of play and possible next steps  
 
 
I. 

INTRODUCTION 

The rule of law is one of the founding values of the European Union,1 as well as a reflection 
of  our  common  identity  and  common  constitutional  traditions.  It  is  the  basis  of  the 
democratic system in all Member States, necessary to ensure the protection of fundamental 
rights.  It  is  also  central  to  making  the  European  Union  work  well  as  an  area  of  freedom, 
security and justice and an internal market, where laws apply effectively and uniformly and 
budgets  are  spent  in  accordance  with  the  applicable  rules.  The  rule  of  law  ensures  that 
Member States and their citizens can work together in a spirit of mutual trust; trust in public 
institutions,  including  in  the  justice  system,  is  crucial  for  the  smooth  functioning  of 
democratic societies. The rule of law is also one of the principles guiding the EU’s external 
action.2 Altogether, it is a well-established principle, well-defined in its core meaning, and 
which  can  be  objectively  assessed  so  that  shortcomings  can  be  identified  on  a  sound  and 
stable basis. 

What is the rule of law? 

The  rule  of  law  is  enshrined  in  Article  2  of  the  Treaty  on  European  Union  as  one  of  the 
founding values of the Union. Under the rule of law, all public powers always 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 rule of law includes, 
among  others,  principles  such  as  legality,  implying  a  transparent,  accountable,  democratic 
and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of 
executive power; effective judicial protection by independent and impartial courts, effective 
judicial review3 including respect for fundamental rights; separation of powers; and equality 
before the law.4 These principles have been recognised by the European Court of Justice and 
the European Court of Human Rights.5 

The European Union itself is based on the rule of law, and every action taken by the EU is 
founded  on  Treaties  that  have  been  approved  voluntarily  and  democratically  by  all  the 
Member  States.  Given  its  importance  for  the  confidence  of  citizens  in  the  Union  and  the 
effective  delivery  of  its  policies,  the  rule  of  law  is  of  central  relevance  to  the  future  of 
Europe.  There  has  been  a  deepening  recognition  of  the  central  place  of  the  rule  of  law  in 
how the EU works and there is a common understanding from several corners on the need to 
improve the way respect for the rule of law is ensured in the European Union.6 In addition, 
recent  case  law  of  the  Court  of  Justice  of  the  European  Union  has  made  an  indispensable 
contribution  to  strengthening  the  rule  of  law,  reaffirming  the  Union  as  a  community  of 

1   Article 2 of the Treaty on European Union. 
2   Article 21 of the Treaty on European Union. 
3   Article 19 of the Treaty on European Union establishes an obligation for Member States to ensure effective 
judicial protection. As set out by the Court of Justice, the very existence of effective judicial protection “is 
of the essence of the rule of law”, Case C-72/15 Rosneft. 

4   Communication from the Commission to the European Parliament and the Council A new EU Framework 

to strengthen the Rule of Law of 11.3.2014, COM(2014) 158 final. 

5   Annex to the Communication from the Commission to the European Parliament and the Council A new EU 
Framework to strengthen the Rule of Law of 11.3.2014, COM(2014) 158 final, and recent case law of the 
European  Court  of  Justice,  Case  C-64/16,  Associação  Sindical  dos  Juízes  Portugueses  v.  Tribunal  de 
Contas; case C‑ 216/18 PPU, LM, case C-619/18, Commission v Poland (order of 17 December 2018).  
6   Rule  of  law  has  caught  up  in  the  current  debate  on  the  future  of  Europe,  for  example,  with  important 

interventions from different European political groups as well as from Member States. 

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values.7 This Communication seeks to enrich the debate on further strengthening the Rule of 
Law  within  the  Union  and  to  invite  reflection  and  comment  on  the  matter  by  all 
stakeholders. On that basis, the Commission will draw its own conclusions in June. 

European  integration  has  itself  made  a  significant  and  lasting  contribution  to  a  rule-based 
order in Europe. The Union has gradually built an area of freedom, cooperation and stability 
in which Member States, citizens and businesses can rely on a framework of predictable and 
equitable rules and a system of effective judicial remedies. In such a realm, peace is secured, 
democracy can flourish, and business can thrive. Nevertheless, in recent years there has been 
a  growing  acknowledgment  that  the  Union’s  fundamental  values  and  principles,  including 
the Rule of Law, are under pressure and need particular attention. It has thus become clear 
that  more  needs  to  be  done  to  ensure  that  the  rule  of  law  is  strengthened  and  upheld 
throughout the Union. 

If  the  rule  of  law  is  not  properly  protected  in  all  Member  States,  the  Union’s  foundation 
stone  of  solidarity,  cohesion,  and  the  trust  necessary  for  mutual  recognition  of  national 
decisions  and  the  functioning  of  the  internal  market  as  a  whole,  is  damaged.  Rule  of  law 
related  deficiencies  can  also  have  an  impact  on  the  economy,  just  as  effective  judicial 
systems  and  robust  anti-corruption  frameworks  are  crucial  for  a  well-functioning  business 
environment and sound public finances.8 

An issue related to the rule of law in one Member State impacts the Union as a whole and 
so, whilst national checks and balances should always be the first recourse, the Union has a 
shared stake in resolving rule of law issues wherever they appear. Recent challenges to the 
rule of law in some Member States have triggered concern about the ability of the Union to 
address  such  situations.  Confidence  that  shortcomings  can  be  resolved  would  help  to 
strengthen  trust  both  between  Member  States  and  between  the  Member  States  and  EU 
institutions. 

