Panel session on ‘Rule of law Oversight in the EU: Can value conditionality be reinforced?’

Florence, 2 May 2019

Good afternoon, ladies and gentlemen. Thank you very much for your extremely kind introduction.

Indeed, I would like to exchange some ideas about the rule of law and why we are in such a challenge right now with the rule of law in the European Union – or should I say, in the international community… The whole basis, as was said before, is that the EU is a community of law. Why is it a community of law? Because we need it to bridge some differences that would not otherwise be bridged. And we need it to put an end to some trends in our European history that brought us world wars.

After the Second World War, the idea rose that if you want to make sure that societies develop in a peaceful way, in a democratic way, in a way that would give civil society the possibility to develop, given the fact that we are a continent of minorities, you need them to rest on a tripod – as I always call it – of democracy, the rule of law and respect for fundamental rights. These need to be in balance and you cannot use one against the other, because that is what we had seen in European history.

We know very well how democracy was weaponised to liquidate the rule of law and liquidate the protection of fundamental rights. That is the experience of the 1930s in this country [Italy], in Germany and in other places, but we have also seen after the Second World War, in that part of Europe that was not free before 1989, that the rule of law was weaponised against democracy and human rights. I remember, as an activist in those days advocating liberty in Central and Eastern Europe, that it was very often said: “It is described in our constitution and that is the way we do it. That is the rule of law.”

So the lesson we learned on both sides of the iron curtain is that if you want democracy, the rule of law and the respect for human rights to be the principles, the values, we build our community on, you need to have respect between these three pillars of the same construction, and you cannot use one against the other.

Sadly, I have to say, if you look at the way politics has been developing – not just in Europe, but worldwide – it is the redefinition of democracy as winner-takes-all. “I have won the elections, so I get to say what judges should do. I have won the elections, so if the press does not agree with me, they will be shut up or shut down. I have won the elections, so I get to say what the private sector does.”

This is, I think, a tendency not just on this side of the Atlantic, and it is something that we need to seriously look at. Because if we neglect the spirit of critical thinking in our population and the spirit of understanding our history and the way that our society is constructed, then it is easy to convince people that if you win an election you get to decide everything. I never hesitate to explain to my German friends that on a European level also Germans are a minority. So for democracy at European level, and because the challenges we face are global and will have to be answered at European level,  the respect for the position of minorities is more important than always putting through the will of the majority.
This is a fundamental concept in the way our societies operate.

Because if you neglect that respect – and this is what will bring me to the core issues – then your democratic opponent becomes your enemy and losing an election becomes unthinkable. So if you know that there is respect for the opposition, then you will see going to the opposition as a normal part of an electoral cycle, of a democratic cycle. But if you yourself behave in such a way that you deny the opposition even basic rights, then you will do anything not to lose the next elections.

How can you guarantee in a democratic society that you do not lose the elections? First all, you guarantee that judges do not do anything that would get in your way. Secondly, that the press does not write badly about you. And thirdly, that the economic actors do not go and act against you. If you want to look at the attacks on the rule of law in Europe, look at these three elements. I think it is an easy chart to look into.

So how do we deal with these issues? As you know, the whole basis for operation for the European Union is the Treaty system. Without the Treaty system, the European Union would fall back into a situation of power politics. That means that the strongest forces will prevail, but it is very difficult to see what the strongest forces are, since we are so interlinked at all levels. So what ensues is either chaos or paralysis. At a time when the world is changing so quickly, we cannot afford to be in a chaotic situation and we cannot afford to be paralysed.

If I look at the United Kingdom today and the Brexit debate, which is now turning into some sort of a religious debate rather than a practical debate, it has really paralysed British society. It has divided people to such a fundamental level that people even within families do not want to talk about it or do not want to see each other anymore. If you bring politics to that level of divisiveness, do not look for compromise and do not look for a way for people with minority views, then you can paralyse a nation.

I want to quote this example, because we hear all the time about the 17,4 million who voted for Brexit. And then when I ask my British friends: “Have you ever heard of the figure 16,1?”, people do not even know what that refers to. Those were the people who voted to remain. If you want to move forward, you will have to bring together people who voted to leave with people who voted to remain to find a way forward that would benefit all of society. I think that is the European way. Whether that leads to Brexit or not is another matter, but that you try and bridge the different positions is the European way.

