Rule of Law for EU

It is the habit of the EU to bury both information and misinformation in dungheap-sized mountains of words, which both tell us little about what the EU Project is up to and gives the EU room to do very much what it pleases.

The EU is skilled at dishing up propaganda. It’s treaties are not the least example, as we have shown in our recent series of posts on that topic and many previous posts. The Union has been successful in convincing some citizens of its importance to them without actually achieving the results it declares to be the main objective. Of course for any failures its leaders continue to blame the narrow-minded nationalisms that are retained by its member states.

One recent example of inadequate achievement and the attribution of responsibility to the member states is provided by the budget and recovery fund negotiations. These were delivered after many compromises but have not won the approval of their own parliament in Brussels. Having only just achieved the result of which they so proudly boast, the Commissioners now argue with their parliamentary colleagues that it would be too difficult to go back into negotiations to make even the small changes that the Parliament is seeking (less than 5% of the total recovery package).

One of the compromises that had to be swallowed to get the packages through for the Commission was a watered-down approach to the rule of law [6], which the Parliament is also contesting.

For this post we examine the recent EU report on the rule of law, which is titled:

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

2020 Rule of Law Report

The rule of law situation in the European Union (Brussels 30.9.2020) [1]

Overview

Overall the report is long, bland and inconsequential, in an area the EU declares as fundamental to its purpose and being. We read in this document much that is no more than waffle, propaganda, obfuscation and deceit.

The report illustrates and provides evidence for our conclusion that the ambition of the EU is to govern Europe while leaving notional responsibility in the hands of member states [2]. The report fails to apply the principles it declares to the EU itself; it focuses largely on the limitations of its member states and their unwillingness to achieve the desired level of solidarity and, as we see it, obedience.

The report opens with the following, with which we agree, except that it does not apply to the European Union and is put up as a veil to bury the actions of the Union in the mountain of words; we are not persuaded:

1. Introduction

The introduction repeats the outrageous claim that:

The European Union is based on a set of shared values, including fundamental rights, democracy, and the rule of law. These are the bedrock of our societies and common identity.

A footnote refers readers to Article 2 of the Treaty on European Union (TEU), which we commented on in a recent post [3]. Much of what follows denies both “bedrock” and “common identity”. (Quotations from the report and other links are highlighted in blue.)

A hint of doubt is evident in the same paragraph:

Standing up for our fundamental values is a shared responsibility of all EU institutions and all Member States, and all should play their part.

They confirm later that not every member plays its part, so this is intended to set us up ready to accept the blame game, except that no blame is to be attached to the EU itself.

The report then asks: What is the rule of law? And its answer extends and compounds the false claims:

The rule of law is enshrined in Article 2 of the Treaty on European Union as one of the common values for all Member States. Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts.

The authors are careful to avoid saying that “all public powers” include the EU, though we are clearly expected to believe that this is a statement of fact about the EU as well as a declaration of principle; this principle would be more honestly expressed as ‘should’ “always act…” but that might give the game away.

These principles have been recognised by the European Court of Justice… This illustrates the characteristic slipperiness of EU language and one of their favourite obfuscations. Since these principles can be found in the Treaties, the Court of Justice of the European Union may claim that the EU recognises them, even if such recognition does not impose any practical obligation on the Union. The use of “European Court of Justice” instead of the proper title given in the previous sentence obscures the fact that the European Union is not the same as Europe [4].

While Member States have different national identities, legal systems and traditions, the core meaning of the rule of law is the same across the EU.

This is strictly true, because it is enshrined in the Treaties: The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law (see Declaration 17 of the Treaties, which we commented on in EU Treaties-9).

The report puts the responsibility onto the member states, ready to blame them if “respect for the rule of law” is not sufficiently upheld; failing to mention that the Commission weakened such respect through its compromises in the budget negotiations [5] and [6].

Effective national checks and balances upholding respect for the rule of law are key…

However, a sub-heading has this, which compounds the failure to mention that the rule of law has been weakened rather than strengthened:

Strengthening the rule of law: a priority for an effective functioning of the Union

From the Conclusions of European Council of 17-21 July 2020: “The Union’s financial interests shall be protected in accordance with the general principles embedded in the Union Treaties, in particular the values of Article 2 TEU [Treaty on European Union]. The European Council underlines the importance of the respect of the rule of law.”

We can note two things here. First, how the EU uses its sweeping but absurd claims to support specific actions, and second, how the EU chooses to sustain its myths by repeating them often.

The EU is caught between a rock (countries including Sweden, Finland and Denmark), hard places (notably Hungary and Poland) and its own propaganda, which perhaps its leaders believe and certainly want us to. Approval from the Parliament is needed for the forthcoming budget to be accepted (though it is not needed for the recovery package, to which the Multiannual Financial Framework (or MFF, aka the budget) is linked. It will be interesting to see if the Parliament continues to hold its position that it will not approve the budget in the face of both its internal contradictions and the firmness of the Commission; the Parliament’s record is poor on such matters.

