As the struggle between the EU institutions and the governments of Hungary and Poland over rule of law issues intensified, there have been repeated calls on the Commission, particularly from the European Parliament, to propose a rule of law monitoring mechanism. It seems that the Commission has acquiesced.
Commission first vice-president Frans Timmermans has formally promised that the Commission will prepare by the end of the year a concrete mechanism that will monitor the state of the rule of law, democracy and fundamental freedoms in all the member states.
The debate on rule of law monitoring has been ongoing for at least the last 25 years – ever since June 1993 when the Copenhagen European Council decided to open EU membership to the newly liberalised countries of Central and Eastern Europe, and established the “Copenhagen Criteria”. Foremost among these criteria is stability of institutions guaranteeing democracy, the rule of law and human rights.
The lack of credibility in the monitoring and sanctioning of rule of law deviations prompted the EU institutions to set up several EU-level monitoring instruments. However, these instruments remain a fragmented set of surveillance systems and tools.
This patchwork set-up explains the pressure on the Commission to come up with a coherent, practical and effective rule of law monitoring mechanism.
An assessment of the existing rule of law evaluation instruments and of the proposals put forward so far can provide an indication of the structure and reach of the monitoring mechanism that is being promised by vice-president Timmermans.
The list of current monitoring instruments related to the rule of law includes the EU Justice Scoreboard, the European Semester, and reporting by the Fundamental Rights Agency (FRA). To these one should add the Commission’s Rule of Law Framework, the Council’s Rule of Law Dialogue and Parliament’s proposal for an EU Pact for Democracy, Rule of Law and Fundamental Freedoms (DRF Pact).
The EU Justice Scoreboard provides data on the quality, independence and efficiency of the justice systems in all EU member states. It is part of a dialogue between the Commission and the member states in the context of the European Semester, and its aim is to assist member states achieve higher levels in the functioning of their civil, commercial and administrative justice systems.
The published comparative data does not lead to any form of sanctioning. It is only intended to encourage member states to keep improving their justice systems to the highest possible level.
The European Semester is the most developed and effective monitoring tool that the EU has in place. It was introduced in 2010, at the height of the euro crisis, with the aim of ensuring sound public finances and avoiding excessive government debt.
The Commission undertakes a detailed analysis of each member’s budget plan and macroeconomic performance and issues country-specific recommendations.
There is a proven link between the rule of law and sound public finances and investor confidence
There is a proven link between the rule of law and sound public finances and investor confidence. The Commission acknowledges this link and the detailed monitoring it undertakes in the framework of the European Semester also covers the judicial system and anti-corruption institutions of the member states, as well as social and civil rights, gender equality and poverty exclusion risks.
Many believe that the Commission’s upcoming rule of law monitoring mechanism should build on the experience gained from the European Semester and integrate the inputs from the Justice Scoreboard and the Fundamental Rights Agency.
There are also suggestions that the Commission should select the most pragmatic and effective elements from the initiatives on rule of law monitoring that are already in place, namely, the Commission’s Rule of Law Framework, the Council’s rule of law dialogue and Parliament’s proposed EU Pact for DRF.
As the Timmermans’s team begins to ponder on what sort of monitoring mechanism it should propose by the end of the year, there are strong currents in the Commission’s corridors suggesting a link between the transfer of EU funds and the respect of the rule of law and democratic principles.
These currents are gathering relevance as the member states embark on detailed discussions for the post 2020 Multi-annual Financial Framework.
The Commission’s Reflection Paper on the Future of EU Finances, published on June 28, 2017, refers to a “clear relationship between the rule of law and an efficient implementation of the private and public investments supported by the EU Budget”.
Budget Commissioner Gunther Ottinger has repeatedly hinted at political conditions attached to EU funds. Vera Yourova, Commissioner for Justice, Consumers and Gender Equality, has stressed the need to ensure that EU funds would contribute more towards promoting the EU’s fundamental rights and values.
Moreover, it is reported that the German government is looking into ways to enable the Commission to freeze funding for EU member states that do not comply with the EU’s standards regarding the rule of law.
However, Commission President Jean-Claude Juncker has spoken strongly against tying structural funds to the rule of law, saying that this would be “poison for the continent and divide the European Union”.
Legal experts are commenting extensively on this issue. Some argue that a rule of law conditionality attached to the transfer of EU funds is possible. Their argument is that countries where the rule of law is weak are unlikely to be able to use EU funds effectively. However, all legal experts agree that any mechanism devised to improve compliance with the rule of law must be applicable to all member states.
Whatever rule of law monitoring mechanism the Commission will come up with, Malta should not be particularly concerned in spite of the clamour at the EP and elsewhere that have origin in separate agendas only concerned with damaging Malta’s reputation at all costs.
In five years, the Labour administration has introduced tangible legislation and measures to enhance good governance and rule of law – to which the PN only paid lip service during the quarter of a century in office. These include the removal of any prescription from corruption offences committed by politicians, a new party financing law making party financing more transparent and political parties more accountable, the Whistle-blower Act, the law on Standards in Public Life, new legislation granting more autonomy to Parliament, the setting up of a Standing Parliamentary Committee to scrutinise key public appointments and the introduction of new rules on how a member of the judiciary is appointed –limiting the discretion of the executive on such appointments.
It is encouraging to know that the Commission adopts evidence-based conclusions and disregards spurious allegations. It is also comforting to note that the 2018 European Semester Report on Malta presents an extremely positive endorsement of the socio-economic achievements of the Maltese government that will continue to work relentlessly in this direction to further ensure a ‘future-proof’ Malta and Gozo to the current and next generations.
Edward Zammit Lewis is a Labour Party MP and chairman of the Foreign and European Affairs Parliamentary Standing Committee.