Commissioner Reding’s New Power Grab

November 4, 2013

Just when you thought it was safe to relax, bureaucrats in Brussels have announced plans to expand the European Commission’s powers over the judicial matters of EU Member States. Under the pretext of defending and strengthening the “rule of law”, President José Manuel Barroso and Commissioner for Justice, Viviane Reding, have both spoken separately about the need for a new legal framework for all of Europe. The reasoning behind this proposal turns out to be misleading and problematic.

In this year’s “State of the Union Speech”, delivered on 11 September 2013 at the European Parliament in Strasbourg, European Commission President Barroso announced plans to address “challenges to the rule of law” in Member States. The idea, he said, was to “make a bridge” between targeted infringement procedures on the one hand and “total suspension of a member states’ rights”.

A Power Grab in the Making …

But many more details about the ideas behind the plan were provided a week earlier in a speech given by Reding at the Center for European Policy Studies (CEPS), a Brussels think-tank. She first asserted that the EU’s success depends very much on the proper functioning of each Member States’ judicial systems. Otherwise there can be serious repercussions on the EU as a whole, she said. In fact, she added, there can even some instances when EU legislation must be enforced by national judicial systems, rather than by the Court of Justice of the European Union (CJEU). So far, so good.

Crises, Crises Everywhere …

Reding then went on to make several audacious claims that reveal the true extent of the power grab animating this new legal reform proposal.

First, she said that in the last few years several Member States have faced crisis that have “revealed systemic rule of law problems”. According to her, these included the 2010 “Roma crisis” in France when the rights of a minority were at stake, the 2011 “Hungarian crisis” during which the independence of the judiciary was supposedly in question, and the 2012 “Romanian crisis” when a lack of respect for constitutional court judgements “threatened to undermine the rule of law.”

In each case, Reding argued, only the European Commission had been able to deal with things successfully. Therefore, the European Commission should henceforth get more power over the Member States in what she called “rule of law”-enforcement.

Three Concrete Proposals

In order to improve the Commission’s ability to deal with such situations in the future, Reding said it needed new instruments — to fill the gap between existing targeted infringement procedures, which the Commission can use whenever a Member State has violated its EU obligations, and the procedure under Article 7 of the TEU (Treaty on European Union), which can lead to temporary suspension of a Member State’s membership rights.

To this end, Reding made three concrete proposals: (1) strengthen the role of the Commission and the CJEU within Article 7 TEU, (2) confer additional competences to the EU Fundamental Rights Agency (FRA), and (3) extend the scope of the EU Fundamental Rights Charter to all actions by individual Member States (currently it only applies to the EU itself).

The Meaning of the Rule of Law

But Reding’s proposals raise questions about her understanding of the “rule of law” (Reding herself has no legal training). Her comments seem to suggest that the rule of law must be established by centralizing and coordinating functions more closely out of Brussels.

In actual fact, the rule of law is derived from the principle of the separation of powers: Legislative powers make laws, executive powers apply them and — in case of a dispute — the judiciary interpret them. Thus, any dispute over the precise interpretation of a particular law is to be settled by the judiciary and its decision is to be respected.

If these conditions are met, then one can truly say that there is “rule of law”. If, however, a government fails to base its actions on the law, or a legal dispute is not resolved by an independent judiciary, or a judicial decision is not respected, then the rule of law has been undermined.

Three Dangerous Mis-diagnoses

The three examples of rule of law “crises” used by Reding in her speech (France, Hungary and Romania) tell us a lot about the assumptions and biases behind her proposals — and the direction in which she wants to take the EU.

While each case may be considered an example of political instability, not one supports her claim that EU institutions need additional powers to ensure the rule of law. Furthermore, Reding appears to call a “rule of law crisis” anything that turns out to rather be an unwanted political move or action by a Member State in her view.


What Reding called the “Roma crisis” in France in the summer of 2010 resulted from the French government’s decision to repatriate thousands of Romanian and Bulgarian Roma. Never mind that they had been squatting illegally in parks and public places, and had no legal residence permits. Instead, Reding sees them as a persecuted minority and the response of the government as a crisis in the rule of law.

