On December 7, 2023 David Sehnálek organized an online webinar in MS Teams entitled „EU rule of law enforcement mechanism„. This event was organized within the framework of the Central European Professors’ Network 2023.
The webinar was intended primarily for students of master’s programs in law and legal science. Due to the fact that it was attended not only by students from the Czech Republic but also from other European countries, it was held in English.
The central theme was the mechanisms for the enforcement of the rule of law enshrined in the founding treaties of the European Union. Doc. David Sehnálek introduced the webinar by briefly defining the meaning of the concept of the rule of law. In doing so, he emphasized the key principles that are typical emanation of rule of law in jurisprudence, that are Guarantees of fundamental rights and freedoms; constitutionality and legality; legal certainty; sovereignty of the people; separation and control of powers; limited government; legitimacy of state power and democracy of state institutions. Since it was a webinar primarily aimed at students, doc. Sehnálek also explained the difference between the different concepts of the rule law (namely Rechtstaat and its meaning in German jurisprudence).
He then focused on the importance of this principle in accession negotiations. Doc. Sehnálek further emphasized that respect for the rule of law is equally important during the EU membership. This is because of the need for mutual trust between Member States in the integrated and interconnected whole that is the European Union.
As a result of the very close integration that has been achieved within the EU, the interconnection between Member States is enormous including the sphere of law, justice and public administration. This in practice means that Member States often have to rely on other Member States and accept the decisions of their authorities and their courts in the same way as their own decisions. So, their sovereignty is from this perspective limited.
In a situation where they themselves impose certain requirements on the functioning of the state in general and the judiciary in particular, they expect these requirements to be met in a similar way by other Member States.
Similarly, many of the activities of the EU are carried out by the states. While the EU does issue its own legislation to govern our functioning in society, in most cases it does not have its own instruments and institutions with which to enforce and apply that legislation.
It therefore depends on the Member States. The EU is a state governed by the rule of law, so the Member States must also be a state governed by the rule of law to ensure that the EU operates properly. These conclusions are indeed confirmed also by the jurisprudence of the Court of Justice, for example in a famous case C‑64/16, Associação Sindical dos Juízes Portugueses.
Doc. Sehnálek concluded the introductory part of the webinar by a statement, that the rule of law is an inherent value of both the Member States and the European Union. The founding treaties do not contain a definition of the rule of law, so it is a concept open to judicial interpretation; the founding treaties explicitly require the candidate country to be a state governed by the rule of law, and tacitly assume that this status is automatically maintained for the duration of membership in the European Union.
As a result, Member States decided to include the rule of law as a basic principle directly into the founding treaties. And there are a number of provisions that stipulate this principle. The rule of law is mentioned in Article 2 TEU as a value on which the functioning of the European Union is based, and which is common to in all Member States of the European Union. The fact that the European Union is a ‘state governed by the rule of law’ is further emphasized in the preamble to the Charter of Fundamental Rights and Freedoms. Last but not least, the rule of law is further enshrined in Article 21 TEU as the value basis for the external action of the European Union and all its external relations policies.
In his presentation, doc. Sehnálek also spoke about the current problems of the rule of law in the European Union and briefly mentioned how the European Union has responded to these problems, both legally and politically. Indeed, the past decade has been marked by a strong emphasis on the rule of law. EU leaders have been concerned about developments in some Member States. One of the first cases concerned Portugal, but more often than not, Poland and Hungary are mentioned in this context. It is here, however, that a fundamental problem related to the rule of law emerges. The European Union and some Member States are at odds over what they consider to be essential.
The European Union sees the independence and effectiveness of the judiciary as one of the manifestations of the rule of law. That is why it is trying to put pressure on those Member States that are making changes against the judiciary and its functioning.
However, the Member States, particularly Poland, qualify the same problem legally in different ways. They understand it as a question of the organization of justice in general. The organization of justice is entirely the responsibility of the Member States, not the EU.
Doc. Sehnálek then discussed in detail the interpretation of Article 7 of the EU Treaty, the procedures, and the roles and powers of each EU institution in promoting this important value. Article 7 of the EU Treaty regulates three relatively independent procedures that can be initiated to protect the rule of law and other values protected by Article 2 TEU. The first procedure concerns the adoption of a decision on the existence of a clear risk of a serious breach by a Member State of the values set out in Article 2 TEU. The second procedure is aimed at taking a decision that a serious and persistent breach of the values set out in Article 2 TEU has been committed by a Member State. The third procedure includes a sanction mechanism which may follow after a decision has been taken under in the second procedure.
Article 7 TEU further regulates the institutions involved and their decision-making procedures. European Parliament, the European Council and the Council are those that are primarily involved. This might be surprising since the typical EU institutions involved in enforcement of EU law, that is the Commission and the Court of Justice are left out. Thus, this mechanism really is not a legal, but rather political tool.
Doc. Sehnálek also emphasized, that the EU interprets the Article 7 TEU in a way in which it does not require a direct link to a specific area of EU law. It does not concern only the actions, or inactions of Member States related to membership. The violation of values can also be a purely national activity of national authorities as the already mentioned ‘reforms’ of the judiciary and other democratic institutions in Hungary and Poland with only a potential connection to the EU law.
Doc. Sehnálek also pointed out that the traditional notion of law and its enforcement is linked to power and force. This is how it is quite often taught at law faculties. But in the modern world it turns out that there are also much more effective tools to enforce the law. And that tool is money. The EU has introduced a rule-of-law conditionality mechanism in its budget, allowing the withholding of EU funds if Member States are found to have deficiencies affecting the sound financial management of the EU funds.
Inspired by the mechanisms used in the international environment, the Commission has also introduced evaluating mechanisms of rule of law in Member States. Thus, students were also introduced to the tools used by the European Union to assess whether Member States comply with the rule of law (EU Justice Scoreboard and Rule of Law Review Mechanism). The Rule of Law report covers four main areas: the justice system, the anti-corruption framework, media pluralism, and other institutional issues related to checks and balances. The EU justice scoreboard is an older rule of law enforcement mechanism, launched in 2013. Its justification is strongly linked to economic factors, economic policies and growth. In this perspective, a functioning rule of law with functioning and effective courts is seen as a prerequisite for economic development.
The webinar was concluded by an explanation of the different functions of the EU’s rule of law enforcement mechanisms. Doc. Sehnálek also noted that the whole area of the rule of law touches the very core of the functioning of any state, and is therefore a very politically sensitive and complicated issue. The mechanism for verifying whether a Member State is a state governed by the rule of law is purely administrative or political (i.e. not judicial) in nature, provides for the involvement of the EU institutions, but leaves the decision-making power to the Member States through the Council or the European Council.
The recording will be used in the future for teaching EU law in the course Constitutional Law of the European Union for Czech students and for foreign students interested in EU law.
