Dara Murphy (Cork North Central, Fine Gael)
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I apologise on behalf of the Chairman, who is delayed but hopes to join us in due course. I welcome Mr. Emmanuel Crabit, head of the general justice policies and judicial systems unit at the European Commission's Directorate General for Justice. Mr. Crabit is accompanied by Ms Eimear Ní Bhroin, political affairs officer at the European Commission office in Dublin. I also welcome Mr. Deaglán Ó Briain, principal officer at the Department of Justice and Equality. I welcome, too, our guests in the Public Gallery.
The European Commission recently adopted a proposal, COM (2014) 158, for a new framework aimed at safeguarding the rule of law in the European Union. The rule of law is one of the founding pillars of the EU, and the Commission has a crucial role, as the guardian of the treaties, in upholding it. The new framework provides for the Commission to intervene early in cases of serious and systemic threats to the rule of law in a member state. This has potential implications for member states, which is the reason for our initial examination today of the proposal. Members will have the opportunity to hear the rationale for the framework, how it will work and what will trigger the three-stage process of the new framework from the senior officials from the European Commission and the Department of Justice and Equality who are in attendance today.
Before commencing, I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence in regard to a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are further directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.
I invite Mr. Crabit to make his opening statement.

Mr. Emmanuel Crabit:

I thank the committee for inviting me to have an exchange of views on the Commission's communication on a new EU framework to strengthen the rule of law. I am particularly pleased to have this opportunity because Ireland was one of the first member states to underline the importance of promoting the rule of law within the EU. Indeed, one year ago, the Irish Presidency made an impressive push to put this issue on the European agenda. In the time available to me, I will talk about why the Commission has established the EU framework, its key characteristics and how it will function in practice.
Respect for the rule of law is one of the common values of the EU listed in Article 2 of the Treaty on European Union. This fundamental value is itself a prerequisite for the protection of all the other values listed in this article, including democracy and fundamental rights. Respect for the rule of law is indispensable for the very functioning of the EU legal order and for mutual trust between member states. The constitutions and judicial systems of EU member states are, in principle, well designed and equipped to protect citizens against any threat to the rule of law. In recent years, however, we have seen crisis situations in some member states which have demonstrated that respect for the rule of law cannot be taken for granted, even within the EU. During these crises, many turned to the Commission to seek its intervention.
The Commission intervened in those instances by exerting political pressure and, where possible, with infringement proceedings. These actions led to results but also showed that the existing instruments at EU level are not always adequate for a swift and effective reaction. The Commission can launch infringement proceedings against member states, but such proceedings can only be used where concerns relating to the rule of law constitute at the same time a breach of a provision of EU law. Experience has shown this is not always the case. There is also the famous Article 7 of the Treaty on European Union, which provides for preventive and sanctioning mechanisms in cases where a member state does not respect fundamental values, such as the rule of law. However, the thresholds for using the mechanisms of Article 7 are high and, in practice, those mechanisms will only be used in extreme scenarios. It is therefore necessary for the EU to have a lighter intermediate framework which is capable of covering situations which cannot be addressed by infringement proceedings and which remain below the high thresholds of Article 7. This conclusion is shared by the Council and the European Parliament. In June 2013, thanks to the Irish Presidency, the EU's Justice and Home Affairs Council adopted conclusions which underline that "respecting the rule of law is a prerequisite for the protection of fundamental rights" and called on the Commission to take the debate further. In addition, the European Parliament, in several resolutions, has called for new instruments to strengthen the rule of law in the EU.
The objective of the framework is to facilitate a political dialogue with the member state concerned to prevent an emerging systemic threat to the rule of law from further escalating and developing into a situation mentioned in Article 7 of the Treaty on European Union. The framework describes how the Commission intends to react to new rule-of-law crises and organise its approach in order to assess whether to use its power of initiating the mechanisms of Article 7. The nature of this process of dialogue is political rather than legal. The framework is designed to address a situation of systemic threats to the rule of law in a member state. It does not address individual breaches of fundamental rights. There is a systemic threat to the rule of law when the rule-of-law safeguards which exist at national level, such as constitutional review mechanisms, no longer function or come under threat. Another characteristic of the framework is that it is sufficiently flexible to allow for swift and concrete actions. Finally, by setting out in advance the approach the Commission will follow, the framework ensures respect for the principle of equal treatment of member states.
In terms of how it will function in practice, the framework establishes a three-stage process. The first stage consists of a Commission assessment. This is necessary to ensure a thorough and objective assessment of the situation at stake.

