European Union: Who enforces fundamental rights?

Setting high standards for aspiring member countries, but ineffective with Member States: European institutions have problems with fundamental rights

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

The recognition of fundamental rights as a backbone of the European Union is laid down in Article 2 of the Treaty on European Union (TEU). In the light of this the European Parliament adopted, on the 25th October 2016, recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, the so called “DRF Pact ”.

The long process towards the adoption of the proposal began with the recommendations formulated by the Parliament toward some member states, in particular the 2013 resolution adopted for Hungary in reaction to the constitutional reforms and the changes in the legislation on the media adopted by prime minister Viktor Orbán.

With a more systematic approach, the EPCommission for Civil liberties, Justice and Home affairs (LIBE) turned to the European Commission in June 2015inviting it to present “a legislative proposal for the establishment of an EU mechanism on democracy, rule of law and fundamental rights as instrumental for the respect and application of the Charter and the treaties signed by all member states based on common indicators and objectives.”

The recommendation adopted by the EP at the end of October now calls for the creation of an experts committee (the DRF Committee) that would be in charge with drawing up an annual report on democracy, rule of law and fundamental rights in the Member States. The DRF Committee would also formulate specific recommendations for each Member State on issues considered of particular importance, such as the separation of powers, freedom and pluralism of the media, equality towards the law, the fight against corruption and the conflict of interest.

The mechanism ensures strict cooperation between European institutions in a spirit of cooperation and subsidiarity: once the evaluation framework by the DRF Committee is made public, it will be debated in the European Parliament and in the EU Council. Should the evaluation reveal a particularly critical situation, the Commission could decide to initiate a systemic breach procedure, in accordance with Art. 7 of the TEU.
The Parliament also advocated the revision of Art.7 of the TEU in order to improve the effectiveness of sanctions against those Member States responsible for systematic violation of fundamental rights including financial penalties or suspension of EU funding.

What is the situation up to now?

The EU does not have a mechanism which guarantees effective protection for fundamental rights within the Member States. The only procedure against a country which does not respect these fundamental rights is the one mentioned in Art.7 of the TEU. According to it, upon a reasoned proposal from a third of the member States, of the European Parliament or the European Commission, the Council can ascertain the existence of a risk of a serious violation by a member state of the values set out in Art.2 of the Treaty. In this case, before taking action the Council hears the member state in question and could provide recommendations. Should the recommendations not be followed and the country concerned fail to adopt the suggested measures, the Council could decide to suspend some of the rights granted to that specific country, as the right to vote in the Council itself.

This procedure has however never been applied.

The reform proposal adopted by the LIBE Committee raises another important aspect, that is the difference between the standards applied to candidate countries and member states. “The lack of compliance to the rules by a candidate country has the effect of slowing accession to the EU, while the lack of compliance to the same rules in a Member State or EU institution has hardly any practical consequences,” adding that “the institutions and bodies of the EU as well as the Member States should give an example by fulfilling their obligations and trying to form a shared culture for the rule of law as a universal value in the 28 MS and in the EU institutions”.

The case of Poland

Among the reasons behind the proposal drawn up by the LIBE Committee are “recent developments in some member States” which “have shown how lack of respect for the rule of law and fundamental rights are not adequately faced”.

There is more than one case in Europe raising concerns when it comes to the protection of fundamental rights. A clear example is the situation in Poland, where a series of threats to the rule of law began when the government led by the populist Law and Justice party (PiS) refused to recognise the appointment of judges for the Constitutional Court, elected by the Parliament in the previous legislation.

PiS also proposed a controversial constitutional reform, still to be approved, which according to some analysts would restrict the actions of the Court itself, unsettling the fundamental principle of the separation of powers.

The EU tried to open a dialogue with the Polish government. Last July, the European Parliament invited the Polish government to resolve the constitutional crisis within three months. Poland replied on the very last day available, rejecting the recommendations of the EP based on the argument that “no legal possibility can be found to put them into effect”. The document also states that the recommendations of the Parliament “are based on the unfounded claim for the prominent role of the Constitutional Court in upholding the rule of law”.

This case demonstrates that the EU as it is organized at the moment cannot get the same results when treating democracy or fundamental rights as when treating economic or fiscal matters. In fact too frequently attempts to point out to the member states their own commitments is met with a certain reticence or refusal to recognize the laws established by mutual agreement.
The introduction of the DRF Committee dedicated to monitoring democracy, human rights and fundamental freedom will help, as will the introduction of an annual debate in the European Parliament. This will not only shed light on the general condition of the EU, but, as mentioned by MEP Sophie in’t Veld, will also allow the creation of a culture of democracy, the rule of law and the fundamental rights between the member states in the EU.

It is now up to the European Commission to draw up a draft before September 2017 for the creation of a “Pact on democracy, the rule of law and fundamental human rights”. It will then need to again pass before Parliament and, more importantly, to go before the European Council where the member States will have to give their agreement. It is then hoped that at least within 2018 this initiative can begin to be implemented.