Ladies and gentlemen, I have some very fond memories from this hall – my political father, Max van der Stoel, accepted a position at this university and he spoke in this very hall when he accepted this professorship. I think it's right for me to start with him when talking on the rule of law.
I once asked him: 'why are you so passionate about human rights and the rule of law? Where does this come from? Why is it something that will be a lifelong fight for you?' Because sometimes he was almost obsessive about these issues. He took me back to the 10th of May 1940, when he was not even 16 years of age, and he travelled with his mother from Leiden where he stayed to his grandparents' home in Rijnsburg. What he saw were German paratroopers coming down, and he said to me many years later: 'I was not even sixteen, but I understood immediately that it was therefore possible with brute force to invade another country and take everything away, and that this was done by people I had admired for their culture, for their literature, for their music. They just came in, took all our liberties away, and we were nowhere'. He said: 'That is why I believe so passionately in the rule of law'.
Ladies and gentlemen, this is the best explanation I've ever heard. I really wanted to share it with you because it is someone who was part of your community, someone who devoted a lot of attention to this university. He was very grateful for that opportunity which codified his political experience into the academia. We should do more in cooperating between the two worlds. My world is a day-to-day world. It does not reward analysis and long-term thought. Your world is a world that does reward long-term thought and analysis but does not always reward day-to-day elements. Perhaps we should look for ways to create more cross-fertilisation between these two worlds.
The rule of law is part of Europe's DNA, it's part of where we come from and where we need to go. It makes us what we are.
The nations who are part of the European Union inherited a world view in which the supremacy of the law plays an indispensable part. For that reason, this heritage is mentioned right at the start of our basic treaty, in the preamble to the Lisbon Treaty, which speaks of the signatory countries 'drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.’
It is no coincidence the rule of law is the last, so certainly not the least, of our fundamental values to be described here. It is in many ways the cornerstone upon which all the others rest.
For Europe, the rule of law is not just an inspiration, it is also an aspiration; a principle that guides both our internal and external actions; it is what we are and what we want to be. Because it is never a given. Just like any human being, who is never only what he or she is, but is always also what he or she wants to be.
And for this European Commission, at this moment in time – a time of confusion, of turmoil; of economic fragility and geopolitical emergencies; of social pressure and political populism, and may I add a touch of moral insecurity – it is one of the defining challenges.
It is, indeed, our chosen method of 'Advancing Society'.
So this conference could not have come at a better time.
When it comes to the 'cultural, religious and humanist inheritance of Europe', possibly the oldest and probably the clearest expression of this principle is found in the writings of Aristotle already: 'It is better for the law to rule,' he wrote, 'than one of the citizens, so even the guardians of the laws are obeying the laws.' To put it less delicately, it was an early attempt to answer the ancient question of 'who will babysit the babysitter?'
If the answer he came up with in the form of the rule of law is inspirational, that does not mean it is always easy to uphold.
Much later, the law that governs even the lawmakers proved to be equally necessary in the age of mass democracy. Had he been writing in the 20th century, Aristotle would have added: 'It is better for the law to rule than a mere majority of the citizens, so that even a majority is obeying the laws that protect minorities'. Here we are at the heart of the challenges we see in many European nations today. We see the temptation of using democracy as a justification to not have the rule of law respected. It does appeal to people's feelings. I believe we have a moral and legal obligation to challenge this notion that you could brush aside the rule of law simply on the basis of the majority. We have ample examples in European history in the 20th century to prove us right.
Because that century - the best and the worst in European history - had driven home the point that the rule of law is the only way to stabilise relations not only between nations but also within nations; to guarantee peace and fundamental rights between citizens, as well as between countries. Democracy and the rule of law go hand in hand. But you cannot use the one against the other. There is a very careful equilibrium between human rights, democracy, the rule of law which should not be distorted, because if you attack the one, the other will suffer in its essence.
Today - with democracy well established in the countries that make up the European Union, as well as increasingly in the EU itself - the fight for the rule of law is as relevant as ever, and perhaps even more relevant than a few years ago.
We can never take the rule of law for granted. It is never a given, especially not in times of crisis like today, when geopolitical pressure threaten to overwhelm us, economic uncertainty frightens us, and social tensions convulse some of our members.
In all too many places across Europe today, we see alarming tendencies emerging. And as happens frequently in times of crisis, it is members of minorities - be they racial, religious, ethnic or other - who are the first to be singled out as scapegoats. It starts with imperceptible signs, then grows into illiberal temptations, and even into talk in certain quarters, of 'illiberal democracy'.