The Commission may always seek external expertise - for instance, from the Council of Europe's Venice Commission. Unless the matter is already resolved, the second stage is a Commission recommendation. This will clearly indicate the reasons for the Commission's concerns and recommend the member state solves the problems identified in a fixed time limit. The third stage is monitoring the follow-up to the recommendation. If no solution is found within the framework, Article 7 will always remain the last resort to resolve a crisis. The Commission will keep the European Parliament and the Council closely informed of the progress made at each stage of the process.

To conclude, I would like to underline that the framework is based on experience of crisis situations where the Commission was requested to intervene. To a large extent the framework sets out steps the Commission has taken in the past. The framework is operational and does not require additional measures before it can be used by the Commission. We do not know whether or when we may face the next crisis, but the commitment Ireland has shown in promoting the rule of law in the EU provides a strong message for all.

Dara Murphy (Cork North Central, Fine Gael)
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I thank Mr. Crabit and invite Mr. Deaglán Ó Briain, principal officer at the Department of Justice and Equality, to make his opening remarks.

Mr. Deaglán Ó Briain:

Prior to the Irish Presidency of the Council of the European Union in 2013, we were aware of discussions at EU level on the need for a mechanism to address problems that might emerge, short of an Article 7 situation - the nuclear option, as mentioned by Mr. Crabit. Article 7 allows for the suspension of an EU member state that tolerates a situation that breaches the fundamental values of the European Union on democracy, rule of law and the protection of fundamental rights. It made sense to us to focus on prevention rather than allow a crisis to develop, so we examined how crisis situations could be managed in advance. Membership of the European Union has been very positive for Ireland, and all member states can learn from each other. None of us is perfect, and we should not be afraid to open our imperfections to external scrutiny; we should put in place practical steps to deal with them. There are benefits to comparing Ireland to other member states and systems.
At the start of the Irish Presidency, we felt that Ireland, a small member state with good relations with all other member states, should take on a difficult and sensitive topic that touches on issues of national sovereignty. At this point, this was to be the Irish contribution to the future of the European Union. Our starting point was concern at the apparent rise in xenophobia, anti-Semitism and other extreme forms of intolerance, including racism and homophobia, within the European Union and the perceived failure in some cases to respond adequately.
As a second strand, we were concerned that justice institutions, particularly the courts and the police, should function effectively so that mutual confidence and solidarity between member states is maintained. Mr. Crabit referred to that point. There is nothing more corrosive of the trust that is essential to the effective functioning of the European Union than the perception, accurate or not, that not all member states are wholeheartedly committed to the core European values of respect for personal freedoms and so on. The institutions must function effectively in giving expression to those values.
Third, we were concerned about ensuring coherence between the internal and external dimensions of EU human rights policy. The European External Action Service has put together an external human rights policy for the EU. It is of great importance to our credibility that we in the EU are seen by the world outside to practise what we preach. The element of coherence is important.
In January 2013, Ireland tabled a paper for discussion by justice Ministers at the first such meeting of its Presidency. There was then a conference in May 2013 on the rule of law theme that led to Council conclusions adopted by EU justice Ministers in June 2013. These conclusions called on the Commission to take forward a debate on the need for "a collaborative and systematic method" - that is, a rule of law mechanism or initiative to address the identified issues. Given what I had to say earlier about the sensitivity of this topic, we regarded the securing of agreement by all member states to the text of these Council conclusions and the request that the Commission progress the debate as an important success for our Presidency. We worked closely with a number of member states during our Presidency, particularly Finland and the Netherlands. For example, after the Irish Presidency, Finland and Ireland presented a joint paper to a conference called the Assises de la Justice,organised by the Commission in December 2013. The conference was an important milestone in this debate.
We think the approach in the Commission's communication is positive. The communication is a very clear and coherent response to the issues we have raised during our Presidency and the debate that has ensued thereafter. Issues were raised by foreign affairs Ministers of four other member states in a letter to President Barroso. When the communication was published we were able to warmly welcome the approach of the Commission.
There are issues that require further discussion. As indicated in the scrutiny paper, we are aware of the legal view on the question of the Commission's competence to take the approach set out in the framework, though this is not a central concern. In any event, one of the themes of the Irish Presidency's approach to this was the need for political discussion and peer review. We are comfortable with the alternative suggested - that is, the involvement of the EU's institutions in a political debate at the request of member states without worrying about technical legal questions. The discussion could be quite academic if it is not based on a concrete example, so these questions will probably arise when an issue needs to be addressed.
Another theme of the Irish Presidency was protecting the fundamental rights of individuals. What is the link to the mechanism, and do EU citizens see this intervention as useful in protecting them? The European External Action Service recommended the development of an internal fundamental rights policy, and it is the case that issues could be progressed in this way. In terms of political discussions, there are questions relating to the roles of the Council, member states and external bodies and the reliance on evidence gathered by the Council of Europe and the EU Agency for Fundamental Rights. It is better to use a practical situation to tease out the answers.
Methodology is an area in which Ireland has a continuing interest. Finland, the Netherlands and Ireland are working with the EU Agency for Fundamental Rights to identify a methodology by which rule of law indicators could be developed. We seek clear answers to the questions of what is being measured and how. How can this be done in a way that is not only valid in assessing a member state but can give a valid comparison across member states with different legal and constitutional traditions?
All member states, large and small, old and new, must be treated equally. We must move forward on the basis of an agreed understanding of what we are trying to do. As I have said already, some of these questions really come into focus when an actual situation must be addressed.

