Rule of law in Europe: ICJ responds to European Commission consultation

The ICJ has presented its response to a European Commission consultation on how to strengthen protection of the rule of law in EU Member States through promotion, prevention mechanisms and measures to hold States accountable for rule of law violations.

In its response to the European Commission consultation , the ICJ highlights the declarations of ICJ Congresses from the Act of Athens in 1955 to the Tunis Declaration of 2019, which have helped to define and explain the rule of law. The ICJ’s long experience of working to advance the rule of law around the world has shown the need both for institutional and procedural safeguards for the rule of law, and for developing strong national rule of law cultures. The EU has an important role to play in supporting these protections in EU Member States, but it does not act alone in this field.  The EU’s work on rule of law should be carefully positioned to take account of UN and Council of Europe standards and mechanisms, in the interests of the most effective possible strategies to protect the rule of law in Europe. Furthermore, for the EU to be credible in the action it takes to protect and promote the rule of law, the EU institutions themselves met be above reproach in their compliance with Rule of Law principles.

As regards the promotion of the rule of law, the ICJ underlines the importance of a shared understanding and commitment to the rule of law amongst legal and political communities, and the general public.  The EU can make a significant contribution to supporting such understanding, through support and funding for civil society in its defence and promotion of the rule of law, through building the capacity of legal professionals including judges, prosecutors and lawyers to uphold the rule of law, and through support for building the engagement of national parliaments on rule of law issues.

In order to prevent threats to the rule of law, the ICJ supports the development of regular, uniform rule of law reviews by which EU Member States’ laws and practices are measured against objective standards by independent experts.  Such assessments should be removed from political influence and should be conducted through an open and transparent process, and should be co-ordinated with existing initiatives of the EU and mechanisms of the UN and Council of Europe.  The reviews could be conducted by a new  independent, specialised Agency on the rule of law, or in co-operation with the Venice Commission of the Council of Europe.

It is vital that there are effective EU mechanisms to respond to violations of the rule of law in EU Member States. Both the European Court of Human Rights and the Court of Justice of the EU are essential to this response.  The EU should therefore do all in its power to support the European Court of Human Rights and the implementation of its judgments. Infringement proceedings before the CJEU should be initiated regularly and promptly where the Commission identifies  rule of law problems that violate EU law or affect the application of EU legislation.  Institution of Article 7 TEU proceedings in appropriate cases is also vital to uphold the credibility of any rule of law assessment mechanism, and in the long term, consideration should be given to amending the treaties to strengthen this mechanism.

The full ICJ submission can be read here.

Legal submissions