Europaudvalget 2016-17
EUU Alm.del Bilag 686
Offentligt
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European Parliament
2014-2019
TEXTS ADOPTED
P8_TA(2016)0409
EU mechanism on democracy, the rule of law and fundamental rights
European Parliament resolution of 25 October 2016 with recommendations to the
Commission on the establishment of an EU mechanism on democracy, the rule of law
and fundamental rights (2015/2254(INL))
The European Parliament,
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having regard to Article 225 of the Treaty on the Functioning of the European Union,
having regard to the preamble to the Treaty on European Union (TEU), in particular the
second, fourth, fifth and seventh recitals thereof,
having regard, in particular, to Article 2, Article 3(1), the second subparagraph of
Article 3(3) and Articles 6,7 and 11 TEU,
having regard to the articles of the TFEU relating to the respect for, and the promotion
and protection of, democracy, the rule of law and fundamental rights in the Union,
including Articles 70, 258, 259, 260, 263 and 265 thereof,
having regard to Article 4(3) and Article 5 TEU, Article 295 TFEU, and Protocols No 1
on the role of national parliaments in the European Union and No 2 on the application
of the principles of subsidiarity and proportionality, annexed to the TEU and to the
TFEU,
having regard to the Charter of Fundamental Rights of the European Union (the
Charter),
having regard to the Council of Europe’s European Social Charter, in particular Article
E thereof,
having regard to the Copenhagen criteria, and the body of Union rules that a candidate
country must fulfil if it wishes to join the Union (the acquis), in particular Chapters 23
and 24 thereof,
having regard to the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR), the case law of the European Court of Human Rights,
the conventions, recommendations, resolutions and reports of the Parliamentary
Assembly, the Committee of Ministers, the Human Rights Commissioner and the
Venice Commission of the Council of Europe,
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having regard to the Council of Europe’s Recommendation No R (2000)21 of 25
October 2000 and the United Nations Basic Principles on the Role of Lawyers of 1990
which call upon states to guarantee a free and independent legal profession,
having regard to the Memorandum of Understanding between the Council of Europe
and the European Union of 23 May 2007,
having regard to the Council of Europe’s Framework Convention for the Protection
of
National Minorities,
having regard to the Council of Europe’s European Charter for
Regional or Minority
Languages,
having regard to the Rule of Law Checklist adopted by the Venice Commission at its
106th Plenary Session on 18 March 2016,
having regard to the Universal Declaration of Human Rights,
having regard to the UN treaties on the protection of human rights and fundamental
freedoms and the case-law of the UN treaty bodies,
having regard to the UN Convention on the elimination of all forms of discrimination
against women,
having regard to the UN Approach to Rule of Law Assistance of April 2008,
having regard to the UN Sustainable Development Goals, in particular Goal 16,
having regard to the COSAC Twenty-fifth Bi-annual Report: Developments in
European Union Procedures and Practices Relevant to Parliamentary Scrutiny of 18
May 2016,
having regard to the publications of the European Union Agency for Fundamental
Rights (FRA), including the proposed European Fundamental Rights Information
System (EFRIS) in its paper of 31 December 2013 entitled 'Fundamental rights in the
future of the European Union's Justice and Home Affairs',
having regard to the FRA Opinion of 8 April 2016 on the development of an integrated
tool of objective fundamental rights indicators able to measure compliance with the
shared values listed in Article 2 TEU based on existing sources of information,
having regard to the letter of 6 March 2013 from the Ministers of Foreign Affairs of
Germany, Denmark, Finland and the Netherlands to the Commission President,
having regard to the Italian Presidency note of 15 November 2014 on 'Ensuring respect
for the rule of law in the European Union',
having regard to the conclusions of the Council and the Member States meeting within
the Council of 16 December 2014 on ensuring respect for the rule of law,
having regard to the Council’s first and second rule of law dialogue during the
Luxembourg and Dutch Presidency of 17 November 2015 and 24 May 2016,
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having regard to the Council’s
'Guidelines on methodological steps to be taken to check
fundamental rights compatibility at the Council preparatory bodies' of 19 December
2014,
having regard to the Commission communication of 19 October 2010 entitled ‘Strategy
for the effective implementation of the Charter of Fundamental Rights by the European
Union’,
having regard to the Commission staff working paper of 6 May 2011 entitled
'Operational Guidance on taking account of Fundamental Rights in Commission Impact
Assessments',
having regard
to the Commission’s existing monitoring mechanism and periodic
assessment tools, including the Cooperation and Verification Mechanism, the Justice
Scoreboard, Anti-Corruption reports and the Media Monitor,
having regard to Commission’s Annual Colloquium
on Fundamental Rights,
having regard to the Commission Communication of 11
March 2014 entitled ‘A new
EU Framework to strengthen the Rule of Law’
(COM(2014)0158),
having regard to the Interinstitutional Agreement on Better Law-Making of 13 April
2016,
having regard to the Council of Europe’s ‘Code of Good Practice for Civil Participation
in the Decision-Making
Process’ of 1 October 2009,
having regard to the 2016 EU Justice Scoreboard and the Commission Report of 15 July
2016 entitled ‘Monitoring the application of European Union law 2015 Annual Report’,
having regard to the assessment of Parliament’s European Added Value Unit of April
2016 entitled ‘An EU mechanism on democracy, the rule of law and fundamental
rights’,
having regard to Rules 46 and 52 of its Rules of Procedure,
having regard to the report of the Committee on Civil Liberties, Justice and Home
Affairs and the opinion of the Committee on Constitutional Affairs (A8-0283/2016),
whereas the Union 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, enshrined in its core principles and objectives in the
first articles of the TEU, and in the criteria for Union membership;
whereas the Union institutions and bodies and the Member States should uphold and set
an example by genuinely fulfilling their obligations and move towards a shared culture
of the rule of law as universal value in the 28 Member States and in the Union
institutions to be applied by all concerned even-handedly, while the full respect and
promotion of those principles is the essential prerequisite for the legitimacy of the
European project as a whole and the basic condition for building citizens' trust in the
Union;
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A.
