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Can the EU Protect Its Fundamental Values?

  • Erik O. WennerströmEmail author
Chapter

Abstract

This chapter explores the EU’s endeavours to define common, fundamental values and defend these against member states that are challenging them. The chapter provides an overview of how the EU’s fundamental values emerged and how they are used, as well as protective mechanisms created to monitor compliance with these values. A key argument in the chapter is that the EU’s various protective mechanisms seem not to be particularly user-friendly and it is possible that they were never meant to be that. But values protected by unusable mechanisms are at risk of being undermined, Wennerström argues. The author further argues that the member states that are intent on safeguarding the EU’s values should, first, confirm the prioritization of and convergence surrounding the values of democracy, the rule of law, and human rights and, second, support the European Commission in its earnest efforts to influence the member states that are challenging the values, since attempts to influence them politically via the EU Council of Ministers, where national interests tend to outweigh matters of principle, are unlikely to succeed.

References

  1. Baratta, R. (2016). Rule of Law “Dialogues” Within the EU: A Legal Assessment. Hague Journal on the Rule of Law, 8(2), 373–419.CrossRefGoogle Scholar
  2. Brahimi, L. (2002). The Rule of Law at Home and Abroad. The 2002 Dag Hammarskjöld Lecture. Uppsala: Dag Hammarskjöld Foundation.Google Scholar
  3. Closa, C. (2016). Reinforcing EU Monitoring of the Rule of Law: Normative Arguments, Institutional Proposals and the Procedural Limitations. In C. Closa & D. Kochenov (Eds.), Reinforcing Rule of Law Oversight in the European Union. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
  4. European Commission. (1997). Commission Speech (1997) Commissioner Hans van den Broek’s address to the EU meeting in Noordwijk 1997 “The Rule of Law in the Context of Enlargement”, SPEECH/97/144.Google Scholar
  5. European Commission. (2000). Commission Communication COM (2000) 97. EU Bulletin Supplement, 5/97.Google Scholar
  6. European Commission. (2003). Commission Communication COM (2003) 606. Article 7 of the Treaty on EU – Respect for and promotion of the values on which the Union is basedGoogle Scholar
  7. European Commission. (2013). Commission Speech (2013) Vice President Reding’s Speech “Safeguarding the Rule of Law and Solving the “Copenhagen Dilemma”: Towards a New EU-mechanism”, European Commission – SPEECH/13/348.Google Scholar
  8. European Commission. (2014). Commission Communication COM (2014) 158. A New EU Framework to Strengthen the Rule of Law.Google Scholar
  9. European Commission. (2016a). Commission Recommendation (EU) 2016/1374 of 27 July 2016 Regarding the Rule of Law in Poland.Google Scholar
  10. European Commission. (2016b). Commission Recommendation COM (2016) 8950 of 21.12.2016 Regarding the Rule of Law in Poland Complementary to Commission Recommendation (EU) 2016/1374.Google Scholar
  11. European Commission. (2017a). Commission Proposal COM (2017) 835 final 2017/0360 of 20.12.2017. Reasoned Proposal in Accordance with Article 7(1) of the Treaty on European Union Regarding the Rule of Law in Poland.Google Scholar
  12. European Commission. (2017b). Commission Recommendation COM (2017) 5320 of 26.7.2017 Regarding the Rule of Law in Poland Complementary to Commission Recommendations (EU) 2016/1374 and (EU) 2017/146.Google Scholar
  13. European Commission. (2017c). Commission Recommendation COM (2017) 9050 of 20.12.2017 regarding the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520.Google Scholar
  14. European Commission. (2017d). Commission Report (2017) Annual Report on the Application of the EU Charter of Fundamental Rights, COM (2018) 396.Google Scholar
  15. European Commission. (2018). Rule of Law: European Commission Refers Poland to the European Court of Justice to Protect the Independence of the Polish Supreme Court. Press release, 24 September 2018.Google Scholar
  16. European Parliament. (2013). European Parliament Study on The Triangular relationship between Fundamental Rights, Democracy and the Rule of Law in the EU – Towards an EU Copenhagen Mechanism (PE 493.031).Google Scholar
  17. European Parliament. (2015a). European Parliament Resolution of 10 June 2015 on the Situation in Hungary (2015/2700(RSP)).Google Scholar
