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

Abstract

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 Müller and the Rule of Law Framework already in place. We see our suggestion as developing both, the proposal as well as the Framework.

Keywords: rule of law, Poland, Rule of Law Framework, Reverse Solange, systemic deficiency, Systemic Deficiency Committee