B.
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C.
whereas, according to Opinion 2/13 of the European Court of Justice of the European
Union (Court of Justice) of 18 December 2014
1
and the relevant case-law of the Court
of Justice, fundamental rights recognised by the Charter are at the heart of the legal
structure of the Union and respect for those rights is a condition of the lawfulness of
Union acts, so that measures incompatible with those rights are not acceptable in the
Union;
whereas, in accordance with Article 2, Article 3(1) and Article 7 TEU, the Union has
the possibility to act in order to protect its
‘constitutional
core’ and the common values
on which it was founded;
whereas the rule of law is the backbone of European liberal democracy and is one of the
founding principles of the Union stemming from the common constitutional traditions
of all Member States;
whereas all Member States, the institutions, bodies, offices and agencies of the Union
and candidate countries are obliged to respect, protect and promote those principles and
values, and they have the duty of sincere cooperation;
whereas in accordance, inter alia, with Protocol No 24 on asylum for nationals of
Member States of the European Union annexed to the TEU and to the TFEU, recital 10
of Council Framework Decision 2002/584/JHA
2
and the case-law of the European
Court of Human Rights (such as M.S.S. v. Belgium and Greece, judgment of 21 January
2011) and the Court of Justice (such as N.S. and M.E., judgment of 21 December 2011
3
and
Aranyosi and Căldăraru,
judgment of 5 April 2016
4
), Member States, including the
national courts, have an obligation to refrain from implementing Union law vis-à-vis
other Member States in the event that there is a clear risk of a serious breach or a
serious and persistent breach of the rule of law and fundamental rights in those other
Member States;
whereas respect for the rule of law within the Union is a prerequisite for the protection
of fundamental rights, as well as for upholding all rights and obligations deriving from
the Treaties and from international law, and is a precondition for mutual recognition and
trust as well as a key factor for policy areas such as the internal market, growth and
employment, combatting discrimination, social inclusion, police and justice
cooperation, the Schengen area, and asylum and migration policies, and as a
consequence, the erosion of the rule of law, democratic governance and fundamental
rights are a serious threat to the stability of the Union, the monetary union and the
common area of freedom security and justice and prosperity of the Union;
whereas the way in which the rule of law is implemented in the Member States plays a
key role in ensuring mutual trust among Member States and in their legal systems and it
is therefore of vital importance to establish an area of freedom, security and justice
without internal borders;
D.
E.
F.
G.
H.
I.
1
2
ECLI:EU:C:2014:2454.
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant
and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).
ECLI:EU:C:2011:865.
ECLI:EU:C:2016:198.
3
4
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J.
whereas the Union is based on a common set of core values and principles and whereas
the definition of those core values and principles, which allow democracy to flourish
and fundamental rights to be protected, is a living and permanent process, and while
those values and principles may evolve over time, they must be protected and should be
the basis for political decisions, independent of different political majorities and resist
temporary changes, hence an independent, impartial judiciary with the responsibility to
interpret them plays a vital role;
whereas Union citizens and residents are not always sufficiently aware of all their rights
as Europeans; whereas they should be in a position to be able to shape the Union’s core
values and principles together and above all take ownership of them;
whereas, in accordance with Article 4(2) TEU, the Union is to respect the equality of
Member States before the Treaties and whereas respect for cultural diversity and
national traditions, within and among Member States, should not impede the uniform
and high level of protection of democracy, the rule of law and fundamental rights
throughout the Union; whereas the principle of equality and non-discrimination is a
universal principle and it represents the common thread of all Union's policies and
activities;
whereas safeguarding the rule of law and effective independent justice systems play a
key role in creating a positive political environment able to regain public trust in
institutions, and hence also for an investment-friendly environment and for providing
greater regulatory predictability and sustainable growth;
whereas the improvement of the effectiveness of justice systems in Member States is a
key aspect of the rule of law and is essential for ensuring equal treatment, sanctioning
government abuses and preventing arbitrariness, and is considered by the Commission
to be a key component for structural reforms in the European Semester, the annual cycle
for the coordination of economic policies at Union level; whereas an independent legal
profession is one of the cornerstones of a free and democratic society;
whereas the UN Guidance Note of the Secretary-General entitled "UN Approach to the
Rule of Law Assistance" recommends that the rule of law should include a public and
civil society that contributes to strengthening the rule of law and holding public officials
and institutions accountable;
whereas the European Parliamentary Research Service study entitled
“The
Cost of Non-
Europe in the area of Organised crime and Corruption” estimates that integrating
existing Union monitoring mechanisms, such as the Cooperation and Verification
Mechanism, the Justice Scoreboard and the Anti-Corruption reports, into a broader rule
of law monitoring framework would result in annual cost savings of EUR 70 billion;
whereas the Union’s democratic and legal
governance does not have as solid a
legislative basis as its economic governance, as the Union does not display the same
intransigence and firmness in demanding respect for its core values as it does when
making sure its economic and fiscal rules are implemented properly;
whereas the failure of a candidate country to meet the required standards, values and
democratic principles results in a delay of accession to the Union, until it fully meets
K.
