Mr. Emmanuel Crabit:

I thank members for their earlier remarks, which are very interesting for the Commission. There was an initial set of remarks concerning the situation we want to cover and the concepts we are using. It is important to understand that the framework covers situations in which something is happening within a member state that could constitute a systemic threat to the rule of law. The question is what is meant by a systemic threat to the rule of law. First, what is meant by the rule of law? We must be clear that there is no uniform definition of "rule of law" today to which everyone agrees. However, everybody agrees that on the basis of the jurisprudence of the European Court of Human Rights and of the European Court of Justice, there is a common understanding. A number of principles are used and while it is true there is no uniform definition, there is a common understanding. Moreover, as Mr. Ó Briain noted, this common understanding is not simply the mere mechanical application of the law but has a substantive element, which is to uphold fundamental rights also. It is a question of how the safeguard mechanism functions to safeguard fundamental values and fundamental rights. Everybody in all academic circles recognises that even if there is no uniform definition of rule of law, there is such a common understanding, which encompasses a number of legal principles, such as the principles of legal certainty, separation of power, independence of the Judiciary and so on, and these constitute a common understanding.
However, what is important for us is we do not need to have an abstract definition of the rule of law, because the framework is for addressing a very specific situation, namely, the so-called "rule of law crisis". Consequently, the question is less to define what is the rule of law but more what is a rule of law crisis. As in many cases, it is difficult to have an abstract definition of the rule of law but with the experience we have seen in recent years, a rule of law crisis is something that is commonly understood by many stakeholders and member states. It is important to note that when the Commission was asked to intervene, it was by both the European Parliament and a number of member states because for a number of the latter, the position that was at stake was a serious concernvis-à-visthe rule of law. However, in this situation, it was difficult to state that it would qualify for meeting the thresholds of Article 7. As members are aware, Article 7 has two thresholds, the first of which is when there is a clear risk of serious breach and this is a preventative mechanism. The second threshold is when there is a serious and persistent breach. These mechanisms have never been used, precisely because that would be a very extreme scenario. At the same time, however, the Commission faced a situation in which a number of member states stated that while it perhaps was not an Article 7 situation, it was a serious situation. It is also interesting to note that among the member states that called for more action were a number of member states that traditionally are very cautious as regards the power of the Commission. It was very interesting to see that the Justice and Home Affairs Council sought to have a broader reflection to ascertain whether the Commission could establish a framework that would enable for the future a swift reaction for the next crisis, if any. It is important to make the point that the Commission is speaking about a situation in which there is a rule of law crisis, not about the rule of law in general.
In addition, we are not speaking about all the values of Article 2. The framework focuses on the rule of law because we are fully aware that all the values that are listed in Article 2 are very important but also raise a number of questions of definition. The reason the Commission has focused on the rule of law in the first instance is because it was a request by the European Parliament and the Council. It also was because experience again has shown that the question in reality was the issue of what will happen when the national mechanisms to safeguard the rule of law are under threat or no longer function. It is very important to note it is clear this is for the national constitutions and that all member states are very well equipped to address all these issues. However, what happens were something to occur where the rule of law safeguards themselves are longer functioning? It was interesting that in the two cases with which we must deal, the first request came from the supreme courts in many cases, that is, from the national court of the national judiciary, which felt itself to be in a situation that was difficult and which asked the Commission to intervene. The Commission of course has no power to set standards on the national rule of law safeguards. However, it is true that in reality, we have been facing a situation in which a number of states have asked the Commission to intervene. Moreover, the judiciary itself came to the Commission asking it to intervene. The framework focuses on the situation of a rule of law crisis, that is, something that is exceptional. The objective is not to set standards on the rule of law or, in response to Deputy Eric Byrne's question, on the appointment of judges,. We have no power to harmonise or to propose uniform standards on these issues. It is not at all an issue of regulating in this regard. We are in a situation where we may be facing a crisis situation and the question is what can we do in the future. While we know that we have Article 7, given the experiences we have had, we think it is important for the Commission to explain in the future how it will proceed in such a situation.
In terms of concept, it is important to perceive that we are not speaking about all the values of Article 2. We are not speaking about setting new standards on a judiciary, on how to appoint judges, on the security clearance of judges or these extremely complicated questions. We have no power to make any uniform standard. It is also important to explain that we are not dealing with issues relating to the acquis communautaire. It is important to emphasise that the rule of law framework is for situations which cannot be addressed by infringement proceedings. If we think about the issue of racism and xenophobia, a framework decision has been adopted that obliges member states to incriminate racist hate speech. As this is European Union law, we are not in a situation of a rule of law crisis in this regard. As members are aware, it is a framework decision and as of 3 December 2014, the Commission will have the power to launch infringement proceedings in the case of a breach by a member state of this framework decision. However, in this case, we are not at all within the scenario of the framework. We are in the scenario of applying European Union law and the role of the Commission to ensure, as the guardian of the treaties, that European Union law is well applied. We also have a directive from 2000 against discrimination based on race. I refer to the EU racial equality directive, which also is European Union law and which enables the Commission, if necessary, to intervene through the normal tool of infringement.

There are many issues which also could be related to fundamental values, such as the Charter of Fundamental Rights. The Charter of Fundamental Rights is EU law. This is not the same as a situation that we want to cover with the framework. For the framework, it will be a situation which cannot be at risk through the infringement. It is important to clarify that because I have the feeling that there was confusion on the different concepts.

As regard the treaty change, as I explained, the framework is based on the current treaty. It does not have the effect of amending the treaty. The treaty states the Commission can initiate the mechanism of Article 12(7) by making a proposal. We are explaining how we will proceed to assess whether or not to make this proposal. This does not require amendment of the treaty. It is not something which modifies the treaty. It is important to clarify. Of course, it does not prevent a broader reflection as regard possible treaty change but what we established now with the framework is something which is within the treaty and which does not change at all or amend the treaty.

As regards the independence of the Judiciary, as I stated, we have no power to set standards on the independence of the Judiciary. What we are doing with regard to the effective functioning of the Judiciary is not with the framework, but more as regards the European Semester. As the committee will be aware, in the context of the European Semester we encourage certain member states to improve the effectiveness of their justice system. The effectiveness of their justice system involves three elements: independence of the Judiciary, quality and efficiency. The Commission has established an information tool which is the EU justice scoreboard, which gives an overview on how the national justice system functions. This is not the same type of instrument as the framework. What we are doing in terms of encouraging member states to improve the functioning of their justice system is something which is made in the context of the European Semester because having an effective justice system is very important for trust and growth, and everybody recognises this. This is part of this exercise. Three years ago the Council adopted, under the proposal of the Commission, country specific recommendations on the function of the Judiciary. However, this is not the same situation-----