The Political Guidelines of President von der Leyen set out the intention to establish an additional and comprehensive rule of law mechanism as a key building block in the common commitment of the EU and the Member States to reinforce the rule of law.

Later, in the member state assessments, the report confirms that this is not a “common commitment” but meanwhile covers itself with “set out the intention”.

2. Key aspects of the rule of law situation in Member States

Member States’ constitutional, legal and political systems generally reflect high rule of law standards.

The aim is to stimulate a constructive debate on consolidating the rule of law and encourage all Member States to examine how challenges can be addressed, learn from each other’s experiences and show how the rule of law can be further strengthened in full respect for national traditions and national specificities.

More polite waffle, without substance. We wonder what “full respect for national traditions and national specificities” could mean when the Commission challenges exactly those traditions and specificities as forcefully expressed by, for example Poland [7] and Hungary [8].

The remainder of this section (pages 8-24) goes into so much detail that we can fairly regard it as the usual mix of self-congratulation, propaganda and obfuscation.

3. Developments and actions at EU level on the rule of law

Respect for the rule of law is a key priority for this Commission… The European Parliament plays an increasingly important role in setting the debate on the rule of law at European level.

Respect” is as yet insufficient, as “key priority” implies. Although the Parliament may set the debate, it has no legislative power other than to fail to approve Commission proposals. More waffle follows:

The Commission considers that the first rule of law report and the preparatory dialogue with Member States provides a solid basis for future work in the European Parliament. We await this “future work” eagerly, though we won’t hold our breaths.

The Commission calls on the Member States concerned [Poland and Hungary] and the Council to invest in accelerating the resolution of the problems raised under these procedures, finding solutions that protect the rule of law and the values common to all Member States. There are those suspect “common values” again.

Where rule of law deficiencies constitute a violation of EU law, the Commission pursues a strategic approach to infringement proceedings, building on the case law of the European Court of Justice. Possibly strategic but certainly not tactical.

Finally, in the conclusions of its meeting of 17-21 July, the European Council recalled the importance of the respect of the rule of law and EU founding values in relation to the Union’s budget.

Probably more than ‘remembered’ is meant here by “recalled” but again it says nothing.

4. Conclusions and next steps

The first rule of law report is the result of a new dialogue between the Commission and Member States feeding into the country-specific analysis for all the Member States. This report is an important step towards strengthening a common understanding of the rule of law in the EU and enhancing mutual trust.

In the context of “country-specific” analyses it make no sense—other than for propaganda—to talk about “strengthening a common understanding of the rule of law” when there clearly is no such common understanding. Neither is there much “mutual trust” to be enhanced.

The Commission considers that this process will help preventing rule of law problems from emerging or deepening… They consider this but don’t tell us why we should expect it; we should believe without evidence.

The Commission is encouraged by the fact that all the Member States have cooperated in the preparation of the report… No doubt they were obliged to, or didn’t want to be dissed in absentia.

The Commission will now start preparing the 2021 rule of law report, drawing on experiences gained in the first year of the functioning of the European Rule of Law Mechanism, and carrying forward the momentum to make the rule of law more resilient in our democracies.

On Tuesday 20 October Kantar published a survey, commissioned by the European Parliament, which concluded that, “77% of respondents across the EU say: No EU money without full respect of the Rule of Law and democratic values” [9].

So there is strong pressure from citizens as well as the Parliament to apply rule of law criteria to the recovery funds. However, there is also a consideration that the rule of law ‘strings’ attached to the loan component of the funds will not be acceptable to countries most in need of the funds (not to mention how late they will arrive, if the Parliament approves). Such gross interference by the EU in national decision-making, required for ‘unification’, may be too much for some member states, which may not take up all that is on ‘offer’ under those terms. That will become a major crisis for the EU and its members.

We can surely conclude from all this that the current failure to achieve “a common understanding of the rule of law” will continue to haunt the reality of the Union, while not persuading the Commission to deal with the underlying problem, which is their determination to establish a federal government that can deal with such problems by ruling them out.

Links and Further Reading

[1]https://ec.europa.eu/info/sites/info/files/communication_2020_rule_of_law_report_en.pdf

[2] Treaties: Examined in detail

[3] EU Treaties-2: Values & Democracy

[4] Europe versus EU

[5] https://www.politico.eu/article/ursula-von-der-leyen-weak-rule-of-law/

[6] EU leaders agreed a “watered-down wording” on a mechanism to tie disbursement of funding to upholding democratic norms, in a move set to “embolden nationalist leaders in Poland and Hungary”, Reuters says. (https://www.theweek.co.uk/107605/how-the-european-union-fails-to-uphold-rule-of-law-among-its-members)

[7] https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1602579986149&uri=CELEX:52020SC0320

[8] https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1602582109481&uri=CELEX:52020SC0316

[9]https://www.europarl.europa.eu/resources/library/media/20201020RES89705/20201020RES89705.pdf


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