Speech by Věra Jourová on “Equipping Europe with better tools to defend the rule of law and democratic values” - Hoofdinhoud

Ladies and gentlemen,

It is a pleasure for me to join you today to discuss the rule of law.

I am especially happy that finally, after a few long months, I can meet you in person and have a human interaction.

So let me express my special thanks to the organisers who have ensured that the sanitary conditions are met. But I of course welcome everyone who joins us online as well.

Today we will discuss the rule of law and I am particularly happy to do it in Karlsruhe, the seat of the German Federal Constitutional Court, and a place of great debates not only about the rule of law but about European law in general.

Debate like this today is badly needed. Sadly, today in Europe we need to not only discuss the rule of law, but also actively defend it.

We need to act because European democratic values, including the rule of law, are under threat.

I would like to first argue why I think it is the case and then what can we do to improve the situation.

Recently in Europe we have a climate of permanent crisis - from the financial crisis a decade ago to the ongoing health crisis and a looming economic one.

And it is in this climate that many people in Europe feel concerned about their jobs, about paying their rent or credit and about the future of their children - and rightly so. [I think we are all worried].

And it is in this climate where some opportunistic political forces see their window to start offering to the people absolute security and order at the expense of our freedoms.

So, let me tackle this from the start - this is a false alternative. Democracy, rule of law and fundamental rights are the foundations on which everything else is based: our rights, the freedom of the press or the independence of the judiciary.

The history of democracy is a permanent search of the right balance between those two poles: the balance that is limiting the powers of the powerful. And - let us not forget - the bottom up system of checks and balances - the collective wisdom of the voters, the citizens as a sovereign power who should understand their role to keep healthy democracy. Democracy which works for them.

I say this not based on abstract theory, but as somehow who grew up under a totalitarian communist regime.

When I was growing up, it didn't cross my mind to even dream about equality before the law. There were those who were more equal. The politically appointed judges may have applied the existing law, but there was no justice. The media broadcasted in the service of the party and critical thinking was seen as a crime.

The European Union was created also an antidote to those authoritarian tendencies. Those of us who experienced authoritarian rule wanted to join the EU to have a guarantee that those times will not come back. This is why democracy, the rule of law and fundamental rights are enshrined in Article 2 of the EU Treaty.

Regrettably, we see in different Member States an erosion of some of those foundations. We see attempts of making the judges more dependent on politicians, we see media that are concentrated in the hands of few or that are becoming dependent on political forces where pluralism or independent reporting becomes less and less possible.

This is why the Commission under the leadership of Ursula von der Leyen decided to act.

You may wonder, what is the role of the European Union in such internal matters of Member States?

So let me underline why rule of law issues in one Member States are actually European issues.

The European law is not only upheld by the European Court of Justice in Luxembourg. It's upheld in the courts of Helsinki, Berlin, Madrid or Warsaw. National judges are also European judges. This means that if one national system of judiciary is broken, the EU system is broken.

There can be no judicial cooperation and no mutual trust without the rule of law. And there can be no effective internal market without the rule of law. This is not only a legal matter or a political matter, it is even an economic matter.

The principles that represent the core meaning of the rule of law have been recognised by both the European Court of Justice and the European Court of Human Rights, as well as in Council of Europe standards. The Venice Commission's work provide a very useful reference in this regard.

Let's take a look at some of those elements. First of all, judicial independence. Already in 2006, the Court of Justice provided for the first time a definition of judicial independence in the Wilson case. Mr Wilson was a British lawyer who wanted to work in Luxembourg, but was not allowed to - the decision was made by the body that consisted of lawyers registered in the Grand Duchy.

The Court of Justice found that this is not an independent body and defined independence as “freedom from all forms of external pressure that must remain at an equal distance from all the parties of the dispute”.

The role of EU law in safeguarding judicial independence was further pronounced in the Portuguese judges case of 27 February 2018. The Court ruled that EU law itself - notably Article 19 TEU - can be relied on in order to safeguard the independence of judges within the Member States.

So, yes, we have a strong legal basis to act as guardian of the treaty, but the Commission also has a broader role to play.

The European Commission has developed a ‘rule of law toolbox', a set of instruments to address challenges for the rule of law.

In fact, last year we launched an important reflection process to assess our tools and identify potential gaps.

Our conclusion can be summarised in three main themes:

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  First, we need to work with all relevant actors to promote a common rule of law culture across the Member States.
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  Second, we have to develop a preventive arm to address the rule of law problems before it is too late, based on dialogue with Member States.
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  Third - response. We need to reflect on how to react more effectively to significant problems once identified.