L.
M.
N.
O.
P.
Q.
R.
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those standards, while the failure of a Member State or an institution of the Union to
meet those same standards has little consequence in practice;
S.
whereas the obligations incumbent on candidate countries under the Copenhagen
criteria continue to apply to the Member States after joining the Union by virtue of
Article 2 TEU and the principle of sincere cooperation established in Article 4 TEU,
and whereas not only the newer but also the older Member States should therefore be
assessed on a regular basis in order to verify that their laws and practices continue to
comply with those criteria and the common values on which the Union is founded;
whereas approximately 8 % of Union citizens belong to a national minority and
approximately 10 % speak a regional or minority language; whereas there is no Union
legal framework to guarantee their rights as a minority; whereas the establishment of an
effective mechanism to monitor their rights in the Union is of outmost importance;
whereas there is a difference between the protection of minorities and anti-
discrimination policies; whereas equal treatment is a basic right, not a privilege, of all
citizens;
whereas coherence and consistency of internal and external democracy, rule of law and
fundamental rights policy is key to the credibility of the Union;
whereas there are few instruments to ensure that legislative and executive policy
decisions by the institutions of the Union comply with the Union’s core principles and
values;
whereas the Court of Justice has recently issued various rulings invalidating certain
Union law, Commission decisions or legislative practices, for being in breach of the
Charter or contrary to Treaty principles on transparency and access to documents, but in
several cases the Union institutions have failed to comply fully with the letter and the
spirit of the rulings;
whereas the accession of the Union to the ECHR is a Treaty obligation pursuant to
Article 6(2) TEU;
whereas the promotion and protection of pluralistic democracy, the respect for human
rights and fundamental freedoms, the rule of law, political and legal cooperation, social
cohesion and cultural interchange lies at the heart of cooperation between the Council of
Europe and the Union;
whereas the need for more effective and binding mechanisms to ensure the full
application of Treaty principles and values has been recognised by the Council and the
Commission and have been put into practice by the creation of the
Council’s Rule of
Law Dialogue and the
Commission’s EU Framework to strengthen the Rule of Law;
T.
U.
V.
W.
X.
Y.
Z.
AA. whereas the Union has at its disposal a multitude of instruments and processes for
ensuring full and proper application of Treaty principles and values but there is no swift,
effective response coming from the Union institutions; whereas the existing instruments
should be enforced, evaluated and complemented in the framework of a rule of law
mechanism to be adequate and effective, and not perceived as politically motivated or
arbitrary and unfairly targeting certain countries;
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AB. whereas the number of Court of Justice judgments citing the Charter has risen from 43
in 2011 to 210 in 2014;
AC. whereas coherence between the institutions and Member States in compliance with
democracy, the rule of law and fundamental rights will provide obvious benefits, such
as less costly court cases, better clarity for Union citizens and their rights, and more
certainty for Member States in terms of implementation;
AD. whereas some Member State governments deny that upholding Union principles and
values is a Treaty obligation, or that the Union has the authority to ensure compliance;
AE. whereas in situations where a Member State no longer guarantees respect for
democracy, the rule of law and fundamental rights, or in cases of a breach of the rule of
law, the Union and its Member States have a duty to protect the integrity and
application of the Treaties and to protect the rights of everyone within its jurisdiction;
AF. whereas civil society plays an important role in building and strengthening democracy,
monitoring, and restraining the power of the state and promoting good governance,
transparency, effectiveness, openness, responsiveness and accountability;
AG. whereas the subsidiarity principle cannot be invoked to reject any Union intervention to
ensure Member State compliance with Treaty principles and values;
AH. whereas action by the Union to ensure that the Member States and institutions abide by
the values on which it is founded, and from which Europeans' rights are derived, is an
essential condition for them to be part of the European project;
AI.
whereas the ongoing European integration process and recent developments in some
Member States have shown that the failure to observe the rule of law and fundamental
values is not being properly prevented and that it is necessary to revise and integrate
existing mechanisms and develop an effective mechanism to close remaining gaps and
to ensure Treaty principles and values are respected, protected and promoted throughout
the Union;
AJ. whereas a new EU Pact for democracy, the rule of law and fundamental rights (EU Pact
for DRF) should be established and whereas the EU Pact for DRF should be evidence
based; objective and not subject to outside influence, in particular political influence,
non-discriminatory and assessing on an equal footing; respecting the principle of
subsidiarity, necessity and proportionality; addressing both Member States and
institutions of the Union; and based on a graduated approach, including both a
preventative and corrective arm;
AK. whereas the EU Pact for DRF should aim to offer a single, coherent framework,
building on and incorporating existing instruments and mechanisms, and closing any
remaining gaps;
AL. whereas the establishment of an EU Pact for democracy, the rule of law and
fundamental rights should be without prejudice to the direct application of Article 7(1)
and (2) TEU;
1.
