The Munich Security Conference has hardly ever been more necessary than in these turbulent times. Key actors of secu ...
18. March 2019
We need a new mechanism for defending the rule of law in Europe
For a long time it seemed a given that the fundamental liberal order and European integration went hand in hand. Throughout Europe today, however, that principle is being questioned. Two EU Member States, Poland and Hungary, are the subject of a procedure meant to establish whether there is clear risk of serious breach of the values of the European Union. In many other Member States, violations of EU law, corruption and attempts to manipulate justice are on the rise.
Faced with these realities, it is clear the European Union is poorly equipped. The framers of the European Treaties focused on entry conditions for prospective Member States; but they did not foresee a mechanism to ensure the respect and maintenance of the rules long-term: i.e. for states already members of the club. There is of course the procedure provided under Article 7 of the Union Treaty. This option, though, turns out to be in fact inadequate and difficult, and to take too long to implement.
I am convinced that the only way for Europe to establish itself for the future as a community of law, to establish its authority and credibility, is to have effective instruments to ensure and protect the rule of law. For me, only an independent body — protected from political pressure, transparent and effective, and above all having as its scope every Member State, without exception — can fulfil this role.
I propose the establishment of a committee of independent experts: composed of former judges, recognised figures from the highest national and European courts. These experts, no more than nine, would be tasked with regularly reviewing the state of play of the independence of the judiciary and freedom of the press; they would also investigate potential political, judicial and administrative corruption — in every Member State of the European Union.
The committee would have its own resources for investigation. In its conclusions, it should propose concrete solutions to the problems identified — but should also outline sanctions in case these problems are not resolved. For example, obtaining European funds by any Member State would be conditional upon the conclusion of the report concerning it. In case of corruption or infringement of the press, the structural funds intended for the state in question could be frozen or reduced. Should the committee bring to light serious suspicions concerning the rule of law in a given Member State, the European Commission should continue the investigation. In the event of serious violations, an automatic referral to the European Court of Justice would ensue. In case of conviction by the Court of Justice, the European Commission could propose to the European Parliament and the European Council that sanctions be imposed against the respective Member State. This decision to sanction could not be stopped but by majority vote (even by a qualified majority) in one of the two institutions. Lacking such a majority, the proposed decision would take effect automatically following the verdict of the Court of Justice.
Such a control mechanism would allow a swift and effective defence against the erosion of structures guaranteeing the rule of law — in a depoliticised and irrefutable way. I am convinced that with such an instrument, we would be able to meet the challenges we face today and effectively defend our basic principles and values.
Op-ed by Udo Di Fabio and Manfred Weber, published in "EU-Observer", on 18 March 2019