[The promotion of a rule of law culture in the EU]

As regards promotion, building a rule of law culture is about making EU citizens better aware of what the rule of law actually means for them. We have to find a way to be able to get out of the discussions about the rule of law from professional and academic fora to the public. [Prevention: Detecting the risks]

The second major part of our work is about prevention. This is about detecting and fixing rule of law issues at an early stage, where the temperature of political dispute could be lower.

To do this, we need a better factual understanding of the situation of the rule of law in the whole EU.

This is what the new comprehensive European Rule of Law Mechanism is all about.

We are currently working on a first annual Report on the rule of law, which will cover all 27 EU Member States and will be published in September. It monitors significant developments, both positive and negative, in four areas:

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  Justice systems;
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  Anti-corruption frameworks;
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  Media freedom and pluralism; and
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  Institutional issues related to checks and balances.

The preparation of the first annual Report is progressing well. Our experts have carried out country visits in all Member States in the past few weeks, although only ‘virtually'.

This report will serve as a basis for the work of the German Presidency of the Council and the debate on the rule of law between the Member States.

The annual Rule of Law cycle will allow the EU to address challenges for the rule of law in a cooperative way. This will help us to learn from each other's experiences and to share best practices.

The report can also encourage Member States to pursue reforms where needed, for example to further strengthen the independence of the judiciary and prosecution - also taking account the case law of the European Court of Justice - and to secure media freedom and pluralism.

But the report should also serve to identify problems early on if trends go in the wrong direction.

[Response: Effectively dealing with challenges]

This brings me to our third strand of work, the response.

Let me start with infringement proceedings. Where the independence of the justice system of a Member State has come under threat, the European Commission can bring infringement proceedings against this State.

In recent years the Commission has used this tool, on some occasions for the first time, to defend the rule of law. We have seen the European Court of Justice developing an important case-law in this regard, emphasising the link between the rule of law and respect of EU law.

The principle of effective judicial protection and the right to an effective remedy are indeed guaranteed by Article 19 of the Treaty on European Union and by Article 47 of the EU Charter of Fundamental Rights.

There is also the now well-known Article 7 of the Treaty on European Union, where proceedings in Council have been launched for two Member States, Poland and Hungary.

This particular tool proved effective in widening the debate and involving all Member States, but it also has its limits. I don't think the authors of the Lisbon Treaty ever imagined it being triggered and the unanimity rule in the Council makes it very difficult to conclude these proceedings in practice.

To give the EU rule of law framework more teeth, I proposed in 2018 in the context of the next multi-annual budget a mechanism of linking EU funds to the respect of the rule of law. Taxpayers money should be spent only where we can have guaranteed independent and effective courts.

And even though there was a lot of scepticism about this idea in the beginning, I am very satisfied that it remains on the table in the current decisive phase on the discussions about the next multi-annual budget, now also linked to the Recovery Instrument that emerged out of the COVID 19 context.

The German Presidency will have a key role in securing agreement on this, including on the proposed rule of law conditionality. This conditionality is more important than ever given the increased recovery funding.

I count on the EU leaders that will meet next week to discuss this issue, among many others, not to dilute our proposal. We cannot afford a paper tiger - we need a strong and efficient tool.

[Uniform interpretation of EU law]

The last point I wanted to mention today is uniform application of EU law across the Member States.

I hope I made a compelling case about the need to act, and the strong legal basis on which we can act. But there is another element - Union law must mean the same in Paris, Warsaw or here in Karlsruhe. If national courts start interpreting EU law or ECJ rulings in a different way, it will undermine not only the rule of law, but Union as a whole.

Each citizen in the EU and each company in the Single Market must be subject of the same interpretation. This is why we have the Court of Justice of the EU in Luxembourg and its decisions must be respected everywhere in the same way.

On my last visit to Warsaw, in January this year, the main accusation I heard from the government is that the European Commission has different standards for Poland and for other Member States. I promised, and I will be true to my word, that we will treat everyone equally and with respect for their Constitutional traditions.

This is why I also want to repeat it here - the EU law has primacy over national law and that rulings of the European Court of Justice are binding on all national courts.

This is the only way to guarantee the legal order in our Union.

[Conclusion]

Ladies and gentlemen,

It is clear that we have a lot of work to do to promote and protect our rights and European values.

The Commission has shown its determination, as guardian of the Treaties, to take action when those rights and values are under threat.

And we will continue to put them at the heart of our actions.

It is also clear that the Commission alone cannot do this. It is our joint responsibility. Defending the rule of law requires a resilient democracy, an active civil society and free and independent media.

We must all remain vigilant. And we must all - EU institutions and agencies, Member States, including the regions, the judiciary, national parliaments and civil society - work together.

Let us make sure that every European citizen can live in a society where the rights and values of the EU's Charter prevail.

Thank you for your attention.