Recommends, until a possible Treaty change, the establishment of a comprehensive
Union mechanism for democracy, the rule of law and fundamental rights which would
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include all relevant stakeholders and therefore requests that the Commission submit, by
September 2017, on the basis of Article 295 TFEU, a proposal for the conclusion of a
Union Pact for democracy, the rule of law and fundamental rights (EU Pact for DRF) in
the form of an interinstitutional agreement laying down arrangements facilitating the
cooperation between the Union institutions and the Member States in the framework of
Article 7 TEU, integrating, aligning and complementing existing mechanisms,
following the detailed recommendations set out in the Annex and including the option
of joining the EU Pact for DRF for all Union institutions and bodies that wish to do so;
2.
Invites the Commission to engage in a meaningful dialogue with civil society, ensuring
that its contribution and role is taken into account in its proposal for an interinstitutional
agreement;
Recommends, in particular, that the EU Pact for DRF include preventative and
corrective elements, and address all Member States equally as well as the three main
Union institutions, while respecting the principles of subsidiarity, necessity and
proportionality;
Considers that while the main purpose of the EU Pact for DRF would be to prevent and
correct breaches of Union values, it should also contain possible sanctions that can act
as effective deterrence;
Believes that the conclusions and opinions of the FRA as well as the case-law of the
Court of Justice constitute a good basis for the interpretation of Article 2 TEU and the
scope of the rights enshrined in the Charter;
Recalls that the Commission, as guardian of the Treaties, has the duty to monitor and
assess the correct implementation of the Union law and the respect of the principles and
objectives enshrined in the Treaties by the Member States and by all the Union
institutions and bodies; recommends, therefore, to take into consideration this task of
the Commission in assessing its compliance with democracy, the rule of law and
fundamental rights, within the Policy Cycle for democracy, the rule of law and
fundamental rights (DRF Policy Cycle);
Calls on the Commission to bundle, from 2018 onwards, its relevant annual thematic
reports as well as the outcome of existing monitoring mechanisms and periodic
assessment tools, to be presented all on the same day feeding into the DRF Policy
Cycle;
Considers it to be important to promote a continuous dialogue and to work towards a
stronger consensus between the Union and its Member States with the aim of promoting
and protecting democracy, the rule of law and fundamental rights to safeguard the
shared values as enshrined in the Treaties and the Charter in a fully transparent,
objective manner; is convinced that there cannot be any compromise regarding the
fundamental rights and values enshrined in the Treaties and the Charter;
Emphasises the key role that Parliament and the national parliaments should play in
measuring the progress of, and monitoring compliance with, the shared values of the
Union, as enshrined in Article 2 TEU; notes
Parliament’s
key role in maintaining the
necessary continuous debate within the common Union consensus on democracy, rule
of law and fundamental rights taking into account the changes in our society; considers
3.
4.
5.
6.
7.
8.
9.
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that the implementation of those values and principles must also be based on effective
monitoring of respect for the fundamental rights guaranteed in the Charter;
10.
Recommends that any inter-parliamentary debate on democracy, the rule of law and
fundamental rights include civil society and considers that civic participation and
strength of civil society be taken into consideration as an indicator for democracy;
Calls on the Commission to present, by June 2017, a new draft agreement for the
accession of the Union to the ECHR, in order to comply with the obligation enshrined
in Article 6 TEU, addressing Opinion 2/13 of the Court of Justice; furthermore, calls on
the Council of Europe to open the signature of the European Social Charter to third
parties, so that the Commission can initiate negotiations for accession thereto by the
Union;
Invites the European Ombudsman, taking into account the views of society, to highlight
and consolidate within a dedicated chapter, as part of its annual report, cases,
recommendations and decisions related to citizens’ fundamental
rights, as well as the
principles of democracy and the rule of law; invites the Commission to analyse those
specific recommendations;
Calls on the Commission to take measures to ensure, in line with Article 47 of the
Charter, general access to legal assistance to individuals and organisations litigating
cases relating to violations of democracy, the rule of law and fundamental rights by
national governments or the Union institutions, where necessary complementing
national schemes and the Directive by the European Parliament and by the Council on
legal aid for suspects and accused persons in criminal proceedings and for requested
persons in European arrest warrant proceedings;
Welcomes reform of the Court of Justice by way of which the number of judges at the
Court is gradually being increased in order to handle the workload and reduce the
duration of procedures;
Recommends that an expert panel on democracy, the rule of law and fundamental rights
(DRF Expert Panel), provided for in the interinstitutional agreement, also undertake an
assessment of access to justice at Union level, including aspects such as independence
and impartiality of courts and judges, an independent legal profession, legal standing
rules, duration and cost of litigation, adequacy and effectiveness of the legal aid
system, as well as the existence of the necessary funds for it, implementation of court
rulings, scope of judicial control and redress available to citizens, and options for cross-
border collective redress; considers in this connection that there should be focus on
Article 298(1) TFEU and the right of Union citizens to have an open, efficient and
independent European administration;
Calls on the Commission to partner with civil society to develop and implement an
awareness raising campaign, to enable Union citizens and residents to take full
ownership of their rights deriving from the Treaties and from the Charter (e.g. freedom
of expression, freedom of assembly and the right to vote), providing information about
citizens' rights to judicial redress and litigation routes in cases relating to violations of
democracy, the rule of law and fundamental rights by national governments or Union
institutions;
11.
