Rule of law crisis in Europe and the future evolutions

I. Introduction
Fundamental rights, democracy, and the rule of law are among the shared ideals that
underpin the European Union. These are the foundations of our societies' shared identity.
Without independent courts to ensure the protection of fundamental rights and civil
liberties, as well as an active civil society and a free and pluralistic media, no democracy
can exist. The EU is known around the world for having exceptionally high standards in
these areas. Nonetheless, these high criteria are not always enforced uniformly,
improvements can be made, and a move backwards is always a possibility. All EU
institutions and Member States share responsibility for defending our core principles, and
everyone should do their part.
This paper examines the major characteristics of Europe's so-called "rule of law crisis,"
emphasizing the contradictions between the national and supranational levels, as well as
the tools used to address the situation and future developments.
II. Origins of the Rule of Law
The phrase 'rule of law,' like the terms 'democracy' and 'human rights,' was not included in
the EC/original EU's foundation document, the European Economic Community (EEC)
Treaty signed in Rome in 1957. It initially appeared in treaty language as part of Member
States' desire to speak more clearly to the rest of the world, rather than as part of any intra-
community constitutional debate. Whereas the concept of the rule of law has evolved
historically in the context of human societies' attempts to regulate the domestic exercise of
power, between rulers and ruled, the European Community's incorporation of the term into
its founding documents occurred as part of an outwards projection of values which the
Member States sought to collectively promote outside their own borders and demos.
However, formal reference to the rule of law was only inserted into treaty language with
the Treaty on European Union (TEU) in 1992, four decades after the formation of the
European Coal and Steel Community (ECSC) in 1951, and then only in the context of the
EU's foreign policy.
The phrase was only mentioned in the new sections on a Common Foreign and Security
Policy (CFSP) and development cooperation in the substantive treaty provisions. Article
J.1(2) of the former stated that one of the CFSP's goals would be to 'develop and consolidate
democracy and the rule of law, as well as respect for human rights and fundamental
freedoms,' while Article 130u(2) stated that Community development policy would
'contribute to the general goal of developing and consolidating democracy and the rule of
law, as well as respect for human rights and fundamental freedoms.'
The TEU's preamble reaffirmed the Member States' overall "commitment to the ideals of
liberty, democracy, and respect for human rights and basic freedoms, as well as the rule of
law."
Article 2 of the Treaty on European Union declares the rule of law to be one of the common
values of all Member States. All governmental powers, under the rule of law, must always
act within the bounds of the law, in conformity with democratic and fundamental rights
ideals, and under the supervision of independent and impartial tribunals. Legality, implying
a transparent, accountable, democratic, and pluralistic process for enacting laws; legal
certainty; prohibiting the arbitrary exercise of executive power; effective judicial
protection by independent and impartial courts; effective judicial review, including respect
for fundamental rights; separation of powers; and equality before the law are some of the
principles that make up the rule of law. The European Court of Justice and the European
Court of Human Rights have both recognized these concepts. In addition, the Council of
Europe has established standards and issued opinions and recommendations to promote
and preserve the rule of law.
The principle of the rule of law is well-known. Despite the fact that Member States have
various national identities, legal systems, and traditions, the rule of law has the same
essential meaning throughout the EU. Citizens and businesses must be able to trust public
institutions, and citizens in all Member States support the rule of law's basic principles.
Every citizen's life is directly affected by the rule of law. It is a prerequisite for ensuring
equal treatment under the law and defending the rights of EU citizens. It is critical to the
execution of EU laws and policies, as well as to the creation of a Union based on equality,
opportunity, and social justice. The COVID-19 epidemic has posed extra obstacles to
citizens' rights, and various restrictions on our liberties, such as freedom of travel, freedom
of assembly, and freedom to conduct business, have had to be implemented to combat the
pandemic. National checks and balances that protect the rule of law are critical to ensuring
that any restrictions on our rights are confined to what is necessary and proportionate,
limited in time, and subject to oversight by national legislatures and courts.
