Ladies and gentlemen,
[Rule of law as a core value of the EU]
First of all, I offer you my warmest congratulations for this special anniversary. One hundred years of independence deserves a celebration!
I also welcome this occasion to speak about the very important subject of the rule of law. The timing for this debate is very fitting.
In September, President Juncker had his annual State of the Union speech and the rule of law featured prominently in it.
To implement the political agenda set out in the speech, only last week the Commission adopted its work programme for 2018. One of the key priorities for next year is to look at ways how to strengthen the enforcement of rule of law in the European Union.
We are also starting a very important cycle of preparing and discussing upon the next financial framework from 2020.
So now the time is ripe to discuss ideas and propose changes.
I want to talk about
what does the rule of law mean in the European Union;
what place does the rule of law have in a European democracy, and
whether the EU should be doing something to improve its tools in the context of rule of law.
What does the rule of law mean in the European Union
The rule of law is a bedrock of European democracies and one of core values of the European Union. That is why the Article 2 of the Treaty of the EU and its preamble recall this principle.
It is true that the rule of law doesn’t have one definition across the Member States. Its meaning will be a bit different in Finland from the one in France or in the Czech Republic.
But in the EU we have a common understanding: with rule of law we mean that all public powers act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts and with respect to transparency and due process.
All elements that I just mentioned would instinctively be associated by many people to the prerogatives of the nation state. But the rule of law is also important for the European Union. Ultimately, we are a group based on the voluntary respect of the fundamental values such as the rule of law.
Nobody forces us to be together. We are not bound by the will of a dictator; we don’t have a common army or a common language.
We are together because we believe that we share these basic foundations. The foundations that many people today would even probably argue are pure common sense.
But the rule of law is not guaranteed nor given once and for all. And, as often in life, those who lost something can appreciate more what they had.
As I grew up in a communist Czechoslovakia I know how it feels to live in a country without the rule of law, so I understand its importance today.
When I was growing up, it didn’t cross my mind to even dream about equality before the law. Living on the East side of the Iron curtain meant that there were those who were more equal, for instance the party apparatchiks or secret services. The only equality I experienced was a forced egalitarianism.
The feeling of injustice was felt across the society.
Thankfully, the pendulum of history swung towards democracy and today across the continent we can experience unprecedented peace and freedom.
But the discussion about the rule of law continues in many EU countries. There are people that say that the rule of law belongs to internal affairs and the EU shouldn’t ‘meddle’ in it.
I would like to take a moment to dispute this assumption.
This is a false premise, because the European law is not only upheld by the European Court of Justice in Luxembourg.
The national courts are also ‘Union courts’ as the ECJ declared in the famous, at least among students of EU law, Les Verts case already in 1986.
This is of huge importance.
Just think of it. This means that the success of the EU depends on the proper functioning of the courts in Helsinki, in Sofia or in my home town of Třebíč.
This means that if one national system of judiciary is broken, the EU system is broken.
The judicial system in the EU is like a chain of Christmas lights. When one light goes off, others don’t light up and the chain is dark.
I also hear from many corners of Europe that the rule of law is an abstract concept discussed by law professionals and with no interest for the people.
Nothing can be further from the truth. The rule of law actually touches upon everyday lives of all us. Whether they are individual citizens seeking a job in another member state or people hoping that their government transposed the directive about clean air correctly.
They all are counting on the same level of legal protection and the same application of law in every single member state.
They are all trusting that justice prevails and the courts are impartial.
Without this trust the EU will be a incomplete EU.
Let me spell it out very clearly:
There will be no well-functioning single market without the rule of law, because if companies don’t believe they have legal certainty, they will not invest and innovate.
There will be no efficient regional and cohesion policy without the rule of law, because the corruption and fraud will leave their marks.
There will be no effective neighbourhood policy without the rule of law because we have to lead by example to attract others.
This brings me to the second point:
2. What place does the rule of law have in a European democracy?
In a democracy, rule of law doesn’t function in isolation. The discussion about the tensions between democracy and the rule of law are rather old. At the end of the 18th century John Adams argued that if democracy is unchecked by law it will turn into the tyranny of the majority.
This discussion continues ever since and even in Europe many politicians hide behind the 'will of the people' when they attempt to do something legally questionable.
In democracy, of course the majority has a mandate to govern and change the laws for everyone. But the essence of democracy is that the minorities know and trust that the law will protect them from the changes that go beyond certain limits.
European history teaches us that democracy alone is not strong enough to guarantee peoples' rights or freedom. History teaches us that free society needs to be supported by three pillars:
Democracy, human rights and the rule of law. They are not a contradiction; they are not enemies to one another.
All three pillars need to operate in perfect harmony, like an opera trio.
That's why we need institutions that guarantee the separation of power; we need state institutions that provide checks and balances and try to strike the right balance.
