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The Rule of Law in the European Union and in its member states

Meeting with Giuliano Amato
Rome, 28/11/2017, Meeting for The Aspen Junior Fellows

The financial crisis, the economic crisis, a crisis in the traditional workings of democracy, "Europe in crisis": these were the phenomena highlighted by participants at this Aspen Junior Fellows Meeting as currently unfolding against a general backdrop of economic woes that are fomenting populism and racism. The risk – it was stressed – is that respect for the rule of law will be undermined within the European Union, despite this being one of the founding principles of the EU.

It was noted that although there is no explicit definition of this principle in the treaties establishing the EU, Article 2 of the Treaty on European Union (or “TEU”, as amended by the Treaty of Lisbon) states that the EU is founded on the values of respect for democracy, equality, rights, freedom, and the rule of law. In addition, through the efforts of the European Court of Justice, the principle of the rule of law has entered into and become entrenched within the European legal system. A Union governed by the rule of law entails that the acts of those who embody power cannot be exempted from review. Over time, the ECJ has shown that the rule of law is a broad and elastic concept, which has gradually become an umbrella covering a growing number of stipulations that are brought to bear within the Union as well as vis-à-vis countries that wish to join.

Indeed, it was precisely in the case of such candidate countries that the rule of law brought into sharp focus those aspects– within the communist regimes from which these countries hailed – that most conflicted with the rule of law itself, such as the absence of an independent judiciary and the lack of mechanisms to prevent and curb corruption within public institutions.

Nevertheless, the participants observed that the issue of respect for the rule of law – understood as entailing the separation and independence of judicial power, as a safeguard for the rights and liberties of citizens – is today, unexpectedly, rearing its head conspicuously in several countries that despite having only recently joined EU have solid traditions of their own, such as Hungary and Poland. It arises particularly in the face of attempts to manipulate the judicial system and the mechanisms which vouchsafe the independence of the judiciary. Confronted with such attacks, the response mechanisms of the EU’s institutions have proven complex and not always effective, a case in point being the difficulties encountered in activating the procedure under article 7 of the TEU. Precisely with a view to ensuring respect for the rule of law within the European Union, Europe’s institutions are making frequent resort to soft law mechanisms. In the case of Poland, the European Commission has – in a recommendation on the rule of law addressed to the Polish authorities – expressed its concerns on reforms to the judicial system with the aim of opening up a constructive dialogue with the government. It was felt that this undoubtedly points up one of the major challenges today, namely, that of determining how to go about preserving and protecting the resilience of the cohesion of different peoples and states that have endured the creation over time of the foundations of an understanding on fundamental principles believed to be shared, and which now, due to the tensions of the past few years, have begun to unravel.

While acknowledging the lack of preparedness for facing this new reality, the participants emphasized the need to bear in mind that, thanks to the advance of the rule of law, the European Union is a community that has been built on values ​​and not just shared economic interests. This process was seen as still ongoing and not yet fully completed, since not all values are shared by all member states in the same way. In this regard, it was conceded that Europe has been very preoccupied with organizing economic integration, but less so with organizing cultural integration.

In such a complex scenario, the issue of respect for the rule of law was held up as pivotal to the security of rights, to European identity, and ultimately to the credibility of the European Union. Deemed just as crucial were trust in the shared heritage built up over the years and the ability to combat those who would seek to destroy this heritage. Looking ahead, with a view to the future, the participants urged that it is precisely within the arena of the rule of law and respect for the values underpinning it – in the push and pull between identity and diversity, and between the defense of cultural boundaries and inclusion – that European countries will determine the future fate of cohesion between their peoples and their continued enjoyment of the civilization which springs from centuries of history.