III. The European Rule of Law Mechanism
The goal of President von der Leyen's Political Guidelines is to establish an extra and
comprehensive rule of law mechanism as a fundamental building component in the EU and
Member States' shared commitment to strengthen the rule of law. The mechanism is set up
in a yearly cycle to support the rule of law and prevent new or worsening problems. It
focuses on increasing knowledge and understanding of issues and key changes affecting
the rule of law, such as the judicial system, anti-corruption framework, media plurality and
freedom, and other institutional issues related to checks and balances. Identifying the
problems will aid Member States in developing solutions that defend the rule of law, with
the Commission, other Member States, and stakeholders such as the Venice Commission
cooperating and supporting each other.
The strategy is built on strong collaboration with national authorities and stakeholders,
giving transparency and objective and unbiased coverage to all Member States. Every year,
this information is compiled into a rule of law report, which includes a Member State-by-
Member State assessment in 27 country chapters. This rule of law mechanism supports and
enhances other EU instruments that encourage Member States to make structural changes
in the areas covered by its scope, such as the EU Justice Scoreboard and the European
Semester, as well as the new Next Generation EU instrument. The yearly report's
assessments would serve as a point of reference for these instruments. Other tools in the
EU's rule of law toolkit will continue to respond to challenges to the rule of law in an
effective and proportionate manner where appropriate.
The rule of law mechanism will structure the Commission's support to Member States and
national stakeholders in tackling rule of law concerns, as well as enhancing common
understanding through conversation. Through technical assistance and funding of projects
in the fields of public administration, justice, anti-corruption, and media pluralism, several
instruments and funding help support structural reforms. For projects with a European
dimension, specific and direct grants for civil society and networks (such as judges,
journalists) are also available. Expertise from recognized international groups, particularly
the Council of Europe, as well as exchanges with practitioners from other Member States,
would be beneficial to reforms.
Close and ongoing cooperation between EU institutions and Member States is required to
further the EU's efforts on the rule of law. The European rule of law mechanism has as one
of its main goals to promote inter-institutional cooperation and urge all EU institutions to
contribute in accordance with their institutional mandates. This is a key component of a
European rule of law process, and it represents a long-standing desire on the part of both
the European Parliament and the Council. This is the goal of its shared and objective basis,
which looks at all Member States equally. To enhance the EU's work on the rule of law,
close and ongoing cooperation between EU institutions and Member States is essential.
One of the key purposes of the European rule of law mechanism is to promote inter-
institutional cooperation and to encourage all EU institutions to contribute in accordance
with their mandates. This is an important part of the European rule of law process, and it
satisfies a long-held aim of both the European Parliament and the Council. This is the goal
of its common and objective foundation, which treats all members equally.
The rule of law mechanism is part of a larger EU-wide effort to improve democratic, equal,
and respect for human rights, especially the rights of minorities. It will be supplemented
by a number of upcoming initiatives, including the European Democracy Action Plan, the
renewed Strategy for the Implementation of the Charter of Fundamental Rights, and
targeted strategies to address the needs of our most vulnerable citizens in order to promote
a society characterized by pluralism, non-discrimination, justice, solidarity, and equality.
IV. A rule of law crisis within the EU
Until recently, both the internal (constitutional) and external branches of EU rule of law
discourse assumed that the EU's Member States were individually pretty well equipped to
safeguard the rule of law at home and normatively well positioned to promote it abroad.
The Commission's Framework includes a definition of the rule of law that firmly
recognizes and supports the fundamental principles that underpin a substantive, democratic
understanding of the rule of law. The Commission explicitly states that the rule of law is a
"constitutional principle with both formal and substantive components," that respect for
the rule of law is "intrinsically linked to respect for democracy and fundamental rights,"
and that its principles are "the vehicle for ensuring compliance with and respect for
democracy and human rights" in its explanation of the concept's place within the EU order.
'Legality, which implies a transparent, accountable, democratic, and pluralistic process for
enacting laws; legal certainty; prohibition of executive power arbitrariness; independent
and impartial courts; effective judicial review, including respect for fundamental rights;
and equality before the law,' according to the Commission.
These principles are based on the Court of Justice's case law, as well as an earlier analysis
by the Council of Europe's 'Venice Commission.' The revised Framework's Annex I
contains a six-part conception of the rule of law:
(1) Legality is defined as a "clear" or "transparent" situation. Enacting laws in a
transparent, democratic, and pluralistic manner'
(2) Legal certainty: demanding that "laws be clear and predictable, and that they
cannot be modified retroactively."
