“JUSTICE SCOREBOARD 2014 AND THE EC COMMUNICATION: A NEW EU FRAMEWORK TO STRENGTHEN THE RULE OF...

“JUSTICE SCOREBOARD 2014 AND THE EC COMMUNICATION: A NEW EU FRAMEWORK TO STRENGTHEN THE RULE OF LAW”

XIX GENERAL ASSEMBLY OF ELRABARCELONA 16TH MAY 2014

PROF. DR. GUILLERMO PALAOUNIVERSITY OF VALENCIA

●TWO RECENT DEVELOPMENTS TO STRENGTHEN THE RULE OF LAW IN THE EU: COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL: A NEW EU FRAMEWORK TO STRENGTHEN THE RULE OF LAW (STRASBOURG, 11.3.2014, COM (2014) 158 FINAL) COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS: THE 2014 EU JUSTICE SCOREBOARD (BRUSSELS, 17.3.2014, COM (2014) 155 FINAL).

“JUSTICE SCOREBOARD 2014 AND THE EC CI¡OMMUNICATION: A NEW EU FRAMEWORK TO STRENGTHEN THE RULE OF LAW”

● THE LEGAL FRAMEWORK OF THESE NEW EU INITIATIVES: THE COPENHAGEN CRITERIA THE RULE OF LAW AS PART OF THE VALUES WHICH ARE COMMON AND SHARED ACROSS MEMBER STATES OF THE EU (EUROPEAN COUNCIL IN COPENHAGEN, 1993) AND ART. 6 OF THE TEU: ARTICLE 6 TEU

“1.- THE UNION IS FOUNDED ON THE PRINCIPLES OF LIBERTY, DEMOCRACY, RESPECT FOR HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, AND THE RULE OF LAW, PRINCIPLES WHICH ARE COMMON TO THE MEMBER STATES.”


THE COPENHAGEN DILEMMA “WE FACE A COPENHAGEN DILEMMA. WE ARE VERY STRICT ON THE COPENHAGEN CRITERIA, NOTABLY ON THE RULE OF LAW IN THE ACCESSION PROCESS OF A NEW MEMBER STATE BUT, ONCE THIS MEMBER STATE HAS JOINED THE EUROPEAN UNION, WE APPEAR NOT TO HAVE ANY INSTRUMENT TO SEE WHETHER THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY STILL COMMAND RESPECT.”

VIVIANE REDING, VICE-PRESIDENT OF THE EUROPEAN COMMISSION, ADDRESSING THE EUROPEAN PARLIAMENT, 11 SEPTEMBER 2012.


THE NEED FOR A REACTION AT EU LEVEL IN CASES OF A SYSTEMIC THREAT TO THE RULE OF LAW

SOME EXAMPLES: FRANCE (2011), HUNGARY (2011), ROMANIA (2012)“A POLITICAL UNION ALSO MEANS THAT WE MUST STRENGTHEN THE FOUNDATIONS ON WHICH OUR UNION IS BUILT: THE RESPECT FOR OUR FUNDAMENTAL VALUES, FOR THE RULE OF LAW AND DEMOCRACY…THESE SITUATIONS ALSO REVEALED LIMITS OF OUR INSTITUTIONAL ARRANGEMENTS. WE NEED A BETTER DEVELOPED SET OF INSTRUMENTS – NOT JUST THE ALTERNATIVE BETWEEN THE "SOFT POWER" OF POLITICAL PERSUASION AND THE "NUCLEAR OPTION" OF ARTICLE 7 OF THE TREATY”PRESIDENT JOSÉ MANUEL BARROSO ON THE STATE OF THE UNION OF 12 SEPTEMBER 2012

THE DIVERSE RANGE OF TOOLS AVAILABLE AND THE NEED FOR A NEW PREVENTIVE APPROACH A CURRENT MULTI-LEVEL AND MULTI-ACTOR APOPPRACH USING QUALITATIVE DIVERSE METHODOLOGIES.