Even though they lacked any legal foundation, Reding and her colleagues fiercely criticized the French government’s decision on humanitarian grounds and considered it a “rule of law crisis”.

While a lack of charity may have certainly been a valid criticism of the government, it was entirely absurd to speak of a rule of law “crisis”. In fact, the French Government’s actions were entirely legal under both EU and French law. Indeed, a strict rule of law principle would require a government to forcibly expel illegal squatters who do not hold residence permits.

Despite Reding’s agitation, the Commission ignored her accusations and chose not to bring the matter to the CJEU. Nevertheless, three years later, she continues to refer wrongly to the event as a “rule of law crisis”, wilfully ignoring the fact that had there truly been a rule of law crisis, the Commission would have tried to prove it in court.


Reding also spoke of a “Hungarian crisis”, which she said resulted from the promulgation of a new constitution by the government of Prime Minister Viktor Orban. Of course, there is nothing wrong with a European democracy seeking constitutional amendments — even without a popular referendum — when it has a majority: Orban’s conservative Fidesz Party had gained a two-thirds majority in parliament after their 2010 electoral victory.

But the constitutional reforms drew sharp international criticism from left-wing and liberal members of the European Parliament. Former Belgian Prime Minister and current MEP Guy Verhofstadt criticized the constitution’s traditional definition of marriage, complained about its stipulation that life begins at conception and expressed concern over its preamble which referred to “God”.

Ironically, it was the bullying actions of such critics that should have raised concerns about threats to Hungary’s rule of law. The European Commission, however, sided with Hungary’s critics and began to evaluate whether the new government posed a threat to democracy.

In the end, the EU identified three areas of concern in Hungary: the regulation of the media, the independence of the central bank and the forced retirement (by lowering the compulsory retirement age) of a number of judges. Formal proceedings began to bring these matters before the CJEU. The first two issues were settled quickly and Hungary agreed to amend its laws; but the issue of the retired judges became the subject of a legal proceeding before the CJEU.

A condemnation was issued against Hungary for having violated Directive 2000/78/EC — which prohibits workplace discrimination on the basis of, inter alia, age. Hungary abided by the judgment and changed the decision accordingly.

So, Reding’s so-called “Hungarian crisis” really came down to a single, questionable judgment on alleged “age discrimination”. But she continues to call it a rule of law crisis, ignoring the fact that the Hungarian government readily accepted the CJEU’s final judgment. The truth is that the government’s response says more about the proper functioning of the rule of law — the appeal to a competent judicial authority and the abiding by its final judgement — than its “crisis”.


Reding’s final example of the “Romanian crisis” may be the only one that could even come close to being called a rule of law “crisis”. It occurred when the newly elected (Socialist) government of Prime Minister Victor Ponta in 2012 sought to illegally remove sitting State President Traian Băsescu, a conservative, from office. When Ponta’s government openly refused to abide by the judgment of the Constitutional Court — which had ruled against a referendum to impeach Băsescu — tensions escalated.

A situation in which a government ignores the decision of a constitutional court is undoubtedly a “rule of law crisis”. Nevertheless, this was strictly speaking, a breach of Romanian constitutional law. Thus, it could more appropriately be described as a “political crisis”. From a legal point of view, the Commission had no legal competence in the situation since the case did not involve a breach of EU law. Nevertheless, Commission President Barroso and Council President Herman van Rompuy intervened to help find a political solution, and an agreement was eventually signed by both Mr. Ponta and Mr. Băsescu.

Though interesting, the Romanian example fails to lend any support to Reding’s claim that EU institutions need additional powers. It is unclear what would have been different if additional powers had been available to the Commission. To be sure, the procedure under Article 7 TEU could have been used; but it wasn’t necessary. Without a more detailed analysis of that situation, her case for strengthening the EU’s intervention mechanism seems rather weak.

Reding’s Proposals to Expand EU Power

On the basis of these dubious examples, Commissioner Reding then made three problematic proposals for dealing with future “rule of law crises”.

