Regarding the Protection of Rule of Law

14 April 2024

Resolution submitted by: JEF Political Commission 1 – Institutions and Governance

Adopted by the Federal Committee in London on 23 March 2019. Re-adopted and amended by the European Congress in Liège on 21 November 2021. Re-adopted and amended by the European Federal Committee in Tartu, Estonia on 14 April 2024.

Recalling how the project of the European Union, as envisaged by the founding Fathers and Mothers, was aimed at the creation of the European Federation as the only possible way of preserving peace within Europe. However, today that project is severely compromised by the illiberal, nationalist and authoritarian tendencies that have spread across national governments and our society;

Strongly emphasising the rule of law as one of the core principles which the European Union is built upon;

Reiterating that the European Union is based on a number of fundamental values, outlined in the Treaty on European Union(TEU), the Treaty on the Functioning of the European Union (TFEU), the Charter of Fundamental Rights of the European Union and the common constitutional traditions of the Member States;

Recalling the strong role that legal process and respect for the rule of law at all levels of government have played in European integration and in defining the identity that the EU has ascribed to itself;

Alarmed by the increase in violations of the rule of law especially in the area of fundamental civil rights and political freedoms in EU Member States among which Hungary, now considered an illiberal state, but also countries such as, but not limited to, Poland, Bulgaria, Romania, Slovakia, Greece, Malta and Croatia where rule of law has been put at risk in several and different episodes, which is no less serious;

Welcoming the efforts in Poland, where the new government seeks to restore the rule of law, and noting that the situation can be effectively improved by rejecting authoritarian parties and governments in national elections within the concerned Member States;

Worried about the development in some countries, such as Italy, where the rule of law has traditionally been strong, but where it has recently come under pressure;

Concerned that the erosion of the rule of law might occur in other EU countries in the future, given, the rise of parties with explicit intent to undermine rule of law, notably in Spain and Germany;

Further alarmed by the reluctance of many other national governments and European leaders to stand up to this development;

Worried about how governments and political parties are exploiting the phenomenon of migration flows to increase citizens’ fears and uncertainties in order to justify measures aimed at attacking the basic principles of democracy and limiting freedom;

Noting with concern that some Member States’ governments have used states of emergency to justify adopting measures which are partly or wholly inconsistent with the European rule of law and oppose the Union’s values as well as threaten or restrict fundamental freedoms;

Alarmed by the constant recent attacks, such as funding cuts and smear campaigns, by some governments of the Member States towards many NGOs that promote European values and the rule of law, as their function is central for any stable democracy;

Acknowledging the limits of existing mechanisms such as infringement procedures according to Art. 258 of the TFEU to address the systematic nature of rule of law violations;

Regretting that the efforts by the European Commission to safeguard the rule of law in the EU’s Member States through the initiation of the Rule of Law Framework have not been effective due to the European Council’s unwillingness to use Art. 7 to suspend the offenders;

Noting with concern that the Rule of Law Framework has been ineffective so far, as the ongoing dialogue between the Commission and the governments has not led to any meaningful change while instead allowing the governments to buy time;

Welcoming the numerous efforts by the European Parliament to tackle rule of law issues, but noting with regret that they have not been successful;

Considering that the EU’s legal framework still remains ill-equipped to deal with the violation of the rule of law in Member States; in
particular, the Rule of Law procedure, outlined in Art. 7 of the TEU, whereby the EU is virtually unable to sanction gross violations of EU fundamental values in the Member States, requiring a unanimous vote in the Council for sanctions to be activated;

Observing in particular a gap between the Copenhagen Criteria used to assess the accession of countries to the Union and the reactive nature of the aforementioned Rule of Law Framework and the Rule of Law procedure;

Noting further the difficulty of communicating the urgent character of the topic to citizens when the procedures carry non-descriptive names such as “Art. 7 procedure” or “preventive mechanism” (i.e. Art. 7(1) TEU);

Recalling that the European Court of Justice (ECJ), acting as guardian of the correct interpretation and application of EU law, has always played a fundamental role in the process of European integration by fostering the supranational nature of the Union;

Further recalling that the ECJ is the final arbiter in the interpretation of the EU law and in ensuring its uniform application across all Member States;

Alarmed by the insufficient application of the conditionality regime that has been put in place since 2021, between European funds paid out to certain Member States and the state of the rule of law in these respective Member States;

Further alarmed by the possibility of blackmail due to the unanimity principle when Member States breaking the rule of law condition their support on ending an Art. 7 procedure or unfreezing funds, such as Hungary blocking the EU’s Ukraine aid package;

Concerned that the conditionality regime may be even less efficient as a tool on possible rule of law violations by wealthier Member States that receive less funding from the European Union;

Noting with concern that permanent or long-term damage to a Member State’s democratic framework may occur even during short periods of rule of law breaches and regretting that the EU process of assessing rule of law violations takes too much time;

Convinced that strategic lawsuits against public participation (SLAPP) undermine the rule of law by risking the subjugation of the judicial system to governments’ political agendas, besides threatening other fundamental democratic principles such as freedom of assembly and freedom of expression;

Recalling JEF Europe’s deep commitment to the rule of law and the safeguarding of democracy, for instance through the annual pan-European campaign Democracy under Pressure which has been ongoing since 2006;