As I said, we see now in an increasing number of our Member States the attitude: “I have got the power and I can do anything to prevent losing that power in the next elections.” I want to focus today on the issue that I believe in this context is of the highest relevance, and that is the independence of the judiciary. I want to pay particular attention to that issue.

Why is the independence of the judiciary important? Obviously, because the separation of powers is a fundamental issue in theory, at the latest since the end of the 17th century. The separation of powers has been almost a dogma to develop a rules-based societal construction. To undo the separation of powers to go back to a system that sadly half of Europe had known until 1989, where the decision of a judge is decided by a phone call to Party Central, is something I think nobody in Europe would want to see.

Why is separation of powers important? Because it keeps in check also the most powerful institutions in the land. Even if they have a democratic mandate, it keeps them accountable to the law. And they should be accountable to the law, not above the law. That is of fundamental importance.

But why is it of extra importance in the European Union? First of all, because if we take away the law and go back to purely transactional relationships or to relationships based on power, it will lead to a complete paralysis of the European Union and we will not be able to act at a time when acting is necessary on a global scale.

Second point. The way EU law is structured means that a national judge is also at the same time an EU judge. What I mean is this: EU law, when it is implemented in the Member States, very often is transposed from EU directives into national legislation. So who can control whether this national legislation still complies with the Letter of Intent and the EU legislation? A national judge. And if the national judge is not sure about the interpretation, the national judge has direct access to the European Court of Justice, so that the European Court of Justice in that instance becomes a national judge.

The innovative element of our legal system in the European Union and the very, I  think, beautiful  nature of that system, is that a national judge is at the same time an EU judge, and an EU judge is at the same time a national judge. The interaction between the two levels creates a level-playing field in all EU Member States, a level-playing field that is extremely important for the rights of our citizens, for the rights of our economic actors, but also for the functioning of the internal market of the European Union.

If we have diverging interpretations of EU law in different Member States, this will be the beginning of the end of the internal market. Because then there will be no equal investor protection, there will be no equal application of law, and there will be the possibility for Member States to undermine or manipulate EU legislation that they themselves approved in the Council.

So it is not just a matter of values and principles, as I said in the beginning. It is also a very practical matter for the functioning of the European Union that EU law is applied uniformly across the European Union. For that to happen, we absolutely need the independence of the judiciary in every Member State, and a judiciary with uninterrupted direct access to the European Court of Justice.

We now had some instances of a Member State that does not allow that and says: “No, we will not let them ask stupid questions to the Court.” Well, that is the privilege of a judge. A judge can also ask stupid questions, and if the question is stupid, the European Court of Justice will say so, in a very elegant and polite way.

The executive or the legislative powers should never be allowed to interfere with that. Then you kill the system we have. That is why the Commission has taken action on several occasions to make sure that the right to ask questions to the Court of Justice is not hampered. That is why we take action to make sure judges in the European Union remain independent, which is a prerequisite for membership in the European Union, and that is why we will continue to pursue that.

Also the Court of Justice has ruled quite recently on this issue, the direct applicability of the independence of the judiciary for the application of EU law, in a ruling on the Portuguese association of judges, which I believe is a ruling that could potentially have the same impact and importance as Costa/ENEL, Sabena/Defrenne or Van Gend & Loos. I would ask all the legal experts in this room if they have not done so – I am sure you already have – to look at the beauty of the reasoning of the Court of Justice in this ruling, because it could give us guidance for where we take this into the future. It will certainly be an important guidance for the Commission when it acts on the direct applicability of the independence of the judiciary in our rulings.

Now where do we need to go from here? What is the problem? The problem is that in a lot of perceptions the Commission with Article 7 on Poland and the Parliament with Article 7 on Hungary do not have real impact, and some are then arguing that we need new instruments. I am not against new instruments. We have presented a document recently for input from others. We are open to input from others and we will come up with our conclusions in June, when we will say what is useful and what we consider less useful. I am certainly not against new instruments, but I think the core problem is simply the question whether Member States are willing and able to intervene when another Member State “does not behave”, to put it informally.