(3) Prohibition of executive power arbitrariness: this entails, in essence, respect for
people's private life and "protection against arbitrary or disproportionate involvement."
(4) Judicial review that is independent and effective, as well as respect for
fundamental rights.
(5) The right to a fair trial and separation of powers: this includes the "right to a
tribunal that is independent of the executive power in particular."
(6) Equality in the eyes of the law.
The European Commission highlights in this Framework that rule of law compliance is
"the backbone of every modern constitutional democracy" and is "a necessity for
preserving all rights and obligations derived from the Treaties and international law."
Similarly, the Commission has defined the rule of law as a "constitutional ideal with both
formal and substantive components" that is "inextricably related to respect for democracy
and fundamental rights." This assessment, it is argued, accurately reflects Europe's
dominant understanding of the rule of law, and that these two aspects could be considered
essential characteristics of what could be called Europe's rule of law approach, which both
the EU and the Council of Europe seek to uphold and promote. Populist authoritarians, on
the other hand, have begun to question this strategy. To put it succinctly, certain politicians
have sought to rationalize systemic abuses of both the rule of law and human rights by
citing the "desire of the people."
Finally, neither the Commission nor the other EU institutions have attempted to separate
the rule of law from the other core values enumerated in Article 2 TEU, nor to draw
conceptual distinctions between it and its sister notions of "democracy" and "human
rights." Neither the EU institutions nor the member states have attempted to explain in
detail how the rule of law enables them to function properly. This is regrettable, particularly
as the instigation of an Article 7 TEU procedure is dependent upon a clear risk of a serious
and persistent breach of the ‘values’ (plural) referred to in Article 2 TEU, not the rule of
law per se albeit we agree with the Commission when it noted in its reasoned Article 7(1)
proposal regarding the rule of law situation in Poland, that ‘respect for the rule of law is
not only a prerequisite for the protection of all the fundamental values listed in Article 2
TEU’ but ‘is also a prerequisite for upholding all rights and obligations deriving from the
Treaties and for establishing mutual trust of citizens, businesses and national authorities in
the legal systems of all other Member States’ as well as essential for both ‘the seamless
operation of the Internal Market because economic operators need to have the certainty
that they will be treated equally under the law’ and ‘mutual trust in the area of justice and
home affairs, in particular for effective judicial cooperation in civil and criminal matters
which is based on mutual recognition’.
V. Developments and actions at EU level on the rule of law
The rule of law has remained a top priority for the European Union over the past year. The
rule of law is a top priority for this Commission, as stated in President Ursula von der
Leyen's political advice, which designated it as a priority portfolio entrusted to a Vice-
President and a Commissioner responsible for the rule of law. The Commission has
responded to rule of law developments in Member States and at the EU level from the
beginning, while also putting in place the new European rule of law framework. It has
fostered dialogue and cooperation in addition to continual monitoring, utilizing
mechanisms like the European Semester to highlight concerns such as the effectiveness of
the legal system or the anti-corruption framework in Member States.
The COVID-19 outbreak has created serious rule of law issues that are currently being
debated in Europe. The Commission has been monitoring actions in the Member States
that affect the rule of law, democracy, and fundamental rights since mid-March. The
August 2020 Country Specific Recommendations under the European Semester reaffirmed
that these exceptional measures must be essential, proportionate, limited in time, and
subject to examination.
The European Parliament is becoming increasingly influential in shaping European debates
on the rule of law. The European Parliament responded to developments in the recent year
relevant to the observance of our common values, notably the rule of law, as they occurred.
Several resolutions have been passed by the European Parliament, and the Committee for
Civil Liberties, Justice, and Home Affairs (LIBE) has approved reports and organized on-
the-spot national visits. These political disputes have played an important role in enhancing
the public's awareness of rule of law challenges. The Commission recognizes the
importance of establishing a link between democracy and fundamental rights, which will
be addressed in two separate work streams: the European Democracy Action Plan and the
New Strategy for the Implementation of the Charter of Fundamental Rights, both of which
are expected to be adopted in 2020. The Commission believes that the first rule of law
report, as well as the preliminary dialogue with Member States, provide a strong foundation
for future European Parliament work.
The rule of law mechanism also reacts to the Council's increased focus on the rule of law.
