The Communication presented today takes stock of the available tools to monitor, assess, and protect the rule of law in the Union. It also looks back at the experience of the past years so that we can start a wider European debate on how the rule of law could be further strengthened. The past experience, in particular, points to the need for better promotion of the rule of law, early prevention of risks or breaches to the rule of law, and effective response when such issues occur in the Union.

First Vice-President Frans Timmermans said: “The Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of ‘who we are’. Second, because the functioning of the EU as a whole depends on the rule of law in all member states. Now is the time to reflect together with all institutions, Member States, different authorities and stakeholders on how to defend and bolster the rule of law in the Union.”

In the last years, the rule of law in Europe has come under increased pressure. Common and concrete concerns were raised in debates within the Union, at international level and by civil society. It has become clear that more needs to be done to ensure that the rule of law is defended, strengthened and upheld throughout the Union. Building on the ongoing debates and past experience today’s Communication aims to start this process by setting out possible avenues for reflection on future action.

Possible avenues for the future

It is a common responsibility of EU institutions and all Member States to defend, strengthen, and uphold the rule of law in the Union. The Commission has already used a wide range of tools to carefully monitor, assess and respond to rule of law concerns in Member States, including the Rule of law Framework, Article 7(1) TEU procedure, infringement procedures, as well as the European Semester, the EU Justice Scoreboard or the Cooperation and Verification Mechanism (CVM). Building on the experience gathered so far through all the instruments, the Commission outlines today three pillars which could contribute to further the effective enforcement of the rule of law in the Union:

·    Better Promotion: rule of law standards and jurisprudence are not always sufficiently known at national level. To address this, increased efforts should be geared towards better promoting knowledge of the rule of law standards and case law at national level. This could be achieved, for instance, through communication activities for the public, common EU approaches that help promote a stronger rule of law culture across institutions and professions, continued engagement with the Council of Europe, and participation of civil society at the regional and local levels.

·    Early prevention: While the prime responsibility to ensure respect for the rule of law at national level lies with the Member States, the EU can offer important support to build resilience of key systems and institutions. Regular cooperation and dialogue could contribute to a deeper understanding of the rule of law situation and developments in Member States and could contribute to the early resolution of any rule of law issues.

·    Tailored response: A diversity of rule of law challenges requires a diversity of effective responses. The Commission will continue to ensure the correct application of the EU law via infringement procedures. Different approaches may also be appropriate in specific policy areas such as the Commission’s proposal on the protection of EU’s financial interest. In addition, some refinement to the existing Rule of Law Framework could be explored, including early information to and support from the European Parliament and the Council, as well as clear timelines for the duration of dialogues.

Next Steps

The Commission now invites the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including judicial networks and civil society, to reflect on the issues presented in today’s Communication and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future.

Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019.

Background

The rule of law is one of the common values upon which the European Union is founded and embraced by all Member States. It is enshrined as such in Article 2 of the Treaty on European Union. It is also essential for the functioning of the EU as a whole, for example with regard to the Internal Market, cooperation in the area of Justice and Home Affairs, and ensuring that national judges who are also ‘EU judges’ can fulfil their role in ensuring the application of EU law and can properly interact with the Court of Justice of the EU in the context of preliminary ruling procedures. The European Commission, together with other institutions and the Member States, is responsible under the Treaties, for guaranteeing the rule of law as a fundamental value of our Union and making sure that EU law, values and principles are respected.

The Commission has a wide range of tools to carefully monitor, assess, and respond to the rule of law issues in Member States, among others infringement procedures, the European Semester, the EU Justice Scoreboard or the Cooperation and Verification Mechanism (CVM). On 11 March 2014, the European Commission adopted a new Framework for addressing systemic threats to the Rule of Law in any of the EU’s Member States. The Framework establishes a tool allowing the Commission to enter into a staged dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law. The most emblematic, yet exceptional, tool for defending the Rule of Law is the procedure of Article 7 TEU, which allows the EU to act in case of a serious breach of rule of law in a Member State. The Article 7 TEU procedure was triggered in two cases so far: in December 2017 in case of Poland (by the Commission) and in September 2018 in the case of Hungary (by the European Parliament).

On 3 April the Commission has also launched an infringement procedure by sending a Letter of Formal Notice to Poland regarding the new disciplinary regime for judges (full press release here).