This study is not the first, by far, to contemplate ways to improve rule of law monitoring, evaluation and supervision of member states at EU level. It is preceded by a rich set of debates and discussions regarding possible policy options and ways forward for improving the EU’s intervention. Before presenting the general conclusions of this study, and putting forward our own set of policy suggestions/recommendations to the European Parliament based on our research, it is first necessary to offer a synthetic overview of existing recommendations put forward by Parliament (section 4.1), as well as the policy strategy planned by the European Commission (section 4.2).
4.1 European Parliament
A number of European Parliament reports and resolutions have put forward proposals and recommendations aimed at addressing rule of law dilemmas and deficits in the EU. The following three can be especially highlighted:
109 S. Carrera (2009), In Search of the Perfect Citizen? The Intersection between Integration, Immigration and Nationality in the EU, Leiden: Martinus Nijhoff Publishers, p. 132.
110 Article 7 TEU included the following sentence: “the Council [...] may call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question.”
111 European Commission (2003), Communication on Article 7 TEU, op. cit., p. 9.
Report on the situation of fundamental rights: standards and practices in Hungary, June 2013, also known as the Tavares Report112
Report on the situation of fundamental rights in the European Union (2010-2011), December 2012 (EP Fundamental Rights 2012 Report)113
Report on the situation of fundamental rights in the European Union (2009) – effective implementation after the entry into force of the Treaty of Lisbon, December 2010 (EP Fundamental Rights 2010 Report).114
Annex 2 of this study provides a detailed comparative overview in tabular form of the three reports and their specific initiatives and recommendations.
What have been the main initiatives and recommendations that have so far emerged from the work of the European Parliament? These can be broadly grouped under the following headings or categories:
First, EU inter-institutional coherency/cooperation: A first set of suggestions by Parliament have dealt with the need to ensure a more coherent and comprehensive inter-institutional framework cooperation at Union level in the annual monitoring of fundamental rights. The EP Fundamental Rights 2012 Report proposed the launching of a yearly institutional forum on fundamental rights to ensure information-sharing and as a pre-phase to the EP’s annual debate. An interesting idea contained in the same report has been that of a European fundamental rights policy cycle which would deal “on a multi-annual and yearly basis [with] the objectives to be achieved and the problems to be solved”.115 The 2013 Tavares Report also insisted on the need to strengthen the dialogue between EU institutions and member states,116 and called for a joint reflection and debate on how to better equip the EU with the tools and instruments to better ensure its principles and duties on democracy, rule of law and fundamental rights. The EP has also insisted on the need to guarantee closer institutional linkages and cooperation with other international and regional bodies working on rule of law-related aspects, such as the Council of Europe’s Venice Commission.117
Second, new ‘mechanisms’: In its Fundamental Rights 2010 Report, the Parliament has also called for establishing new European mechanisms to ensure the respect of democracy, fundamental rights and rule of law, and for the Commission to present a new legislative proposal on this subject.118 This was reiterated in the Fundamental Rights 2012 Report, where the EP emphasised that a clear-cut monitoring mechanism would aim at assessing member states’ continuous compliance with the EU’s fundamental values and the fulfilment of their rule of law and democracy commitments.119 The Tavares Report went a step further in proposing ways in which this mechanism could be implemented in practice: First, it suggested the creation of an ‘Article 2 TEU alarm agenda’ or ‘new Union values monitoring mechanism’, which would be dealt with by the European Commission;,120 and second, the setting up of a Copenhagen Commission or high-level group of wise men, which would be independent of any political influence and could issue recommendations to the EU on how to respond to and remedy any infractions.121
Third, European Commission’s impact assessment, annual reporting and enforcement procedures: The fundamental rights dimensions of the European Commission’s impact assessments have been a first point of concern for the EP. Following the European Commission’s adoption of fundamental rights monitoring in impact assessments, the EP has pointed out that there is room for improvement with proposals still “failing to consider at all, or adequately, their impact on fundamental rights”, which in turn call for a revision of the
112 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2013-0229+0+DOC+XML +V0//en
113 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2012-0500+0+DOC+XML+V0//
EN
114 http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2010-0344&language=EN
115 Paragraph 20 of the EP 2012 Fundamental Rights Report.
116 Paragraph 78 of the Report.
117 Paragraphs 35 of the EP 2012 Fundamental Rights Report and paragraph 74 of the Tavares Report.
118 Paragraph 24 of the Report.
119 Paragraphs 29 and 31.
120 Paragraph 69 of the Tavares Report.
121 Paragraphs 78 and 80.
impact assessment (IA) guidelines.122 The EP has also recommended that fundamental rights implications of EU proposals and their implementation by EU member states are included in the Commission evaluation (transposition) reports, as well as its annual reporting on the application of EU law.123 As pointed out in section 2 of this study, the European Commission carries out an Annual Reporting process on the EU Charter of Fundamental Rights. The EP has recommended that the scope of these Annual Reports should be expanded to include an assessment of member states’ situations as regards the implementation, promotion and protection of fundamental rights, and recommendations addressed to each of them.124
An additional point of parliamentary concern has related to the current Commission’s practice as regards infringement procedures. Here the EP has insisted on the need to better guarantee a more objective investigation at EU level and a more effective start of infringement proceedings whenever an EU member state allegedly violates the EU Charter of Fundamental Rights, or has engaged in a systematic constitutional, legal or practical change jeopardising fundamental rights and freedoms.125 The two EP Fundamental Rights Reports reiterated these same points and underlined the importance for the European Commission to better ensure that infringement proceedings secure effective protection of human rights, “rather than aiming for negotiating settlements with member states”.126 This was accompanied by ideas about new mechanisms for early detection of potential violations, temporary freezing and accelerated legal procedures. A key initiative here relates to the setting up of a new freezing procedure to ensure “that Member States, at the request of the EU institutions, suspend the adoption of laws suspected of disregarding fundamental rights or breaching the EU legal order”,127 and would complement current infringement and fundamental rights proceedings.
