The rule of law and the basic principles of the EU. Part Two – protection tools and the way forward

It is widely accepted that the procedure for suspending rights deriving from EU membership due to a “grave and continuing breach” of the basic principles is intended to respond in exceptional cases where a political rather than a legal assessment is required.

Following the codification in Union primary law of the EU’s fundamental principles (or values) common to the Member States, the Treaty of Amsterdam introduces for the first time a sanction for non-compliance. The provision embodied in this Art. Article 7 (2) and (3) TEU regulates the suspension of the rights of a Member State in the event of a serious and continuing breach of the principles underlying European construction. It is driven, on the one hand, by discussions on forthcoming EU enlargements and the desire to provide for the protection of the shared constitutional positions of the then Member States [1], and, on the other, by the need to overcome the discrepancy between the EU-sponsored model and modest response capacity vis-à-vis Member States. Ironically, for the first time attention was paid to this new norm in relation to Austria, when in 2000. a government was formed with the far-right Freedom Party (FPÖ), led by Jörg Haider.  Despite the concerns of the other 14 member states regarding Haider’s final views, it then became clear that Art. 7 does not provide the requested answer, as it requires a finding of a ‘serious and ongoing infringement’, while the situation in Austria is rather worrying. As a result, the Member States take coordinated measures at the bilateral level, and subsequently develop the norm of Art. 7 TEU with the Treaty of Nice of 2001, which adds the preventive mechanism of Art. 7 (1), in relation to “obvious risk of serious infringement”. The concept of this addition is, in fact, to add a preventive mechanism in addition to the reactive sanction approach, in order to allow for intervention at EU level before infringements occur effectively.

In any case, it is widely accepted that the procedure for suspending rights deriving from EU membership due to a “grave and continuing breach” of the basic principles is intended to respond in exceptional cases where a political rather than a legal assessment is required. [3]. So far, the suspension of rights stemming from EU membership has never been realized. The preventive procedure under Art. 7 (1) was triggered in relation to Poland by the European Commission [4] and in relation to Hungary by the European Parliament [5]. Beyond the possible legal discussion of when an infringement may be classified as “serious” and when an “obvious risk” of such an infringement should be considered, insofar as, as indicated, the mechanism under Art. 7 has a political rather than a strictly legal nature, several elements of both procedures deserve attention. First of all, Art. 7 (1) TEU points to the need for the Council to hear the Member State concerned. However, the provision does not require the hearing to be organized as a one-off process – in both countries there are already several hearings on the rule of law, and those adopted by the Council in 2019. “Standard conditions for hearings under Article 7 (1) TEU” ambiguously refer to actions “at the first hearing” and “at the beginning of each subsequent hearing”. In addition, Art. 7 (1) provides an opportunity – not an obligation – to make recommendations to the State concerned, and again an opportunity – not an obligation – for the hearings to lead to a vote to establish the existence of an obvious risk of serious infringement. The different treatment is also interesting, in view of the subject of the initiative for initiating the procedure. Aside from the analysis of why the European Commission avoided launching the procedure against Hungary, having already done so with similar challenges to Poland, it should be noted that the “Standard Conditions”, which the Council considers to be “optimizing the process and creating a level playing field all participating Member States’ shall provide an opportunity to participate, comment and provide information to the Commission, but not to the European Parliament, even when it is the subject of the procedure. It is precisely these characteristics of the institutional design and the signals for lack of political will and readiness in the Council for the representatives of the Member States to actively oppose their colleagues that determine the assessment of the mechanism under Art. 7 TEU as ineffective [6].

Вън от процедурата по чл. 7 ДЕС институциите на ЕС и по-специално, Европейската комисия създаде в последното десетилетие допълнителни инструменти за наблюдение и превенция на нарушения по отношение на ценностите на ЕС.

