Cause and Effect in European Politics and Law

The Rule of Law Mechanism Is Dead. Long Live the Rule of Law

Adelina Marini, December 18, 2014

There is still resistance for the European Commission proposal for the establishment of a common European mechanism to protect the rule of law. This is what Bulgaria's Deputy Prime Minister Meglena Kuneva told me on Tuesday morning. She is responsible in the new government of Bulgaria for the prototype of the Commission's proposal - the Cooperation and Verification Mechanism, which Bulgaria and Romania joined the EU with in 2007. I talked to her before the beginning of the General Affairs Council as one of the points on the ministers' agenda was precisely the mechanism proposed by the former Vice President of the European Commission Viviane Reding last spring. The reason for its establishment was mainly Hungary but it would have been especially useful for all the new member states where a totalitarian or regressive government emerges. Such a mechanism would be highly necessary also in case circumstances appear that could impose the abolishment (earned or not) of the Bulgarian mechanism.

The most important part of the proposal of Jose Manuel Barroso's Commission is the triggering of the so called "nuclear option" of the EU or the Article 7 of the Treaty of the EU which envisages suspension of the voting rights of a member state in the Council. Apart from that, the proposal very clearly identifies also the dangerous violations of the rule of law and envisages the Commission to play a central role in its capacity of a guardian of the treaties. However, this is precisely what the member states do not like. Meglena Kuneva believes that the resistance is not aimed at the very idea of the proposal. "Justice, the rule of law is the core of a state, it is the very state. Therefore, the reluctance to give away another portion of sovereignty is understandable. That is why there is a lot of caution". One of the unacceptable elements of the proposal is to view some of the problematic cases at European level. Imagine, the former EU commissioner for consumer protection said, some of the Bulgarian cases or a case from Germany to be viewed by the EU ministers.

The proposal is evolving in the direction the Council to keep its right to review each year what the situation with the rule of law is, but this will definitely weaken the mechanism, the deputy premier added. As a person who knows the Commission from the inside she believes that there is nothing bad in giving the Commission rights because "we are all equal in front of the Commission". The Commission is a protector of the smaller member states, she added. Generally, the European politics relies on the evolution and the conviction that evolution happens step by step which is the concept of Europe's development. The weakening of the rule of law mechanism would mean that this evolution will slow down, Ms Kuneva said. She excluded, at this stage, the possibility of an enhanced cooperation procedure, which is currently being set up for the financial transactions tax. According to euinside sources, it is more likely should the member states not accept the original proposal the Commission to withdraw it. Bulgarian Deputy Prime Minister Meglena Kuneva is of the opinion that the first vice president of the Commission, Frans Timmermans, who is responsible for the mechanism, has a great political weight and is very convincing. She was a moderate optimist: "Nothing is over yet".

Alas, the Council conclusions from 16 December clearly show that it is over. The member states commit to work not through a mechanism but through a dialogue based on the principle of objectivity, non-discrimination and equal treatment of all the member states. They promise something that seems difficult to realise - the dialogue to be non-partisan and based on evidence. But who will gather the evidence is not clear in the Council conclusions. It is emphasised that the national identities of the member states, inherent in their fundamental political and constitutional structures, need to be respected which is quite the opposite to what the Commission proposes because not all the member states have equal approach or interpretation of the EU's fundamental values or an equal understanding of what rule of law means.

The ministers also agreed the dialogue to take place once a year in the General Affairs Council where the minsters of foreign or European affairs meet. The reason for this development is the opinion of the legal service of the Council, according to which there is no legal basis in the treaties to give rights to institutions for the creation of a new supervisory mechanism to protect the rule of law by the member states in addition to the texts in Article 7. The legal service believes that such a mechanism can be established through an intergovernmental agreement. From the ministers' decision it becomes clear that there is no political will because there already is a precedent with the establishment of a strong mechanism for which there is no legal basis in the treaties. This is the mechanism for resolution of failing banks which is a complicated combination of common European law and intergovernmental agreement.

It is obvious that the member states see a much greater need to give away sovereignty when the common currency is at risk rather then when the European values described in Article 2 of the Treaty are at risk. According to Meglena Kuneva, Bulgaria has an interest in this mechanism. She committed to raise the issue in the Bulgarian government so that a deep political discussion can take place on the country's position.

The lack of a strong common European mechanism for respect of the rule of law will have serious consequences also for the enlargement process of the EU because this would mean that tailor made decisions will have to be taken as was done for Bulgaria and Romania, but not for Croatia. But still, the accession of young democracies to the EU is not a guarantee that the rule of law is ensured forever. Nor is it a guarantee for the old democracies for that matter. And in fact, it is odd that the member states have more will to keep the euro but not the rule of law since both are directly linked as not one or two cases show in the EU and the euro area in particular.

*The attached video file is in Bulgarian language