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Equal under the Rule of Law: Virtues and weaknesses of the Rule of Law Mechanism

Updated: 9 minutes ago


Professor Tudorel TOADER                                                        Professor Marieta SAFTA

University Al I Cuza – Iași,                                          University Titu Maiorescu – Bucharest

       Faculty of Law                                                                                   Faculty of Law


The integrative and equalising role of the principle of the rule of law


The diversity of issues raised by the development of the European Union (EU), the combination of “ingredients” that characterise the specific tensions of the European legal order, as well as the democratic backsliding tendencies from various periods in the regional and global context has led to a continuous effort to identify appropriate solutions for preserving and strengthening EU unity. Since this unity depends, to a large extent, on equal partnerships, it is essential that the answers found are to protect and support the idea of equality of the MS. From this standpoint, the rule of law, acknowledged as a universal value and enshrined in Article 2 of the Treaty on European Union (TUE), has emerged as a wise solution to support the EU’s development as a community of equal partners. However, for the rule of law to function effectively as the basis of European integration, it must promote equality. The efforts to establish and implement a Rule of Law Mechanism, built on previous experiences with conditionality mechanisms, represent significant progress in this regard while also presenting new challenges.


Rule of Law Mechanism, steps and support


In order to achieve the rule of law in the EU, several instruments have been developed and tested. Nevertheless, these instruments have limitations either in terms of their enforcement/assessment scope (such as the EU Justice Scoreboard) or in terms of the countries involved (such as the Cooperation and Verification Mechanism - MCV, imposed on Bulgaria and Romania upon accession[1]). Despite the limited scope, their practice was very useful not only for settling specific issues, but also for guiding towards the identification of a more comprehensive framework and assessment tools. In this regard, the Rule of Law Mechanism, institutionally described as “a process for an annual dialogue between the Commission, the Council and the European Parliament together with MS as well as national parliaments, civil society and other stakeholders on the rule of law”[2] is a result of a complex evolution, placing all MS, although they have “different national identities, legal systems and traditions”[3] on equal position in terms of the fact that “the core meaning of the rule of law is the same across the EU”[4].

This development and the enforcement of the new mechanism benefited from both political and jurisdictional support.

As for the political support, the Mechanism was designed as an inter-institutional cooperation, using instruments like the Rule of Law Report in order to monitor significant developments in the MS, and also the Network of the National Contact Points on the Rule of Law, and the National Rule of Law Dialogues, meant to bring at the same table all significant national and EU stakeholders. Further, it was adopted the Rule of Law Conditionality Regulation, also known as Regulation 2020/2092[5], which gives the Commission the power to propose measures to the Council, such as suspending EU payments, if a country’s breach of the rule of law directly impacts the EU budget’s financial management or the protection of EU financial interests. Although initially designed for financial conditioning, this mechanism aligns with and adapts to the overall development of the Rule of law mechanism, driven by the integrative and equalising role we discussed in the introduction (on the website of the EU Commission it is mentioned in this regard that “the Commission’s annual Rule of Law Report, decisions by the Court of Justice of the European Union, reports from the European Court of Auditors, as well as conclusions by relevant international organisations are all feeding into the Commission’s analysis”[6]).

As for the jurisdictional support, a development with a catalytic role for the political one was the pronouncement of the judgments in the Cases C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council, by which the Court of Justice of the European Union (ECJ) defined the EU constitutional identity as the key of the rule of law. The importance of this decision has been emphasised in numerous studies, highlighting both its significance in terms of rejecting “abusive practices involving constitutional identity arguments”[7] (used by some constitutional courts in MS), and its role as “greenlight” for the rule of law conditionality mechanism[8]. In the same vein, it is interesting to note the evolving dialogue among the European constitutional courts, including the ECJ. Since 2021, a new form of cooperation has been established, reflecting the EU motto “unity in diversity”, particularly as it pertains to the rule of law. Thus, in September 2021, a Conference was organised in Riga under the title of “EUnited in diversity: between common constitutional traditions and national identities”, and in September 2023, a second edition was organised under the title“EUnited in Diversity II: The Rule of Law and Constitutional Diversity”, characterised in the communiqués of the participating constitutional courts as being “a sequel to a previous conference”[9]. The first edition was hosted by the Constitutional Court of the Republic of Latvia, and the second was organised by the ECJ, the Constitutional Court of Belgium, the Constitutional Court of Luxembourg and the Supreme Court of the Netherlands, enjoying the participation of the EU constitutional courts as well as of the European Court of Human Rights. Both Conferences addressed key issues of the cooperation under the Rule of Law.