Out of the procedure under Art. 7 TEU The EU institutions, and in particular the European Commission, have created in the last decade additional tools for monitoring and preventing breaches of EU values. The first such monitoring mechanism is the Cooperation and Verification Mechanism (SME) established under an agreement between the EC and Bulgaria, and Romania at the time of accession. It is stated [7] that “the Commission has set up SMEs as a transitional measure to help both countries catch up with reforms”, and that “the decision to continue the evaluation of Bulgaria and Romania after their accession to the Union is a testament to the EU’s commitment to both countries to build the effective administrative and judicial systems needed to fulfill their EU membership obligations and to ensure the proper implementation of Union laws, policies and programs. “Under SMEs, the Commission regularly reports on the progress of both countries in relation to the specific areas covered by it. The reports contain an assessment and recommendations to the Bulgarian and Romanian authorities and are complemented by a working document containing a detailed analysis of each of the SME indicators. The Commission’s assessments and reports are based on monitoring, through dialogue between the Bulgarian / Romanian authorities and the Commission services and contacts with civil society and international organizations. Each report of the Commission, including its methodology and conclusions, is subsequently discussed and adopted in the conclusions of the Council of Ministers. However, SMEs are a mechanism with a narrowly defined territorial scope – only in relation to Bulgaria and Romania. It does not apply, for example, to the subsequently acceding Croatia, nor to countries where there have been systematic violations of the rule of law in recent years. In this sense, it is rightly acknowledged that it is discriminatory. Despite the positive role that SMEs have played, mainly in the first years of its establishment, it should be noted that progress or lack thereof in SMEs is not subject to sanctions or formal consequences. Instead, the mechanism is often used as one of the political arguments for not allowing both countries into the Schengen area, a fact noted by the European Commission itself, which has stated in several of its reports that “it should be emphasized that the specific nature of the scope of SMEs are an argument against making direct links with other policy areas. For this reason, the Commission does not consider it appropriate to link SMEs to solutions in other areas, such as… access to the Schengen area. “[8] The distorted discourse in this regard, the feeling of different treatment in the face of problems and in other Member States, the lack of consequences of implementation and the limited scope of its application – a review of only some of the components of the rule of law – make the assessment of SMEs an ineffective tool, which is why the European Parliament has repeatedly called for its integration into a comprehensive mechanism. , applicable to all [9].

The toolkit for the rule of law has been particularly developed since 2012, when the then President of the European Commission, Jose Manuel Barroso, identified compliance with fundamental principles as a challenge to the EU in his State of the Union address. [10] As a result, in 2013. The first EU Justice Scoreboard has been published, in addition to the European Semester, an instrument originally set up to coordinate the Union’s socio-economic policies, which is gradually integrating more and more issues related to the fight against corruption and the efficiency of justice systems. Taking into account their impact on economic performance and market security, the Commission points out that in an interconnected EU legal ecosystem, where the existence of effective justice systems is also a prerequisite for strengthening mutual trust “,” shortcomings in national justice systems are a problem not only for a given Member State, but may affect the functioning of the single market and, more generally, of the EU as a whole. “[11] Thus, the EU Justice Scoreboard has been introduced as a comparative tool to improve the effectiveness of national justice systems, providing data on the quality, independence and efficiency of justice systems, highlighting good practices and improvements and identifying potential weaknesses in all Member States. However, while useful for examining general trends, it is for information only, and even, according to the European Commission itself, “does not represent a single ranking, but an overview of the functioning of all justice systems” [12].

One year after the introduction of the Justice Information Board, in 2014. The European Commission has also established a Rule of Law Framework, a preventive mechanism aimed at preventing the escalation of threats to the rule of law to the extent that Article 7 TEU has to be invoked through dialogue with the country concerned. The framework establishes a three-step process in which the Commission first evaluates, makes recommendations and finally monitors the follow-up to the recommendations. A few months later, the Council also decided to set up its own rule of law instrument to conduct a dialogue between Member States on the issue. Given the result of the activation in January 2016. of the Commission’s Rule of Law Framework over Poland and the results of these actions, as well as the Council’s repeated dialogues, the analysts’ criticism of the two instruments can be explained as a facade action doomed to failure. [13]

In view of the completeness of the exhibition, it should be noted that in February 2014. The European Commission also published a report on the fight against corruption [14], but it was not followed by additional annual such reports. In addition, the Commission supports the research of the so-called Monitor media pluralism [15] and publish annual reports on the implementation of the EU Charter of Fundamental Rights. Last but not least, the criminal procedures carried out by the European Commission are becoming increasingly important for the protection of the basic principles of the EU. However, all these instruments are rather sporadic or complementary.