Dara Murphy (Cork North Central, Fine Gael)
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Before I invite my colleagues to contribute, I have one question that might facilitate others. Is the new framework that was announced in March agreed and operational now, or will other proposals and changes be made?

In other words, is Mr. Crabit here to inform us about a process which exists and which governments are putting in place or will further changes be necessary?

Mr. Emmanuel Crabit:

The framework that has been established is operational for the Commission, which has the power to initiate the mechanism of Article 7 - the famous nuclear option. The framework explains how the Commission will assess the need for using the power of initiating the new mechanism. It will enable more transparency and will be a means for the Commission to explain how it intends to use its power in the future. This power is explicitly mentioned in Article 7.1 and 7.2 of the Treaty on European Union. The framework is indeed operational.

Seán Kyne (Galway West, Fine Gael)
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I welcome our guests. What specific incidents or cases set in train the development of the new EU framework to strengthen the rule of law? Do our guests envisage treaty change? If such a change is necessary, a referendum will have to be held in Ireland. Will the Members of the Parliament have any role to play or will it just be the Commission? It was stated that there will a Commission assessment involved. Will MEPs have a role in that regard? Reference was made to threats to the rule of law which are of systemic nature and areas such as constitutional structures, separation of powers, independence or impartiality of the judiciary or a system of judicial review including constitutional justice were instanced in that regard. In developed countries, these are all part and parcel of democracy. Surely, in the context of new entrants to the EU, the position with regard to these areas would have been assessed in the opening of the various session chapters. Is it the case that the position was satisfactory at one point in some of the new member states but that reversals have occurred in the context of, for example, the independence of the judiciary? If the predominant concern relates to the new entrants, will our guests indicate whether reversals of policy occurred after their entry to the Union?

Eric Byrne (Dublin South Central, Labour)
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I welcome the witnesses. I did not have the opportunity to read all of the documentation supplied so I hope they will bear with me. If I had read the documentation, I might not be obliged to ask any questions in order to try to understand what is involved.

Romania and Hungary - certainly the latter - have been highlighted as two of the deviant European states which have at some stage been seen to interfere with the rights of their superior courts and in other areas. I fully accept that Europe must be seen to apply the same rules and laws equally. In other words, people in Ireland must be in a position to obtain the same level of justice as their counterparts in Greece.

Mr. Ó Briain stated that no nation is perfect. His assertion is particularly apt when one considers the incredible ignorance of the Irish State in understanding that Roma children can be born with blue eyes and fair hair. He also referred to the policy to try to combat homophobia and racism. Members of the committee have just returned from Albania and Montenegro. We were almost embarrassingly pointing the finger at the applicant states, stressing the rule of law and saying that they will not gain entry unless they meet the terms of admittance to the club. The authorities in both countries are conscious of this and they continue to work extremely hard in respect of what they have do to. It must be remembered that they are doing so pre-membership. The question must be posed as to what has happened in Hungary and Romania, which became member states and which were supposedly in compliance with the rules that apply.