Rule of Law Report and the principle of equality in various areas of assessment


From the perspective of the equalising virtue of the Rule of Law Mechanism, we consider particularly suggestive the construction and results of the Rule of Law Report, as a preventive tool to analyse the main positive and negative developments in terms of the rule of law and the specific situation from each MS.

The Rule of Law Report (as part of the Rule of Law Mechanism) covers four pillars: the judiciary, the anti-corruption framework, media pluralism and other institutional aspects related to the system of checks and balances. Even though “only” four, through the conception that underlies them, the pillars comprise the entire constitutional architecture of the MS and, implicitly, of the EU. Practically, none of the essential criteria of the rule of law “escapes” verification. In this regard, we recall the catalogue developed by the Venice Commission under the title “Rule of Law Checklist”[10], which includes the main dimensions: legality; legal certainty; prevention of abuse or misuse of powers; equality before the law and non-discrimination; access to Justice. Equality is not identified as a separate pillar, nor is it necessary, because upon analysing the framework and the evaluations presented in the five annual Reports (2020-2024), we will see that equality is a fundamental principle that cuts across all pillars, reflected in the subject of the assessment as well as in the types of assessment methods used.

Thus, as regards the subject of verification, it can be observed that in the pillar dedicated to the judicial system, the independence, quality, and efficiency of the judicial system, assessed within the Mechanism, should uphold the right to a fair trial based on the principle of equality. The anti-corruption framework, encompassing both institutional and preventative/repressive aspects, primarily aims to promote equal opportunities for all EU citizens. Media pluralismcontributes to equality by safeguarding freedom of expression and ensuring universal access to information of public interest. As for institutional aspects related to the system of checks and balances, the component related to legal certainty and the quality of the law is particularly relevant because equality before the law requires, first of all, ensuring the same standard of quality of the law within the EU.

As for the type of assessment, the European Commission expressly mentions “the qualitatively assess all MS, whilst remaining proportionate to the situation and developments in full respect of the principle of equality of Member States”[11]. The dialogue method[12], which is the basis for the construction of the Reports, emphasises the same idea of ​​equality among the States in the relationships with the EU, among the EU institutions, of the different stakeholders involved, in achieving the common objective, meaning respect for the rule of law (understood in the same meaning).


A comparison with the Mechanism of Verification and Cooperation


The Rule of Law Report is very similar in terms of methodology to the Reports adopted within the framework of the Cooperation and Verification Mechanism (CVM)[13], which was designed as a temporary measure to help Bulgaria and Romania to address deficiencies in specific areas of interest. In both cases, the MS are continuously analysed and monitored through dialogue between national authorities and Commission services. Input is sought from civil society, international organisations, independent experts, and various other sources. The Commission then provides regular progress reports and formulates recommendations based on the information gathered.  From this perspective, it can be stated that the Rule of Law Mechanism capitalises and continues the experience of CVM. This idea is supported by the declarations of the President of European Commission in the context of the lifting of the CVM:“I would like to congratulate Bulgaria and Romania for the significant progress they made since their accession to the EU. The rule of law is one of our fundamental common values as a Union and both Member States have delivered important reforms in these past years. Today, we recognise these efforts by putting an end to the CVM. Work can now continue under the annual rule of law cycle as for all Member States.”[14] In this light, the thesis according to which the Rule of Law Report is not designed to have enforceable legal effects[15] is debatable since the experience of CVM Reports offers a model of enforcement.