12.
13.
14.
15.
16.
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17.
Calls for the setting up of an endowment for democracy grant-giving organisation that
supports local actors promoting democracy, rule of law and fundamental rights within
the Union;
Points out that if the Union lays down requirements in its international agreements to
protect and promote human rights, then it must likewise ensure that the institutions and
all Member States comply with the rule of law and respect fundamental rights;
Recommends furthermore that the EU Pact for DRF include the regular monitoring of
the compatibility of the international agreements ratified by the Member States and the
Union with Union primary and secondary law;
Considers, furthermore, that if in the future Treaty revision would be considered, the
following changes may be provided for:
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Providing for Article 2 TEU and the Charter to become a legal basis for legislative
measures to be adopted under the ordinary legislative procedure;
Enabling national courts under Article 2 TEU and the Charter to bring before the
Court of Justice proceedings relating to the legality of Member States' actions;
Reviewing Article 7 TEU in order to provide for relevant and applicable sanctions
against any Member State, identifying the rights of Member States at fault (in
addition to Council voting rights) that may be suspended, for example financial
sanctions or the suspension of Union funding;
Making it possible for Union legislation, after its adoption and before its
implementation, to be referred to the Court of Justice by one-third of the Members
of Parliament;
Enabling natural and legal persons who are directly and individually affected by
an action to bring actions before the Court of Justice for alleged violations of the
Charter either by the Union institutions or by a Member State, by amending
Articles 258 and 259 TFEU;
Abolishing Article 51 of the Charter, and converting the Charter into a Union Bill
of Rights;
Reviewing the unanimity requirement in areas relating to respect for and
protection and promotion of fundamental rights, such as equality and non-
discrimination;
18.
19.
20.
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21.
22.
Confirms that the recommendations respect fundamental rights and the principle of
subsidiarity;
Considers that any financial implications of the requested proposals for the budget of
the Union should be covered by the existing budgetary allocations; stresses that both for
the Union and its Member States, as well as for citizens, the adoption and
implementation of those proposals could lead to substantial cost and time savings, could
foster mutual confidence in and recognition
of Member States and the Union’s
decisions and actions, and could thus be beneficial both in economic and social terms;
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23.
Instructs its President to forward this resolution and the accompanying detailed
recommendations to the Commission and the Council, and to the parliaments and
governments of the Member States, as well as to the Committee of the Regions for
distribution to subnational parliaments and councils.
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ANNEX
Detailed recommendations for a draft Inter-institutional Agreement on arrangements
concerning monitoring and follow up procedures on the situation of Democracy, the Rule of
Law and Fundamental Rights in the Member States and EU institutions
DRAFT INTERINSTITUTIONAL AGREEMENT
EUROPEAN UNION PACT ON DEMOCRACY, THE RULE OF LAW AND
FUNDAMENTAL RIGHTS
The European Parliament, the Council of the European Union and the European Commission:
Having regard to the preamble to the Treaty on European Union (TEU), in particular the
second, fourth, fifth and seventh recitals thereof,
Having regard, in particular, to Article 2, Article 3(1), the second subparagraph of Article 3(3)
and Articles 6, 7 and 11 TEU,
Having regard to the articles of the Treaty on the Functioning of the European Union (TFEU)
relating to the respect for, and the promotion and protection of, democracy, the rule of law
and fundamental rights in the Union, including Articles 70, 258, 259, 260, 263 and 265
thereof,
Having regard to Article 4(3) and Article 5 TEU, Article 295 TFEU and Protocols No 1 on
the role of national parliaments in the European Union and No 2 on the application of the
principles of subsidiarity and proportionality, annexed to the TEU and to the TFEU,
Having regard to the Charter of Fundamental Rights of the European Union (the Charter),
Having regard to
the Council of Europe’s European Social Charter, in particular Article E
thereof, on non-discrimination,
Having regard to the Copenhagen criteria, and the body of Union rules that a candidate
country must fulfil if it wishes to join the Union (the acquis), in particular Chapters 23 and 24
thereof,
Having regard to the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR), the case-law of the European Court of Human Rights, the
conventions, recommendations, resolutions and reports of the Parliamentary Assembly, the
Committee of Ministers, the Human Rights Commissioner and the Venice Commission of the
Council of Europe,
Having regard to the Rule of Law Checklist adopted by the Venice Commission at its 106th
Plenary Session of 18 March 2016,
Having regard to the Memorandum of Understanding between the Council of Europe and the
European Union of 23 May 2007,
Having regard to
the Council of Europe’s Framework Convention for the Protection of
National Minorities,
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Having regard to
the Council of Europe’s European Charter for Regional or Minority
Languages,
Having regard to the Universal Declaration of Human Rights,
Having regard to the UN treaties on the protection of human rights and fundamental freedoms
and the case-law of the UN treaty bodies,
Having regard to the publications of the European Union Agency for Fundamental Rights
(FRA), including the proposed European Fundamental Rights Information System (EFRIS) in