Does the EU have a position on how nation states appoint judges? There are people in this country who would say that all judges are political hacks and that one cannot become a judge unless one is the member of the right political party or has provided financial support to that party, worked for it or whatever. If this is indeed the case, is it a fundamental flaw? In the context of the rule of law and the arrest and questioning of Mr. Sarkozy, the latter's defence is that those involved are nothing but a shower of left wing magistrates who are politically committed to keeping him out of politics. In the context of the assertion that Ireland chooses political hacks to be judges and Mr. Sarkozy's assertion that those questioning him are left wing lunatics, Trotskyists and communists who are determined to undermine him, is there a need to examine more closely allegations about our internal use of the rule of law?

John Halligan (Waterford, Independent)
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I am somewhat confused. Mr. Crabit referred to extraordinary scenarios in which Article 7 would be invoked. If the rule of law stops short of invoking the latter - the big issue which arises here is that countries found to be in violation would not have voting rights - then what power is really available under it? I refer specifically to the position in Hungary. Is the rule of law retrospective and can it be used in respect of Hungary? The Hungarian authorities have stated that they are not now surveilling judges. However, everyone knows that judges and members of the political opposition in Hungary are under surveillance. Will Mr. Crabit outline the nature of Article 7 and indicate why we are not prepared to invoke it? Why have it if we are not in a position to invoke it? The new framework will fall short of allowing for the invocation of Article 7. If that is the case and if Hungary does not lose its voting rights as a result, what else can it lose? The Hungarians will continue to do that which they are doing at present.

Seán Crowe (Dublin South West, Sinn Fein)
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When one considers this matter in broad terms, people might ask as to why one would have any concerns. In that context, Article 7 may be invoked in cases of serious and persistent breach of EU values and of those of each member state. When one drills down, however, it is obvious that the values of individual states may differ greatly. Why would anyone be opposed to human dignity, freedom, democracy, equality, the rule of law, respect for human rights, etc.? Again, however, if one drills down, one discovers that is not black and white. Some countries might have particular attitudes in respect of human dignity. I refer, for example, to a situation where a court in a particular member state might make a ruling to allow a person who is terminally ill and who is in extreme pain to take his or her own life. Would some countries have a huge difficulty in that regard while others would not? I am just being provocative in order to try to tease out the exact position. In that context, if the elected government of a country such as Hungary is of the view that a threat exists, then surely the Commission is undermining its democratic basis.

They are some of the debates that will take place. I have difficulty with the proposal concerning the rule of law. A young Irish person is before the courts in Egypt and one could argue that what is happening there is according to the rule of law. Judges are presiding over the situation but in some cases they will not allow lawyers to put forward a case.

Dara Murphy (Cork North Central, Fine Gael)
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I remind the Deputy not to identify anybody. I know he is not going to but I say to be sure.

Seán Crowe (Dublin South West, Sinn Fein)
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No, I just gave it as an example of a country where one has the rule of law but where one would not necessarily approve of what happens. I accept it is not a country within the European Union.

If one has a country that has taken a decision not to allow immigrants, does that go against European values of welcoming people? I refer to those fleeing conflict or war. Concerns arise in regard to such issues. If we give the power, one could argue then that the Commission is in transition and one is further centralising power in the Commission. A big debate arises in that regard on Europe and there is clearly a disconnect with some member states.

On the surface, we would agree with the approach proposed to deal with countries that are undermining such values, but questions arise as to when we intervene. For example, do we intervene if we do not like a political party or organisation elected to government somewhere whose views are anathema to many of us within Europe? Is that the direction in which we are slowly being pushed? Concerns arise in that regard. On the surface, one could ask why one would oppose such an approach but we must ask questions. I accept we are scrutinising the issue but I do not know enough about the situation in Hungary or other countries. I would be concerned if we were checking judges willy-nilly without having a formal process, for example, whether the Minister for justice, for example, were to be the only one to decide if a structure must be in place. I do not know whether the Hungarians have such a system. What would the approach be if one had a judge that was involved in looking at child pornography? In most countries another judge would make an order on the situation. Concerns arise about situations where people would find it logical that one would approach certain issues when difficulties arise. I presume the Hungarians and others in the region are worried about what is happening in Ukraine. That is not to justify any country tearing up its constitution or laws but surely it is a matter for those elected in those countries if they want to change their value system or constitution.