Through a yearly stocktaking exercise, the Council explored further improving the
Council's annual rule of law discourse in autumn 2019. This would use dialogue and the
exchange of best practices to contribute to the inclusive and constructive prevention of rule
of law issues. On the basis of the Commission's rule of law report, the Council Presidency
has stated its desire to organize a political rule of law conversation, which will include a
debate concentrating on individual Member States.
The EU rule of law toolbox includes a variety of instruments in addition to the European
rule of law mechanism to respond to a variety of scenarios. The most frequently discussed
article in the Treaty on European Union is Article 7. It establishes a Treaty-based
framework for dealing with threats to the EU's foundational values in Member States, with
the most severe political consequence the EU can impose on a Member State being the
suspension of voting rights in the Council. The method had never been used before 2017.
The Commission began proceedings in December 2017 for Poland, and the European
Parliament began proceedings in September 2018 for Hungary. Hearings and reports on
the situation in the two Member States concerned continue in the Council, but the majority
of the difficulties outlined remain unsolved. The Commission urges the affected Member
States and the Council to invest in resolving the issues presented by these procedures as
quickly as possible, finding solutions that preserve the rule of law and the principles shared
by all Member States. Until a solution to the concerns highlighted is found, the
Commission will continue to support the Council in the Article 7 procedures in order to
resolve the issues at hand.
Through its growing case-law in this area, the European Court of Justice likewise plays a
critical role in safeguarding the rule of law. When there is a violation of EU legislation due
to a lack of rule of law, the Commission takes a strategic approach to infringement
procedures based on the European Court of Justice's case law. The purpose of these
proceedings is to address specific instances of non-compliance with EU law. The
Commission is dedicated to exercising all of its authorities and continuing to fulfill the role
of custodian of the Treaties in ensuring that EU law obligations relating to the rule of law
are followed. It has submitted a number of cases before the European Court of Justice
concerning rule of law issues, and national courts have asked the Court to provide
preliminary judgements on the interpretation of EU law in a number of situations. The
Supreme Court created significant case law on the rule of law in 2019 and 2020. The notion
of effective judicial protection and the right to an effective judicial remedy have been
confirmed and explained in particular. In light of a number of key current infringement
procedures and preliminary references on rule of law-related problems, this case law is
expected to be progressively developed in the next months and years.
VI. Rule of Law Framework in the rule of law crisis of Poland
In violation of Article 7 TEU, the Commission's Rule of Law Framework was triggered for
the first time in January 2016 in response to developments in Poland that could jeopardize
the rule of law. Due to constitutional revisions made by the newly elected Polish
Government (Sejm) at the end of 2015, the rule of law in Poland was put in jeopardy,
resulting in a power struggle between the legislative and judicial branches.
This controversy began with an act of the previous Sejm appointing the successors of the
five judges whose terms were set to expire in 2015, three in November (hereafter the
'November Judges') and two in December (hence the 'December Judges'). National
elections were held in November 2015, and a new Sejm was elected. They issued
resolutions canceling the election of the five judges and choosing five new judges upon the
instalment of the newly elected Sejm. The Polish Constitutional Tribunal had the
opportunity to assess the former Sejm Act as a consequence of an appeal. The Lawful
Tribunal ruled on December 3, 2015, that the election of the November Judges was
constitutional because the previous judges' mandates had expired before the conclusion of
the previous Sejm's tenure. The prior Sejm's election of the December Judges, on the other
hand, was unlawful because the former judges' mandates terminated after the new Sejm's
instalment. As a result, the new Sejm had no choice but to allow the November Judges to
take over the Constitutional Tribunal instead of the judges they had elected. The new Sejm,
on the other hand, rightly replaced the December Judges.
In addition, the newly elected Sejm changed the Constitutional Tribunal Act twice in a
short period of time. The first amendment gave the President of the Constitutional Tribunal
a three-year term of office, renewable once, and ended the terms of the incumbent President
and Vice-President. The Constitutional Tribunal's operation was significantly affected by
the second amendment. Changes were made to the attendance quorum, voting majority,
case sequencing, and disciplinary proceedings.
