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Linking EU funds to 'rule of law' is innovative - but vague.

This article was originally published in EUobserver. Read the original article

This is an opinion piece by Professor Sandeep Gopalan, Pro Vice-Chancellor for Academic Innovation and Professor of Law, Deakin University. The author's view and opinion may not imply or reflect Deakin Law School's view. 

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Should the EU, which is built on the rule of law, tolerate member states that violate this core value?

The answer is 'no' based on the European Commission's new proposal to tie funding to the rule of law.

The West's most powerful ideas in humankind's march toward political empowerment and equality are under threat. Concepts such as separation of powers, independent institutions, and the rule of law that were proselytised to developing countries without second thoughts are now in doubt within the EU.

Indeed article 2 of the Treaty of the EU proclaims 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."

However, the growing rise of strongmen-led regimes in recent years harnessing populist sentiments to undermine constitutional norms has proved that much work remains to be done in the EU to protect the rule of law.

The EU has proposed an innovative solution: a financial price for regimes undermining the rule of law.

The proposed regulation makes 'respect for fundamental values' a necessary 'precondition for sound financial management and effective EU funding.'

Specifically, the raison d'etre for the proposal is evidence of "generalised weaknesses in national checks and balances" that create common concerns due to a "lack of respect for the rule of law."

What is proposed?

The rule of law is defined to include adherence to the principles of legality, certainty, non-arbitrary exercise of powers, separation of powers, and judicial review.
 
There is a "generalised deficiency" when there is "a widespread or recurrent practice or omission, or measure by public authorities which affects the rule of law."
 
Concerned by the attacks on courts in Poland and Hungary, the proposal insists on judicial independence being inviolable.
 
Courts in member states should be able to perform their duties "wholly autonomously," and without pressures that "impair" independence and impartiality.
 
Notably, the proposal requires independence to be demonstrated through rules protecting judicial appointments, tenure, and functioning.
 
The key challenge is how to measure "generalised deficiencies" in the rule of law.
 
The commission claims this can be done by a "qualitative assessment" based on "information from all available sources and recognised institutions."
 
Specifically, judgments of the ECJ, Court of Auditors reports, and "conclusions and recommendations of relevant international organisations and networks" are sources.
 
Examples of deficiencies include "endangering the independence of judiciary," failure to "prevent, correct and sanction" arbitrary decisions by public authorities, and imposing constraints on the availability and effectiveness of legal remedies.
 
The EU can adopt measures when a generalised deficiency "affects or risks affecting the principles of sound financial management or the protection of [EU] financial interests."
 
Measures include suspension or reduction of payments and funding commitments, and a ban on new commitments.
 
The punitive measures require notice and an opportunity to respond to the affected state.
 
Measures will be proportionate taking note of gravity, duration of deficiencies, recurrence, and mitigation efforts. The council will have powers to implement these measures based on the commission's recommendations.
 

Hoist on its own petard

Although motivated by noble intentions, the proposal in its current form risks the EU being hoist on its own petard.
 
In other words, a law which imposes punishments for breaching core attributes of the rule of law cannot itself be in violation of those principles.
 
In its current form, the process for assessing deficiencies is vague.
 
Merely specifying a list of sources for determining when a state is in violation allows the assessor too much unguided selectivity and is capable of producing biased outcomes.
 
An assessor could justify its conclusion based on any source.
 
Moreover, the content is also vague and over-broad.
 
There have been claims even in states such as the US and UK – which would rank highly on any rule of law index – that the government's actions violate judicial independence.
 
For instance, Lord Neuberger, president of the UK Supreme Court alleged that the rule of law was undermined by unfair press criticism following its Brexit decision and the government's weak response.
 
President Trump has attacked judges several times – referring to federal judge James Robart as "a so-called judge," characterising the 9th Circuit as a "messy system," courts as "so political," labelling Judge Curiel as "a hater" and what he is "doing is a total disgrace."
 
To be sure, despite these incidents the UK and US are nowhere close to Poland and Hungary.
 
But the point remains that it is difficult to have bright lines for judicial independence and the rule of law that always produce only one answer.
 
There is considerable room for interpretation, and vague rules are likely to erode credibility and legitimacy.
 
The EU should develop an objective rule of law index that is a dynamic measure of all member states.
 
This index should form the basis for suspending funds for recalcitrant members.
 
More broadly, if it is a fundamental value it should apply to suspend the EU's funding for non-members who violate the rule of law as well.