By Maartje, Niels and Johanna
‘You must first enable the government to control the governed: and in the next place, oblige it to control itself‘ – James Madison (1788)
The European Union (EU) is currently in a rule of law crisis. One of the issues is the lack of reliable early information on the development of the rule of law in the Member States, caused by political sensitivity. As Madison calls attention to, there is a need for the EU to control itself and its Member States. What would be more suitable to solve these problems than a Rule of Law Agency (ROLA)? This blogpost outlines three potential solutions, assessing their functional necessity, legal basis and political feasibility. The general aim is to contribute to the debate on how to improve the existing rule of law toolbox. Preferably, this agency is a fully independent agency. Another solution is that ROLA is organized under the Commission – an European Anti-Fraud Agency (OLAF) like solution. However, it is more realistic that the powers of the Fundamental Rights Agency (FRA)are interpreted or expanded to include reporting on the rule of law.
Technical and high quality evaluations would be an important part of ensuring the structural autonomy of all three options. Independence would allow ROLA to distance itself from the political sensitivity. Furthermore, it would permit a more holistic approach and focus to the monitoring and reporting on the rule of law. Firstly, impartiality from both the Member States and the other EU institutions would help addressing the acquisition that the EU is applying different standards. Secondly, ROLA would allocate all its resources to monitoring and reporting on the rule of law, making the execution of these tasks more consistent. Moreover, allowing for both short-term and long-term assessments. Lastly, it would allow structural involvement of national experts and scholars.
Considering the OLAF-like solution, the Commission’s role as the ‘guardian of the Treaties’ will be ensured, because ROLA in this case will be subject to the Commission. Nevertheless, the connection also diminishes the independence of ROLA à la OLAF, compared to a fully independent agency or a unit within FRA. Comparing an independent ROLA and FRA, the latter would have a wider scope of competences. It would not only deal with rule of law questions, but also with fundamental rights. This might mean that FRA would have less resources to allocate to the monitoring and reporting of the rule of law specifically. FRA has all the Member States sit on the Management Board, creating the potential for conflict. An independent ROLA might be more flexible in the long-run to cope with other rule of law issues, than those addressed in this blogpost. The flexibility of an independent solution for long-run development is why we think it makes for a better and more feasible solution.
Furthermore, the independent solution could be solved by creating a Management Board with 14 rule of law experts appointed by the Council. Thereby, removing the Member States political interests from the Management Board of the agency. This is the solution set for the Management Board of the European Food and Safety Agency (EFSA). An alternative for the OLAF-like solution and the independent agency would be the establishment of a Supervisory Committee. The Committee would be appointed by the Parliament, the Commission and the Council. Comparable to that of OLAF, it would reinforce the independence of ROLA.
The EU treaties do not provide specific powers to establish a rule of law agency. Hence, the legal basis for the establishment of any of the three structures proposed in this blogpost, ROLA, FRA and respectively the OLAF-like solution, should be Article 352 of the Treaty on the Functioning of the European Union (TFEU). This article is also referred to as the ‘flexibility clause’ since it forms the legal basis for a wide variety of measures. The upside of Article 352 TFEU is that it allows for a broad margin of appreciation for the establishment of ROLA. The downside is the fact that the Article requires all 27 Member States to back the proposal, which is hard to reach. On the plus side, the broad support would increase the legitimacy of ROLA.
In the light of the high threshold of Article 352 TFEU an alternative, preferably less demanding legal basis, could be necessary. Whereas there are no alternative legal sources for the creation of an independent or an OLAF-like solution, at least in the short-term, a little ingenuity could provide reclamation for the FRA option. There would be no need to trigger new provisions. If the Council, Parliament or Commission would request the FRA to issue a report on the rule of law development within the Member States (in accordance with Article 4(1)(d) of Regulation 168/2007) the FRA would be able to report on the rule of law. The FRA report would in that case be based on the Member States’ compliance with the EU Charter of Fundamental Rights. Several of these fundamental rights provisions correspond to various criteria from the Venice Commission’s rule of law checklist.
As mentioned before the unanimity requirement of Article 352 TFEU will prove politically challenging. It means that all 27 Member States should be on board. Unfortunately, Hungary already expressed its dissent for a possible extension of the FRA’s mandate. Compared to an independent agency, FRA has a Management Board consisting of all the 27 Member States. As suggested, the Management Board of an independent solution could consist of 14 independent rule of law experts – à la EFSA – removing some of the political sensitivity. Thereby, making it politically more feasible.
Another challenge relates to the fact that the Commission, as guardian of the Treaty, is ultimately responsible for the Rule of Law principle laid down in Article 2 of the Treaty on European Union (TEU). The creation of a new and, in particular, (fully) independent agency, which is seen as the result of a compromise between the three institutions – the Council, the Commission and the Parliament – would therefore prove difficult. Certainly, since the Commission already indicated that the creation of an independent agency will ‘raise a number of problems in terms of legitimacy, the balance of inputs and the accountability for the results’. Unless, it will be clearly defined that the mandate of this agency would not stretch beyond providing ‘early and better quality information’. In this way the agency will merely serve as an addition of the Commission’s executive powers instead of a replacement of it. Either way, the Commission would look more favourably upon an OLAF-like solution, because it will maintain a stronger connection to the agency as opposed to an independent agency.
Moreover, there appears to be support from stakeholders for either one of the proposed solutions. This could encourage steps to be taken by the EU institutions as a result of political pressure. In addition, the LIBE committee’s report shows that the position of the Parliament might be more positive, especially with an eye on requesting FRA to issue a report based on its current mandate.
 The three possible structural solutions analysed are (1) functional necessity, (2) legal basis and (3) political feasibility. (1) Functional necessity means to what degree the possible structures are able to address the rule of law problem addressed in this paper. (2) Legal basis addresses which Treaty provision(s) could be used to establish ROLA. (3) Political feasibility refers to, to what degree we believe there is a political will in the Member States and the EU institutions to establish ROLA, in light of its functional necessity and the requirements of its legal basis.
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