In democracy, you cannot try to dismantle the judiciary, because you won the elections. The judiciary cannot be ignorant to the will of elected law makers. Neither judiciary, nor politicians can allow themselves to violate human rights.
And we all need to respect and adhere to this balancing act, if we want people to have trust in democracy and in its institutions.
This debate can seem very academic when everything goes right and all functions well. But, as often in Europe, the test comes when crisis happens.
And in the last few years the rule of law has been really put to a test. Especially that we have been talking here about the systemic threats to the rule of law, and not some isolated incidents.
Notably, I am looking with concerns at the situation in Poland, where the government first made problematic changes to the Constitutional Tribunal and now pushes forward a reform of the courts, which would see a vast number of the current supreme court judges retired and give unprecedented power to the justice minister or to the president of the republic in terms of appointments of new judges.
With Hungary we are in difficult dialogue for many years now, the latest cases include the laws on universities and the funding of civil society organisations.
People's trust in the judicial institutions varies across different countries. In Finland, it's one of the highest where more than 80% of people perceive the courts and judges as independent. But there are six member states where this figure is 30 percent or lower!
In all these cases, the European Commission takes action.
I understand that our actions will not be applauded by everyone. We cannot satisfy everybody, especially when it comes to such a sensitive issue. But our actions should be judged against the background of the role and the mandate the Commission has been given in the Treaties and by the European Parliament, and EU's Member States.
If you take that into account, I think we have achieved quite a lot.
Since 2013, the EU has encouraged Member States to improve the independence, quality and efficiency of their national justice systems. This is one of the priorities of the European Semester, the EU's annual cycle of economic policy coordination. And for certain Member States it proposes to the Council to adopt country specific recommendations.
The EU Justice Scoreboard feeds into this process. It provides a yearly comparative overview of the independence, quality and efficiency of national justice systems. It makes it easier to identify shortcomings and best practices and to keep track of challenges and progress.
Thanks to this we can observe positive trends. For instance, the judicial proceedings, in particular for civil and commercial disputes, are now shorter: in 2010, the longest [Malta] were around 850 days whilst, in 2015, the longest [Italy] were around 525 days – i.e. a decrease of almost a year.
And such progress has an impact on the investment environment: in Slovenia the improvements in the effectiveness of courts recently led the rating agency Moody's to upgrade government bond ratings which reduced its borrowing cost.
This year the Council recommended to five Member States to improve their justice system (Hungary, Italy, Cyprus, Portugal, Slovakia).
Also, for the first time, an explicit reference to the rule of law was made in the recital of the country specific recommendations concerning Poland, endorsed by the European Council.
The EU also supports the justice systems in Member States through dedicated funding. For example, since its accession, Estonia has consistently used the Structural Funds to enhance the use of ICT in its justice system and is now seen as the front runner in e-Justice.
In the case of Romania and Bulgaria, the Commission provides tailored support to help these countries move forward with judicial reforms. Through the Cooperation and Verification Mechanism, Romania and Bulgaria have made important progress over the past 10 years.
In 2014, the European Commission adopted a Framework to strengthen the rule of law in Member States.
The Commission decided to apply the Framework for the first time in January 2016 as a result of the situation in Poland I described earlier. It adopted three rule of law Recommendations. The first two focused on the situation of the Polish Constitutional Tribunal. The third also addressed other concerns raised by new justice reforms affecting the independence of ordinary courts and of the Supreme Court.
The Commission remains open for dialogue with Poland. But we have probably never been so close to triggering article 7 of the Treaty that deals with systemic risks of the rule of law.
3. What should be done to improve the tools on rule of law in the EU?
A lot has been done, but I feel that there is room for improvement. Despite efforts undertaken to improve their justice system, we can still observe that in certain Member States the judicial system needs improvement.
The question is – is this the right moment?
In short – yes.
In fact upholding the rule of law has never been so high on the EU agenda as it is today. At a time when EU intervention is questioned in many spheres, the EU is requested to be more active in this new policy area.
Indeed, a new policy area. As you might have noticed, all the things related to the rule of law at the EU level are fairly new.
Until the Lisbon Treaty entered into force, so until 5 years ago, Justice was in the so called "third pillar", meaning mainly in the governmental cooperation with a very reduced role of the EU institutions.
Given the importance of the rule of law for the EU as a block, this could sound surprising. But I was also a minister in the Czech Republic and I can understand that justice and security is something that any government would very jealously protect.
So, it is an amazing achievement and a sign of bravery for all the leaders who signed the Lisbon Treaty. The Treaty tore down the pillars and equipped the EU with the new competence in the justice area.
But, some of those competences are not clear enough or not bold enough. We all know that the EU projects need time before they can come to fruition. Whether it's single market, Eurozone or the Banking Union, time was needed to make it a reality. Faced with the crisis, EU leaders can find compromise on the most difficult issues.
