In the realm of compliance and enforcement of values under Article 2 TEU, in particular of the rule of law, multiple solutions have been advanced by constitutional scholars. For instance, interesting to examine are the key academic proposals selected by Kochenov in this respect.
Although these academic endeavours may provide policymakers with good food for thought, none of them has formally ever been presented to the EU legislator or can claim to be at EU disposal in the narrow sense: they remain confined to the academic world.
Conversely, there is one proposal which stands out, for it has been presented under the Ordinary Legislative Procedure and at time of writing is to be voted upon by the Council.Following a EP’s Recommendation, amid discussions for the new Multiannual Financial Framework 2021-2027 and sharp criticism on the alleged inadequacy of the current sanctioning mechanisms for rule of law violations, on 3rd May 2018 the Commission put forward its ‘Proposal for a Regulation of the EP and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States’. Its main points and objectives are considered hereunder.
Linking sound financial management to the respect of the rule of law: a more effective sanctioning instrument proposed by the Commission?
As its name suggests, the proposed mechanism would take the form of a self-standing Regulation, based on Article 322(1)(a) TFEU, aimed at linking sound financial management and effective EU funding to the respect of the rule of law. Its ultimate purpose is to strengthen the EU budget and protect taxpayer’s money from financial risks linked to generalised deficiencies in the rule of law. The premise upon which the proposal is grounded is that only those Member States in which institutional impartiality is guaranteed, and there is an independent judiciary that upholds the rule of law, legal certainty and effective judicial protection pursuant to Article 19 TEU, can ultimately ensure that money from the EU budget is sufficiently protected. The clear relationship between respect for the rule of law and an efficient implementation of the Union budget is self-evident, since the former is a
precondition to comply with the principles of sound financial management enshrined in Article 317 TFEU.
Already under the current rules, a system of conditionalities obliges the Member States to show that their rules and procedures for financial management of EU money are safe and funding is protected from abuse and fraud. Under the new proposal, the EU would be allowed to suspend, reduce or restrict access to EU funding in a manner proportionate to the nature, gravity and scope of the rule of law deficiencies. The concept of ‘generalised deficiency as regards the rule of law’ is defined in Article 2(b) as ‘widespread or recurrent practices or omissions, or measure by public authorities which affect the rule of law’. It is striking to note that a few days ago, on the 4th April 2019, the EP amended this definition during the First Reading by adding that said deficiency ‘may also be the consequence of a systemic threat to the Union values enshrined in Article 2 TEU that affects or risks affecting the principles of sound financial management or the protection of the financial interests of the Union’.
In practice, the possible measures to be adopted would include, inter alia, the suspension of payments and of commitments, reductions of funding under existing commitments and a prohibition to conclude new commitments with recipients. Noteworthy, is that the proposed mechanisms target Member States and would not affect individual beneficiaries of EU funding under the budget, since they cannot be held liable for the generalised deficiencies. The identification of a generalised deficiency, which can be invoked under the circumstance listed in Article 3, would be made through a qualitative assessment by the Commission, which seems to be a contentious point addressed by the EP in its amendments.
Ultimately, a proposal that at the outset is aimed at shielding the EU budget from financial risks, in practice possesses the qualities for becoming a new tool in the hands of the EU to sanction Member States and exhort them to comply with the rule of law.
Tackling the burning issue of the ‘rule of law crisis’ within the EU legal order will continue to represent one of the top priorities in the Union’s political agenda also in the aftermath of the upcoming European elections and the consequent reshuffling of the main EU institutions. Should the EU take the hardest stance on current backsliding behaviours of Member States? In my personal view, undoubtedly: legitimately participating in a value-based system, without abiding by the rule of law is counterintuitive. There is no alternative but to launch the sanctioning strike of Article 7(2-4) TEU.
Bearing in mind the importance played by such foundational value, this essay has provided the reader with an analysis of the main available mechanisms in the hands of the EU, as well as of one concrete proposal, in order to ensure the Member State’s compliance with the value of the rule of law enshrined in Article 2 TEU.
The essay departs by explaining the relevance of the rule of law in the EU’s constitutional architecture and by providing a brief description of how pressing rule of law deficiencies are in Hungary and Poland. It further outlines the three main instruments at EU’s disposal to succeed in spurring Member States to uphold and safeguard the rule of law, drawing the adequate distinctions between their pre-preventive, preventive, monitoring or sanctioning character. ‘Article 7 TEU procedure’, the Commission’s ‘Rule of Law Framework’ and the Council’s ‘Rule of Law Dialogue’ are listed in sequence, from the most authoritative to the more ‘soft-law’ kind in nature.
The evidence that serious rule of law deficiencies continue as ongoing problems despite the triggering by the EU of some of its deterrent mechanisms, questioned the latter’s adequacy but at the same time paved the way for the proposal of a new mechanism to the EU legislator. The essay examines such Commission’s proposal, which links funding from the EU budget to the respect for the rule of law, also by taking into account its most recent developments. The most eye-catching novelty is the EP’s amendment, which, recalling the language used in Article 7 TEU, emphasises the understanding of the rule of law as Union value enshrined in Article 2 TEU.
In the end, the final conclusion to be drawn is that the future tool foreseen by the Commission’s proposal, together with ‘Article 7 TEU procedure’, the ‘Rule of Law Framework’ and the ‘Rule of Law Dialogue’, can constitute powerful mechanisms at EU’s disposal to bring about the necessary change in backsliding states, so as to ensure that all Member States comply with the value of the rule of law enshrined in Article 2 TEU.