Reaffirming how a Federal Europe will exist only on the basis of the rule of law and solid democratic structures to guarantee the rights that today are steadily undermined by those who are supposed to safeguard them;

JEF Europe therefore,

1. Calls on the European Commission and European Council to make use of existing instruments, such as the rule of law procedure of Art. 7 TEU, whenever there is the danger of severe violation of fundamental principles and not only when it is politically feasible;

2. Calls for the dialogue procedure of the Rule of Law Framework between the European Commission and national governments who violate the rule of law to be limited in time to a maximum period of six months;

3. Calls for a reconsideration of the Rule of Law procedure (Art. 7(2) TEU), suggesting a qualified majority vote instead of unanimity when identifying a serious and persistent breach of fundamental European values;

4. Further recommends the creation of guidelines for the Rule of Law procedure to avoid discussions on procedure that merely buy time for the respective Member State;

5. Welcomes the approval of the rule of law conditionality clause in the Union’s budget 2021-2027 as well as the Regulation on protection of the Union’s budget in case of generalised deficiencies concerning the rule of law in the Member States whereby a conditionality mechanism can be triggered against a Member State government, and subsequently either cut or freeze payments to that Member State from the EU budget, when EU funds are misused directly, such as cases of corruption or fraud or in case of systemic breaches of fundamental values that all Member States must respect;

6. Calls for stronger formal involvement of the European Parliament in the Rule of Law procedure according to Art. 7 TEU in order to ensure representation of the European people;

7. Calls for sufficient resources to be provided to the European Union Agency for Fundamental Rights so that it can fully carry out its current tasks and develop future ones; in particular:

the extension of the Agency’s competences so that it has a role to play in the Art. 7 procedure;

the systematic possibility given to the Agency to contribute, on its initiative, to the impact assessments of the Commission on the
implications of legislative proposals regarding the exercise of fundamental rights;

8. Calls on the European Commission to finally follow the European Parliament’s proposal and set up a plan for the introduction of a European Review Mechanism on Democracy, Rule of Law and Fundamental Rights (DRF); in particular:

an annual scoreboard on the state of DRF in the Member States shall be elaborated by an independent panel of experts and formally adopted by the Commission;

the formal adoption of the DRF Scoreboard by the Commission shall initiate the DRF Semester, which shall aim at addressing the results of the DRF Scoreboard and recommendations included in country-specific reports;

systematic fundamental rights impact assessment shall be carried out for all legislative proposals by the Commission;

9. Encourages that, in the next mandate of the European Parliament, Rule of Law monitoring groups will be re-established within the respective committees;

10. Calls on all the European political parties and families and their representatives:

to take responsibility for ensuring that the respective national parties are committed to European values and the rule of law;

to have clear procedures in case of violation of the European values by one or more of their members and make their rules transparent to the public;

to include citizens being members of the individual parties in the process, e.g. giving them the possibility to set a problem on the agenda of the assemblies of the respective European political family;

11. Calls for Treaty changes with the effect of conferring to the European Court of Justice the authority to effectively ensure the application of the rule of law in the European Union and its Member States and the subsequent necessary increase of the capacities of the ECJ;

12. Calls for the ECJ to be given the ability to temporarily freeze individual legislative and executive actions of Member States to prevent long-term damage to the state’s democratic framework while the EU institutions assess the action’s compatibility with the principles of rule of law and to suspend such actions if they are found incompatible;

13. Calls for direct complaints from individuals regarding the violation of their fundamental rights as protected by European law to be possible to submit to the ECJ;

14. Calls upon the ECJ to reassess its position regarding the relation between EU law and the European Convention on Human Rights, thus allowing the accession of the EU to the European Convention on Human Rights as mentioned on the Art. 6(2) TEU;

15. Demands that Member States implement the decisions of the European Court of Human Rights as swiftly as possible;

16. Calls for swift utilisation and enforcement of the principle of non- regression established by recent case law of the ECJ;

17. Demands that national constitutional courts and national governments acknowledge that the ECJ is the only competent authority to ultimately adjudicate EU-law, even when and especially when the particular issue concerns fundamental values such as the rule of law as stated in Art. 2 TEU;

18. Demands the formal acknowledgement of the supremacy of EU law by all Member States;

19. Calls for the ECJ to be the final arbiter in case of conflicts between national and EU law and to have such judgements be directly applicable within the Member States;

20. Calls for more ways of funding NGOs that work to protect the rule of law within the EU, as their work is fundamental to the increase in participatory democracy and citizens’ support of European values. This should be done by implementing either stronger operational funding or the creation of an EU fund. Eventually, it should aim at creating a better and stronger NGO sector to hold governments accountable while keeping the public involved;

21. Calls for a sustainable funding of international organisations, including but not limited to, the United Nations and the Council of Europe, which are financed by contributions from nation-states and play an important role in protecting rule of law;

22. Calls for the rapid adoption of robust European-level legislation against “strategic lawsuits against public participation” (SLAPP), complemented by non-legislative measures as appropriate:

legislative measures should provide procedural safeguards against SLAPP, applying uniformly across the EU;

actors facing SLAPPs should be guaranteed to benefit from competent legal aid, for example through legal guarantees that the targets of such proceedings may be defended by representative organisations;

EU funds should be directed towards training and enabling legal professionals to work against SLAPP.