The problem is not a lack of institutions or instruments; the problem is that there is still a huge reluctance to address an issue in another Member State by the majority of Member States. It takes in the Council, now that we have Article 7, sometimes a lot of efforts to get a majority of Member States to actually address the issue very directly and to try and have a dialogue with the Member State concerned. I believe no form of new instrument, peer review et cetera would help, if there is not an understanding in the Member States that they have to take a collective responsibility for the rule of law in the EU and in every Member State.
Having said this, I believe we could do a couple of things easily and quickly that would have a very positive effect. Because when we are in Article 7 territory, we actually prefer not to be there and have solved the problem before we get there. So what could we do to solve the problem before we get there? I think we have a number of instruments in Europe that are undervalued that are of extremely high quality.

First and foremost, the Venice Commission of the Council of Europe. I would be very much in favour to make further use of the Venice Commission of the Council of Europe. When we see draft legislation or developments in a Member State, we should collectively encourage that Member State to enter into a dialogue with the Venice Commission, so that the Venice Commission can make recommendations and then to see in what way these recommendations are followed up by the Member State.

We have a number of Member States now where we have exactly this process and I have to say that, by and large, this works very effectively, both when the Member State accepts the recommendations, which fortunately is the vast majority of the cases, but also when it does not. Then we see exactly what the problem is, because it refuses to do something that is advised by eminent and independent legal experts. So I would say, before going into creating new institutions, let us first and foremost try to reinforce the Venice Commission of the Council of Europe.

Another institution that could be very useful in the pre-emptive phase, the phase to try and solve the issue before it gets out of hand, is the FRA, the Fundamental Rights Agency in Vienna. Also there reporting precisely on these issues could help Member States not get into a situation where we would have to remediate afterwards. So I would also say, let us study in what way we can put the FRA in a better position to play that role in the future.

But ultimately, we will have to act, and then it will depend, ladies and gentlemen, on the willingness of the Member States, whether they are willing to do something that is painful. My experience with the Article 7 procedure so far is two-fold.

First of all, paths are made by walking. As we experienced in the Convention drafting the current Treaties, two Treaty articles were written without anybody in the room ever thinking we would use them: Article 50 and Article 7. And now we are using them both. And because nobody thought that we would ever use them, they were just sort of an insurance policy that would be there. Honestly, nobody really thought it through, step by step, practically, what would happen if you had to apply them.

I think some of the difficulties we have seen with Article 50 and with Article 7 are a consequence of the fact that it was intellectually almost unthinkable in the European Union that we would ever use these two articles. So for future reference and future Treaty changes, whenever you write an article, please be very practical that you might have to apply it some day and I then think it through. So that is my first remark.
On the other hand, what Article 7 has done, I think, is really an improvement, if I compare it to the previous Commission’s activities. It was also very nice and easy for Member States to leave this completely in the hands of the Commission. Hungary is a case in point. For many years, it was only left to the Commission and then when the Commission got stuck the whole process got stuck and Member States just washed their hands in innocence and let it go. Now with Article 7 what we do in fact is say to the Council: “We have done all we can. This is where we are. Now it is up to you.” The Council cannot just ignore that. If they ignore that, it has consequences. But the consequences will then be on everyone and on the Member States.

So paths are made by walking. We are walking the path of Article 7. Article 7 is not about sanctions; Article 7 is about dialogue. But if Member States refuse to enter into a dialogue, because they want to continue with what they are doing, then Article 7 will not succeed. But if other Member States – the vast majority of Member States – would force the Member States in question to enter into a dialogue and find solutions, Article 7 will succeed.

So I wanted to insist on some of these issues, but the fundamental problem in our societies is wider, as I said in the beginning, and I want to end on that. It is also linked to the freedom of the media, which is one of the biggest issues we will need to tackle, also in the framework of the rule of law. It is also linked to the freedom of NGOs, to be active in society, which is also under pressure in a number of Member States, which make it possible to maintain the rule of law. And it is also the nature of democratic politics, where it becomes more and more custom to see your opponent as an enemy. And a democracy cannot work if you treat your opponent as an enemy. Then, we are heading for a Demokratur, and that is something the European Union will not be able to deal with.

I am optimistic. Why? A vast majority of the European population in every Member State, sometimes with an exception in this country and another country, is of the opinion that the European Union and its membership is good and should be maintained, and that the fundamental values of the European Union are something that needs to be defended. So the people are with us. Now let us convince all the governments to stick to the same line.

Thank you very much.