That is why the EU has been building up a number of instruments to help enforce the rule of 
law.  These  go  beyond  Article  7  of  the  Treaty  on  European  Union,  the  most  prominent 
mechanism  for  protecting  all  common  values,  even  if  it  is  used  only  exceptionally.  A 
preventive  framework  is  in  place  since  2014.9  Other  ideas  are  now  under  discussion, 
including the Commission's proposal to help protect the EU's financial interests if there are 
generalised  deficiencies  linked  to  the  rule  of  law,10  and  the  establishment  of  a  European 
Public Prosecutor’s Office should also help promote a coordinated judicial response to such 
risks across the Member States.11 All these instruments rest on a common understanding of 
what is meant by the rule of law, what its key features are, and where deficiencies may arise. 

7   Case C-64/16, Associação Sindical dos Juízes Portugueses v. Tribunal de Contas; case C‑284/16, Achmea; 
case C‑216/18 PPU, LM; case C- 621/18, Wightman; case C-619/18 R, Commission v Poland, order of 17 
December 2018.  

8   Well-performing public institutions  contribute  to  higher growth  and  are  a  precondition  for  the  successful 
delivery of other reforms. Empirical analyses show that better institutional quality is generally associated 
with higher productivity, see Annual Growth Survey 2019, COM(2018) 770 final. 

9  See footnote 4 above. 
10   Proposal  for  a  Regulation  on  the  protection  of  the  Union's  budget  in  case  of  generalised  deficiencies  as 

regards the rule of law in the Member States - COM(2018) 324.  

11   https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/networks-and-bodies-supporting-

judicial-cooperation/european-public-prosecutors-office_en.  

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In short, the rule of law is a central pillar of our vision for the future of Europe. As part of 
the reflections linked to the Sibiu informal European Council of 9 May 2019 and the next 
Strategic  Agenda  of  the  European  Council,  this  Communication  takes  stock  of  the 
experience of recent years and sets out some possible avenues for reflection on future action. 
It draws on the existing public debate on the rule of law in the European Union and invites 
Union institutions and Member States, as well as other stakeholders, to contribute ideas to 
how the rule of law toolbox could develop in the future.12 

II.  

THE RULE OF LAW TOOLBOX TODAY 

1.  Article 7 TEU and the rule of law framework 

Article 7 TEU remains an exceptional, but the most emblematic, tool for the EU to act in 
case of serious rule of law failings in a Member State.13 The procedure to invoke a clear risk 
of  a  serious  breach  under  Article  7(1)  TEU  has  been  triggered  in  two  cases  so  far:  in 
December 2017, by the Commission in respect of Poland,14 and in September 2018, by the 
European  Parliament  in  respect  of  Hungary.15  Whereas  the  full  consequences  of  the 
procedure  under  Article  7  TEU  are  very  significant,  and  whilst  the  dialogue  with  the 
Member State concerned within the Article 7 TEU framework has in itself an intrinsic value, 
progress by the Council in these two cases could have been more meaningful. The Council 
has had to establish new procedures to apply the Article in practice, which still need to prove 
to be fully effective. 

The  Rule  of  Law  Framework  was  set  out  by the  Commission  in  2014,16  and  its role  has 
been acknowledged by the Court.17 It provides a staged process of dialogue with a Member 
State, structured with opinions and recommendations from the Commission. The goal is to 
prevent  the  emergence  of  a  systemic  threat  to  the  rule  of  law,  at  which  point  an  Article  7 
TEU  procedure  would  be  required.  The  first  –  and  so  far  only  –  time  the  Rule  of  Law 
Framework has been used came with the start of a dialogue with Poland in January 2016.18 
While the dialogue helped identifying problems and framing the discussion, it did not solve 
the  detected  rule  of  law  deficiencies  and  the  Commission  triggered  the  Article  7(1)  TEU 
procedure in December 2017. 

12   This initiative focuses on strengthening the rule of law but does not encompass larger areas of democracy 
or fundamental rights. However, the rule of law is intrinsically linked to fundamental rights and democracy: 
while the rule of law focuses on limiting and independently reviewing the exercise of public powers, it also 
promotes democracy by establishing accountability of those wielding public power and is indispensable to 
protect fundamental rights. 

13   See  also  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. 

14   Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of 

Poland of the rule of law (COM(2017) 835 final, 20.12.2017) 

15   European  Parliament  resolution  of  12  September  2018  calling  on  the  Council  to  determine,  pursuant  to 
Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary 
of the values on which the Union is founded (2017/2131(INL)). 

16   See footnote 4 above.  
17   See case C-619/18 R, Commission v Poland, order of 17 December 2018.  
18  The dialogue took place from January 2016 to December 2017. The Commission adopted one opinion and 

four recommendations.  

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2.  Infringement proceedings and preliminary rulings 

The Commission has launched several infringement proceedings in reaction to serious rule 
of  law  problems,  linked  to  a  breach  of  Union  law,  an  avenue  for  EU  action  which  has 
increasingly  gained  traction  through  recent  rulings  of  the  European  Court  of  Justice  (“the 
Court”). 

Effective  judicial  protection  by  independent  courts  is  required  by  Art  19(1)  TEU  as  a 
concrete  expression  of  the  value  of  the  rule  of  law.  That  provision  lies  at  the  heart  of  a 
number  of  preliminary  references  from  national  courts  and  of  infringement  procedures 
launched  by  the  Commission  before  the  Court.  Already  in  2006,  the  Court  ruled  that  the 
notion of ‘judicial independence’ is an autonomous concept of EU law and that this implies 
that  judges  must  be  protected  against  any  external  intervention  that  could  jeopardise  their 
independent judgment.19 This was followed in 2018 by a number of important judgements. 
First,  the  Court  held  that  Member  States  are  required  by  Union  law  to  ensure  that  their 
courts  meet  the  requirements  of  effective  judicial  protection,  a  concrete  expression  of  the 
rule of law, and that the independence of national courts is essential to ensure such judicial 
protection.20 In other judgements, the Court has defined in further detail the requirements of 
the guarantees of independence and impartiality, noting their pivotal importance for both the 
proper  working  of  the  judicial  cooperation  system  embodied  by  the  preliminary  ruling 
mechanism  under  Article  267  TFEU  and  for  secondary  law  instruments  based  on  the 
principle  of  mutual  trust.21  The  Court  also  issued  interim  measures  to  suspend  national 
reforms that would affect judicial independence.22 Further cases brought by national courts 
and the Commission are pending before the Court. 