Keeping common features with instruments developed over time, the rule of law mechanism appears as a significant evolution and “maturation” in the approach to European integration.

First, the Rule of Law Mechanism conveys the idea of ​​equality and solidarity around common values as equal partners, involving both the MS and EU institutions. In this regard, the first report of 2020 emphasises the “common and objective basis” of the Rule of Law Mechanism, namely “to examine all member states equally”. This virtue can be also approached in terms of the sensitivities inherent in an association of States characterised by diversity. The differences between the oldest and newest members, reflected in the general perception at the EU level, with all the related subjective load (including the perception of the citizens), can make the process of integration, institutional trust, and consolidation of EU constitutionalism difficult. A general mechanism in terms of recipients can be seen as placing states and citizens on equal footing in the EU, under the umbrella of the same values, requiring have a common meaning, regardless of the origin of European citizens and their historical-economic-cultural space. Rule of Law Mechanism appears as a better political approach because it helps create a sense of belonging among states as equal partners.

The second specific feature concerns the comprehensive nature of the rule of law. As we mentioned earlier, the rule of law encompasses all aspects of the organisation and operation of a democratic state. As a result, the rule of law can be seen as an important tool for promoting and protecting democracy.

The third feature encompasses the strategy of the Rule of Law Mechanism, based on dialogue and prevention rather than verification. The dialogue has led before to the identification of solutions through the power of example, collaboration and cross-fertilisation, using the network of contact points and the instrument of good practices. Based on previous experiences, this collaborative and proactive approach provides more effective enforcement instruments than the “verification” approach. The strengthening of the legal force of soft law instruments based on the jurisprudence of the ECJ should also be taken into consideration.  Pointing out in this regard the preliminary referrals addressed to the ECJ by the Romanian courts of law on the issue of whether the requirements and recommendations formulated in the European Commission reports adopted pursuant to Decision 2006/928 establishing the CVM are binding for Romania, and if so, to what extent. In its response, in Joined Cases C-83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19 Asociația “Forumul Judecătorilor din România” and Others, the ECJ invoked the principle of sincere cooperation, establishing that the benchmarks established by the decision to establish the CVM “are intended to ensure that this Member State complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, in the sense that the latter is required to take the appropriate measures for the purposes of meeting those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of Decision 2006/928, and in particular the recommendations made in those reports.”

The Rule of Law Report and recommendations currently addressed to all MS every year can be now approached based on these coordinates, which, nevertheless, raises specific challenges. The adoption of the Rule of Law Conditionality Regulation can be viewed as a response to some of these challenges, albeit with a limited scope.


 Perspectives and challenges. Not the Mechanism in itself. The power of “soft law”


The Rule of Law Mechanism has been the subject of various analyses, both appreciation and criticism being expressed. We agree that “it is a good and solid addition to the toolbox of the EU”[16], but “it is not a miracle solution for all of the EU’s problems; much will still depend on the Commission’s and Member States’ willingness to use it”[17]. However, the Rule of Law Mechanism has gained political and jurisdictional support as a new stage in the development of conditional mechanisms. This goes beyond different sectorial approaches, and is more effective in terms of results than the previous tools of the EU. At this point, it is essential to maintain a healthy balance between assessment and recommendation while also considering the concept of diversity as a fundamental principle of the EU. As the President of the European Court of Human Rights concluded her speech in the most recent Conference of Constitutional Justice on the rule of law, “the delicacy, solidity and balance of the kinetic structure which has served us in Europe so well, points to the need for sensitivity and care, at both national and European level, if, when and how we seek to realign component parts. After all, the point of all our endeavours is not the mechanism itself, but the peace, security, unity, mutual trust and treasured diversity which our multi-level system seeks to foster and protect”[18]. The previous “tree-like” development of the CVM, in the sense of developing an increasing number of recommendations and targets over 15 years of operation, can be a useful experience which all parties involved have something to learn from in terms of the success of the assessment the tools.