First, judicial enforcement of Article 2 TEU.

Reding and her colleagues want to “expand the role of the Court of Justice in any future mechanism on the rule of law.” Currently the CJEU can only verify whether Article 7 TEU procedural rules have been followed; but Reding proposes “creating a new specific procedure to enforce the rule of law principle in Article 2 TEU against Member States”. In effect, this would entail “an infringement procedure” that could be brought before the CJEU by the Commission — or any Member State.

In this way, the CJEU would acquire a new competence to assess each Member State’s compliance with its specific obligations under EU law (and the rule of law in general). So, instead of citing a violation of a specific provision in a particular directive or regulation, it would suffice for the Commission to accuse a Member State of not respecting a given law. This would in effect greatly expand the Commission’s ability to bring cases to the CJEU, while strengthening the CJEU’s ability to impose sanctions on Member States solely on the basis of vague interpretations of the rule of law principle.

Reding’s reference to Article 2 TEU raises the question whether such new powers would be limited to the rule of law alone or whether they would eventually be extended to include other fundamental values in the Article — such as “human dignity”, “freedom”, “democracy”, “equality”, “rights of persons belonging to minorities”, “pluralism”, “non-discrimination” or “tolerance”. Could the Commission file a case against a Member State merely because its government is seen as “intolerant”? Would a condemnation issued by the CJEU oblige all Member States to take action against that government? These are critical questions raised by the Commissioner’s proposals.

Part of the problem stems from Reding’s apparent confusion over the difference between “laws” and “values”. The values mentioned in Article 2 TEU are not legal but rather political commitments; so any action against a government alleged to have disrespected those values should be a political rather than a judicial action. The rule of law, however, can only truly be respected when judicial power is strictly limited to the enforcement of precise rules — not the imposition of abstract “values”. But when judicial power is given far-reaching competences to issue condemnations and sanctions on the basis of vague concepts, it is undermined and threatened. This is precisely what Reding’s proposal entails.

Second, an extended mandate for the FRA.

Reding wants to extend the mandate of the EU Fundamental Rights Agency (FRA), which currently can only analyse fundamental rights issues at the EU level (and is barred from analysing national situations). By broadening its mandate, the FRA could begin to prepare individual reports on each Member State (even when that state is not required to implement all EU policies).

This would only exacerbate already existing issues. Questions already abound about the FRA’s role within the institutional framework of the EU. The politicians who set it up in 2008 (at a cost of more than €20 million per year) didn’t quite seem to know why it was needed. With the European Court of Human Rights (ECHR) and the CJEU already in place, there really was no need for another monitoring body with quasi-judicial powers, so the FRA was given a narrower task: provide EU institutions and Member States with “assistance and expertise relating to fundamental rights”.

But there are hundreds of European law faculties, many of which include specialized research institutes that deal precisely with fundamental rights issues. There are also thousands of specialized researchers, human rights activists, lawyers, judges and other experts across Europe. So, to assert that the FRA was created to be the sole provider of expertise seems disingenuous.

More importantly, the very existence of the FRA can stifle debate and risks shutting out unwelcome opinions. In fact, the truth is that the FRA has already chosen only certain civil society actors for involvement in its work and has created a Europe-wide network of like-minded NGOs to feed into the political process. The content of its “Fundamental Rights Platform”, for example, was developed only with input from organizations pre-selected by the FRA’s director.

Extending the FRA’s mandate may seem like the most “harmless” of Reding’s proposals; but it might be better, given the already existing confusion, for the Commission to develop a clearer vision of the FRA’s role and function. If the FRA is to be a political player, then it needs stronger democratic legitimacy. If it is to fulfil a quasi-judicial function, then it should be staffed with independent judges (not academics), and any overlap with the ECHR and the CJEU should be avoided. And if it is to provide academic expertise, then it should allow a broad diversity of organizations across Europe to participate.

Third, eliminate Article 51 of the EU Fundamental Rights Charter.

