Opening speech by Morten Kjaerum at FRA Symposium on promoting the rule of law in the EU

Welcome speech at FRA symposium on promoting the rule of law on 7 June, 2013 by FRA Director.

Minister, Ladies and gentlemen, colleagues,

Good morning and welcome.

The topic of this year’s symposium is the rule of law, and this is no coincidence. Because we are seeing an increasing challenge to the rule of law, including fundamental rights, in the EU.
This takes many forms, for example:

  • a weakening of the independence of the judiciary, but also of the powers and resources of other institutions that are part of up the overall fundamental rights architecture
  • restrictions on media freedom
  • an increase in populist and extremist rhetoric
  • a proliferation of hate-crimes, which often go un-punished

All this leads to a lack of respect for the “freedom, democracy, equality, the rule of law and respect for human rights” enshrined in Article 2 of the EU Treaty (TEU).

Admittedly, some of these challenges to the rule of law are being mounted outside areas covered by the EU’s legislative competence. However, as we all know, this does not mean that such developments will not have negative implications on fundamental rights as guaranteed by EU law, which is the essence of EU citizenship.

Another worrying development is an apparent decrease in the level of trust between ‘the respective systems of rule of law’ in the Member States. In the Agency’s forthcoming Annual Report, a special focus section discusses the EU as a community of values and the importance of protecting fundamental rights in times of crisis. Here we describe how structural weaknesses in the rule of law call into question the assumption that all Member States conform to the values enshrined in Article 2 TEU, and mutual trust decreases as a consequence. Indeed, in an area of freedom, security and justice, built on mutual recognition, a solid degree of mutual trust becomes a precondition for keeping the overall system functional. For this reason, we cannot examine individual Member States in isolation.

Another important aspect of today’s discussion is the scope of the very concept of the rule of law in the EU today. We would miss the point if we would settle for a narrow reading limited to traditional aspects like judicial independence and the quality of law-making. The rule of law must be understood to include broader fundamental rights issues such as action to combat hate crime, the necessity of protecting media diversity, and the promotion of equality. That a broader definition is needed is also clear from, for instance, the Venice Commission’s 2011 checklist for evaluating the rule of law, which includes respect for human rights, including non-discrimination.

It is also important to recall that the idea of developing tools for effectively safeguarding the rule of law is far from new. The European Parliament stressed more than a decade ago that respect for fundamental rights must be monitored – and we will surely hear from MEP Rui Tavares this morning about the continued efforts of the Parliament in this regard. The Commission and Member States have also made the point that an evidence-based assessment of the rule of law is needed throughout the EU.

These long-standing calls underscore the fact that a regularised system for evaluating the rule of law is central, and not just a system put in place to manage a crisis.
The ‘Justice Scoreboard’, which was presented by the European Commission in late March, will be an important element of our talks here today. We will get an update on this from Emmanuel Crabit later this morning.

Today’s symposium builds on these past considerations and proposals, and in particular on the recent discussions at the conference organised by the Irish Presidency in Dublin on 9–10 May. These focused on safeguarding equality, fundamental rights and the rule of law in the EU. A systematic approach was called for to protect fundamental rights, even at a time of severe economic crisis, and to promote the rule of law. I trust we will hear more on this from Minister Lynch in a short while.

Just yesterday the Council of the EU adopted conclusions on the rule of law. From all these statements and recommendations we can only conclude that there is a clear need for a regular assessment of the rule of law, including fundamental rights.
Such an assessment has a number of advantages. Let me just mention the
following three:

  1. A continuous assessment of the status of the rule of law across EU Member States would allow for a proactive and pre-emptive approach as opposed to a reactive one.
  2. A regular discussion of the ‘rule of law status’ within the EU would allow a symmetric approach that examined all Member States simultaneously and according to the same conditions.
  3. A comparative analysis of the status of the rule of law in widely varying national situations would increase the opportunities for Member States to learn from each other, in particular through the use of promising or good practices.

Such an approach would help contribute to an increase in mutual trust and form the basis for discussion and action by all key players at different levels, while taking into account differing national identities and traditions. This is a challenging task, but – I am convinced – it is a feasible one. It would, of course, need to be carried out in close cooperation with all relevant institutions, including civil society organisations and national bodies with a human rights remit.

A particular challenge would be to bring together the relevant data and analysis – from national level through to the Council of Europe, the UN, and the EU itself, including FRA, to create a sort of ‘one-stop-shop’ for measuring the rule of law. FRA could play a key role in this, building on its work in the area of information and data collection related to fundamental rights.

In addition, we also need to identify the appropriate indicators. In the Agency’s forthcoming Annual Report you will find a chapter dedicated to the Member States’ human rights obligations. My vision for next year’s report is to include five-seven key indicators related to the rule of law that we will fill with data. This would serve to assist further discussion and developments in this field on the basis of concrete evidence.

To conclude:
In drawing your attention to the need and indeed urgency of assessing compliance with the rule of law, I would like to remind us all that we, in the EU, have already achieved a great deal when it comes to upholding the basic values of the Union. However, several questions need to be addressed – namely:

Firstly, we need to look into the most viable and appropriate form for assessment, including how the Member States and the EU institutions would coordinate their efforts. This could be done for example through an open method of coordination (OMC), if there were consensus on the establishment of a regular rule of law exercise within the EU. This will be discussed in Working Group One (I) later this morning.

Secondly, we need to discuss which indicators are to be used as a basic platform for measuring the rule of law across the EU, and which comparative, quantitative and qualitative data should be used to fill these indicators. This will be debated in Working Group Two (II).

Thirdly, we have to identify the best ways of collecting, testing and distilling information that is both of relevance for the EU and its Member States, and that guarantees efficient synergies with existing mechanisms. This will be part of the topic for discussion in the Working Group (III).

I realise that to reach conclusions on these points would be a tall order for one day’s discussion. I am sure, though, that your combined expertise and the opportunity for frank dialogue will bear fruit and take this much-needed debate forward – with the aim to strengthen the rule of law, including fundamental rights in the EU for all.

Thank you.