European Court of Justice in Luxembourg. Photo: Flickr / Marc Ben Fatma

An Article 19 Mechanism

The need for a robust defence of EU rule of law

ESI discussion paper: An Article 19 Mechanism - The need for a robust defence of EU rule of law (23 July 2020)

The EU faces three major crises today. One is a public health crisis, which threatens hundreds of thousands of lives. One is an unprecedented economic and social crisis, which puts at risk the employment and livelihoods of tens of millions of Europeans. And then there is a crisis of core values that underpin the European project: the rule of law and the checks and balances of liberal democracy. These are under attack today from inside and outside the Union.

The challenge is to tackle these three crises in a coherent way. The recent European Council has begun to use the most important tool EU member states have – funding – to address the first two in a historic manner. However, while Europe needs more solidarity and financial transfers, these must strengthen the values that connect Europeans, not undermine them. In recent years the member states that have received most EU grants have gone furthest in undermining the foundation for sharing sovereignty across the continent: the belief in independent courts and the rule of law.

The European Union is not an Empire. 27 democracies decide, voluntarily, to share sovereignty. They conclude that this is in their national interest. They agree to do this based on rules and values, embedded in the Treaty on European Union. Any one of the 27 members can decide to leave the Union. This happened in 2020. It was painful, but it is not an existential threat.

What is an existential threat to the EU are members who remain, but work purposefully to destroy the values that hold it together. Such members need to be confronted with the tools the EU has: political arguments, legal actions and financial consequences.

Article 2 of the Treaty on the EU states that the EU is "founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities." But what happens when the government of one of the EU's 27 member states undermines the rule of law and democracy?

As the European Union is not an Empire, it cannot – fortunately – enforce its rules by force. At the same time, the EU is unable to expel a member state, whatever happens.

However, once a member state government takes an a la carte approach to the rule of law, the basis for solidarity disappears: if some do not abide by the rules that bind all, why should others? In this way the bond that ties members together dissolves: the belief that all members of the EU remain fully committed to the values of the Treaty. This belief is of existential importance. It needs to be defended and the EU has a vital self-interest in doing so. An Article 19 mechanism, backing the Court of Justice of the European Union, would achieve this.