There is also an evolving jurisprudence of the Court highlighting how systematic problems 
related to the rule of law may have a specific impact in the area of Union finances.23 

3.  Other mechanisms and frameworks 

A number of other mechanisms and frameworks help address rule of law issues in Member 
States, either in a comprehensive way through dedicated instruments, or through other steps 
on  the  surveillance  of  national  policies  or  the  application  of  EU  law.  These  tools  have  an 
important  early  warning  and  preventive  role  as  they  can  address  rule  of  law  issues  in  the 
Member States before it becomes necessary to have recourse to Article 7. 

  The  European  Semester  cycle  of  economic,  fiscal  and  social  policy  coordination 
provides  country  specific  analysis  and  makes  recommendations  for  structural  reforms 
encouraging growth. Analysis under this instrument covers the fight against corruption, 
effective justice systems, and reform of public administration. When serious challenges 
in  these  areas  are  identified  in  individual  country  reports,  the  Council  adopts  targeted 
country specific recommendations. 

19   Case C-506/04, Wilson. 
20   Case C-64/16, Associação Sindical dos Juízes Portugueses; Case C-49/18, Escribano Vindel. 
21  In  terms  of  the  composition  of  a  judicial  body  and  the  appointment,  length  of  service  and  grounds  for 
abstention, rejection and dismissal of its members as well as of the disciplinary regime governing judges, 
Case C-216/18 PPU Ireland v. LM and Case C-8/19 PPU, RH. 
22   Case C-619/18 R, Commission v. Poland, Order of 17 Dec. 2018. 
23   This includes preliminary rulings on the need for effective investigation of tax fraud or fraud with Union 
funds  (see  e.g.  cases  C-617/10,  Åkerberg  Fransson;  C-105/14,  Taricco;  C-42/17  M.A.S.;  and  C-612/15 
Kolev). 

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  The  annual  EU  Justice  Scoreboard  looks  at  a  range  of  indicators  to  assess  the 
independence, quality and efficiency of national justice systems. This comparative tool 
is  complemented  by  country  specific  assessments,  presented  in  the  Country  Reports, 
which  enable  to  make  a  deeper  analysis  based  on  the  national  legal  and  institutional 
context. 

  The  Cooperation  and  Verification  Mechanism  was  established  as  a  specific 
mechanism for Bulgaria and Romania when they joined the Union in 2007, to assist the 
two  Member  States  to  address  remaining  shortcomings  in  the  areas  of  judicial  reform, 
the  fight  against  corruption  and,  for  Bulgaria,  organised  crime.24  This  mechanism  is  a 
transitional measure with the goal of closing it once the defined benchmarks have been 
satisfactorily  fulfilled.  The  experience  gained  is  relevant  when  addressing  rule  of  law 
challenges in all Member States. 

  The Commission’s Structural Reform Support Service provides technical support for 
structural reform in the Member States, including in areas relevant to strengthen respect 
for  the  rule  of  law  such  as  public  administration,  the  judicial  system,  and  the  fight 
against  corruption.  The  support  is  provided  on  the  request  of  Member  States  and  is 
tailor-made to address needs reflecting defined reform priorities.25 

  The  European  Structural  and  Investment  Funds,  and  funds  supporting  Justice  and 
Security  policies  also  help  Member  States  to  strengthen  public  administration  and  the 
judiciary  as  well  as  enhance  the  Member  States’  capacity  to  fight  corruption.26  The 
Funds  have  also  helped  to  improve  institutional  capacity  of  public  authorities  and 
effective  public  administration  through  applying  ex-ante  conditionalities  (in  the  2014-
2020  funding  period,  to  be  succeeded  by  “enabling  conditions”  under  the  2021-2027 
Multiannual  Financial  Framework).27  This  strengthens  the  framework  for  applying  the 
rule of law. 

  As part of proposals for the next Multiannual Financial Framework, the Commission has 
proposed  a  new  mechanism  to  protect  the  Union’s  budget  when  generalised 
deficiencies regarding the rule of law in Member States affect or risk affecting that 
budget.28  Respect  for  the  rule  of  law  is  an  essential  precondition  to  comply  with  the 
principles  of  sound  financial  management  and  to  protect  the  Union's  budget.  The 
proposed  regulation  would  allow  the  Union  to  take  appropriate  and  proportionate 
measures to address those issues. 

24   https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/rule-law/assistance-

bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en.  

25   Regulation  (EU)  2017/825  of  17  May  2017  established  the  Structural  Reform  Support  Programme,  with 
€142.8  million  over  the  period  2017-2020.  Regulation  (EU)  2018/1671  of  23  October  2018  amended 
Regulation (EU) 2017/825 to increase the financial envelope of the Structural Reform Support Programme 
and adapt its general objective, bringing the financial envelope to €222.8 million. In the context of the MFF 
proposals for 2021-2027, the Commission has proposed to allocate €840 million to technical support, and 
to  include  the  instrument  for  technical  support  in  the  proposal  for  a  Reform  Support  Programme,  which 
also includes a ‘reform delivery tool’ and a ‘convergence facility’. 

26   The  revision  of  the  Commission  Anti-Fraud  Strategy  intends  to  strengthen  the  Commission  analytical 
capability  to  assess  Member  States'  capacity  to  fight  against  fraud  as  well  as  the  effectiveness  and 
efficiency  of  assistance  provided  to  the  Member  States.  Additionally,  and  to  strengthen  the  protection  of 
EU  financial  interests,  the  Commission  provides  guidance  to  Member  States  on  the  design  of  National 
Anti-Fraud Strategies, which aim at identifying and addressing existing weaknesses in national systems and 
at strengthening coordination among national bodies and with the EU level, including with OLAF. 