Reding’s last proposal would eliminate Article 51 of the EU Fundamental Rights Charter, which delineates the Charter’s provisions which are addressed “to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”. The Article stipulates that they shall “respect the rights, observe the principles and promote the application thereof in accordance with their respective powers” and states that the Charter “does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties”.

However, removing Article 51 would extend the application of the Fundamental Rights Charter to all administrative and legislative action in Member States. The CJEU would then acquire jurisdiction to hear cases relating to alleged violations of “fundamental rights” in all Member States, which (according to the Charter) include not only “classic” human rights (such as the right to life, freedom of opinion, freedom of conscience, freedom of opinion, etc.) but also innovative new rights such as the “right to a high level of consumer protection”, the “right to a good administration”, the “right to cultural diversity” and many others.

This would imply an extension of the Commission’s powers, which could then launch infringement procedures on any alleged violation of any of the rights listed in the Charter — regardless of whether it concerns systemic issues or individual cases, whether it has occurred in the context of implementing EU law or whether it has even fallen within an EU competence.

Such infringement procedures could concern anyone and everything, without limits or boundaries. Indeed, if adopted, Reding’s proposal would create a new judicial super-structure: This means that the Commission could file infringement cases on everything that goes on in Europe — and the CJEU would hear and decide those cases. Obviously, this could lead to competence conflicts not only with national-level judicial systems and constitutional courts, but also with the ECHR, which usually hears cases that are brought by individual applicants who have exhausted their options at the national level. Under Reding’s proposal, however, the CJEU would hear every case brought by the Commission, regardless of whether any proceedings had already taken place at the domestic level and whether national-level options had been exhausted.

In such a “turf war” between law courts, because the sanctions that the CJEU can impose by far exceed those available to the ECHR, the ECHR would probably end up being relegated to ‘second rank’.

Unconvincing Examples & Weak Reasoning

It is too early to tell whether Commissioner Reding’s opinions in her CEPS speech represent those of the Commission. Certainly her weak reasoning underlying her description of “rule of law crises” in France, Hungary and Romania remains unconvincing; and her controversial proposals are likely to re-surface once the Commission announces the new framework.

It is also important to remember that the purpose of Article 7 TEU is to preserve the rule of law within the Union not in individual Member States. This is often forgotten by those (like Reding) seeking to give a broader mandate to EU institutions. Her solution to the alleged problem of the rule of law in Member States is to set up a judicial super-structure with jurisdiction over everything, under the assumption that giving the judiciary unrestricted power is the best way of preserving the rule of law. But it is a dangerous thing to conflate the “rule of law” with the “rule of judges”.

Changing the Balance of Power

Reding’s proposals would completely re-define the existing balance of power in the EU. This would affect the relationship between the EU and its Member States, as well as the relationship between different EU institutions. Under her proposals, there would be no policy area left under the control of Member States; everything would ultimately be subject to the CJEU’s jurisdiction — including matters such as taxation, culture, education, family law, criminal law, etc.

This would give the CJEU an extremely broad margin of interpretation. In the end, the CJEU might not be able to resist the temptation of an “expansive jurisprudence” and base its legal interpretations on a perceived “emerging consensus” rather than on the rules agreed upon by Member States.

Reding’s Power Shift & the Misrule of the Law

In short, Reding’s proposals would lead to a fundamental power shift between the EU institutions. The CJEU could eventually be the de facto unchallengeable supreme institution in the EU. It could assume the role of an omnipotent legislator, which would reduce the importance of secondary EU legislation — and eclipse the EU’s legislative institutions. This could create a temptation for the Commission to pursue policy objectives not through legislative proposals but through a systematic use of “strategic litigation”.

In other words, rather than going through the tedious process of holding discussions and searching for political compromises with Parliament and the Council, the Commission could quite simply bring cases to court, hoping that favourable judicial rulings will make political discussions unnecessary.

Given these possible outcomes, Reding’s proposals should raise serious concerns. While there is no doubt that it is important for the EU to preserve the rule of law within each Member State and within its own institutions, Reding’s ideas go far beyond simply preserving the rule of law.

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