These constitutional changes, such as the composition and functioning of the Constitutional
Tribunal, as well as the Constitutional Tribunal's continued unwillingness to disclose its
judgements, have generated worries about Poland's rule of law compliance. As a result, on
January 13, 2016, the Commission decided to launch its Rule of Law Framework for the
first time, starting a positive debate. Poland, on the other hand, has demonstrated little
willingness to work together. Furthermore, the head of the ruling Law and Justice Party
believes the Framework is illegal under EU law.
Finally, five months after the Rule of Law Framework was activated, the Commission
issued a Rule of Law Opinion on June 1, 2016. As previously stated, the conversation and
the Rule of Law Opinion are both confidential. As a result, during a press conference, the
Commission disclosed the content of the Rule of Law Opinion in a highly generalized
manner. The Commission expressed concern about three issues: the appointment of judges
to the Constitutional Tribunal and the implementation of the Constitutional Tribunal's
judgments on these appointments, laws amending the Constitutional Tribunal Act, and the
effectiveness of the Constitutional review of new legislation.
The Commission's Rule of Law Opinion focuses on the evaluation of the three concerns.
First and foremost, the Commission emphasized the importance of carrying out the rulings
concerning the appointment of justices to the Constitutional Tribunal. To put it another
way, the judges selected by the outgoing Sejm in November should begin serving as judges
in the Constitutional Tribunal. Second, the Commission determined that the Constitutional
Tribunal's efficiency as a guarantee of the Constitution has been harmed by the revisions
to the Act of the Constitutional Tribunal made on December 22, 2015. Furthermore, these
actions raise issues about the separation of powers, as well as the judiciary's integrity and
independence. The Constitutional Tribunal and the Venice Commission had already
declared this. The Polish government, on the other hand, has refused to publish the
judgments, causing legal confusion. Finally, the Commission contends that legislative
revisions have hampered the Constitutional Tribunal's ability to conduct an effective
constitutional review.
As a result, the Commission had no choice but to find that Poland had become a systemic
threat to the rule of law. The persistent refusal to publish and implement Constitutional
Tribunal judgments declaring the Sejm's legislative actions and reforms unconstitutional
demonstrates beyond a shadow of a doubt that safeguard measures put in place at the
national level to protect the rule of law are systematically and adversely affected, posing a
systemic threat to the rule of law. It could even be argued that the threshold of a serious
and chronic infringement required to activate Article 7 TEU has already been met,
especially given the impact of the Constitutional Tribunal's Act modifications on the
Tribunal's effectiveness. The Commission, on the other hand, has decided to move forward
with the second stage of the Rule of Law Framework.
Poland has had the opportunity to give its observations, which will serve as the foundation
for ongoing constructive engagement in order to find answers. Instead, on July 22, 2016,
the Sejm passed a new Act on the Constitutional Tribunal (hereafter referred to as the "New
Act"). After additional consideration, the Commission found that this was not a viable
solution since concerns about the rule of law remained. As a result, the Commission
launched the second step by issuing a proposal on Poland's rule of law on July 27, 2016.
The Rule of Law Recommendation mirrors the content of the Rule of Law Opinion to a
large extent. It does, however, bring up the issue of the Constitutional Tribunal's ability to
function effectively. The Commission recognizes that the New Act has some
enhancements, such as voting majorities, the sequence rule, and disciplinary actions.
Nonetheless, certain clauses relating to infractions of the rule of law remain untouched.
Furthermore, additional issues have been raised. For example, it appears that the Public
Prosecutor-General, who is also the Minister of Justice, has the power to prolong or even
prohibit the examination of some cases by declining to attend the hearing.
As a result, Poland's rule of law situation remains a systemic threat to the rule of law, with
the Constitutional Tribunal unable to fully ensure an effective constitutional review,
jeopardizing its integrity, stability, and proper functioning, which is one of the rule of law's
most important safeguards. As a result, the Commission advises, first and foremost, that
all Constitutional Tribunal judgements be made public and executed. Second, it calls for
the New Act to be consistent with the Constitutional Tribunal's previous decisions and the
Venice Commission's 11 March 2016 Opinion. As a result, Poland's rule of law situation
remains a systemic threat to the rule of law, with the Constitutional Tribunal unable to fully
ensure an effective constitutional review, jeopardizing its integrity, stability, and proper
functioning, which is one of the rule of law's most important safeguards. As a result, the
Commission advises, first and foremost, that all Constitutional Tribunal judgements be
made public and executed. Second, it calls for the New Act to be consistent with the
Constitutional Tribunal's previous decisions and the Venice Commission's 11 March 2016
Opinion.