As regards the enforcement of the instruments of soft law provided also by the Rule of Law Mechanism, constitutional justice is offered and could be a further support. However, a clarification of the legal force of what is usually defined by the expression “soft law”[19] in the EU appears essential. The divergence created regarding the assessment of the legal value of the CVM Reports and Recommendation, the arguments of the ECJ in its case law, like the joined cases of the Forumul Judecătorilor (Forum of Judges) referred to previously, the developments and subsequent debates support the idea of reflection and analysis to advance a legal toolkit to evaluate the effectiveness of EU soft law. However, even with the support of the Courts, the instruments of soft law do not provide a quick response in situations of high risk threatening the rule of law within the EU, and remain vulnerable to potential issues arising from new state accession. At this stage, now that all MS are consistently assessed for adherence to the rule of law, introducing additional conditional mechanisms for specific states or groups of states at the moment of accession (like CVM) could create issues due to overlapping and different treatment, which can raise sensitivities and conflicts from the same perspective of the principle of equality.


[1] Decision 2006/929/EC establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and the fight against corruption and organised crime; closed in 2023, OJEU series L 229 of 18 September 2023. 

[3]  See the 2020 Rule of Law Report. The state of the rule of law in the European Union, Available at https://eur-lex.europa.eu/legal-content/RO/TXT/HTML/?uri=CELEX:52020DC0580, accessed on 14 June 2024.

[4] Ibidem.

[5] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, Available at https://eur-lex.europa.eu/eli/reg/2020/2092/oj.

[7] Faraguna, Pietro; Drinóczi, Tímea: Constitutional Identity in and on EU Terms, VerfBlog, 2022/2/21, https://verfassungsblog.de/constitutional-identity-in-and-on-eu-terms/, DOI: 10.17176/20220222-001059-0.

[8] Pech, Laurent: No More Excuses: The Court of Justice greenlights the rule of law conditionality mechanism, VerfBlog, 2022/2/16, https://verfassungsblog.de/no-more-excuses/, DOI: 10.17176/20220217-001101-0.

[10] Available at

https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf, accessed on 12 June 2024; this catalogue, also used as a reference in the EU was suggestively described «as operational qualitative-oriented framework of the rule of law measurement framed around the Venice Commission’s rule of law criteria», see QerimQerimi, Operationalising and Measuring Rule of Law in an Internationalised Transitional Context: The Virtue of Venice Commission’s Rule of Law Checklist, in  Law and Development Review 2019; aop, Available at https://www.venice.coe.int/files/articles/Qerimi_Rule_of_Law_LDR_2019.pdf

[12] which revealed its virtues in the practice of constructing the opinions of the Venice Commission, already successfully applied and accepted by the member states of the Council of Europe, see https://www.venice.coe.int/WebForms/pages/?p=01_activities&lang=EN.

[13] Introduced in 2007, upon the accession of Bulgaria and Romania to the EU and closed in 2023, OJEU series L 229 of 18 September 2023. 

[15] Bauerschmidt, Jonathan, The Rule of law in the European Union and the Toolbox to defend it: art. 7 TEU, Rule of Law Report and Dialogue, Budgetary Conditionality, in The rule of law under threat, Botter, Robert, Blanke Hermann-Josef (eds), p. 218.

[16] Thi Nguyen, The EU’s new rule of law mechanism How it works and why the ‘deal’ did not weaken it, Available at https://www.hertie-school.org/fileadmin/2_Research/1_About_our_research/2_Research_centres/6_Jacques_Delors_Centre/Publications/20201217_Rule_of_law_Nguyen.pdf.

[17] Ibidem.

[19] Ștefan, Oana (2022), „Defending the rule of law between the new governance and ruling”, CJEU and CCR, Identities in dialogue, coordinator Valeriu Stoica, Eunomia, Universul Juridic, Bucharest, pp. 430-463.

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