Taking into account the shortcomings of the EU mechanisms for protection of the basic principles in the Member States, in 2016. The European Parliament made recommendations to the Commission in the form of an own-initiative report [16], calling on the Commission to present a legislative proposal to establish an EU mechanism for democracy, rule of law and fundamental rights in the form of an interinstitutional agreement to bind the three institutions. less cumbersome process with clear consequences. The European Parliament’s vision was for the new mechanism to integrate and complement existing mechanisms, to be fact-based, to include in the scope of its review the actions of all Member States and the EU institutions, and to cover both preventive and corrective measures. . The proposal also called for strengthening the role of civil society in the process and developing recommendations for each country. In consultation with a civilian panel of experts, the Commission was required by the Commission to draw up an annual report on the state of democracy, the rule of law and fundamental rights in the Member States, to be published and discussed in an annual interparliamentary debate. The European Commission formally responded to Parliament’s proposal in 2017 by welcoming the proposal for an interparliamentary dialogue between the European Parliament and national parliaments, but expressed reservations about proposals for changes to the Treaties and, stressing its role as Guardian of the Treaties, questioned the need for participation. of a committee of civic experts, as well as doubts about the added value of a special interinstitutional agreement.

In a subsequent resolution [17] of the European Parliament in November 2018, the institution again called on the Commission to propose the adoption of an interinstitutional agreement, urging that cases of “widespread disregard for the rule of law in the Member States” be linked to the protection of the Union budget. Following a consultation on possible ways to strengthen the EU’s rule of law toolkit in the Member States, the Commission published a Communication [18] in July 2019 outlining its vision. The proposals focused both on promoting the rule of law culture within the EU and on measures to prevent non-compliance with the rule of law, identifying such cases in advance through in-depth annual monitoring carried out in the framework of the Review Cycle, covering all Member States and ending with the adoption of an annual report summarizing both positive and negative developments. In response, in November 2019. the Council Presidency published its conclusions proposing an annual review of the state and key developments regarding the rule of law in the Member States and the EU as a whole.

The way forward – an EU mechanism for democracy, the rule of law and fundamental rights, and budgetary conditionality?

As a follow-up to the published Communication on the Rule of Law and as a result of the prioritization of the topic in the framework of the Commission’s work program of President Ursula von der Leyen, led by Justice Commissioner Didier Reynders, on 30 September 2020. the Commission’s first annual rule of law report was published, including a general analysis and reports examining both positive and negative developments in each member state. The general part of the report states that the rule of law (also called “rule of law”) is enshrined in Article 2 of the Treaty on European Union as one of the Union’s common values. According to the principle of the rule of law, all public authorities always act within the limits set by law, in accordance with the values ​​of democracy and fundamental rights and under the control of independent and impartial courts. The principles of the rule of law include principles such as the rule of law, which presupposes a transparent, accountable, democratic and pluralistic legislative process, legal certainty, the prohibition of arbitrariness in the exercise of executive power, effective judicial protection by independent and impartial tribunals, and effective judicial review. fundamental rights, separation of powers and equality before the law. “[19] Thus, the European Commission’s monitoring focuses its analysis on four components: independence, quality and efficiency of the judiciary, the fight against corruption, issues related to media pluralism and other institutional issues related to the principle of interdependence and interdependence. In this regard, it should be emphasized that while it is unsatisfactory that the analysis covers only the rule of law and not all the basic principles of the EU, assuming a partial picture, especially as regards the effective exercise of fundamental and civil rights, the published this year’s report is the first of its kind and it is possible that its thematic scope will be expanded in the future. This is so, given that one of the four elements of the report – “media pluralism and freedom of the media”, while crucial to the democratic order, can hardly be seen as an integral component of the “rule of law” in a narrow meaning. At the same time, it is difficult to draw clear dividing lines between the principles of democracy, the rule of law and fundamental rights, so it would be perfectly reasonable for the future development of the process to include an analysis of the situation in the Union with regard to these values.

It should also be noted that the Commission does not provide a clear role for the other EU institutions in the Rule of Law Review Cycle, with clearly defined powers and obligations, although it seeks a proactive discussion forum on the subject not only with the Council and the European Parliament but also with the European Parliament. and with national parliaments. There are no clear prescriptions or recommendations for eliminating the problems, nor are any follow-up measures indicated. However, the published report, as the culmination of the Rule of Law Review Cycle, provides for the first time a general and horizontal picture covering the situation in all Member States, which should allow for a more systematic examination of possible infringements, for example through timely criminal proceedings, referral to the Court of Justice, or initiation of proceedings under Article 7 TEU.

