The Rule of Law of crisis in the European Union and how to tackle it
Reflections from the RECONNECT Project
The European Union is a peace project based on economic integration and interdependence. Through its internal economic market it aims to guarantee peace and prosperity for its citizens. For economic markets to function properly it is crucially important that some key institutions, founded on values such as rule of law, work properly. This is convincingly argued by many economists and political scientists analyzing the institutional foundations of economic development. It is for this reason that the EU included in its founding Treaties references to key-values such as rule of law; and that adherence to these values is a condition sine qua non for membership.
There are many (academic) definitions on the rule of law ranging from ‘thin’ to ‘thick’ definitions. According to the European Commission the rule of law refers to the fact that all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The rule of law is built on the principles of (1) legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; (2) legal certainty; (3) prohibition of the arbitrariness of the executive power; (4) effective judicial protection by independent and impartial courts; (5) effective judicial review including respect for fundamental rights; (6) separation of powers; and (7) equality before the law.
Over the last decade the value of the rule of law has come under attack and several instances of rule of law backsliding have been observed. Rule of law backsliding refers to situations where states deliberately weaken the system of “checks and balances” which usually operate to hold those in power to account. For example, states might try to weaken (1) human rights like freedom of expression, freedom of the media and freedom of association; (2) access to justice and independence of judges and 3) the electoral system, so that different political parties find it difficult to effectively challenge the ruling party.
In order to understand these dynamics and their implications a large scale research project on ‘Reconciling Europe with its Citizens through Democracy and the Rule of Law’ (RECONNECT) was initiated and funded by the European Commission under the H2020 program. Between April 2018 and April 2022, the multidisciplinary RECONNECT research team consisting of 18 partners from 14 countries sought to build a new narrative for European integration, enabling the Union to become more attuned to the expectations of its citizens by strengthening its founding values, in particular democracy and the rule of law. The project was coordinated by the Leuven Centre for Global Governance Studies from the University of Leuven, one of the EU-Values partners.
The project started from the premise that numerous crises have resulted in a growing distrust and disconnect between the Union and its citizens. This has triggered and strengthened waves of populism, nationalism, autocracy, and a rapid dismantling of rule of law and democratic principles in domestic legal systems. Through a comprehensive examination of the concept of the rule of law, RECONNECT has sought to assess why rule of law backsliding is occurring, how this impacts the European integration project and how this trend can be reversed. Based on this, RECONNECT has put forth several policy recommendations to strengthen adherence to the value of the rule of law. These recommendations include inter alia that the European Union should:
insert an explicit legal basis for regular monitoring of rule of law and other EU fundamental values into the Treaties.
in the area of freedom, security and justice, introduce a mechanism dedicated to regularly check EU Member States’ compliance with the values underlying mutual trust
put in place measures for an objective and impartial evaluation of the implementation of Union policies in the area of freedom, security and justice in order to facilitate the full application of the principle of mutual recognition.
amend Article 7 of the Treaty on the European Union (on suspension of EU membership rights) to bolster the sanctions regime and legal consequences to backsliding regarding EU fundamental values. This implies: (1) define more clearly the scope of application of the Article 7 procedures; (2) outline explicitly the right of the European Parliament to participate in the Council’s hearings, in particular when the Parliament is the activating authority; (3) amend the voting rules in the Council; and (4) expand the list of possible sanctions, including possibly forced expulsion of a Member State.
consider the introduction of specific remedies or mechanisms in a context of rule of law backsliding.
establish an EU Conference of the Heads of Constitutional and Supreme Courts of the Member States and the Union with advisory jurisdiction over issues of Union competence.
make OLAF (European Anti-Fraud Office) findings public when Member States are irresponsive to the misconduct indicated in its reports, and introduce mechanisms of consequences attached to OLAF findings.
devise incentives for (or consequences for lack of) membership of the European Public Prosecutor’s Office.
These proposals and recommendations were brought to the table during the four years of the project and are meant to inspire and feed into future debates on how the EU and its Treaties, laws and policies should evolve. These recommendations and discussions will have wider ramifications which are crucially important in the context of EU-Values project and the dialogue on the values of the European Union it aims to foster.
Further details on the recommendations and the RECONNECT project can be found at: https://reconnect-europe.eu/