Dara Murphy (Cork North Central, Fine Gael)
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I thank the Deputy. Before I bring in Deputy Bernard Durkan I invite the Cathaoirleach to take the Chair, a position he has earned. I welcome, Deputy Hannigan.

Dominic Hannigan (Meath East, Labour)
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I thank Deputy Dara Murphy. The witnesses are very welcome. I was speaking at a European Movement International event on the Italian Presidency that has just concluded in Government Buildings. I apologise for my late arrival. I thank the Vice Chairman, Deputy Dara Murphy, for covering for me so ably. The next speaker is Deputy Bernard Durkan.

Bernard Durkan (Kildare North, Fine Gael)
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I am sorry I was not in time for the initial presentation. Having tried bilocation, I then attempted trilocation, which is even more difficult. I was singularly unsuccessful. This is an important subject. I empathise with the points expressed by Deputy Seán Crowe and other speakers. It behoves us to carefully balance our attitudes in cases where the European institutions might intervene in what might be seen by some as the internal affairs of a member state.
A determination must be made on whether the rule of law has broken down; if the constitutional requirements of the individual member state are being adhered to; whether, for example, in the case of a member state with a written constitution and those without one – we can make a comparison between this country and the United Kingdom in that regard; but there must be a recognition that the constitution of the member state is recognised, observed and honoured, otherwise the European institutions may well bring themselves into disrepute. In view of the experience in the most recent elections to the European Parliament, where there was evidence to the effect that the population in some member states seem to have developed an antipathy towards the European institutions - whether it is well based or not is really not material to this particular conversation but it exists - because of that fact we must travel very carefully before we invoke the provision of Article 7. I accept what Viviane Reding has said, that it would only be done as a last resort.
In the course of ordinary domestic political debate one might determine that the rule of law has broken down. It used to be a question of observance of the acquis communitaireand that in the case of accession the member seeking accession had to observe it over a period. That does not mean when accession has been achieved that a country can depart from such observance. We are all part of it and we must continue to support it. If we do not do so then we all contribute to the undermining of the institutions to which we aspire. That approach will not work.
The point which was raised by Deputy Crowe is what the European institutions should do in the event of an administration, notwithstanding compliance with its own constitution or the acquis communitaire, if a regime develops, which could happen within the European Union in certain circumstances, that is not intent on observing the rule of law. The question is whether the institutions would be willing to allow freedom of expression, recognise human and civil rights and follow the grounds according to which the member states originally aspired to join the Union. Deviation from that would be grounds for asking questions. It is not desirable for the European institutions to become involved in individual member states on a daily basis in the administration of law. It was not intended that it ever should. It would create a dangerous precedent for the future in that eventually one could have interventions from the European institutions on a daily basis which might be welcomed in 50% of cases but otherwise would not.
To follow on from the points made by Deputy Eric Byrne, in this country we have a clear definition between the Judiciary and the Executive. That has always been the case. The system has worked extremely well. The obligation is on all of us on both sides of the divide to recognise and accept its existence. In the past ten years there have been situations where the Parliament in particular has overstepped the boundary of propriety. That brings a reaction of its own accord which should not happen. Similarly, the Judiciary must observe the rules as well. Otherwise, we get into a situation where we have to politicise the Judiciary, which is not desirable in this country or in any other country. There must be an ongoing recognition of the separation of powers by whatever means the separation is recognised in the individual member states.

I believe sincerely that as time goes by we have to revise our thinking in certain areas in respect of various instruments and directives. We should learn from past experience also. We must recognise that where there is opposition or where Ireland, another member state or European institutions made a mistake, whether in reacting too soon or failing to react at all, and Ukraine is a classic example of the European Union as an entity reacting rather late to a situation developing in its neighbourhood, the power comes from the people to the individual member states, governments and parliaments in the first instance. That is from where the European institutions derive their power because as we know all directives originate within the European institutions, come to the member state parliaments and the relevant bodies in the member states for appraisal and approval and, unfortunately, often get put into deep freeze, so to speak, for a number of years only to pop up at a later time. I recall one or two directives in particular to which that applies. They pop up ten or 12 years later having been given a derogation. I would abolish derogations for everything because that would bring everything up to date, everything would be upfront and anybody would be able to say that this will affect the member state parliament of which they are part. We postpone those decisions for ten or 12 years. When they come back to bite the people, so to speak, nobody knows where they came from and, invariably, the European institutions are blamed and it is said that they are the people who caused all the problems. I have heard people say, as I know has the Chairman, that the economic downturn across Europe was caused by the European institutions. It was not; it was caused by institutions in member states, and the European institutions, that failed to react, plan ahead and recognise the signs that were obvious to people for many years, and took no action. I am sorry about that rant, Chairman.