its paper of 31 December 2013 entitled 'Fundamental rights in the future of the European
Union's Justice and Home Affairs',
Having regard to the UN Approach to Rule of Law Assistance of April 2008,
Having regard to the UN Sustainable Development Goals, in particular Goal 16,
Having regard to the COSAC Twenty-fifth Bi-annual Report: Developments in European
Union Procedures and Practices Relevant to Parliamentary Scrutiny of 18 May 2016,
Having regard to the letter of 6 March 2013 from the Ministers of Foreign Affairs of
Germany, Denmark, Finland and the Netherlands to the Commission President,
Having regard to the FRA Opinion of 8 April 2016 on the development of an integrated tool
of objective fundamental rights indicators able to measure compliance with the shared values
listed in Article 2 TEU based on existing sources of information,
Having regard to the Italian Presidency note on 'Ensuring respect for the rule of law in the
European Union' of 15 November 2014,
Having regard to the conclusions of the Council and the Member States meeting within the
Council of 16 December 2014 on ensuring respect for the rule of law,
Having regard to the Council’s 'Guidelines on methodological steps to be taken to check
fundamental rights compatibility at the Council preparatory bodies' of 19 December 2014,
Having regard to the
Council’s first and second rule of law dialogue during the Luxembourg
and Dutch Presidency of 17 November 2015 and 24 May 2016,
Having regard to the Commission’s existing monitoring mechanism and periodic assessment
tools, including the Cooperation and Verification Mechanism, the Justice Scoreboard, Anti-
Corruption reports and the Media Monitor,
Having regard to
the Commission communication of 19 October 2010 entitled ‘Strategy for
the effective implementation of the Charter of Fundamental Rights by the European
Union’,
Having regard to the Commission’s Staff Working Paper of 6 May 2011 entitled ‘Operational
Guidance on taking account of Fundamental rights in Commission Impact Assessments',
Having regard to the Commission Communication of 19 March 2014 entitled
‘A new EU
Framework to strengthen the Rule of Law’,
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Having regard to the Commission's Annual Colloquium on Fundamental Rights,
Having regard to the Inter-institutional Agreement on Better Law-Making of 13 April 2016,
Having regard to the resolution of the European Parliament of 27 February 2014 on the
situation of fundamental rights in the European Union (2012)
1
,
Having regard to the resolution of the European Parliament of 8 September 2015 on the
situation of fundamental rights in the European Union (2013-2014)
2
,
(1)
Whereas there is a need for a democracy, rule of law and fundamental rights mechanism
that is objective, impartial, evidence-based and applied equally and fairly to all Member
States as well as to the institutions of the Union and that includes both a preventative
and a corrective dimension.
Whereas the primary objective of such a mechanism should be to prevent violations and
non-compliance with democracy, rule of law and fundamental rights, while at the same
time providing the tools needed to render both the preventative and corrective arms of
Article 7 TEU, as well as the other instruments provided for in the Treaties, operational
in practice.
Whereas the unnecessary creation of new structures or duplication should be avoided
and integration and incorporation of existing instruments is to be preferred.
Whereas elaborating definitions, standards and benchmarks regarding democracy, rule
of law and fundamental rights is not a one-off decision but, rather, a permanent and
interactive process based on broad public debate and consultation, regular review and
the sharing of best practices.
Whereas only a mechanism that has the broad support of Union citizens and allows
them to take ownership of the process can be effective.
Whereas Member States are primarily responsible for upholding common standards but,
when they fail to do so, the Union has a duty to intervene to protect its constitutional
core and ensure that the values laid down in Article 2 TEU and in the Charter are
guaranteed for all Union citizens and residents, throughout the territory of the Union.
Whereas it is important that all levels of government work closely together on the basis
of their competences and responsibilities in order to identify possible systemic threats to
the rule of law at an early stage, and to improve the protection of the rule of law.
Whereas there are several instruments for addressing the risk of a serious breach of
Union values but clear and objective benchmarks need to be developed for those
instruments to be sufficiently strong and dissuasive to prevent infringements of the rule
of law and fundamental rights; whereas the Union has no legally binding mechanism in
place to monitor regularly compliance of the Member States and Union institutions with
the Union values and fundamental rights.
Whereas, in accordance with Art 295 TFEU, this inter-institutional agreement lays
Texts adopted, P7_TA(2014)0173.
Texts adopted, P8_TA(2015)0286.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
1
2
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down arrangements only for the facilitation of cooperation between the European
Parliament, the Council and the Commission and, in accordance with Article 13(2)
TEU, those institutions are to act within the limits of the powers conferred on them by
the Treaties, and in conformity with the procedures, conditions and objectives set out in
them; whereas this inter-institutional agreement is without prejudice to the prerogatives
of the Court of Justice in the authentic interpretation of Union law,
HAVE AGREED AS FOLLOWS
Article 1
The core values and founding principles of the Union, namely democracy, the rule of law and
fundamental rights, shall be upheld throughout the Union in a Union Pact on Democracy, the
Rule of Law and Fundamental Rights (EU Pact for DRF), which provides for the definition,
elaboration, monitoring and enforcement of those values and principles, and which addresses
both the Member States and the Union institutions.