 VII. Conclusion
President von der Leyen called on the European Parliament, the Council, and the Member
States to participate in a process of cooperation on the rule of law, a new European rule of
law mechanism including all Member States and EU institutions in a preventative exercise,
in July 2019. Since the inception of contemporary European integration in the aftermath of
World War II, the concept of the rule of law has been an integral component of the
normative and institutional DNA of what is now the EU. The origins and evolution of the
notion inside the EC/EU governance system have been tracked in this chapter, with the
primary sources, constraints, and actors that have shaped its formation and evolution over
the past seven decades identified. It then identified four key areas of EC/EU identity and
conduct in which the concept and ideal of the rule of law play critical roles. To begin with,
and most importantly, the rule of law is one of a small number of constitutional ideals upon
which the Union is believed to be built by treaty and which are deemed to be shared by all
Member States. Second, in order for the EU to function effectively as a political and legal
architecture, both the EU and individual Member States must be able to fairly rely on the
efficacy of other Member States' justice systems. As a result, basic faith in each Member
State's rule of law standards is the glue that links these core areas of EU action together.
Third, since the Lisbon Treaty, respect for the rule of law is an eligibility condition for EU
membership, and governments seeking membership must demonstrate adherence to it as
well as a willingness to promote it. As a result, the rule of law has played, and will continue
to play, an important role in the Union's expansion. Finally, the rule of law is important to
the Union's identity and activities in connection to its foreign contacts, as well as its self-
understanding as a global player devoted to the strengthening of the liberal international
order. Indeed, when the New Act stipulates that the Public Prosecutor-General must attend
hearings, such as in cases heard by the full bench, the absence of the Public Prosecutor-
General will impede an assessment of the case.
In the EU, a gap exists between the Treaties' declaration of the rule of law and the Member
States' actual conformity with the rule of law. At the same time, the EU's current legal
structure is incapable of governing rule of law compliance effectively and efficiently. The
mechanisms are shifting from being too political-oriented, such as Article 7 TEU's "nuclear
option," to being too case-specific, such as Article 258 TFEU's infringement procedure. As
a result, the CVM's applicability breadth is too limited to address systemic violations of
core principles. In fact, all of these procedures are triggered by a crisis and are aimed at
correcting noncompliance.
The Commission has produced a Rule of Law Framework as a result of the Hungarian rule
of law problem. The Rule of Law Framework is "a tentative move in the right direction,"
as one commentator put it. The application of the Rule of Law Framework to the Polish
situation, however, reveals the Framework's limits. In the meantime, the establishment of
new legal instruments implies a greater understanding within EU institutions of the need
for an efficient rule of law enforcement mechanism. This is the first step toward the
Member States effectively enforcing compliance with the rule of law. Before the rule of
law is violated, it is vital to concentrate on what the rule of law is and how it can be
implemented. The degree of rule of law compliance, which must be assessed on a case-by-
case basis, could cause issues. To decide whether a specific component of the rule of law
has been violated, the relevant facts must be examined. A comprehensive and periodic
monitoring tool, equivalent to the CVM, is required for successful enforcement of rule of
law compliance. Furthermore, the Rule of Law Framework should include clear signs that
indicate when it should be activated, providing legal clarity to Member States. Member
State will be aware of the fact that they are monitored on a regular basis. Moreover, they
know what actions will lead to a reaction of the EU.
Furthermore, it is unclear how all of the numerous legal instruments used to enforce rule
of law compliance connect to one another. The EU's current legislative framework has been
transformed into a 'toolbox' crammed – or should we say overburdened – with enforcement
tools. There is no consistency among the numerous instruments, and no coordination
between the several EU organizations in charge of activating them. This leads to pointless
debates within EU institutions and, as a result, uncertainty over whether the EU would take
action against non-compliant Member States, putting the EU's very survival in jeopardy.
As a result, the prevalence of systemic compliance flaws in some Member States, as well
as the growth of enforcement measures in recent years, highlight the EU's current failure
to enforce value compliance. If the ideals expressed in Article 2 TEU are to be taken
seriously, the EU must adopt a hard stance and prevent its Member States from regressing
on the rule of law.
References

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