Germany and Belgium put forward on Tuesday (19 March) a joint proposal for an annual rule of law peer review in all EU member states. The new mechanism is meant to be applied in parallel to the already existing Article 7 procedure enshrined in the treaties.
Belgian Foreign Minister Didier Reynders and German State Secretary Michael Roth jointly called for the creation of an annual monitoring mechanism similar to the control of EU budgets.
The state of the rule of law of all EU members should be examined annually on the basis of “objective criteria”, Roth proposed, emphasising that this would “not apply only to two or three member states but all of them.”
“We have a very wide majority, more than 20 countries that support the rules on the establishment of a mutual evaluation mechanism regarding the rule of law,” Reynders told reporters in Brussels.
Belgium has advocated creating such a mechanism for more than three years, but until now the concept has merely been discussed.
The draft proposal obtained by EURACTIV states that the Periodic Peer Review of the Rule of Law in the EU “would allow a substantive exchange of views on the way the rule of law is implemented, monitored, guaranteed and enhanced.”
According to the Belgo-German paper, the scope of the proposed mechanism would entail “the rule of law, including judicial independence, effective judicial protection and legal certainty.”
In the beginning, there would be input from “a predefined set of sources, including national, European and international organisations” followed by “regular interactive discussions” on the expert level, “and on the political level in the margins of the General Affairs Council.”
However, according to the draft proposal, the mechanism “will not have any binding legal consequences” and will not allow for any sanctions against participating member states as the participation will be “voluntary, but it should seek the participation of all EU member states.”
Both ministers emphasised that the new mechanism is not meant to replace the Article 7 procedure, as the two are meant to be parallel and independent mechanisms.
“Maybe our new mechanism can build bridges between East and West, North and South to overcome the stereotypes,” Roth argued, stating that the Article 7 procedure has “created many misunderstandings.”
The Article 7 procedure, under which the EU can suspend certain rights of a member state that had been identified as persistently breaching the EU’s founding values, was triggered for the first time against Poland in 2017 because of concerns over the country’s overhaul of its judiciary system.
On 12 September 2018, the European Parliament voted for action against Hungary, alleging breaches of core EU values.
The ultimate penalty is a suspension of voting rights in the Council for the country concerned, but this has to be agreed by all the other EU countries. In recent months, the ongoing proceedings under Article 7 have come to a deadlock.
“The Article 7 procedure is very much focused on two member states. Some colleagues criticised us and criticised the Article 7 procedure because it would just be an instrument of the West in order to blackmail the East. That is absolutely not the case,” Roth told reporters.
The new mechanism, Roth argued, is meant to be more inclusive and would treat everyone equally.
Asked about the proposal, Poland’s European Affairs Minister Konrad Szymański said he does not expect a quick consolidation of the process: “We will join such a mechanism when we will have full guarantees of impartiality, objectivity, the role of EU institutions and states and relations with other procedures regarding fundamental rights.”
“Poland can participate in this process, but only after clarifying these doubts,” he said.
In case the proposal materialises, no change of treaties would be necessary, the two ministers argued.
“Our guiding principles are very pragmatic because everybody knows that treaty change to make the already existing mechanism more capable, is far from reality. That is why our mechanism is embedded in the existing EU treaty,” Roth emphasised.
Asked for alternative tools, Roth said that outside the Article 7 procedure, the anti-infringement procedure (CJEU), the possible conditionality on payments from the EU budget remain on the table. “We want to strengthen the relationship between the EU’s multiannual budget and the rule of law,” Roth said.
According to Reynders, the project could take shape already at the end of this year: “Finland has promised to put the procedure on its list of priorities for the Finnish Presidency,” said the Belgian diplomat. Helsinki will take over the EU Presidency in July.
On Sunday (17 March), EPP’s Spitzenkandidat for the European elections, Manfred Weber (CSU), proposed a new mechanism to review the rule of law. Weber said he was in favour of establishing an “independent expert council”, which would regularly review conditions in all EU member states and provide an “objective assessment” of sanctions.
[Edited by Zoran Radosavljevic]