The EU’s annual ‘Rule of Law Report’ has become the go-to document for whenever a member state’s alleged or real shortcomings, and the possible repercussions, are discussed in Brussels since the Commission began publishing it in 2020. But even if they wanted, member states couldn’t do the same the other way around, as there was a lack of any comprehensive report detailing the rule-of-law violations of the EU institutions themselves. Until now.
The first-ever report on the rule-of-law situation within EU institutions was unveiled on Tuesday, November 19th, at an event hosted by the Civic Hungary Foundation in Brussels. The 47-page study was produced by the Hungarian Nézőpont Institute in collaboration with some 20 experts and scholars from ten partner institutions covering five EU countries.
Since there is no universally accepted definition of or a set of criteria for the rule of law—and cannot be by default, according to the Council of Europe’s (CoE) Venice Commission, arguably the highest international authority on the matter—the researchers used CoE’s ‘five pillars’ on which to base their methodology: legality, legal certainty, prevention of abuse of power, equality before the law, and access to justice, including a fair trial and an impartial judiciary.
“From the above pillars it follows that, in a state under the rule of law, ideological bias must not be allowed to translate into unlawful practices, institutions must not arbitrarily confer new powers to themselves, and they must ensure that the law is enforced in a uniform and impartial manner,” the author, Lili Zemplényi, writes in the report’s introduction.
Based on these criteria, the researchers found that the risk of “serious violations” is present in all four EU institutions they studied, including the European Commission, the Parliament, the Council, and the Court of Justice (CJEU). They also identified 18 cases of “serious and persistent breaches” of the rule of law, all of which are detailed in the report.
Since most of these violations are linked to the “attempts to arbitrarily and stealthily extend competences in contravention of the Treaties,” their number one recommendation is to set up a “European Court of Competences” to exercise member state control over attempted power grabs and decide what does and does not fall under EU institutional competences.
The highest risk of rule-of-law violations was found in the European Parliament, including the obvious shortcomings of anti-corruption rules (think Qatargate), the systematic disregard for internal rules of procedure, political or ideological discrimination (cordon sanitaire), discussing matters that should strictly fall under national competences (such as security), or even the promotion of the Spitzenkandidat system for electing the EU Commission president in contradiction of the EU treaties which reserves it to member states.
In the case of the EU Commission, the biggest issues were linked to its discretionary powers in infringement procedures which violate the second principle, legal certainty. The Commission’s arbitrary ‘Rule of Law Framework’ is problematic in itself, even according to the Council’s Legal Service, because it provides a basis for judging member states’ violations of “EU values” in areas that are not specific EU competencies. The Commission is also in breach of equal treatment because euro zone countries receive their EU funds significantly faster than those with their own currencies, while the Pfizergate scandal shed light on a whole host of shortcomings in anti-corruption and transparency rules.
Examining the Court of Justice, the researchers found that the selection process for members is quite opaque, with many of the judges having past party affiliations that make them susceptible to political bias and who therefore cannot be considered independent. Furthermore, the CJEU has a completely arbitrary case allocation system based on presidential assignments only, despite the same court often ruling that member states need to strengthen theirs to eliminate bias from the process.
The Council’s list is the shortest, but perhaps the most important. Primarily, the report found that the Council is constantly trying to circumvent the unanimity principle of the Treaties to prevent member states from using their votes on certain legislation. This is done either by “rephrasing” the subject—for example, sanctions, which should fall under “security and foreign policy” and require unanimous approval, can be rephrased as a question of “trade” which only requires a qualified majority—or by changing the institutional level of discussion from the European Council (where heads of state vote and unanimous approval is needed) to the Council of the EU (where ministers need only a qualified majority), as happened in the case of the Migration Pact.
The reports also found Council members (and EU leadership in general) of being in breach of the “sincere cooperation” principle defined in EU law—which says that member states “shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”—because they attempted to prevent Hungary from assuming the Council’s rotating presidency and, once it did, boycotted meetings and events.
To address these problems, several recommendations are put forward by the paper apart from establishing the “Court of Competences” mentioned above. The researchers also suggest
- limiting the Commission’s discretionary powers (especially with regard to infringement procedures, while prohibiting launching infringement cases to challenge constitutional court decisions);
- creating an institutional framework for member states to monitor and scrutinize the legislative process in the Parliament;
- strengthening the equality of member states and ensuring the protection of the unanimity principle in areas specified in the treaties;
- limiting the levels of financial sanctions that can be issued by the Court of Justice;
- and, most importantly, prohibiting the EU institutions from making proposals for amending the treaties—this shall be reserved for the member states in the Council.
Looking forward, the institute said it will share its findings with lawmakers and institutions in Brussels and beyond, hoping to make some noise in the process. The plan is not only to publish it every year from now on but also to gradually widen its scope over time by involving more partner organizations and looking into additional areas not yet covered, Zemplényi said.
“This first issue is meant to raise awareness in the Bubble, so when we publish the second one next year, people already know what it is, and the discussion can grow around it,” Nézőpont CEO Ágoston Bráz added at the event.