27   Proposal for a Common Provisions Regulation (COM/2018/375), Article 11.  
28   See footnote 10 above. 

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  The  European  Anti-Fraud  Office  (OLAF)  detects  and  investigates  fraud,  corruption 
and other offences affecting the EU financial interests and issues recommendations that 
allow  the  national  authorities  to  start  administrative  or  judicial  procedures.  The 
establishment  of  the  European  Public  Prosecutor's  Office  (EPPO)  will  mark  a 
fundamental  development  in  the  institutional  framework  at  EU  level  and  in  the  fight 
against offences affecting the EU financial interests. The EPPO will become operational 
at  the  end  of  2020  with  the  power  to  conduct  criminal  investigations  and  prosecute 
criminal offences affecting the Union's budget. It will cooperate closely with OLAF. 

  As a central facet of EU external policy, the rule of law has become progressively more 
central  to  the  EU  accession  process  and  to  neighbourhood  policy.  Reinforcing  key 
institutions  such  as  the  judiciary  and  strengthening  work  to  combat  corruption  have 
become increasingly key themes in the EU's efforts to promote reform towards meeting 
the Copenhagen criteria for accession.29 The rule  of law is  also firmly  anchored in  the 
accession negotiations, where the overall speed of the negotiations depends on progress 
in  this  area.30  The  Western  Balkan  Strategy  of  February  201831  puts  an  ever  stronger 
emphasis on rule of law reforms and underlined respect of the rule of law as an essential 
condition for EU accession. 

III. 

THE WIDER DEBATE ON THE RULE OF LAW 

The  increasing  importance  of  the  rule  of  law  as  a  common  concern  has  been  reflected  in 
wider debates in the Union institutions and bodies32, as well as other fora33. 

In October 2016, the European Parliament adopted a resolution on an EU mechanism on 
democracy,  the  rule  of  law  and  fundamental  rights.34  The  resolution  called  for  the 
Commission to set up a comprehensive monitoring of all Member States and EU institutions 
and a yearly cycle of reporting and recommendations. This call was reiterated in 2018.35 In 
addition, the European Parliament has adopted resolutions with regard to the rule of law in 
several Member States. 

In addition to its clear institutional role under Article 7 TEU, the Council has set up a yearly 
rule  of  law  ‘dialogue’  in  the  General  Affairs  Council,  each  year  focusing  on  a  particular 
theme. A review of this process is planned under the Finnish Council Presidency in autumn 
2019. 

29   See https://ec.europa.eu/neighbourhood-enlargement/policy/glossary/terms/accession-criteria_en.  
30   Specifically chapter 23 - Judiciary and Fundamental Rights and chapter 24 - Justice, Freedom and Security. 
31   COM(2018) 65 final. 
32   Such as the Committee of Regions. 
33  Such  as  the  Organisation  for  Security  and  Cooperation  in  Europe/Office  for  Democratic  Institutions  and 

Human Rights. 

34   European  Parliament  resolution  of  25  October  2016  with  recommendations  to  the  Commission  on  the 
law  and  fundamental  rights 

the  rule  of 

establishment  of  an  EU  mechanism  on  democracy, 
(2015/2254(INL)). 

35  European Parliament resolution of 14 November 2018 on the need for a comprehensive EU mechanism for 

the protection of democracy, the rule of law and fundamental rights (2018/2886(RSP)).  

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A number of national parliaments have also contributed to the reflection on the rule of law 
by adopting resolutions and holding debates on this topic.36 

Beyond  the  EU  setting,  the  Council  of  Europe  has  played  a  crucial  role  in  developing 
definitions and standards with relevance to the rule of law. The rule of law is mentioned as 
an  element  of  common  heritage  in  the  Preamble  to  the  European  Convention  for  the 
Protection of Human Rights and Fundamental Freedoms. The rulings of the European Court 
of  Human  Rights  have  significantly  contributed  to  the  definition,  promotion  and 
strengthening of the rule of law, and have underlined the close relationship between the rule 
of  law  and  democratic  society.  The  Council  of  Europe's  Venice  Commission  published  a 
‘Rule of Law Checklist’ in 2016.37 The Council of Europe has also applied this approach in 
specific  cases  concerning  Member  States,  through  deploying  the  expertise  of  the  Venice 
Commission  and  the  Council  of  Europe  Group  of  States  against  Corruption  (GRECO),  as 
well as through specific monitoring. 

European  judicial  networks,  expert  groups  and  lawyers  associations,  as  well  as  civil 
society  organisations,  have  also  helped  the  evolution  of  a  common  understanding  at 
European and national level and play a key role in  promoting common standards and best 
practice. 

IV.   ASSESSING THE EXPERIENCE SO FAR 

Experience so far points to certain common features which could inform future reflections, 
based on a number of core principles. First, there is a legitimate interest from both the EU 
and other Member States in the proper functioning of the rule of law in every Member State. 
Second, the primary responsibility to ensure the rule of law must lie on each Member State, 
and the first recourse should always be to national redress mechanisms, as not only the EU’s 
but also national legal orders need to be respected. Third, the EU’s role in this area must be 
objective  and  treat  all  Member  States  alike,  and  must  rest  on  the  contribution  of  all  its 
institutions in accordance with their respective institutional role. Finally, the objective must 
not  be  to  impose  a  sanction  but  to  find  a  solution  that  protects  the  rule  of  law,  with 
cooperation and mutual support at the core. 