Article 2
The EU Pact for DRF shall consist of:
–
an annual report on democracy, the rule of law and fundamental rights (European DRF
Report) with country-specific recommendations incorporating the reporting done by the
FRA, the Council of Europe, and other relevant authorities in the field,
an annual inter-parliamentary debate on the basis of the European DRF Report,
arrangements for remedying possible risks and breaches, as provided for by the
Treaties, including the activation of the preventative or corrective arms of Article 7
TEU,
a policy cycle for democracy, the rule of law and fundamental rights (DRF Policy
Cycle) within the Union institutions.
Article 3
The EU Pact for DRF shall be expanded to incorporate the Commission's Rule of Law
Framework and the Council's Rule of Law Dialogue into a single Union instrument.
Article 4
The European DRF Report on the state of democracy, the rule of law and fundamental rights
in the Member States shall be drawn up by the Commission, in consultation with the panel of
independent experts (DRF Expert Panel) referred to in Article 8. The Commission shall
transmit the European DRF Report to the European Parliament, to the Council and to the
national parliaments. The European DRF Report shall be made available to the public.
The European DRF Report shall contain a general part and country-specific
recommendations.
If the Commission fails to adopt, on time, the European DRF Report, including country-
specific recommendations the relevant European Parliament committee may formally call
–
–
–
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upon the Commission to provide an explanation for the delay and to adopt it forthwith so as to
avoid further delay.
Article 5
The European DRF Report shall incorporate and complement existing instruments, including
the Justice Scoreboard, the Media Pluralism Monitor, the anti-corruption report and peer
evaluation procedures based on Article 70 TFEU and replace the Cooperation and
Verification Mechanism for Bulgaria and Romania.
Article 6
The European DRF Report shall be drawn up using a variety of sources and the existing tools
for assessment, reporting and monitoring of Member States’ activities, including:
–
–
–
contributions from the Member States authorities regarding respect for democracy, the
rule of law and fundamental rights,
the FRA, in particular the EFRIS instrument;
other specialised agencies of the Union, in particular the European Data Protection
Supervisor (EDPS), the European Institute for Gender Equality (EIGE), the European
Foundation for the Improvement of Living and Working Conditions (Eurofound), and
Eurostat,
experts, academics, civil society organisations, professional and sectoral associations of,
for example, judges, lawyers, and journalists;
existing indices and benchmarks developed by international organisations and NGOs;
the Council of Europe, in particular the Venice Commission, the Group of States against
Corruption (GRECO) and the Congress of Local and Regional Authorities of the
Council of Europe, and the European Commission for the Efficiency of Justice
(CEPEJ);
international organisations such as the United Nations, the Organization for Security
and Co-operation in Europe (OSCE) and the Organization for Economic Co-operation
and Development (OECD);
the case-law of the Court of Justice and of the European Court of Human Rights and of
other international courts, tribunals and treaty bodies;
all resolutions or other relevant contributions by the European Parliament, including its
annual report on the human rights situation in the Union;
contributions by the Union institutions.
–
–
–
–
–
–
–
All the contributions by the sources referred to in this Article as well as the draft European
DRF Report prepared by the DRF Expert Panel, including the country-specific
recommendations, shall be made available to the public on the website of the Commission.
Article 7
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The European DRF Report shall be presented in a harmonised format and accompanied by
country-specific recommendations and elaborated with a specific focus on the following
aspects:
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
the separation of powers,
the impartial nature of the State,
the reversibility of political decisions after elections,
the existence of institutional checks and balances which ensure that the impartiality of
the State is not called into question,
the permanence of the State and institutions, based on the immutability of the
constitution,
the freedom and pluralism of the media,
freedom of expression and freedom of assembly,
promotion of civic space and effective mechanisms for civil dialogue,
the right to active and passive democratic participation in elections and participatory
democracy,
integrity and absence of corruption,
transparency and accountability,
legality,
legal certainty,
the prevention of abuse or misuse of powers,
equality before the law and non-discrimination,
access to justice: independence and impartiality, fair trial, constitutional justice, where
applicable, an independent legal profession,
particular challenges to the rule of law: corruption, conflict of interest, collection of
personal data and surveillance,
Titles I to VI of the Charter,
the ECHR and the protocols thereto.
Article 8
The assessment of the state of democracy, rule of law and fundamental rights in the Member
States, as well as the development of country-specific draft recommendations, shall be carried
out by a representative panel of independent experts (DFR Expert Panel) on the basis of a
quantitative and qualitative review of the data and information available.
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8.1. The DRF Expert Panel shall be composed of the following members:
–
one independent expert designated by the national parliament of each Member State,
who is a qualified constitutional court or supreme court judge not currently in active
service;
ten further experts appointed by the European Parliament, with a two-thirds majority,
chosen from a list of experts nominated by:
(i)
(ii)
the federation of All European Academies (ALLEA);
the European Network of National Human Rights Institutions (ENNHRI);
–
(iii) the Council of Europe, including the Venice Commission, GRECO and the
Council of Europe Human Rights Commissioner;
(iv) the CEPEJ and the Council of Bars and Law Societies of Europe (CCBE);
(v)
the UN, the OSCE and the OECD.
8.2. The DRF Expert Panel shall elect its Chair from among its members.
8.3. In order to facilitate the development of the draft European DRF Report and draft
country recommendations, the Commission shall provide the DRF Expert Panel with a
secretariat, enabling it to function efficiently, in particular by gathering data and
information sources to be reviewed and assessed, and by providing administrative
support during the drafting process.