This is why the protection of our fundamental values, of fundamental rights, democracy and the rule of law, has taken a new significance today. Because we realise that the rule of law is fragile and, if we are not vigilant enough, can suffer threats – anywhere. The rule of law is seen as such a given that it is more vulnerable today than before. Yet it is not a given, and should never be treated as such.
Recognising this, President Juncker decided to single out the rule of the law and fundamental rights for special attention and to make it a specific mandate within the Commission, a specific responsibility, which he has asked me to take up.
I see it as one of my greatest and most difficult responsibilities.
And if you realise we've been struggling since Aristotle with this very question - who wouldn't?
Indeed, ladies and gentlemen, the idea of European unification is in part born from the failure of sovereign states in themselves to come up with convincing answers - their inability to safeguard the rule of law, to protect citizens' rights, to uphold constitutional government by themselves.
Cross-border integration was put in place in order to strengthen responsibility towards one another: if I depend on you, I will not disregard your interests. We depend on each other and therefore have to take care of each other's problems. That is the basis on which European integration was put in place. It was also put in place in order to strengthen the responsibility of countries within borders, towards their own citizens.
European nations pooled sovereignty in order to secure the basic aims of sovereignty. People talk about sovereignty as if it was an abstract thing. But I would like to define sovereignty as not just the right to act, but the ability to act; if you diminish sovereignty to the right to act, then of course I can understand the debate about wanting to keep sovereignty national. But if that turns out to be keeping sovereignty at national level, in legal terms, then it is a recipe for creating the inability to act, the inability to deliver. What's the meaning of that sovereignty in concrete terms? Is sovereignty then not hollowed out? Should not sovereignty be giving new powers, by pooling it with others, so that we create the level at which we can act and we can deliver for our citizens? In my view, that should be the definition of sovereignty. It should never be dissociated with the practical capability of acting, otherwise it becomes a purely theoretical debate.
I believe that European unification turned philosophy into a reality - eventually evolving to an unprecedented level of integration - and laid down the rule of law as the basis for democratic countries' behaviour in a way that was never seen before.
You could compare it to the Greek hero Odysseus, demanding to be roped to the mast of his ship to be able to resist the call of the Sirens: 'take me and bind me to the crosspiece half way up the mast,' Homer describes him as saying, 'If I beg and pray you to set me free, then bind me more tightly still.'
That is the basis of constitutional, democratic government in Europe. And the protector of that system is the EU itself, based on the treaties as developed and signed by the Member States themselves.
So what, specifically, is the European Union’s role in promoting the rule of law in and between Member States? What tools do we have at hand? And to what extent are Europe's nations 'tied to the mast'?
Here, the answer is easier when we talk about rule of law as a structural part of the EU legal system than when we talk about the rule of law as a fundamental value.
Within the scope of Union law, the mechanisms are well established. Individuals can challenge measures before national courts and have them referred to the Court of Justice, and European law guarantees that they will find and objective and impartial judge at national level to hear their case. The Commission, as 'guardian of the treaties', can bring infringement proceedings to enforce EU law. And this is the way that the Commission has successfully dealt with many – often highly sensitive - challenges to the rule of law in recent years, for instance against Hungary on cases like the early retirement of judges; or on the violation of the data protection supervisory authority's independence; or on the equal treatment of Roma children in schools in the Czech Republic and Slovakia, where infringement cases are pending.
However, the EU is a union of conferred powers - it does not have what, in German, is so beautifully called 'Kompetenz-Kompetenz' - and can therefore only act where the Member States have conferred competence on it. The Member States have chosen not to make the Union the general guardian of the respect of fundamental rights and other constitutional principles in their legal orders. We have the Charter of Fundamental Rights, but it only applies, including the right to effective judicial review, when Member States are implementing EU law.
So what happens where fundamental values are disrespected in a Member State outside the scope of EU law? There are no infringement proceedings that apply, but there is the special mechanism in Article 7 of the EU Treaty, which can lead to the suspension of the Member State's rights, including its voting rights. Given its magnitude, the threshold for activating the mechanism (both on substance and voting requirements), are demanding. It is a measure of last resort – not to be excluded, but I would hope that we never let a situation escalate to the stage that it would require its use. I believe that the case of Austria, with Jörg Haider's party joining the government, has weakened the EU's capacity to react in such a case. It was a political response which completely backfired at the time, and since then Member States have been reluctant to take issue with other Member States on this basis. That is one of the challenges I personally will have to face in the coming years.