Dara Murphy (Cork North Central, Fine Gael)
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My question is similar to those put by Deputy Durkan and Deputy Crowe. We talk about xenophobia and racism, and it is easy to see from the polls where the rule of law is breaking down, on which everybody would agree, but we all have different laws. Is this process simply about ensuring that countries uphold their own laws rather than interfering with those laws? As Deputy Durkan said, we have a Constitution and a Supreme Court that interprets our laws and the only change allowed is by referendum. There are many areas where this Republic is unique. One thinks of our divorce laws and the protection of life during pregnancy legislation. There are areas in other countries where subjectivity about a law arises but to borrow the French term, vive la différence. There has to be different interpretations of laws. The blunt question is whether countries will continue with that, as I assume they will have to because of the way our Constitution can only be changed by referendum.

Dominic Hannigan (Meath East, Labour)
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Who would like to speak first?

Mr. Deaglán Ó Briain:

I would like to go first. Much of the detail was directed at my colleague from the Commission but some issues were raised to which I would like to respond.

On the questions posed by Deputy Eric Byrne, our addressing this issue during our Presidency did not take place in a vacuum but part of our success in persuading all member states to sign up to a set of conclusions to ask the Commission to take forward the debate was to be scrupulous not to mention any other member state. We took the view that there is the potential for problems to emerge in any member state and that all of us should be open to looking at those, to external scrutiny and to dealing with those type of problems.

In terms of the Roma, for example, which is topical, it is clear we failed seriously in that regard and the Minister, the acting Garda Commissioner and the Taoiseach have apologised. The Minister has given clear directions that we must address the type of issues that arose, particularly the lack of cultural competence within public sector organisations. She addressed that point in the Seanad earlier on Committee Stage of the Irish Human Rights and Equality Commission Bill in terms of how we will go about doing that, including the need for an assessment to be carried out on the needs of Roma people living in Ireland, and how we address those, with an obvious link in terms of how we improve the way we engage with the Traveller community and learn one from the other. That is an example of a failure the State acknowledges, and is dealing with the problem, and in that sense it is clearly outside the scope of this sort of mechanism, which is about grievous problems that arise where the member state perhaps is not dealing with it. I do not believe we have anything to worry about in that regard, although the situation those two families faced is serious and traumatic. It will take a long time for the children, and the families, to come to terms with it but I understand the three apologies were very well received.

The Deputy mentioned judges. I mentioned at the end of my opening statement how one would put a methodology in place to assess the standards of compliance with the rule of law and European values in member states, and judges are an interesting example. The type of approach we have been taking is to look at specific issues, such as the independence of the Judiciary, and examining a methodology in terms of how one assesses that at three levels - structure, process and outcome. Structure would be to ask a country if it has a statement in its constitution or equivalent that the judiciary is independent that is, pass or fail. Process is the way they are appointed. We have had debate here on that and there are proposals to put in place a judicial council. Therefore, we have already recognised that there is work to be done. The final one is the outcome. Is the public confident that justice is fair and impartial? Once judges sit on the Bench, regardless of how they are appointed, are they politically independent? Are commercial companies, including foreign companies, confident that justice will be fairly and competently administered? I believe we pass on all of those. The point is that it is that outcome we are looking at rather than worrying about issues that are peculiar to a member state that the member state may have already recognised it needs to address or issues that are an emotionally important part of its sense of identity or its constitutional tradition. We could also look at whether the member state has a written or an unwritten constitution, for example, an elected president or a constitutional monarchy. Those are outside the scope of what the European Union can address because they are not really important. What is important, and I will not mention any member state, is whether a member state with a constitution or a hereditary monarchy is a functioning democracy. That is the question.

