As a law-based community, the European Union depends on the rule of law, the separation of powers and an independent judiciary guaranteed and functioning within Member States. However, the EU lacks law enforcement powers. Only the obedience of the law by European political elites ensures the application of European regulations within Member States and provides citizens with means to claim their rights under the European treaties.
Josef Janning[1]
The European Union has hardly any means at its disposal to safeguard and uphold these values among its Member States. Its democracy-promoting impact intertwined with the rule of law mostly applies to prospective members rather than the current ones. Currently a safeguard clause to strengthen the basic values within the EU is expressed in Article 2 of the Treaty on European Union (TEU). On the other hand, Article 7 of the TEU stipulates a naming and “shaming” process handled by the European Commission, leaving any decision on putting sanctions on a Member State accused of violating EU values to the Council of Ministers and the European Council, i.e. in the hands of Member State governments. Meanwhile, those governments often do not want to establish European jurisdiction over their constitutional law.
However, the majority of legal system the EU Member States is currently created by the EU institutions. In consequence, the national constitutions sometimes have to be amended in order to align them with the EU acquis communautaire. For instance, the German Grundgesetz had a clause obliging men to serve in the armed forces when called upon (Wehrpflicht). On these grounds, women were excluded from the draft and from serving voluntarily in combat units. The European Court of Justice overruled the German constitution on the grounds of non-discrimination in the workplace as codified in the EU treaties. In consequence, the German constitution was changed. This example points to a crucial pillar of EU integration, namely: the rule of law. It replaced interactions between states based on power by a decision-making process based on law. Therefore, the rule of law is not just a German obsession with the Rechtsstaat, as is sometimes argued in European political circles. And this is precisely what the current Polish government puts into question: the division of powers and an independent judiciary.
The rule of law replaced interactions between states based on power by a decision-making process based on law. Therefore, the rule of law is not just a German obsession with the Rechtsstaat, as is sometimes argued in European political circles. And this is precisely what the current Polish government puts into question: the division of powers and an independent judiciary.
There is another set of legal norms and principles, which are equally essential to the functioning of the EU. It comprises the principles, norms and institutions of a market economy. They are the basis on which market governance rests at the EU level, such as competition and procurement rules, anti-fraud policies, anti-trust regulation and the whole body of single market legislation. While the EU as an economic organization could theoretically function with restrictions on media freedom or the disrespect of national minorities, it could not function if the essentials of market economy strongly intertwined with the rule of law were not respected. Considering the current refugee or euro crises, this argument could be expanded to include the obligations under Schengen and European Monetary Union. One Member State’s inability or unwillingness to deliver on the rules and conditions set forth in the respective agreements weakens the EU at large and directly affects the security or well-being in the other Member States. The German government’s unilateral decision in September 2015 (to temporarily not apply the Dublin rules on asylum seekers gathering on a massive scale in Hungary) was certainly stretching the clauses of the Schengen acquis. The spirit of the agreement would have needed prior consultation. However, the Polish refusal to implement the relocation scheme for a defined number of refugees already present in Greece and Italy, a number passed according to the rules of the EU treaties is an evident breach of those treaties. Moreover, the “respect for the law and for its due process” argument also gives substance to the notion of solidarity, often evoked by Warsaw, which is part of the wider set of values the European Union is built on. The rule of law ensures that solidarity is mutual and inclusive, neither manipulated by some to the detriment of others nor simply practiced à la carte.
The German government’s unilateral decision in September 2015 (to temporarily not apply the Dublin rules on asylum seekers gathering on a massive scale in Hungary) was certainly stretching the clauses of the Schengen acquis. The spirit of the agreement would have needed prior consultation. However, the Polish refusal to implement the relocation scheme for a defined number of refugees already present in Greece and Italy, a number passed according to the rules of the EU treaties is an evident breach of those treaties.
In consequence, the EU would need a more robust article 7.b establishing processes and instruments to sanction violations of the rule of law by Member States quickly and decisively. Currently, the instrument in place applies ex-post, as the Commission could take Member States to court for breach of the treaties, a process which often takes long to begin and even longer to be settled. It cannot be applied early on, however, when the principles of market economy or the rule of law are weakened or put into question.
The European Union is not the super-state that it is often portrayed as in national debates regarding Europe. In fact, it still resembles more a service provider than a genuine layer of governance above and superior to Member States. However, the strengthening of the sanctioning capacity (faster reaction) of the EU in those areas of the market where it is essential to its proper functioning would be a good start to change this situation. It would imply more robust rules on enforcing the proper rule of law (independent judiciary) as this is the core functional value of the entire structure.
[1] Josef Janning is Head of ECFR Berlin Office.