Luckily, there is no such a comprehensive crisis in the justice area across the whole EU, but I hope we learnt something from the past, and we are ready to act when we see important symptoms.
The rule of law is also integral to our external relations. President Juncker told the European Parliament in September that "If we want more stability in our neighbourhood […] then countries must give the rule of law, justice and fundamental rights utmost priority".
We need stronger cooperation with our direct neighbours and beyond to succeed in the fight against illegal migration, trafficking and terrorism. And we have a strong interest in the political stability and economic prosperity of our partner countries. All this requires that the justice systems in the third countries concerned comply with the rule of law.
Let me share with you some personal thoughts on some aspects which in my view deserve further reflection.
First, we should in my view ensure that the justice reforms are the right ones!
I mean reforms which reinforce the rule of law and fully comply with European standards on judicial independence.
A well-functioning justice system is closely linked with the environment to do business. I believe we should consider creating a link between the European Semester and the criminal justice system. This is important in particular for the fight against corruption which is a condition for a business-friendly environment. Also effective criminal justice systems are crucial for the sustainability, trust and legitimacy of the EU security policy and the fight against terrorism.
Second, I think the time has come to develop a broader perspective and to have the difficult conversation about how to better uphold the rule of law in the EU.
I understand this task will not be easy, but if we want to be credible and efficient, we need a common understanding of how best to uphold the rule of law.
Therefore - picking up on ideas put forward by the European Parliament - I believe we should promote a wide discussion involving the European Parliament and national parliaments to work towards a common understanding on how best to uphold our common values, at national and at European level.
In this context I would be in favour of an event to discuss how best to operationally uphold the rule of law in the EU and to explore how the EU can better promote the rule of law at national level, for instance through some form of Action Plans.
Let me be clear, this is not aimed at any specific country. This work will take time and will not help us to solve the current issues.
But if we know now where the boat is leaking today, we should at least prevent it from breaking in the same place in the future.
Third, I have said earlier that we need to make better use of EU funds for upholding the rule of law. The Commission reflection paper on the future of EU financing published in this year says that 'Upholding EU core values when developing and implementing EU policies is key'. It further argues that 'There is hence a clear relationship between the rule of law and an efficient implementation of the private and public investments supported by the EU budget.'
In my personal view we should consider creating stronger conditionality between the rule of law and the cohesion funds.
Countries where we have doubts about the rule of law should face tougher scrutiny and checks. We are currently discussion the next financial framework, and I would want to bring this into the debate.
And, it is not just an issue for structural funds. I see it more as a general rule for all EU funds.
This work should maintain:
Impartiality so they should take into account all good solutions across Europe
Neutrality – so we don’t favour any ideological trends in Europe
Sustainability – the solutions should be thought in long-term and general, not tailored for any particular case.
In sum, the lady justice is blind, and must remain blind. It doesn’t matter what ideological colour the government has. Conservatives, liberals, socialists, populists – nobody is immune from temptations to tinker with the rule of law.
And our actions must be legitimate. That's why we cannot do it alone. It should be shared responsibility of all EU institutions and Member States.
We should also rely on experience of other bodies such as Council of Europe who developed its own expertise in assessing the rule of law situations in its member countries.
All this should lead us to something President Juncker announced in his State of the Union speech - an Initiative to strengthen the enforcement of the Rule of Law in the European Union in the 2025 perspective. First VP Timmermans is leading this work, and I hope my personal ideas you have heard today can feed into this process.
We must end the fragmentation of doing certain things in the semester, some others in the CVM mechanism and some other in the context of the rule of law dialogue.
I personally believe we need one, ambitious and consolidated rule of law mechanism.
I know this might sound ambitious, but I am a pragmatic person who likes to reach the set milestones.
For those who follow Brussels debates closely, let me point out I did not mention the magic words of the 'Treaty change'. Yes, that would be ambitious.
We should concentrate on the practical steps that are within our reach.
I hope that I have succeeded to explain why upholding the common values of the EU, including respect for the rule of law, has become a key part of the broader debate about the future of Europe.
Indeed, the importance of common values is a major feature of the White Paper on the future of the EU which the Commission issued in March. And, whatever the scenario, Europe's future relies heavily on these values.
The coming years will be decisive about the future of Europe. Brexit will open a new chapter in the EU history and the debate about the future will bring EU leaders to Sibiu in May 2019.
We will have to decide on what is it that really holds us together.
I am among those who believe that values are really that glue. One of the main reasons why I entered politics was my discontent with those who narrowed down the EU to a cash machine.
The EU's values are general, based on common sense and leave a lot of space for Member countries to pursue their sovereign objectives. But we need basics, we need this bedrock of guidelines we can relate to and feel strongly about.
If the only thing left that holds us together is a fear from some greater evil, we will not last very long.
I wish you all fruitful discussions and I look forward to hearing your ideas.