Precisely to be able to address emerging threats to the rule of law before they escalate, the Commission has adopted (in 2013) a Rule of Law Framework. This Framework sets out a structured process according to which the Commission will react when there are specific indications that there is a systemic threat to the rule of law, and which may lead to specific recommendations to the Member State concerned.
So do we have the enough tools, and the right tools, at our disposal in order to ensure the rule of law across Europe?
I know that some would say, no. Referring to the Hungarian case, they criticise the Commission for not having activated the Rule of Law Framework yet. Some argue that we need a new framework, one that addresses not just the rule of law but also fundamental rights and democratic values. Others claim that the framework should be more automatic, maybe even with parameters that trigger the application of the framework similar to mechanisms we find in the field of economic policy.
I beg to differ.
It is certainly not true that we have been too lenient or hesitant towards Member States. In recent years, the Commission has brought numerous, often unpopular but always necessary infringements proceedings to ensure the application of EU law, including on rule-of-law related aspects, and this has led to tangible results. When certain lines are crossed, we do not hesitate to speak out - as happened when President Juncker and I reacted to the debate on the introduction of the death penalty in Hungary.
But the Commission must also remain an impartial, objective and independent arbiter, and base itself on the law and the facts on the ground. This means that we can only act against actual measures, not polemics or speeches. You cannot solve a political controversy through a mechanism of the type that we use to enforce the rules of the stability pact.
I am also not convinced that we need any new mechanism and frameworks to protect our fundamental values. It is true: our current Framework only applies to the Rule of Law, not to other fundamental values. But by guaranteeing the rule of law and the right to effective judicial protection, we at the same time ensure that fundamental rights will be effectively protected, and electoral laws correctly applied.
I am even less convinced by proposals aiming to make the application of the rule of law framework more 'automatic'. I do not believe it is possible to define sufficiently the precise criteria that would trigger automatic reactions. It is a political process. What may work in the field of economic policy cannot necessarily be transposed to an entirely different area such as the rule of law, in which a measure of discretion will always remain unavoidable.
So do we have the right tools in place? At this point, I think, yes.
Can we be complacent and lean back? No, not at all. Things are not in perfect order.
The challenges to tolerance and mutual respect in our societies, reinforced by the current crises, are real and serious. The forces of bigotry and populism, of racism and xenophobia are on the rise, and we simply cannot let them gain ground.
Let me refer very briefly to the recent UN report on human rights and racism in the Netherlands. If you want to protect human rights, fight racism, enforce international law, then you should at least be open to criticism. Why not have the self-confidence to say let's talk about it. Dismissing it outright is a wrong reaction and does not increase one's own credibility when challenging others. I believe this is an important matter, also in the Council of Europe. You can only challenge others if you are ready to be challenged yourself. I take issue with people in the UK who say "we don't need a Court in Strasbourg to check what we're doing". If you take that position in London, the same position will be taken in Moscow or elsewhere. It only works if you're prepared to be criticised. The Netherlands should have enough self-confidence to accept criticism, and look into its soul to see if this criticism is justified or not. As Camus said, what distinguishes humans is that they are capable of looking at the world through somebody else's eyes. Let's not lose that capacity.
One issue on which I am particularly concerned with is the rise of hatred and intolerance, in particular the scourge of anti-semitism, which we have seen reappear in Europe. There is also a worrying rise in anti-Muslim hatred. On 1 and 2 October, we will hold the first annual EU Colloquium on Fundamental Rights in Brussels, and I have decided to dedicate it to this very topic: fighting anti-Semitism and anti-Muslim hatred as two distinct, yet related phenomena.
A significant challenge currently faced by our societies results from the unprecedented number of people coming to Europe in search of refuge. Here also, the rule of law has a crucial role to play. It requires that all those entitled to asylum and protection are received in humane conditions, and have their case dealt with efficiently and quickly. But it also means that all those who have no right to stay must be returned to their countries of origin rapidly and efficiently. Solidarity and responsibility must go hand in hand. In Europe, we must be able to trust that the common rules are applied effectively and vigorously, everywhere and at all times.
Here again I often see the phenomenon of de-humanising. Xenophobia and hatred can only happen if you de-humanise the other, if you start slowly taking away another person's humanity. Your neighbour is no longer a man, he's a Jew or a Muslim. And then step by step you take away a person's humanity. Are we not sometimes doing that for refugees, fortune seekers, asylum seekers? Do we not forget sometimes that if you're in Homs or in Damascus and you want your children to survive, you probably want to leave the country now? And don't we forget that we as human beings have obligations towards other human beings that flee war and persecution, seeking refuge until they can go back? It is a moral imperative but, ladies and gentlemen, it is also a legal imperative. And I believe we can convince our populations of this, as long as we make sure that people who seek refuge are seen as human beings.