Deputy Seán Crowe asked what we mean by the rule of law and whether it is just about applying formalistic rules. There was a discussion during our Presidency on exactly what we were talking about. There is a need to be clear on what we are talking about, and there are different academic definitions. Without boring members with all the details, there is a thick and a thin definition and the thin definition is that the rule of law is about following the rules. It does not matter what the rules are, and that is clearly not an appropriate definition for the European Union. The thick definition, and there is a good deal of detail on this in the speech the then Minister gave at our conference in May 2003 which I can pass on to members if they are interested, is bound up with values, protecting fundamental rights and justice systems that function effectively to protect the rights of the individual rather than just following the rules, whatever they may be.

In terms of centralising power in the Commission, the Commission is the guardian of the treaties. That role is particularly important for small member states, and the Commission was asked by all the member states' justice Ministers to take forward debate and come back with a communication in terms of how it would take these issues forward.

To respond to Deputy Murphy's point, we all have different laws. This is about putting in place something to deal with or head off crises where fundamental European values to which every member state has signed up are in danger of not being adhered. Issues that relate to the particular approach of individual member states are completely outside of that, and even if it wanted to the Commission cannot start examining them.

Matters such as our divorce regime, issues in respect of abortion and so on are completely outside the proposal, even if they were not already clearly protected by the protocol to the Lisbon treaty, for example.

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-----

Dominic Hannigan (Meath East, Labour)
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Is each country scored under this scoreboard? Is each country scored as part of the country-specific recommendations procedures? Does the Commission score each country?

Mr. Emmanuel Crabit:

Yes. There is this EU justice scoreboard which is an information tool which provides comparative information for 28 member states. It is just information. This information gives a comparative overview on the efficiency and the lines of proceedings, on the quality, for instance, the use of ICT, the training of judges, the evaluation system in member states on the Judiciary, and on the independence. This will be completed by a country analysis in the context of the European Semester which could lead to the formulation of country-specific recommendations. That is a process.

However, this is not the situation of our rule-of-law crisis. We have seen a situation in the past years where, for instance, the power of the constitutional court was subject to very significant reform, which has created some concern. The governance of the judicial system was also subject to significant reform which has created concerns among certain member states, and more so in the European Parliament and among the members of the judiciary itself. As I said, the framework is designed to address a specific situation which can occur in a member state which would lead to a systemic threat to the rule of law. Here, the question is whether the Commission does nothing or should the Commission step in even if we are not yet at the thresholds of Article 12(7). The latter was a question which has been raised. It has been raised not by the Commission alone but by many member states, and the Council and the Parliament, which turned to the Commission. What we do with this framework is to better organise ourself for the future crisis. We hope that it will never happen but if it happens we have explained how we will proceed.

Dominic Hannigan (Meath East, Labour)
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I thank Mr. Crabit.

Bernard Durkan (Kildare North, Fine Gael)
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I have a brief question. Immigration in Europe seems to have become an issue in recent times. That is a nice word for it - there is another description of that issue as well. In the recent European elections, immigration featured. The question that arises then is to what extent has Europe got an immigration policy that is fair and equal across the board and applicable to each member state. For example, should it be that one or two countries must face the bulk of the burden? Should it be that some countries have already indulged in what would appear to be a violation of race relations legislation in their home countries? To what extent can Mr. Crabit intervene in that? If, for example, we were all allowed to make racist or anti-ethnic speeches, which have been shown in various locations throughout the globe in recent years to be the beginning of the breakdown of the rule of law, that would be an initial potential breach or an indication of the breakdown of the rule of law. I need not go into the individual cases as such. When the problem becomes a major issue, it is too late. It has to be identified at an early stage. How do we identify it and deal with it in a way that is fair to all?

Mr. Emmanuel Crabit:

The immigration issue is something which is to a certain extent covered by EU legislation. We have the Return Directive. We have a number of instruments which regulate immigration, for example, the asylum acquis. For these type of issues, of course, the EU system applies. A member states must comply with all of these EU acquisin regard to immigration, visas and asylum.
As regards the issues of hate speech, racist, zenophobia, etc., to which Deputy Durkan refers, these are an EU matter. We have this framework decision which obliges member states to criminalise hate speech based on race and zenophobic grounds. There is EU law and it is an EU law matter. It is not an issue of rule-of-law crisis.

Bernard Durkan (Kildare North, Fine Gael)
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Has it been invoked?