Fourth, Article 7 TEU: The EP has consistently referred to the need to implement, follow up and update the European Commission Communication on Article 7 of the Treaty on European Union - Respect for and promotion of the values on which the Union is based, COM(2003) 606 final, of October 2003. This should focus on defining a “more transparent and coherent way” to address fundamental rights violations. The Tavares Report stressed the importance to develop the practical operability of this Treaty provision and establish a better distinction between an initial phase (assessing any risks of a serious breach and developing an early warning system), and a more efficient procedure in a subsequent phase (action taken to address actual serious/persistent violations).128
Fifth, the European Parliament and the Court of Justice of the EU: There have been two specific proposals addressed to the EP and the CJEU. First, the EP should develop and reinforce its autonomous impact assessment of fundamental rights on proposals and amendments.129 Second, the CJEU should better facilitate third-party interventions, in particular by human rights NGOs.130
Sixth, the EU Agency for Fundamental Rights (FRA): The FRA has been the focus of the Parliament’s attention in thinking of new ways to ensure post-accession monitoring of rule of law, democracy and fundamental rights. The limited scope of the FRA’s mandate has been particularly contested, with the EP recommending to expand it to also cover old EU third pillar matters (police and judicial cooperation in criminal matters), a comparative evaluation of member states’ compliance with the EU Charter of Fundamental Rights and the regular monitoring of member states’ compliance with Article 2 TEU.131 A critical issue that has also been highlighted is the need to strengthen the independence and transparency of the FRA,132 which is perhaps too vulnerable to member state governments and their concerns.
122 EP Fundamental Rights 2012 Report, Paragraph 2.
123 Paragraph 3 of the EP Fundamental Rights 2012 Report.
124 Paragraph 9 of the EP Fundamental Rights 2012 Report.
125 EP Tavares Report, paragraph 69.
126 EP Fundamental Rights 2012 Report, paragraph 28.
127 Paragraph 31 of the EP Fundamental Rights 2012 Report, and paragraphs 20 and 40 of the EP Fundamental Rights 2010 Report.
128 EP Tavares 2013 Report, paragraph 77.
129 EP Fundamental Rights 2012 Report, paragraph 8.
130 EP Fundamental Rights 2012 Report, paragraph 33.
131 Paragraphs 44, 45 and 46 of the EP Fundamental Rights 2012 Report.
132 Paragraph 47 of the EP Fundamental Rights 2012 Report.
4.2 European Commission
The existing policy evaluation initiatives and reporting processes of DG Justice and DG Home Affairs of the European Commission were examined in detail in section 2.1. The European Commission’s next policy strategy and agenda have been recently presented by the Vice President of the European Commission Viviane Reding. In a speech entitled “The EU and the Rule of Law: What next?” delivered in September 2013, Commissioner Reding highlighted the Commission’s policy options ahead. These include a two-step approach:
First, exploit the potential already offered by the Treaties. This step would include “developing a process to effectively address a rule of law crisis at an early stage, upstream of the launching of any formal procedures under Article 7”, by preceding the ‘reasoned proposal’ with a ‘formal notice’.
Second, amend the Treaties. This step would entail a “more far-reaching rule of law mechanism”, which would require:
1. “More detailed monitoring and sanctioning powers for the Commission, in an amendment of the Treaty”,
2. Expanding the CJEU competences and creating a new procedure to enforce the rule of law principles enshrined in Article 2 TEU “by means of an infringement procedure brought by the Commission or another Member State before the Court of Justice”,
3. Treaty amendment for lowering the existing thresholds for activating the first stage of Article 7 TEU, 4. Expand the mandate of the FRA and a Treaty amendment that puts the legal basis of the FRA into the
ordinary legislative procedure and
5. Abolishing Article 51 EU Charter, so as to allow “the possibility for the Commission to bring infringement actions for violations of fundamental rights by Member States even if they are not acting in the implementation of EU law”.133
Reding’s proposals have been followed up by the President of the European Commission, José Manuel Barroso, in his ‘State of the Union address 2013’, where he confirmed the importance to better safeguard the EU’s values, and in particular the rule of law.134 President Barroso reiterated the idea expressed in his previous State of the Union speech, by addressing the need “to make a bridge between political persuasion and targeted infringement procedures on the one hand, and what I call the nuclear option of Article 7 of the Treaty, namely suspension of a member states' rights.” The Commission will issue a new Communication on this matter, even if there is no specific timetable for it to be implemented. President Barroso referred to the Commission’s role as independent and objective and called for a more general framework that
… should be based on the principle of equality between member states, activated only in situations where there is a serious, systemic risk to the rule of law, and triggered by pre-defined benchmarks…
we do need a robust European mechanism to influence the equation when basic common principles are at stake.135
5. Conclusions and Recommendations