Is there an EU ‘rule of law’ crisis?

The president of the European Commission, Manuel Barroso, gave a State of the Union speech this week, outlining – among other things – ambitious ideas for a new rule of law mechanism.

The details of the proposed mechanism were fleshed out in a speech given a few days earlier by EU justice commissioner Viviane Reding.

Reding is a smart politician. If rumours are to be believed, she aims to take over Barroso’s job as president in 2014. I assume her rule of law speech is part of the positioning for that post.

In essence, Reding said that new rights should be given to the commission to be able to settle rule of law problems in the member states. The reason, she said, was because there have been rule of law crises in some states over the last few years. These were similar to the financial crisis, and not easy to handle. Given that the EU should not be about money alone, she believes that the commission should be equipped with new legal mechanisms to deal with such crises. She cited the current measures being taken to shore up the economic position of the EU (new financial solidarity mechanisms, common fiscal rules and a banking union) to say that similar initiatives should be taken for the rule of law.

Personally, I support her aims, but not her reasons. In my view, there are two deep problems with her approach. First, it is not true to say that the problems related to the rule of law are comparable with the financial disaster which has consumed Europe recently. In her speech she refers to three ‘crises’ that have cropped up. I wonder whether you will have heard of them, or, if you have, whether you retain the details. Certainly, they have not hit every home in every member state in the same way as the financial crisis.

 Here are the three: number one, she cites the Roma crisis in France in summer 2010, when the French government expelled almost 1,000 Roma to Romania and Bulgaria; second, the Hungarian crisis from the end of 2011, where – among other things - the anticipated mandatory retirement of 10% of the Hungarian judiciary was held to be not in line with EU law; and, third, the Romanian crisis in the summer of 2012, where non-respect of constitutional court judgements threatened to undermine the rule of law. Puh-lease! These three are not equivalent to the universal, all-consuming problems of the financial crisis, which threatened – maybe still threatens – to bring the EU itself to an end. To call them crises in the same sentence as the euro crisis is to erode the meaning of the word.

 My second overall problem with the speech is that, although Reding says with all sincerity that these powers are needed by the commission to support citizens, and I believe her, she does not mention what citizens might think of her measures. She probably doesn’t know. But we cannot avoid being aware that turn-out is low in European elections, and feelings towards the EU have grown cynical bordering on the negative. I regret that. But if we are talking about changes in institutional mechanisms to support the rule of law, they should be undertaken with some measure of popular support, as happened with the economic solutions, which were (so far as anyone can tell) accepted by many as necessary to save the euro. However, I suspect that there would be a widespread shrugging of shoulders at her speech. That is because the commission of which she is a distinguished member has failed to recognise that the primary crisis it faces, before the so-called rule of law ‘crisis’, and maybe even before the economic crisis, is a crisis of narrative. Europe needs to be rethought, rebooted and resold. A new story-line is needed before new rule of law mechanisms are introduced.

 I will not criticise without giving my own solution. So, why should a new rule of law mechanism be introduced? Because it will stop a new war breaking out among members (the original narrative behind the EU)? Because it assists the single market? No, I don’t think so. The story behind the next phase of the EU should be that it exists as a compact between nation states that have given up some sovereignty so that problems which are beyond the reach of individual member states (climate change, data protection, trade deals with big blocs) can be resolved.  As part of this, it seems eminently sensible that, if one of the member states is breaking basic EU rule of law measures, and so threatening the stability of the whole, there should be arbitration measures implemented through the European Commission (maybe with the Court of Justice of the EU as the final arbiter?).

 But we do not need to manufacture crises to float ideas like that. We just need a narrative rethink.