Mr. Emmanuel Crabit:

The rule-of-law element could intervene in the functioning of the Supreme Court, which could apply all of this EU acquisof fundamental rights and national guarantees because all of these issues are also subject to the national fundamental rights system. The triggering point for the framework will not be the immigration matter or this racism matter.

It would be more concerned with our being in a situation in which the role of the Supreme Court, in dealing with this matter, were suddenly reformed in a manner that put at risk the effectiveness of all these national rule of law standards. I refer to where the national courts can no longer intervene because their powers are limited. The rule of law element is the focus of the framework but the substantive matter of migration, anti-discrimination and racism policy is more a matter of using the relevant power to ensure the acquis in this matter is fully applied by the member states. The rule of law framework will protect the national rule of law mechanism standards.

Bernard Durkan (Kildare North, Fine Gael)
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As it is?

Mr. Emmanuel Crabit:

Yes. It does not set the standards.

Bernard Durkan (Kildare North, Fine Gael)
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We can all point to utterances by various spokespersons over the past five years, in particular, in respect of which there have been, to my mind at least, serious breaches of legislation on incitement to hatred and racism where effective legislation exists, either in individual member states or in European institutions. There is not much sense in having the European institutions stipulate, consequent to their having overall responsibility, that one cannot do this or that and that one must observe such a law, according to the letter or spirit, if breaches continue regardless.

I fully recognise that the Union cannot be a home for all refugees and immigrants from all over the world. We must have European legislation, and we have. Whether this is effective or does its job to the extent intended remains to be seen. If it does not do so, it should be amended. Once immigrants — and Irish emigrants — arrive in a member state of the European Union, they are entitled to be treated in accordance with the laws laid down by that state and the Union. Breaches and deviations in this regard are not acceptable, and no exceptions should be made. It is utter hypocrisy for the European institutions and member states to avoid dealing with these circumstances fairly regularly when there are clear indications of racist tendencies. People become very popular on the back of those tendencies, as expressed in various speeches over the past five years, in particular. The rule of law will be in jeopardy in the event of European and national institutions acting inappropriately. National institutions can do so, for domestic purposes, to feed domestic electorates information they want at a particular time, but doing so is not representative of the rule of law; it is in breach of the rule of law. We need to define that quite clearly and carefully. As with the Chairman, I deal with this subject fairly regularly.

Dominic Hannigan (Meath East, Labour)
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To be clear, is the Deputy saying there needs to be more clarity regarding who calls people to account on this?

Bernard Durkan (Kildare North, Fine Gael)
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Absolutely. We seem to go along as if we were on a floating barge on a river going downstream.

Dominic Hannigan (Meath East, Labour)
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The matter is passed off as somebody else's responsibility.

Bernard Durkan (Kildare North, Fine Gael)
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Oscar Wilde said duty is what one expects from others, but not necessarily ourselves.

Mr. Deaglán Ó Briain:

I could not possibly disagree with anything Deputy Durkan said but I believe two issues arise. It is worth teasing out again the point that Mr. Crabit made. The European Union has a framework decision on combating racism and xenophobia by means of the criminal law. It requires member states to have hate crime legislation. The Union also has anti-discrimination legislation. If a member state fails to put the two legislative codes in place, the Commission has the power to launch infringement proceedings. That is part of run-of-the-mill monitoring and compliance.

Let us consider what the rule of law framework deals with. We have had relevant incidents here in this regard. It is not that the member state has not applied the law properly or that it is being broken. The framework deals with circumstances in which the political system tolerates or encourages racist discourse. That is a threat to the fundamental values of the European Union and the neighbours of the member state in question. Therefore, it is a matter of determining whether a problem is systemic and whether the member state is dealing with it. If it is systemic and the member state is not dealing with it, the Commission has the additional procedure, which it hA published, for dealing with the matter.

On a point of information, the framework decision on dealing with racism and so on via the criminal law is being reviewed in terms of implementation. The Commission has indicated it is reviewing all member states, including Ireland, and examining domestic legislation to ensure the framework decision on criminal law has been transposed properly. This will be happening, if it has not already commenced, in the course of this year.

Dominic Hannigan (Meath East, Labour)
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I thank Mr. Deaglán Ó Briain, Mr. Crabit and Ms Ní Bhroin for attending, giving so freely of their time and answering all our questions. The meeting has been very interesting for members.