This paper provides a critical overview of options available to the EU to deal with the Rule of Law crisis in some of the Member States. The options it engages with were offered and discussed by a handful of the leading experts in the field and drawing on the critical EUI discussion, the first part of the paper tackles the following questions:1. Why should the EU reinforce the oversight of Member States’ Rule of Law performance?2. Are there sufficient legal bases for such oversight – should a reform of the Treaties be required?3. What kind of procedure could be designed to meet the need of such oversight?4. Which body should be entrusted with the oversight function?The second part provides a word of caution warning of the possible problems related to the EU's involvement with the constitutional core of the Member States.

Reinforcing Rule of Law Oversight in the European Union

This article explores the potential efficacy and limitations of judicial mechanisms as tools to combat democratic backsliding in European Union (EU) member states. The article argues that more can be done to maximize the effectiveness of existing judicial tools, such as infringement proceedings brought to the European Court of Justice (ECJ) by the Commission and private enforcement litigation in national courts. At the same time, we highlight risks inherent in many proposals for novel judicial tools to defend national democracy. We conclude that despite their importance, judicial safeguards alone – whether existing ones or novel proposals – will not suffice to stop democratic backsliding by a determined national government: if the Union is to rein in such attacks on its core values, heads of government and other EU leaders will have to intervene politically as well.

Can courts rescue national democracy? Judicial safeguards against democratic backsliding in the EU

Confusion about the differences between the Council of Europe (the parent body of the European Court of Human Rights) and the European Union is commonplace amongst the general public. It even affects some lawyers, jurists, social scientists and students. This book will enable the reader to distinguish clearly between those human rights norms which originate in the Council of Europe and those which derive from the EU, vital for anyone interested in human rights in Europe and in the UK as it prepares to leave the EU. The main achievements of relevant institutions include securing minimum standards across the continent as they deal with increasing expansion, complexity, multidimensionality, and interpenetration of their human rights activities. The authors also identify the central challenges, particularly for the UK in the post-Brexit era, where the components of each system need to be carefully distinguished and disentangled.

Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges

This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.

/pdf/monitoring-and-enforcement-of-the-rule-of-law-in-the-eu-1k1zq9n5pj.pdf

Monitoring and enforcement of the rule of law in the EU: rhetoric and reality

Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality

This article presents an innovative approach to EU fundamental rights protection against the Member States. It draws on recent studies which have shown that the fundamental rights situation in a number of Member States is an increasing cause for concern, particularly with respect to media freedom. However, while the Union intensely scrutinizes the fundamental rights situations in candidate countries, there is scant action so far in case of serious problems in the Member States. Although the latter are comprehensively committed to "respect for human rights" according to Art 2 TEU and subject to the enforcement mechanism foreseen by Art 7 TEU this has proven to be of very limited practical impact. Therefore, the article suggests opening up "respect for human rights" for individual legal actions via Union citizenship. Its starting point is the recent jurisprudential development of the "substance" of Union citizenship in Ruiz Zambrano. This substance can and should basically be defined with reference to the essence of fundamental rights enshrined in Article 2 TEU. To put this into practice the article suggests a reverse Solange-doctrine, applied by the ECJ towards the Member States: outside the scope of the EU Charter of Fundamental Rights the Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2 TEU. However, should this presumption be rebutted, the "substance" of Union citizenship - within the meaning of Ruiz Zambrano - comes into play. On this basis Union citizens can seek redress before national courts and the ECJ.

Reverse SolangeProtecting the essence of fundamental rights against EU Member States

Some of the Member States of the European Union (EU) are threatening fundamental principles enshrined in Article 2 TEU. Authoritarian tendencies, threatening democracy and human rights, are evident in Hungary and Romania. In Bulgaria, Greece, Italy, and again Romania, systemic corruption and the weakness of some domestic institutions threaten the Union’s fundamental rule of law principle. The financial crisis has aggravated some of the deficiencies. It adds to the sense of crisis that to date only few EU remedies exist. We suggest the establishment of a "Systemic Deficiency Committee" to suplemment the new EU Rule of Law Framework introduced by the Commission in 2014.

Enforcing EU Values: Reverse Solange and a Systemic Deficiency Committee

A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine

Some of the Member States of the European Union (EU) are threatening fundamental principles enshrined in Article 2 TEU. The Polish reforms of its Constitutional Tribunal and Public Service Broadcasters are the most recent problems in a long list of concerns. This problem triggered fresh thinking concerning how the EU may monitor and enforce its fundamental values. Both in political and academic discourse, various suggestions have been made regarding the legal basis and the organizational characteristics of possible mechanisms to be used for this purpose. In this paper, we discuss the instruments that are currently on the table regarding the enforcement of EU values, exposing their strengths and weaknesses in legal and practical terms. The Commission’s Rule of Law Framework is the most prominent and promising institutional response. In this paper we also offer an evaluation of its first use. So far, most of the proposed instruments have been presented in an isolated manner. This is particularly true for the two most discussed instruments, the so called Copenhagen Commission and the Reverse Solange mechanism. This paper presents and normatively assesses the ideas proposed and discusses how to combine the different instruments, which so far have been considered separately. We argue that the most apt European response to systemic deficiencies is the Reverse Solange mechanism as well as a complementary political approach. In developing the political mechanism, we especially focus on the Rule of Law Framework and its recent first activation. We propose to supplement it with a “Systemic Deficiency Committee”. This Committee, composed of eminent figures, should monitor the respect of fundamental European values in all Member States. The proposal combines important insights from the proposal of a Copenhagen Commission by Jan-Werner Muller and the Rule of Law Framework already in place. We see our suggestion as developing both, the proposal as well as the Framework.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2771311_code2541058.pdf?abstractid=2771311&mirid=1

Carlino Antpöhler

Papers

Reverse SolangeProtecting the essence of fundamental rights against EU Member States

Enforcing EU Values: Reverse Solange and a Systemic Deficiency Committee

A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine

Protecting EU Values: Reverse Solange and the Rule of Law Framework

Ein Rettungsschirm für europäische Grundrechte. Grundlagen einer unionsrechtlichen Solange-Doktrin gegenüber Mitgliedstaaten