The need to promote rule of law standards  

The  case  law  of  the  European  Court  of  Justice  and  the  European  Court  of  Human  Rights 
provide  for  the  key  EU  requirements  and  standards  to  be  respected  by  the  EU  and  its 
Member  States  to  safeguard  the  rule  of  law.  Also,  the  Council  of  Europe  has  developed 
standards  and  issues  opinions  and  recommendations  which  provide  well-established 
guidance to promote and uphold the rule of law.38 These requirements and standards are the 

36  For example the Resolution of the French Parliament Résolution relative au respect de l'état de droit au sein 
de  l'Union  européenne;  the  debate  of  14  February  2019  at  the  EU  affairs  Committee  of  the  Dutch 
Parliament; or the debate of 12 March 2019 at the Belgian House of Representatives, Committee of Foreign 
Affairs. National parliament interest has also been reflected in the Conference of Parliamentary Committees 
for Union Affairs of Parliaments of the European Union. 

37   The  Rule  of  Law  Checklist,  European  Commission  For  Democracy  through  Law  (Venice  Commission), 

CDL-AD(2016)007. 

38   E.g.  the  Recommendation  CM/Rec(2010)12  on  ‘judges:  independence,  efficiency  and  responsibilities’; 
Venice  Commission  ‘Rule  of  Law  Checklist’,  CDL-AD(2016)007;  Council  of  Europe  Plan  of  Action  on 
Strengthening Judicial Independence and Impartiality; as well as the Opinions of the Venice Commission 
and the Evaluations of the Group of States against Corruption (GRECO).  

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bedrock  for  the  respect  of  the  rule  of  law  in  all  Member  States,  irrespective  of  their 
constitutional structures. 

Key  principles,  such  as  the  independence  of  the  judiciary  and  the  separation  of  powers 
should  be  embedded  in  the  political  culture  of  Member  States.  When  a  general  European 
standard  can  be  brought  to  bear,  it  can  be  seen  both  as  a  benchmark  to  assess  a  possible 
shortcoming, and as guidance for a solution. 

However, experience has shown that this case law and these principles and standards are not 
always  sufficiently  known  at  national  level.  If  standards  are  not  sufficiently  known,  they 
cannot play a relevant role in informing national policies nor can they sufficiently feed into 
the  debate  around  national  reforms,  and  may  be  challenged  in  the  dialogue  with  EU 
institutions. 

Recognising warning signs 

There  can  be  many  advantages  in  identifying  rule  of  law  warning  signs  early.  If  a 
development  of  potential  EU  concern  can  be  detected  early  and  acknowledged  by  the 
Member State involved, that concern can be voiced at EU level more usefully, and this can 
be sufficient to  trigger national checks  and balances without needing more formal steps at 
EU level. This early warning can come in different ways. 

Recurring  problems  are  easier  to  identify  quickly.  At  the  core  of  the  rule  of  law  is  the 
necessity  of  all  public  powers  to  be  subject  at  all  times  to  established  values,  rules  and 
procedures.  When  public  powers  and  elected  majorities  in  a  Member  State  disregard  the 
applicable law or procedures, this is a very evident warning sign. For example, many recent 
cases with resonance at EU level have centred on the independence of the judicial process. 
The judiciary is at the heart of the rule of law, and attempts by political actors to undermine 
its  independence  and  the  binding  force  of  its  decisions  by  instigating  political  or  other 
pressure on individual judges, by interfering in specific cases, by a failure to respect judicial 
decisions,  or  by  a  reopening  of  final  judicial  decisions,  are  familiar  themes.  Other  recent 
examples  refer  to  weakened  constitutional  courts  or  other  checks  on  the  laws  passed  by 
Parliament  and  on  Government  actions,  or  an  increasing  use  of  executive  ordinances.  An 
unclear law-making process can make it easier for political majorities to weaken or by-pass 
checks and balances. Repeated public attacks from one branch of the state on another erode 
the fundamental principle of the separation of powers. Issues in such areas therefore act as 
warning  signs  that  a  potential  rule  of  law  problem  is  building,  and  can  provide  an 
opportunity for dialogue and potential remedy at an early stage. 

More  widely,  high-level  corruption  and  abuse  of  office  are  linked  with  situations  where 
political power is seeking to override the rule of law. Structural weaknesses can also create a 
context providing a heightened risk of rule of law issues. Structural weaknesses in judicial 
systems, such as insufficient guarantees for judicial independence, give rise to an enhanced 
risk  of  pressure  on  the  judiciary.  Similarly,  general  shortcomings  in  public  administration 
can  create  the  ground  for  arbitrary  decisions  and  provide  opportunities  for  corruption,  as 
well as circumstances in which officials may find it more difficult to resist pressure. Such 
issues serve as indicators of possible rule of law problems. 

The  first  signs  of  concern  concerning  Rule  of  Law  deficiencies  tend  to  come  from  actors 
inside  the  Member  State.  Freedom  of  expression  and  information  and  media  freedom  and 
pluralism is another founding value on which the European Union is built. Civil society and 

8 

 
 
independent media are essential watchdogs in healthy democracies and thus play a key role 
in  holding  to  account  those  in  power,  engaging  in  public  debate  and  challenging  public 
decisions. Attempts to weaken or pressure such actors are therefore another warning sign.  

Deepening Member State specific knowledge 

The level  of awareness about such signs, and therefore the ability of the Union to address 
them in good time, depends on the state of knowledge of the Commission, other institutions 
and other Member States. Certain warning signs can only be identified by acquiring a deep 
understanding  of  Member  States’  practices  through  a  dialogue  with  authorities  and 
stakeholders. Such country-specific knowledge is essential to help preventing possible rule 
of  law  threats  and  to  respond  to  them  effectively  where  necessary.  It  is  also  important  to 
ensure that reforms undertaken by Member States fully comply with EU legal requirements 
and  European  standards  on  the  rule  of  law.  Finally,  deepening  the  country  knowledge  is 
necessary to determine how EU funds and technical assistance can best support the rule of 
law  in  the  Member  States.  Fairness,  objectivity  and  equal  treatment  must  be  part  of  any 
system  to  uphold  the  rule  of  law  in  the  Union.  Technical  expertise  and  the  capacity  for 
analysis at the Union level is key to ensuring that assessments take full account of national 
traditions but can still clearly identify where problems exist. 

