Rule of law: EU 'mechanism' needs upgrade
The European Commission’s much-awaited “rule of law mechanism” needs some improvements if it is to bring about real results.
The tool, announced on 11 March, is the commission’s response to calls by EU member states, the European Parliament, and civil society groups for an enhanced EU capacity to address threats to its founding values.
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The proposal would allow the commission to challenge member states over “systemic threats to the rule of law” that fall short of the threshold for action under Article 7 of the Treaty on European Union (TEU), the EU’s most powerful (but never used) enforcement tool.
Article 7, which can ultimately lead to suspension of voting rights, is often called “the nuclear option,” even though its purpose is to address abuses preventatively so that suspension is not necessary.
The commission insists the new tool is “not an alternative” to Article 7 action, but rather “precedes and complements” it.
But in the 10 pages it devotes to making the case for the new mechanism, the commission never once recognizes the fact that, quite apart from the threshold question - i.e. the question of which mechanism’s “red line” sets a higher standard - the single most important impediment to Article 7 being invoked is its requirement of overwhelming support among member states, the European Parliament, and indeed the commission.
In other words, it is not so much its high threshold for what constitutes a serious breach, or risk thereof, that has made action under Article 7 virtually impossible, but the fact that the bar was set so high for activating it.
The commission also doesn’t mention that proceedings under Article 7 allow for action short of formal measures - dialogue with the member state, followed by an assessment - very similar to what is contemplated under the new framework.
All this suggests that the chief obstacle to the EU’s ability to effectively uphold its values is not so much a lack of available tools, but rather a lack of political will.
To be sure, the new tool is welcome as a signal of the commission’s commitment to its role as a guardian of the treaties and pledge to act when fundamental values come under threat. But the real test is whether the commission is willing to make actual use of it to insist on tangible improvements.
Its record to date is not reassuring - including in France’s problematic expulsions of Roma, and Hungary’s systematic efforts to undermine the rule of law and human rights protections.
Meanwhile, as the recent parliament report on fundamental rights makes clear, the reality that prompted this debate in the first place is very much still there: actual human rights abuses suffered by actual victims across Europe - from Roma to migrants and asylum seekers, to Muslim and other minority youths, to LGBTI people, to name but a few.
EU policy-making in this area cannot be effective if it loses sight of this reality or focuses only on systemic crises to the detriment of everyday abuse.
This is the key message of a joint statement Human Rights Watch and 47 colleague organizations in the Human Rights and Democracy Network (HRDN) issued last August.
The statement puts forward concrete suggestions for steps EU institutions and member states could take right away to enhance rights protection within the union.
The commission, for example, should make far better use of an existing tool, infringement proceedings, and sustain them until the problems they were designed to address have been fully resolved.
The Council Working Party on Fundamental Rights and Free Movement of Persons (FREMP), a forum where member states can discuss human rights challenges in EU member states, should more fully embrace its mandate and engage systematically with other relevant entities - the EU Fundamental Rights Agency, the European Parliament, nongovernmental organizations, Council of Europe and United Nations mechanisms - and ensure adequate follow-up on their findings.
But the ultimate show of political will would be for the EU to develop a comprehensive internal human rights strategy that mirrors its external strategic framework.
Such a framework should be accompanied by a corresponding action plan to guide collective EU action, taking as inspiration the landmark adoption in 2012 of an EU Strategic Framework and Action Plan on Human Rights and Democracy, which pledged to promote human rights across all areas of the EU’s external actions, “without exception.”
The commission’s proposed framework can only go so far if pursued in isolation.
Let it instead be the trigger for all EU institutions to mobilize and join efforts to safeguard and promote TEU Article 2.
The values enumerated under this core article were affirmed by all member states, not by the EU in some abstract sense.
Giving them practical meaning should be a shared responsibility.
The writer is Europe and Central Asia advocacy director at Human Rights Watch, a New-York-based NGO