Coronavirus Test of the European Union’s Policy on the Rule of Law

Ákos Bence Gát

doi:10.53116/pgaflr.2021.1.3

Abstract

The issue of the rule of law has been on the European Union’s (EU) agenda since the beginning of the 2010s. The legal history of the EU shows that the EU’s approach to the topic of the rule of law underwent significant changes. Initially, the Member States called for guarantees of fundamental rights in EU institutions. This trend began to change in the late 1990s and early 2000s, when the possibility of European rule of law control over Member States and the predecessor of the current Article 7 of the Treaty on European Union (TEU) were introduced by the Treaty of Amsterdam. However, the idea that the EU institutions can constantly monitor the Member States in the name of the rule of law has only emerged and started dominating the European political agenda since the early 2010s. Over the last decade, the EU institutions have continuously expanded their toolkit for monitoring Member States in this regard.Following calls from some Member States and the European Parliament, in 2014 the Commission set up the new EU framework to strengthen the rule of law. In the same year, the European Council introduced an annual rule of law dialogue. In 2016, the European Parliament proposed the establishment of an annual rule of law report that monitors all Member States. At first, the European Commission was reluctant to accept this idea, but finally it introduced an annual rule of law report in 2020. However, the EU’s policy on the rule of law suffers from fundamental shortcomings, which were especially visible during the first wave of the coronavirus crisis in the spring of 2020. In the pandemic situation, it has become even more apparent that the EU’s policy on the rule of law raises a significant issue of EU institutions exceeding their competences and stands on a questionable legal basis.Criticisms formulated against Hungary during the pandemic have revealed that the EU institutions do not provide sufficient guarantees for an objective examination of the situation of the rule of law in the Member States. The situation brought about by the coronavirus has also raised a number of questions regarding the lawful functioning of EU institutions, which shows the need for a rule of law mechanism capable of verifying that the EU institutions themselves also properly respect the rule of law.

Highlights

The rule of law is a constitutional concept which inherently has no fixed, universal definition
The development of the legal history of the European Union (EU) shows that initially Member States called for guarantees of the rule of law in EU institutions
This trend began to shift in the late 1 990s and early 2 000s, when a provision allowing for a European supervision of fundamental rights in the Member States in certain cases was inserted into the Treaty of Amsterdam

Summary

Introduction

The rule of law is a constitutional concept which inherently has no fixed, universal definition. In the light of today’s debate on the rule of law in the EU, this may have been forgotten, and it should be emphasised that the Court, to the 1977 statement by Parliament, the Council and the Commission, referred to the constitutional traditions of the Member States, and relied on them when it upheld that the protection of fundamental rights is part of the general principles of Community law It later further extended the legal basis for the enforcement of fundamental rights and international conventions, in particular the European Convention on Human Rights, which became an additional source of inspiration. In line with the case law of the Court, Article F of the Maastricht Treaty stated that ‘the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’ (Maastricht Treaty, Article F). The EU’s rule of law toolbox has been constantly expanding

Expanding institutional toolbox of European policy on the rule of law

Rule of law policy during the coronavirus pandemic: growing concerns

The issue of objectivity

The need for guarantees that EU institutions respect the rule of law

Conclusion