● KEY ISSUES REGARDING THE PROTECTION OF THE RULE OF LAW AT AN EU LEVEL THE (CONTROVERSIAL) CONCEPT OF “RULE OF LAW” NON A COMMON AGREED CONCEPT AT THE EU LEVEL AND THE IMPORTANCE OF THE NATIONAL APPROACHES THE VENICE COMMISSION (THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW) APPROACH TO THE CONCEPT: LEGALITY, LEGAL CERTAINTY, PROHIBITION OF ARBITRAIRNESS ON THE PART OF THE STATE AND ITS AUTHORITIES, ACCESS TO JUSTICE, RESPECT AND GUARANTEE OF HUMAN RIGHTS BY THE STATE AUTHORITIES, NON-DISCRIMINATION AND EQUALITY BEFORE THE LAW THE COMPETENCE/ SOVEREIGNITY (SUBSIDIARITY/ PROPORTIONALITY) QUESTION ¿A PROTECTION LIMITED TO AREAS COVERED BY EU LAW? THE EVOLUTION OF EU FUNDAMENTAL HUMAN RIGHTS


THE DIVERSE TYPE OF TOOLS AT HAND MONITORING AND EVALUATING MECHANISMS: THE COOPERATION AND VERIFICATION MECHANISM (CVM) (EC) THE ANTI-CORRUPTION REPORT (DG HOME AFFAIRS) THE JUSTICE SCOREBOARD (2013 AND 2014) AND THE EUROPEAN SEMESTER FOR ECONOMIC POLICY (EC) (THE EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE –CEPEJ- OF THE COUNCIL OF EUROPE) THE INTER-INSTITUTIONAL ANNUAL REPORTING ON FUNDAMENTAL RIGHTS (EP) AND THE EU CHARTER OF FUNDAMENTAL RIGHTS (DG JUSTICE) SUPERVISION AND PREVENTIVE MECHANISM: ART. 7 OF THE TREATY OF THE EUROPEAN UNION AS LE LAST RESORT (THE NUCLEAR OPTION):

ART. 258 TFEU INFREGMENT PROCEDURES


ARTICLE 7

1.- THE COUNCIL, MEETING IN THE COMPOSITION OF THE HEADS OF STATE OR GOVERNMENT AND ACTING BY UNANIMITY ON A PROPOSAL BY ONE THIRD OF THE MEMBER STATES OR BY THE COMMISSION AND AFTER OBTAINING THE ASSENT OF THE EUROPEAN PARLIAMENT, MAY DETERMINE THE EXISTENCE OF A SERIOUS AND PERSISTENT BREACH BY A MEMBER STATE OF PRINCIPLES MENTIONED IN ARTICLE 6(1), AFTER INVITING THE GOVERNMENT OF THE MEMBER STATE IN QUESTION TO SUBMIT ITS OBSERVATIONS.

2.- WHERE SUCH A DETERMINATION HAS BEEN MADE, THE COUNCIL, ACTING BY A QUALIFIED MAJORITY, MAY DECIDE TO SUSPEND CERTAIN OF THE RIGHTS DERIVING FROM THE APPLICATION OF THIS TREATY TO THE MEMBER STATE IN QUESTION, INCLUDING THE VOTING RIGHTS OF THE REPRESENTATIVE OF THE GOVERNMENT OF THAT MEMBER STATE IN THE COUNCIL. IN DOING SO, THE COUNCIL SHALL TAKE INTO ACCOUNT THE POSSIBLE CONSEQUENCES OF SUCH A SUSPENSION ON THE RIGHTS AND OBLIGATIONS OF NATURAL AND LEGAL PERSONS.THE OBLIGATIONS OF THE MEMBER STATE IN QUESTION UNDER THIS TREATY SHALL IN ANY CASE CONTINUE TO BE BINDING ON THAT STATE.

3.- THE COUNCIL, ACTING BY A QUALIFIED MAJORITY, MAY DECIDE SUBSEQUENTLY TO VARY OR REVOKE MEASURES TAKEN UNDER PARAGRAPH 2 IN RESPONSE TO CHANGES IN THE SITUATION WHICH LED TO THEIR BEING IMPOSED.

4.- FOR THE PURPOSES OF THIS ARTICLE, THE COUNCIL SHALL ACT WITHOUT TAKING INTO ACCOUNT THE VOTE OF THE REPRESENTATIVE OF THE GOVERNMENT OF THE MEMBER STATE IN QUESTION. ABSTENTIONS BY MEMBERS PRESENT IN PERSON OR REPRESENTED SHALL NOT PREVENT THE ADOPTION OF DECISIONS REFERRED TO IN PARAGRAPH 1. A QUALIFIED MAJORITY SHALL BE DEFINED AS THE SAME PROPORTION OF THE WEIGHTED VOTES OF THE MEMBERS OF THE COUNCIL CONCERNED AS LAID DOWN IN ARTICLE 205(2) OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY.THIS PARAGRAPH SHALL ALSO APPLY IN THE EVENT OF VOTING RIGHTS BEING SUSPENDED PURSUANT TO PARAGRAPH 2.