The  European  Semester,  complemented  by  the  EU  Justice  Scoreboard,  has  proven  to  be  a 
good framework to develop country-knowledge relating to rule of law and a reflection could 
take place on whether their potential could be further exploited. 

Improve EU capacity to react to Rule of Law issues 

The experience of the past years, as well as the broader dialogue on the issue, have clearly 
shown the need to improve the EU’s capacity to respond in case of serious challenges to the 
rule  of  law.  For  instance,  the  experience  gained  with  ongoing  Art  7  TEU  procedures  has 
revealed  a  need  for  further  reflection  on  how  this  procedure  can  best  be  conducted  in  an 
effective  manner.  Also,  the  diversity  of  rule  of  law  challenges  requires  a  diversity  of 
responses at EU level. 

EU  intervention  should  therefore  come  in  different  forms.  Even  an  informal  signalling  of 
potential difficulties at an early stage may allow national authorities to think again, or trigger 
national check and balance mechanisms. 

Whilst dialogue is essential, placing it within a structured process increases the chance that 
the  resulting  action  has  the  required  focus  and  direction.  Many  rule  of  law  problems  are 
time-sensitive and the longer they take to resolve, the greater the risk of entrenchment and of 
damage  to  the  EU,  as  well  as  to  the  Member  State  concerned.  There  are  advantages  in 
intermediate  steps,  proportionate  to  the  gravity  of  the  problem  and  with  a  lower  threshold 
than action in  the framework of Article 7 TEU.  When such  steps have been  implemented, 
reviews or post-monitoring can also be of benefit: experience suggests that the application of 
ex ante conditionalities to EU funds acted as an important incentive, but, once such a one-off 
green light has been given, there is a risk of a step back in policy or in structures. 

EU action also carries more authority if all institutions take a responsibility in the process, in 
accordance  with  their  different  roles.  Intervention  by  the  EU  in  a  crisis  is  politically 
sensitive  and  will  always  be  stronger  if  supported  by  a  common  approach.  Support  of 
Commission  action  from  the  European  Parliament  and  the  Council  and  stronger  internal 
procedures  within  the  institutions  for  dealing  with  rule  of  law  concerns  in  Member  States 

9 

 
 
can be a powerful way in which to underline the need for a Member State to respond and to 
increase incentives for finding solutions. 

Addressing shortcomings in the long term through structural reforms 

The EU has also played an increasing role in strengthening the capacity and functioning of 
national authorities and institutions playing a role in the national checks and balances. 

EU funds have made an important contribution to building capacity in public institutions in 
support of the rule of law. In the 2014-2020 programming period, nearly half the Member 
States  used  Structural  Funds  to  support  reforms  strengthening  the  judiciary  and  public 
administration,  or  to  help  fight  corruption.  This  work  can  also  show  that  alongside 
expressions  of  concern,  the  EU  brings  practical remedies.  For  example,  the  Commission’s 
Structural  Reform  Support  Service,  under  the  Structural  Reform  Support  Programme,  can 
work alongside national institutions to help rule of law relevant reforms.. 

The  use  of  EU  funds  and  programmes  in  strengthening  the  rule  of  law  will  also  be  more 
effective  when  also  supported  by  the  recommendations  for  structural  reforms  within  the 
European Semester. 

More  generally,  Union  policy  in  areas  such  as  public  procurement,  better  regulation,  and 
cooperation in criminal and civil justice can contribute to ensuring a coherent application of 
European standards relevant to the rule of law. 

V. 

POSSIBLE AVENUES FOR THE FUTURE 

The effective enforcement of the rule of law in the Union can be seen to rest on three pillars. 
First, the promotion of the rule of law, which involves deepening common work to spread 
understanding  of  rule  of  law  in  Europe.  Secondly,  prevention  of  rule  of  law  problems, 
having the capacity to intervene at an early stage and avoiding the risk of escalation. Finally, 
the  ability  to  mount  an  effective  common  response  when  a  problem  of  sufficient 
significance has been identified. 

Promotion: Building knowledge and a common Rule of Law culture 

A robust political and legal culture supporting the rule of law in every Member State is the 
best guarantor of the rule of law. While the Union respects the political and constitutional 
structures  of  the  Member  States,  the  obligations  of  Union  membership,  as  well  as  the 
democratic  heritage  of  Europe,  mean  that  national  rules  and  structures  must  reflect  EU 
standards and norms on the rule of law as a common value of the EU and comply with the 
rules of law guarantees in EU primary and secondary law. 

Promoting  awareness  among  the  general  public  on  the  importance  of  the  rule  of  law  in  a 
democracy  can  also  be  helpful  and  communication  activities  aimed  at  reaching  out  to 
citizens could be supported. 

In  order  for  such  a  political  and  legal  culture  to  deepen  and  be  sustained  in  all  Member 
States, it is important to promote knowledge of rule of law-relevant case law and standards 
so  that,  for  example,  evaluations  and  opinions  by  bodies  such  as  the  Venice  Commission 
and  GRECO  are  discussed  at  national  level.  This  will  help  all  parties  to  know  what  is 
expected, and how institutions and laws should reflect basic principles. Common approaches 

10 

 
 
in these areas can help to promote a strong rule of law culture across all relevant institutions 
and professions. 

Common approaches, standards and norms do not entail their implementation in an identical 
manner.  But  when  there  is  a  clear  common  approach,  it  is  more  straightforward  to 
benchmark particular national systems and be confident that they are fit for purpose. 