Article 9
The DRF Expert Panel shall assess each of the Member States with regard to the aspects listed
in Article 7 and shall identify possible risks and breaches. That assessment shall be carried out
on an anonymous and independent basis by each of the panellists in order to safeguard the
independence of the DRF Expert Panel and the objectivity of the European DRF Report. The
members of the DRF Expert Panel may, however, consult each other with a view to
discussing methods and agreed standards.
The assessment methods shall be reviewed annually by the DRF Expert Panel, and where
necessary, further elaborated, refined, supplemented and amended, where necessary, by
common accord between the European Parliament, the Council and the Commission, after
consulting the national parliaments, experts and civil society.
Article 10
The adoption of the DRF European Report by the Commission shall initiate the
interparliamentary debate and debate in the Council, which shall aim to address the results of
the European DRF Report and the country-specific recommendations by way of the following
steps:
–
The European Parliament shall organise an interparliamentary debate on the basis of the
DRF European Report and shall adopt a resolution. That debate should be organised in
such a way as to set benchmarks and goals to be attained and to provide the means to
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evaluate changes from one year to another within the existing Union consensus on
democracy, the rule of law and fundamental rights. The relevant procedures should be
accelerated in order to create such means, which will not only allow the immediate and
effective monitoring of annual changes, but also ensure compliance with commitments
by all relevant parties.
–
The annual interparliamentary debate shall be part of a multi-annual structured dialogue
between the European Parliament, the Council, the Commission and national
parliaments and it shall also involve civil society, the FRA and the Council of Europe.
The Council shall hold an annual debate, building upon its Rule of Law Dialogue, on
the basis of the European DRF Report and shall adopt Council conclusions, inviting
national parliaments to provide a response to the European DRF Report, proposals or
reforms.
On the basis of the European DRF Report the Commission may decide to launch a
"systemic infringement" action under Article 2 TEU and Article 258 TFEU, bundling
several infringement cases together.
On the basis of the European DRF Report, after consulting the European Parliament and
the Council, the Commission may decide to submit a proposal for an evaluation of the
implementation by Member States of Union policies in the area of freedom, security
and justice under Article 70 TFEU.
–
–
–
10.1. On the basis of the European DRF Report, if a Member State complies with all the
aspects listed in Article 7, no further action shall be necessary.
10.2. On the basis of the European DRF Report, if a Member State falls short on one or more
of the aspects listed in Article 7, the Commission shall start a dialogue with that
Member State without delay, taking into account the country-specific recommendations.
10.2.1. If the country-specific recommendation on a Member State includes the
assessment by the expert panel that there is a clear risk of a serious breach of the
values referred to in Article 2 TEU and that there are sufficient grounds for
invoking Article 7(1) TEU, the European Parliament, the Council and the
Commission, shall each discuss the matter without delay and take a reasoned
decision, which shall be made public.
10.3. On the basis of the European DRF Report, if the country-specific recommendations on a
Member State include the assessment by the expert panel that there is a serious and
persistent breach - i.e. increasing or remaining unchanged over a period of at least two
years, of the values referred to in Article 2 TEU and that there are sufficient grounds for
invoking Article 7(2), the European Parliament, the Council and the Commission shall
each discuss the matter without delay and each institution shall take a reasoned decision
which shall be made public.
Article 11
Fundamental rights shall be included as part of the impact assessment for all legislative
proposals by the Commission in accordance with Paragraph 25 of the Interinstitutional
Agreement on Better Law-Making.
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The DRF Expert Panel referred to in Article 8 shall assess compliance with democracy, rule
of law and fundamental rights by the European Parliament, the Council and the Commission.
Article 12
An interinstitutional impact assessment working group (Working Group) shall be set up with
a view to improving interinstitutional cooperation on impact assessments, and creating a
fundamental rights and rule of law compliance culture. The Working Group shall consult
national experts at an early stage in order to be able better to predict the implementation
challenges in Member States, as well as to help overcome different interpretations and
understandings by the different Union institutions as regards the impact of fundamental rights
and rule of law on Union
legal acts. The Working Group shall build on the Council’s
Guidelines on methodological steps to be taken in order to check fundamental rights
compatibility by the Council preparatory bodies,
the Commission’s Strategy for the effective
implementation of the Charter of Fundamental Rights by the European Union, the
Commission’s Operational Guidance on taking account of Fundamental rights in Commission
Impact Assessments, Tool No 24 from the Better Regulation Toolbox and Rule 38 of the
Rules of Procedure of the European Parliament to ensure compliance with and promotion of
democracy, rule of law and fundamental rights.
Article 13
The following annual reports of the European Parliament, the Council and the Commission
relating to enforcement and compliance with the rule of law and fundamental rights by the
institutions of the Union shall be presented alongside the annual DRF Policy Cycle of the
European DRF Report:
–
–
–
Annual report on the application of the Charter;
Annual report on the application of Union law;
Annual report on the application of Regulation (EC) No 1049/2001 of the European
Parliament and of the Council
1
Article 14
This agreement shall enter into force...
Done at...
For the European Parliament
The President
For the Council of the European Union
1
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30
May 2001 regarding public access to European Parliament, Council and Commission
documents (OJ L 145, 31.5.2001, p. 43).
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The President
For the European Commission
The President