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We don’t do enough for the rule of law

By Fabian Willermain (2017-02-10)

In Commentaries

At a time when EU seeks to reinvent itself, the author argues that the EU should carry out regular monitoring processes that guarantees of rule of law and democratic values  in its Member States..

(Photo credit: European Commission)

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We don’t do enough for the rule of law

In the run up to the sixtieth anniversary of the Treaty of Rome, EU leaders seek inspiration concerning the future of the EU, but meanwhile, a Member State has become mired in troubles over controversial measures to weaken its anti-corruption pillars and the rule of law equilibrium. Romania has come a long way since its accession to the EU, but this year, which marks the tenth anniversary of its membership, has been overshadowed by worrying government decisions to decriminalise graft and shrink its scope as an offence. Thousands of Romanian citizens are now taking to the streets to protest against this initiative, which not only threatens years of hard-earned gains in the fight against corruption, but also undermines the trust and credibility that Romania has achieved as an anti-corruption model in the EU and in the region.

Despite the  very low voter turnout in December 2016, victory in the national elections is being used to justify questionable, rushed and non-transparent measures that will destabilise checks and balances and overrule democratic principles. The government’s entitlement to pursue such actions is increased as legal vehicles are used to assault the judiciary and the rule of law. The law department of Timisoara University summed up the latest conundrum: use of the law does not mean the right to turn the rules of legislative procedures against their purpose.

All over the world, corruption weakens states and erodes the values of society. Neither the consolidated democracies of founding EU Member States, nor the new democracies of the most recent accessions are exempt from this phenomenon and all its corollaries ranging from weak rule of law to post-truth politics. Romania is just one example, but in Hungary and Poland questionable practices are almost a fait accompli because there are no prevention or sanctioning procedures in place.

In these circumstances, with the rise of tendencies that undermine EU values, citizens need protection and guarantees that their rights will be upheld. Right now, the Romanians protesting in the streets are not shying away from invoking the EU’s help. This new type of protest, which transcends the usual demand patterns (salaries, austerity, etc), reveals the maturity of societies and their citizens, who now go out on the streets to defend values, standards and rule of law protection. Values vs tangibles means that citizens care about the very issues that generated the transformation of their state and guaranteed and protected their societies – issues which happen to be the core values of the EU. These values are now cherished and their transformative effect as an acquis obligation from the EU is incontestable.

There is no more opportune moment for the EU to step in. The EU seeks and needs to reinvent itself. It is imperative that guarantees of rule of law and democratic values are prominent in the future EU reform mix. The EU cannot remain impassive and it should arm itself with a mechanism that works as a moral compass to guarantee fundamental values in its Member States.

Until now, breaches of democracy and rule of law have only generated crisis-driven measures, with no binding value to discourage further derailments or restore the good functioning of the democracies in question. The current tool used in these cases is the 2014 EU Framework to strengthen the rule of law. The only legally binding instrument available is the invocation of Article 7 of the Treaty of the European Union. This article was introduced to hold countries accountable for systemic breaches of the EU’s fundamental values. Often dubbed ‘the nuclear option’, it has never been used, as it implies high political costs and could even include a suspension of voting rights in the Council.

In many cases, prevention is the best medicine. Back in October 2016, the European Parliament stressed the need for such a tool and asked the Commission to submit a proposal by September 2017. As the Parliament rightfully argued, the EU is currently endowed with instruments to protect and guarantee important policy areas, but there are no such instruments aimed at the protection of the EU’s core values.

This is why, instead of triggering the framework of rule of law on an ad-hoc basis – and in the middle of a crisis – the EU should carry out regular monitoring processes, Member State by Member State, in which the Commission as guardian of the treaties should act as an honest broker, analyse the state of play and issue recommendations.

One bedrock for such a measure could be the Mechanism of Verification and Cooperation (MVC), an EU innovation created before the accession of Romania and Bulgaria to monitor their progress in the judiciary field and their safeguarding of rule of law. In Romania’s case, the MVC proved to be an efficient measure, especially for the consolidation of the judiciary, bringing real pressure to bear on political actors. Public support for this monitoring tool is high; citizens feel that an independent watchdog is still indispensable and that the country’s good track record of judiciary reform is largely due to EU surveillance. However, one side effect of the mechanism is the perception that other Member States are discriminating against the subject. This perception of discriminatory treatment could easily trigger anti-European attitudes and populist discourse at Romanian level, where the EU’s involvement could be condemned and rejected.

However, a fully-fledged mechanism to promote the rule of law and human rights is now more than necessary for all EU Member States as we witness political and ideological shifts that can no longer guarantee – or may even run contrary to – the values on which the EU has been built. Such a mechanism will ensure that there would no longer be any perception of discrimination against ‘second-order’ Member States as all would be assessed on an equal footing. The stern tone of the Commission in dialogues with Romania and Bulgaria should not be dropped when other Member States – even older or larger ones – are concerned. The EU (through the Commission) will lay the grounds for permanent dialogues between governments and Commission, governments and their national stakeholders such as civil society organisations and independent experts, and between these national stakeholders and the Commission. The working structure of the mechanism could mirror the European Semester with preventive and sanctioning measures, with the caveat that the Commission must put in place and abide by strict impartiality stipulations to avoid the biases in addressing and sanctioning different Member States that have arisen in the European Semester.

Such a mechanism will include clear benchmarks and common indicators, while the independent assessments will take into account the national specificities of each legal order, and will also seek to water down any attempts to breach human rights or rule of law principles by generating public pressure from citizens to resolve issues at an early stage.

Over the last year, the idea of such a mechanism has been openly endorsed by many political actors, such as the European Parliament, certain Member States – including Belgium – as well as the European Commissioner Věra Jourová and first Vice President of the Commission, Frans Timmermans. Now, more than ever, during the charged political context and the challenges the EU faces, it is time to protect the EU’s internal and external credibility by equipping it with efficient tools. While the EU promotes an agenda of rule of law and while human rights are essential elements in the accession process of candidate countries, the EU should ensure that the very same principles are respected at home.