This  is  particularly  relevant  because  respect  for  the  rule  of  law  depends  not  only  on  the 
existence of laws and institutional structures, but also on institutional practice. For example, 
the Venice Commission has drawn attention to the importance of loyal cooperation among 
institutions as a foundation stone for the rule of law – the acceptance by one part of the state 
that other parts have legitimate functions which need to be respected. This loyal cooperation 
can  find  itself  under  strain  even  when  set  out  in  laws  or  constitutions.  Exchanges  of 
expertise between practitioners in different Member States – such as judges, prosecutors and 
anti-corruption experts – can help to build a sense of what this means in practice. Other key 
elements of rule of law and respectful governance in practice include transparent policy- and 
law-making.  At  heart,  these  all  recognise  that  state  powers  have  obligations  of 
accountability, and constraints which need to be respected in a democratic society. 

The  EU  offers  a  unique  platform  to  develop  and  promote  awareness  on  rule  of  law 
challenges.  As  the  European  Parliament  has  suggested,  this  could  go  beyond  the  EU 
institutions, to involve national parliaments and other key participants at national level. Civil 
society  is  of  particular  importance,  including  at  regional  and  local  level.  The  Commission 
has already proposed to boost funding and support for a thriving civil society, the promotion 
of  media  pluralism  and  networking  among  stakeholders  in the  rule  of law  area,  as  well  as 
supporting  Union-wide  organisations,  bodies  and  entities  pursuing  a  general  European 
interest in the field of justice and rule of law.39  

The  relationship  of  the  EU  with  the  Council  of  Europe  is  particularly  relevant  in  the 
promotion  of  the  rule  of  law.  The  EU  institutions  and  Member  States  could  develop  this 
further with a view to promoting a common rule of law culture both within Europe. 

The EU could also look at how best to promote the Council of Europe’s work on common 
rule of law standards. The promotion of rule of law standards could also be developed in the 
direction of peer review, as specifically proposed by some Member States. 

Possible questions for further reflection 

  How can the EU better promote the existing EU legal requirements and European 

standards relating to the rule of law, in particular at national level?  

  How  can  the  EU  best  encourage  key  networks and  civil  society,  as  well  as  the  private 
sector,  to  develop  grassroots  discussions  on  rule  of  law  issues,  including  its  economic 
dimension, and promote the standards underpinning the rule of law?  

39   Proposal  for  a  Regulation  establishing  the  Creative  Europe  programme  (2021  to  2027)  and  repealing 
Regulation (EU) No 1295/2013 (COM(2018)366 final, 30.5.2018); Proposal for a Regulation establishing 
the  Rights  and  Values  Programme  (COM(2018)  383  final,  30.5.2018);  Proposal  for  a  Regulation 
establishing  the  Justice  Programme  (COM(2018)  384  final,  30.5.2018).  The  new  Creative  Europe 
Programme  will  also  support  actions  aiming  at  reinforcing  Europe’s  news  media  sector,  journalistic 
freedom,  diversity  and  pluralism  of  journalistic  content,  as  well  as  a  critical  approach  to  media  content 
through media literacy. 

11 

 
 
                                                            
  Can  Member  States  do  more  to  promote  the  discussions  on  the  rule  of  law  at  national 
level,  including  for  example  through  debates  in  national  parliaments,  professional  fora 
and awareness raising activities addressed to the general public? 

  How  should  the  EU  and  its  Member  States  step  up  cooperation  with  the  work  of  the 
Council  of  Europe  and  other  international  organisations  that  uphold  the  rule  of  law, 
including  by  supporting  the  work  of  the  Council  of  Europe  and  with  regard  to 
evaluations and recommendations of the Council of Europe?  

  How can the EU build on the work of the Council of Europe and promote common EU 

approaches? Can peer review between Member States help in this process?  

  How  can  the  existing  steps  taken  by  the  European  Parliament  and  the  Council  be 
improved and further developed? Can political groups and national parliaments be more 
engaged? 

Prevention: Cooperation and support to strengthen the Rule of Law at national level 

The primary responsibility to ensure respect for the rule of law at national level lies with the 
Member States. However, the Union can offer important support to Member States to build 
a long-term approach which helps to ensure that national checks and balances are equal to 
the challenge – and ultimately that the EU does not have to find itself in a situation where it 
has to address a rule of law crisis in a Member State. This means helping to build resilience 
in key systems and institutions to be ready for times of political stress. 

A deeper understanding of developments in Member States would help to target this support 
and to identify risks to the rule of law early on. Areas of relevance could include national 
checks  and  balances,  judicial  independence,  quality  of  the  public  administration,  anti-
corruption  policies,  transparency  of  the  legislative  process,  and  better  law-making.  Such 
information-gathering  could  provide  a  general  framework  for  regular  cooperation  and 
dialogue with Member States, as well as for updating the European Parliament and Council. 
While it would need to cover all Member States, it could be more intense in Member States 
where  weaknesses  or  particular  risks  have  been  identified.  Finally,  it  would  require  a 
balance between the need to build sufficient understanding of national specificities and that 
of taking financial and human resources into account. The goal of such exercise would be to 
provide  a  stronger  foundation  for  early  dialogue  on  political  initiatives  with  rule  of  law 
consequences.  The  reflection  should  cover  whether  the  use  of  existing tools,  including  the 
European  Semester  and  the  EU  Justice  Scoreboard,  could  be  further  developed  to  better 
address rule of law issues. 

