Protecting the rule of law in the EU: Existing mechanisms and possible improvements

Summary:

Under the rule of law, governmental powers are limited by law and may be exercised only on the basis of law. An independent judiciary is indispensable to guaranteeing this state of affairs, and appropriate procedures, including legal remedies, must be in place to guarantee that individuals can protect their rights and trigger judicial review of governmental action. The rule of law has been an enduring basic value of the European Union from its inception, and the principles of the rule of law have been enshrined in the case law of the European Court of Justice (ECJ). The EU's very design is based on a shared responsibility for upholding and enforcing EU law, which is the joint task of the ECJ and national courts. The rule of law within the Member States, at least in areas covered by EU law, is therefore indispensable for the proper functioning of the Union and its legal system. Furthermore, the rule of law is one of the EU's fundamental values, enshrined in Article 2 of the Treaty on European Union, which must be respected by the Member States, including in areas not covered by EU law.

Should an EU Member State be suspected of breaching the rule of law, a number of procedures are available to verify this and, if needed, remedy the situation. First of all, there are three 'soft' mechanisms, which do not give rise to legally binding results, yet nevertheless have a certain political resonance and can be seen as a preparatory step towards legal action. These include the transitional 'special cooperation and verification mechanism' (included in the Act of Accession for Bulgaria and Romania), the Commission's rule of law framework, and the Council's annual dialogues on the rule of law.

Apart from these 'soft' mechanisms, three legal procedures are also available which, if concluded, can produce legally binding results. First of all, infringement proceedings can be brought by the Commission if the alleged breach could also amount to the violation of a specific rule of EU law. Secondly, national courts from a Member State in which the rule of law is breached may refer preliminary questions to the ECJ, seeking guidance on the interpretation of EU law with a view to assessing the compatibility of national legislation. Finally, the breach of values procedure can be triggered, possibly leading to the suspension of a Member State's membership rights. This briefing has been produced at the request of a member of the European Committee of the Regions, in the framework of the Cooperation Agreement between the Parliament and the Committee.