Conference-Talk With Commissioner For Justice Didier Reynders

By Myriam DZIEWIT BENALLAOUA, Editor of the Politics Section

The First Rule Of Law Report

On October 7th 2020, the European Commissioner for Justice Didier Reynders visited the College of Europe in Bruges to present the first edition of the Annual Report on the Rule of Law in the European Union. The Report was published by the European Commission on September 30th[1].

  As Mr. Reynders pointed out at the beginning of his speech, the Rule of Law problem is not new at all. Often described as an abstract concept, the Rule of Law is in fact very concrete in that it is the foundation and prerequisite of our democratic systems. Respect for the Rule of Law implies that all public authorities act within the limits set by the law in accordance with the values of democracy and fundamental rights, under the supervision of independent and impartial courts. The Rule of Law comprises several principles which have been identified by the case law of the ECJ and the ECHR: legality; legal certainty; prohibition of the arbitrary exercise of executive power; independence, impartiality and effectiveness of judicial review including respect for fundamental rights; separation of powers; and equality before the law. The Rule of Law is enshrined in Article 2 of the TEU as one of the fundamental values of the European Union.

  Respect for the Rule of Law is imperative for the operational system of the EU. On the one hand, it is required for the proper functioning of the internal market, as it guarantees a favourable environment for business and investment. On the other hand, it ensures effective civil and criminal cooperation between Member States. For instance, in the execution of a European Arrest Warrant it is necessary to have mutual trust between Member States and judges. Finally, the Rule of Law guides the Union’s external action. A strong approach is adopted by the Union in its relations with candidate countries, neighbours, and international partners. If the Rule of Law is not respected internally, how can the EU be credible when it is evoked externally?

  Respect for the Rule of Law cannot and must not be taken for granted, as events in recent years have shown. Indeed, multiple violations of the Rule of Law have occurred in certain Member States. In response to these serious and recurring breaches, the Commission (as guardian of the Treaties) has developed a toolbox to alleviate this crisis: the infringement procedure; the procedure under Article 7 of the TEU[2]; the measures adopted within the framework of the European Semester[3]; and regulation proposed in May 2018 on the protection of the Union budget, which renders the allocation of European funds conditional on respect for the Rule of Law.

  In line with the instruments developed by the European Commission, the Annual Report on the Rule of Law represents an innovative approach to protect and promote this value. From now on, the Commission will draw up an annual report on the Rule of Law which will provide a qualitative assessment of general trends and specific situations in the Member States, enabling a better understanding of the situation throughout the Union. This Report identifies both positive and negative developments and highlights good practices. The Report makes a clear distinction between one-off concerns for individual Member States and more systemic problems. While the Report is not a formal recommendation, it is an important source of information for monitoring the situation of the Rule of Law. The aim of this new tool is to establish a deeper dialogue on the Rule of Law at the European and national level through open debate and exchange of best practices. As Mr. Reynders has reiterated on several occasions, the European Commission’s objective is to build a genuine “Rule of Law culture” and to make European citizens understand what the Rule of Law really means and how it shapes their daily lives.

“We truly want to build a Rule of Law culture and make EU citizens better aware of what the rule of law actually means for them and how it shapes their lives (...) Our goal has never been to name and shame any countries but to learn from each other and to give the opportunity to every Member State to do better”

                                – Didier Reynders, European Commissionner for Justice

  To construct this mechanism, the twenty-seven Ministers of Foreign Affairs were contacted to establish a network of national contact points. The idea was not only to establish a constant channel of communication with the Member States, but also to discern an appropriate methodological approach. Member States were placed on a strict equal footing, as each were scrutinised under the same methodology. On this basis, all Member States participated in the process via written contributions. In addition, the Commission carried out targeted engagements with 200 stakeholders who provided written contributions; made 300 visits to several countries; and verified the accuracy of projects with the assistance of the relevant Member States.

The Commission’s report focuses on four key areas: The independence, quality, and efficiency of judicial systems: while judicial independence remains a matter of concern in several Member States, they highlight a number of efforts made to both strengthen the independence of the judiciary and reduce the influence of the executive and legislative powers on the legal process. Anti-corruption frameworks: several Member States have recently adopted new or revised comprehensive anti-corruption strategies, while others have introduced measures to strengthen institutional capacity. Nevertheless, some monitoring has raised concerns, particularly those related to the investigation, prosecution, and adjudication of corruption cases. Media freedom and pluralism: though media independence is enshrined in the law of all Member States, there are worrying signs in some Member States of undue political influence on the media, a lack of transparency around media ownership, and significant risks to journalists. Finally, the institutional checks and balances: in several Member States there are debates to reinforce legal and constitutional guarantees, and some reforms are currently under way. However, concerns have been raised over the repeated use of emergency government orders in a few Member States.

  In conclusion, through this Report the Commission wished to establish a deeper dialogue at both the national and European level, whether with the European Parliament, the Council but also with national parliaments or stakeholders (academics, judges, civil society...). As the European Union is based on diversity and inclusiveness, it must be possible to discuss our values throughout Europe without any Member State feeling stigmatised.  

  Our last words go to the European Commissioner for Justice, Mr. Reynders. We, the students, would like to thank him warmly for coming to the College of Europe and presenting the intricacies of the European Commission’s new Report on the Rule of Law, and for answering all of our questions on the subject.

[1] 2020 Rule of Law Report – The rule of law situation in the European Union, COM(2020) 580 final, September 30th 2020.
[2] The Article 7 may be triggered where there is a clear risk of a serious breach of European values or where there is a serious and persistent breach of those values. Article 7, paragraph 1, was first triggered by the Commission in December 2017 against Poland. It was also activated by the Parliament in September 2018 against Hungary. Both procedures are pending before the Council.
[3] The Commission has issued several recommendations on judicial reforms in some Member States which have been adopted by the Council.