Another  complementary  avenue  would  be  to  deepen  cooperation  and  practical  support,  in 
order to maximise a constructive contribution from the Union to resolve issues early and to 
help build sustainable solutions into ongoing reform processes. This could be at the request 
of  Member  States  and  involve  appropriate  action  plans.  The  European  Parliament  and  the 
Council  could  be  involved  in  defining  and  promoting  such  initiatives.  This  could  also 
include  specific  attention  to  the  implementation  of  EU  legislation  with  a  rule  of  law 
dimension. Technical support to Member States could also be provided under the Structural 
Reform Support Programme. 

12 

 
 
 
 
Possible questions for further reflection 

  How can the EU enhance its capacity to build a deeper and comparative knowledge base 
on the rule of law situation in Member States, to make dialogue more productive, and to 
allow potential problems be acknowledged at an early stage? How can existing tools be 
further developed to assess the rule of law situation? 

  How could exchanges between the Commission and Member States on rule of law issues 

be most productively organised? 

  How can EU expertise and support be most effectively channelled to Member States?  

  Can preventive steps be given weight through a more inter-institutional approach? 

Response: Enforcement at Union level when national mechanisms falter 

Rule of law issues with implications for the application of Union law are increasingly being 
examined  by  the  European  Court  of  Justice  through  infringement  proceedings  and 
preliminary rulings. The Commission will further build on the recent case law of the Court, 
for example in relation to the independence of national courts and to the effective protection 
of financial interests of the Union. More generally, the effectiveness of the enforcement of 
Union law by independent authorities and national courts also contributes to strengthening 
the rule of law in Member States. Therefore, where necessary, the Commission will continue 
to ensure the correct application and enforcement of Union law through rule of law-related 
infringement procedures. 

When national rule of law safeguards do not seem capable of addressing threats to the rule 
of  law  in  a  Member  State,  it  is  a  common  responsibility  of  the  EU  institutions  and  the 
Member States to take action to remedy the situation. As well as the common obligation to 
defend  EU  values,  there  is  a  common  interest  in  tackling  issues  such  as  threats  to 
Constitutional  Courts  or 
the 
implementation  of  EU  law,  policies  or  funding.  Such  action  can  vary  depending  on 
circumstances  –  such  as  the  existence  of  an  infringement  –  or  to  ensure  proportionality. 
Different  approaches  may  also  be  appropriate  in  specific  policy  areas  such  as  the 
Commission’s  proposal  on  protecting  the  EU’s  financial  interests  from  the  risk  of  rule  of 
law deficiencies. 

they  can  compromise 

independence  before 

judicial 

The Rule of Law Framework was established by the Commission in 2014 to respond when 
there  are  clear  indications  of  systemic  risks  for  the  rule  of  law  in  a  Member  State,  which 
could result in a clear risk of serious breach of the rule of law leading to triggering Article 7 
TEU.  The  Framework  has  been  applied  in  one  case  so  far  and  served  its  function  of  an 
intermediate  step.  It  helped  to  establish  a  dialogue,  detailed  fact-finding,  analysis  and 
recommendations,  a  knowledge  base  which  has  proved  useful  in  further  action  from  the 
Union. Some refinements could nevertheless be explored. For example, early information to, 
and  support  from,  the  Council  and  the  European  Parliament  in  the  process  could  be 
intensified.  Another  option  could  be  to  underpin  the  dialogue  and  recommendations  with 
specific action plans and technical support to remedy the situation within a given timeline, 
or to set a clearer limit to the duration of the dialogue phase. 

Such  changes  should  maintain  the  goal  of  finding  solutions  to  crisis  situations  and 
identifying  appropriate  remedies.  This  requires  effective  dialogue  and  channels  of 
communication. However, it could also be considered whether there should be strengthened 

13 

 
 
consequences if a Member State refuses to remedy the situation. This might also flow from a 
heightened  appreciation  of  the  real  consequences  for  the  functioning  of  the  Union  of 
persistent rule of law deficiencies in the Member States, something which has already been 
recognised in the proposal to protect the financial interests of the EU in case of generalised 
deficiencies as regards the rule of law. 

Possible questions for further reflection 

  How can the relevant case law of the Court of Justice be effectively disseminated and its 

potential fully used? 

  How  can  the  Commission,  the  European  Parliament  and  the  Council  coordinate  more 
effectively and ensure a timely and appropriate response in case of a rule of law crisis in 
a Member State? 

 

In  what ways could the Rule of Law Framework  be further  strengthened? Should this 
include more engagement with other institutions and international partners (e.g. Council 
of  Europe/Venice  Commission,  Organisation  for  Security  and  Cooperation 
in 
Europe/Office for Democratic Institutions and Human Rights)?  

  Are there other areas, in addition to the EU’s  financial interests, where the EU should 
develop specific mechanisms (including rule of law-related conditionalities) to avoid or 
remedy specific risks to the implementation of EU law or policies? 

VI.  CONCLUSION 

The  Commission  invites  the  European  Parliament,  the  European  Council,  the  Council  and 
Member  States,  as  well  as  relevant  stakeholders,  including  judicial  networks  and  civil 
society,  and  the  public  at  large,  to  reflect  on  the  issues  and  questions  set  out  in  this 
Communication. The questions raised indicate a number of areas where improvements could 
be envisaged. 

Such  a  reflection  would  in  itself  contribute  to  the  enforcement  of  the  rule  of  law  by 
nurturing debate and ensuring continued focus on the issue. The Commission believes that 
strengthening the enforcement of the rule of law could make an essential contribution to the 
future of the Union. It would allow for enhanced clarity and consistency, help to ensure that 
all Member States are treated equally, and protect the common interests of all through the 
effective application of EU law throughout the Member States. 

The  Commission  will  return  to  this  issue  in  June  2019  with  its  own  conclusions  and 
proposals. These will be informed by the ongoing debate among the institutions and society 
at large, as well as by the developing case law of the European Court of Justice, and will aim 
to  set  out  an  approach  for  the  strengthening  of  the  rule  of  law  in  the  Union,  within  the 
framework of the current Treaties. 

14