If democracy is not sufficient to guarantee the rule of law, it is nevertheless a necessary condition to do so. We can only bind governments to the mast if the decisions that bind them are democratically made and enforced.
Democratic debate and open decision-making, both at the EU and at the national level, are the natural and necessary counterpart to the power of the law.
In the economic field too, the European Commission is granted powers to hold them to their commitments. It is, in the most literal sense of the word, commissioned to uphold the rule of law, as defined by Member States in the treaties. That is our mission, our authority, our raîson d'être - and we take it very seriously indeed, in everything we do.
But we must remember that, in a democracy – and certainly a democracy as we live in today – such power can be wielded only through political debate and public accountability, through a measure of consensus and a great deal of conviction.
That is the reason why this Commission is purposely more political than most of its predecessors, because with power comes responsibility, and we must show that we too are governed by the laws.
Allow me to say a few words on the international dimension of the rule of law as well – always a crucial element of Europe's self-image, though one all too often overlooked.
As I said, the rule of law is not only a moral inspiration but also a global aspiration – and in this, the European Union is not alone.
In the preamble of the Universal Declaration of Human Rights (dated 1948) it reads: 'it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.'
It is significant how the Declaration - not coincidentally of the same age as the European project - highlights the international, even systemic importance of the rule of law. Between states, as between citizens, only the law can support real freedom and sustainable peace.
Before, international relations had been driven forward by, or rather: had been driven back into a Darwinian survival of the fittest.
As Rudyard Kipling has memorably described it: 'Now this is the law of the jungle, as old and as true as the sky; and the wolf that shall keep it may prosper, but the wolf that shall break it must die.'
Two world wars, and countless human misery, had shown the world exactly what a struggle of all against all led to. In future, statesmen would move beyond the destructive laws 'as old and as true as the sky'. From now on, the nations were united in learning Henri Lacordaire's lesson: 'Entre le fort et le faible, c'est la liberté qui opprime et la loi qui affranchit.'
European integration was always intended to be in the avant garde of that process, a laboratory and an engine in shaping the new world order.
For that reason, Europe's external action is explicitly, constitutionally based on the same principles as its internal organisation, as also described in the Lisbon Treaty (art. 10A): 'The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.'
This is why we remain strongly committed to the Council of Europe and the European Convention for Human Rights. The European Convention guarantees the respect for human rights and the rule of law across the continent, including in the immediate neighborhood of the Union. It represents a common bond which is invaluable, and for which there is no substitute. I also believe the European Union should accede to the European Convention, and am confident that we will find solutions to the legal issues raised by the European Court of Justice in its opinion of last December.
Hence also our strong support for the World Trade Organisation, built on a system of law which not only liberalises but also regulates trade and makes sure the rules are fairly and equally applied to and by all.
Hence our sustained investments in the International Criminal Court, to support national judicial efforts against mass atrocities and crimes against humanity and if need be, as a last resort, to replace them.
Hence our persistent backing for the United Nations system, leading British thinker Mark Leonard to conclude pointedly and, in my view, correctly: 'It’s Europe that has led the way toward a future run by committees and statesmen, not soldiers and strongmen.'
That is what the rule of law, on the international stage, means in practice.
That is what the EU stands for.
And that is still, 70 years after the Second World War and in a world where soldiers and strongmen still make the papers on a daily basis, our number one challenge.
In George Orwell's Animal Farm, - again, not coincidentally, a product of the same age in which Europe was reborn - the difference between the rule BY law and the rule OF law is wonderfully described.
The Farm's commandments were clearly written down for all to see…. until they simply no longer served the purpose of the animals in charge, the pigs, who overnight had them rewritten. And in the end, the main rule simply read: 'All animals are equal, but some animals are more equal than others'. They didn't have the 'inviolable and inalienable rights of the human person' that the Lisbon Treaty guarantees - they had as much room as power awarded them. No more, no less. Which in the end was extremely little.
That is what happens, Orwell warned us throughout this and other writings, when power goes unchecked internally and externally. It ends up uncontrollable, bringing out the worst in people and becoming a threat to, instead of a tool for its citizens. If power is corrupt, then absolute power is absolutely corrupt.
Which brings us back to Aristotle, who already said: 'as man is the best of all animals when he has reached his full development, so he is worst of all when divorced from law and justice.'
Europe's goal has to be - and always has to be - to bring them together; to make sure the law is never divorced from its sense of humanity, and Europe's citizens can always count on law and justice.