  18. European Parliament. (2015b). European Parliament Resolution of 8 September 2015 on the Situation of Fundamental Rights in the European Union (2013–2014) (2014/2254(INI)).Google Scholar
  19. European Parliament. (2015c). European Parliament Resolution of 16 December 2015 on the Situation in Hungary (2015/2935(RSP)).Google Scholar
  20. European Parliament. (2016). European Parliament Resolution of 13 April 2016 on the Situation in Poland (2015/3031(RSP)).Google Scholar
  21. European Parliament. (2017). European Parliament Report (2017) on a Proposal Calling on the Council to Determine, Pursuant to Article 7(1) of the Treaty on European Union, the Existence of a Clear Risk of a Serious Breach by Hungary of the Values on Which the Union Is Founded (2017/2131(INL)).Google Scholar
  22. Kagan, R. (2003). Of Paradise and Power: America and Europe in the New World Order. New York: Alfred A. Knopf.Google Scholar
  23. Kochenov, D. (2004). Behind the Copenhagen Façade: The Meaning and Structure of the Copenhagen Political Criterion of Democracy and the Rule of Law. European Integration Online Papers, 8(10), 1–24.Google Scholar
  24. Kochenov, D. (2008). EU Enlargement and the Failure of Conditionality: Pre-accession Conditionality in the Fields of Democracy and the Rule of Law. The Hague: Kluwer Law International.Google Scholar
  25. Kochenov, D. (2016). The Missing EU Rule of Law? In C. Closa & D. Kochenov (Eds.), Reinforcing Rule of Law Oversight in the European Union. Cambridge: Cambridge University Press.Google Scholar
  26. Kochenov, D., & Pech, L. (2015a). Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality. European Constitutional Law Review, 11(3), 512–540.CrossRefGoogle Scholar
  27. Kochenov, D., & Pech, L. (2015b). Upholding the Rule of Law in the EU: On the Commission’s ‘Pre-Article 7 Procedure’ as a Timid Step in the Right Direction. European University Institute Working Papers. 24(2015). Florence: European University Institute.Google Scholar
  28. Pech, L., & Schappele, K. (2017). Illiberalism Within: Rule of Law Backsliding in the EU. Cambridge Yearbook of European Legal Studies, 19, 3–47.CrossRefGoogle Scholar
  29. Pech, L., Wennerström, E., Leigh, V., Markowska, A., De Keyser, L., Gómez Rojo, A., & Spanikova, H. (2016, April). An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights. European Parliamentary Research Service. Available at SSRN: https://ssrn.com/abstract=2768938.
  30. Sadurski, W. (2010). Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement, and Jörg Haider, Sydney Law School Research Paper. 10(1). Available at SSRN: https://ssrn.com/abstract=1531393.
  31. Sasse, G. (2008). The Politics of EU Conditionality: The Norm of Minority Protection During and Beyond EU Accession. Journal of European Public Policy, 15(6), 842–860.CrossRefGoogle Scholar
  32. Toggenburg, G., & Grimheden, J. (2016). The Rule of Law and the Role of Fundamental Rights: Seven Practical Pointers. In C. Closa & D. Kochenov (Eds.), Reinforcing Rule of Law Oversight in the European Union. Cambridge: Cambridge University Press.Google Scholar
  33. Tuori, K. (2016). From Copenhagen to Venice. In C. Closa & D. Kochenov (Eds.), Reinforcing Rule of Law Oversight in the European Union. Cambridge: Cambridge University Press.Google Scholar
  34. United Nations. (2004). The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies. Report S/2004/616.Google Scholar
  35. United Nations. (2006). Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law. Report A/61/636–S/2006/980.Google Scholar
  36. United Nations. (2008). Strengthening and Coordinating United Nations Rule of Law Activities. Report A/63/226.Google Scholar
  37. United Nations. (2009). Strengthening and Coordinating United Nations Rule of Law Activities. Report A/64/298.Google Scholar
  38. Venice Commission. (2011). Document CDL-AD (2011) 003 rev.Google Scholar
  39. Von Bogdandy, A., Kottmann, M., Antpohler, C., & Dickschen, J. (2012). Reverse Solange-protecting the Essence of Fundamental Rights Against EU Member States. Common Market Law Review, 49(2), 489.Google Scholar
  40. Wennerström, E. (2007). The Rule of Law and the European Union. Uppsala: Iustus.Google Scholar
  41. Wennerström, E. (2014). The EU Commission Defines the Rule of Law and a Mechanism for Applying It Inside the EU. Europarättslig tidskrift 3.Google Scholar

Copyright information

© The Author(s) 2020

Authors and Affiliations

  1. 1.The Swedish National Council for Crime PreventionStockholmSweden

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