Additional elements in this regard are provided by the adopted on November 7, 2020. own-initiative report on the creation of an EU mechanism for democracy, the rule of law and fundamental rights [20], following the previous line of the European Parliament. He calls for the annual report on the rule of law of the European Commission to cover the full range of values ​​enshrined in Art. 2 TEU and reiterates its proposal for the process to take the form of an interinstitutional agreement establishing all the arrangements, role and cooperation between the EU institutions and the Member States. It also calls for the consolidation of existing instruments, for country-specific recommendations (and not just a situation analysis), which, in the event of non-compliance by a Member State, be linked to specific Union measures such as Article 7 TEU procedures. for violation and budgetary conditions, as well as a call for active participation of civil society and NGOs. However, insofar as the European Parliament is not entitled to its own legislative initiative, developments in this direction depend on the political will of the European Commission.

Last but not least, the issue of the conditionality of budgetary and financial instruments on the observance of the rule of law deserves attention. In this context, the Commission has made a legislative proposal for a Regulation of the European Parliament and of the Council on the protection of the Union budget in cases of widespread non-compliance with the rule of law in the Member States.

As the European Parliament’s Research Office (EPRS) [21] points out, budgetary conditionality is not a new mechanism in EU law, used in the context of EU foreign policy, cohesion policy, accession and membership of the European Monetary Union, but the new mechanism proposed as part of the MFF for the period 2021-2027 is not fully innovative insofar as it copies a concept adopted under the previous MFF (2014-2020), according to which a proposal for such measures – linking the effectiveness of European Structural and Investment Funds with sound economic governance was included in the 2013 Regulation on the general provisions on the Structural Funds, providing for the suspension, in whole or in part, of Structural Funds payments to Member States that have breached the 3% deficit limit. ). Shortcomings in the rule of law have so far not been explicitly mentioned among the grounds for budgetary conditionality, although some authors consider that Article 142 (a) of the General Provisions Regulation [22], which provides that payments of European structural and investment Funds may be suspended if there is a “serious shortcoming in the effective functioning of the management and control system of the operational program which jeopardizes the Union’s contribution to the operational program and for which no action has been taken” could be triggered. in the case of shortcomings to the rule of law, as “a state in which the rule of law does not exist cannot generate effective management and control systems” [23].

The review [24] of doubts as to the Commission’s wide discretion, the terminological ambiguities of the criteria for establishing “widespread disregard for the rule of law” in the Commission’s original proposal, as well as the protection of final beneficiaries, the possibility of affecting regional or local public authorities and the analysis that the severity of such sanctions will depend on the extent to which a country depends on EU funds, as sanctions would mainly affect net beneficiaries, leaving open questions about creating a vertical asymmetry between Member States contrary to the principle of equal treatment.

Yet against the background of these ambiguities and concerns, adopted on December 16, 2020. A regulation on a common conditionality for the protection of the Union budget is an important instrument of financial conditionality in defense of EU policies and values. According to the Regulation, if, following a “thorough quality assessment” carried out objectively, impartially and fairly, taking into account information from various sources and recognized institutions, the Commission finds an infringement, it will propose appropriate mechanism measures, such as reducing or freezing payments from the EU budget. member country. The Council will have one month to vote on the proposed measures (up to three months in exceptional cases) by a qualified majority, and the European Parliament will be informed throughout the procedure. The provisions will apply to both individual and widespread breaches or repetitive practices and omissions related not only to direct misuse of EU funds, such as corruption or fraud, but also to systemic breaches of fundamental principles where these breaches concern – or there is a risk of affecting – the management of European funds. At the same time, in order to ensure that final beneficiaries are not penalized for the actions of their governments, the Member States concerned should regularly report to the Commission on the fulfillment of their obligations to them, and beneficiaries will be able to alert for non-compliance through an internet platform. The new regulation should apply to all EU funds under shared management from 1 January 2021.

From the Council Conclusions of 10-11 December 2020 [25] however, it is clear that the Commission should develop and adopt guidelines for its implementation, including a methodology for assessing it, and in the event of an action for annulment, the guidelines will be finalized following the ruling of the Court of Justice of the European Union. of the guidelines, the Commission will not propose measures. This, on the one hand, would lead to a delay of at least a few months in the application of the Regulation, even in the case of a claim for failure to act under Art. 265 TFEU v Commission, but on the other hand, will strengthen its perceived legitimacy by ensuring that the consequences that the Regulation adds to the monitoring instruments and the “soft power” of non-compliance with fundamental values ​​for the European Union are met.

Тази публикация е достъпна и на следните езици: Bulgarian