5.- FOR THE PURPOSES OF THIS ARTICLE, THE EUROPEAN PARLIAMENT SHALL ACT BY A TWO THIRDSMAJORITY OF THE VOTES CAST, REPRESENTING A MAJORITY OF ITS MEMBERS..


● THE APPROACH FOLLOWED BY THE COMMUNICATION 2014: A NEW EU FRAMEWORK TO STRENGTHEN THE RULE OF LAW

PRECEDENTS OF THE INITIATIVE: EP REPORTS: THE EP FUNDAMENTAL RIGHTS REPORTS 2010 AND 2012/ THE TAVARES REPORT (SITUATION OF FUNDAMENTAL RIGHTS: STANDARDS AND PRACTICES IN HUNGARY) 2013THE EC SEMINAR “THE EU AND THE RULE OF LAW: WHAT NEXT?” 2013

"THE RULE OF LAW IS ONE OF THE FOUNDING PILLARS OF THE EUROPEAN UNION. THIS IS WHAT OUR UNION IS BUILT UPON. THE EUROPEAN COMMISSION HAS A CRUCIAL ROLE IN UPHOLDING THE RULE OF LAW AS THE GUARDIAN OF THE TREATIES. I HAVE SYSTEMATICALLY POINTED TO THE NEED FOR A BETTER FRAMEWORK WHICH ALLOWS THE COMMISSION TO INTERVENE EARLY AND TRANSPARENTLY IN CASES OF SERIOUS AND SYSTEMIC THREATS TO THE RULE OF LAW IN A MEMBER STATE. TODAY, THE COMMISSION IS DELIVERING ON THIS COMMITMENT MAKING SURE THAT, IN FUTURE, AND BASED ON OUR RECENT PAST EXPERIENCE, WE CAN PREVENT AND EFFECTIVELY RESOLVE RULE OF LAW CRISES IN OUR MEMBER STATES." PRESIDENT JOSÉ MANUEL DURÃO BARROSO"RESPECT FOR THE RULE OF LAW IS A PREREQUISITE FOR THE PROTECTION OF ALL OTHER FUNDAMENTAL VALUES UPON WHICH OUR UNION IS FOUNDED. THE EUROPEAN COMMISSION IS THE GUARDIAN OF THE TREATIES – SO TOO, WE MUST BE ONE OF THE GUARDIANS OF THE RULE OF LAW,". "IN THE PAST FEW YEARS, EVERY TIME THERE HAS BEEN A THREAT OR A POTENTIAL THREAT TO THE RULE OF LAW IN ONE MEMBER STATE, ALL INSTITUTIONS HAVE TURNED TO THE COMMISSION AS THE IMPARTIAL ARBITER ASKING US TO TAKE ACTION. TODAY WE ARE PUTTING IN PLACE THE TOOLS NECESSARY TO ACT AND PROTECT OUR CITIZENS FROM THREATS TO THE RULE OF LAW IN OUR UNION. THE EUROPEAN UNION IS BASED ON RESPECT OF THE RULE OF LAW AND ON RESPECT OF THE EQUALITY OF ALL MEMBER STATES. IT FOLLOWS THEN THAT THE NEW TOOL TO SAFEGUARD THE RULE OF LAW WILL BE APPLICABLE UNDER THE SAME THRESHOLD OF A SERIOUS AND SYSTEMIC THREAT TO THE RULE OF LAW TO ALL MEMBER STATES, BIG OR SMALL, NORTH, SOUTH, EAST OR WEST." VICE-PRESIDENT VIVIANE REDING, THE EU'S JUSTICE COMMISSIONER


MAIN ELEMENTS OF THE INITIATIVE:

THE LEADERSHIP OF THE EUROPEAN COMMISSION

BASED AND COMPLEMENTING CURRENT EU TREATIES (ART. 7 TEU)

FOCUSED ON THE RULE OF LAW

A REACTION TO A SYSTEMIC (NOT INDIVIDUAL) AND CONCRETE BREAKDOWN TO SECURE THE RULE OF LAW

EQUALITY OF MEMBER STATES

ASSESMENT AND DIALOGUE

AN EARLY WARNING TOOL AND A DIALOGUE WITH THE CONCERNED MEMBER STATE CONCERNED

CLARITY AND PREDICTABILITY.


MAIN ELEMENTS OF THE PROCES:

1) COMMISSION ASSESSMENT: "RULE OF LAW OPINION" 2) COMMISSION RECOMMENDATION: "RULE OF LAW RECOMMENDATION" 3) FOLLOW-UP TO THE COMMISSION RECOMMENDATION: ART. AS THE LAST RESORT 7 TEU.


THANK YOU VERY MUCH¡

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