The European Commission has adopted a new procedure to discipline member states that are found to be in violation of the rule of law. It has been introduced with immediate effect after the college of commissioners agreed it in Strasbourg on Tuesday (11 March). It is not legally binding on the member states, but Commission officials are hoping that the political momentum generated will make it difficult to ignore.
Presenting the procedure, Viviane Reding, the European commissioner for justice, fundamental rights and citizenship, said it would allow for friendly dialogue between the Commission and a member state suspected of breaching the rule of law, increasing the chances of amicable resolution before the stage where the legally-binding Article 7 of the EU treaties might be invoked. “If no solution is found, then Article 7 remains the last resort to ensure compliance with European values,” Reding said. Commission officials described the new procedure as “an early-warning tool”. Reding said that the rule of law “helps uphold all other values” listed in the treaty. “Fundamental rights would be an empty shell without [it],” she said
The Article 7 procedure exists to discipline a member state if there is a “clear risk of a serious breach” of the “values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human right, including the rights of persons belonging to minorities”. It can theoretically lead to a member state losing its voting rights in the Council of Ministers. But it is cumbersome, and requires difficult-to-obtain majorities in the Council of Ministers and unanimity in the European Council. The European Parliament has repeatedly called for a simpler and less drastic procedure, and the Commission was also concerned – as Reding highlighted – by the shortcomings of Article 7 exposed by recent experiences with Romania and Hungary.
Under the new procedure, the Commission will assess whether there is a systemic threat to the rule of law in a member state, and share its opinion with that member state. If the member state fails to respond or its response falls short of the Commission’s expectations, the dispute can be escalated with the issue of a rule-of-law recommendation from the Commission, with deadlines for specific measures. Subsequent monitoring can allow invocation of Article 7 if implementation falls short.
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An official said this did not create a new competence for the Commission, but merely fleshed out its role in protecting the values set out in the treaty. José Manuel Barroso, the president of the Commission, called for a new mechanism in his ‘state of the union’ address in 2012, and the college of commissioners held two orientation debates on the matter.