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To: Permanent Representatives Committee

Subject: Rule of law developments in the field of justice

- Presidency discussion paper

JHA Council, 2 December 2020

Rule of law developments in the field of justice

“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

(Dwight D. Eisenhower, President of the United States, United States Law Day address [1 May 1958])

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The rule of law is one of the common values on which the European Union is founded. It comprises a whole range of principles such as legality, legal certainty, prohibiting the arbitrary exercise of executive power, effective judicial protection by independent and impartial courts and effective judicial review including respect for fundamental rights, separation of powers and equality before the law. These principles have a direct impact on the life of every European Union citizen. While Member States have different legal and judicial systems with their respective traditions, the rule of law is a common core component, that is shared by all Member States.

European Rule of Law Mechanism

On 30 September 2020, the European Commission published its first Report on the rule of law situation in the European Union. The Rule of Law Report is part of the new interinstitutional Rule of Law Mechanism initiated by the Commission and operating on a yearly cycle to strengthen the rule of law and to prevent problems from emerging or deepening. In this respect, the new Rule of Law Mechanism provides a process for continued dialogue on the rule of law between the

Commission, the Council and the European Parliament together with Member States as well as national parliaments, civil society and other stakeholders. The objective is to take advantage of a preventive, inclusive dialogue in order to enhance mutual understanding, raise awareness of issues and significant developments in areas involving the rule of law, identify challenges and be in a position to offer support.

The first Rule of Law Report, which includes input from all Member States, sets out both positive and negative developments across the European Union in particular since January 2019. The topics covered by the report relate to four main pillars of the rule of law, namely national justice systems, anti-corruption framework, pluralism and freedom of the media, and other institutional issues related to checks and balances. The report acknowledges that the European Union is built on a solid rule of law foundation and that many Member States already meet high rule-of-law standards. However, the report also clearly points to the areas where major challenges still prevail.

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The first Rule of Law Report, including its first five country chapters, have already been the subject of discussions in the meetings of the General Affairs Council in October (general debate) and November 2020 (country-specific debate). These discussions shall not be duplicated. However, in addition to these horizontal discussions the first Rule of Law Report gives reason for targeted sectoral discussions in the JHA Council on justice specific matters: for example, mutual trust in the observance of rule-of-law standards in the judiciary is one precondition for the smooth functioning of instruments of judicial cooperation in the Union such as, in the context of judicial cooperation in criminal matters, the European arrest warrant. In recent years, the case law of the European Court of Justice (ECJ) has demonstrated what difficult issues may arise in this regard in individual cases. However, the report also shows that especially in the area of justice there are challenges that all Member States are faced with equally. These relate not only to the very current need to digitalise justice systems in the light of the COVID-19 pandemic as soon as possible but also, more

fundamentally, to judicial independence and its structural safeguards, quality and efficiency of the judiciary as well as to the need to provide comprehensive and effective access to law and justice. Sufficient personnel and financial resources of the judiciary are a prerequisite for all of this.

Judges in direct dialogue

The discussions between legislative and executive institutions of the Union and the Member States should be complemented by a direct exchange of the judiciary at practitioner level. After all, judges’ function is to ensure that EU law is applied and fundamental rights are protected in the European Union. The judicial networks operating at European level, including the European

Judicial Training Network (EJTN), have played a crucial role in recent years in training of judges in various fields.

At the informal JHA Council held in Zagreb on 23 and 24 January 2020, Germany put forward the idea of creating a European dialogue-forum for judges to exchange views explicitly on topics relating to the rule of law, and the integrity and independence of the judiciary; this forum could go by the name of “judges@europe”.

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We understand this term in a conceptual sense. As a starting point, it does not suggest the creation of a new structure. However, it would involve encouraging discussion between judges thus

facilitating a direct, open and equal exchange of views on topics involving judicial independence and integrity from the perspective of Europe’s differing legal and constitutional cultures. The question where this new forum would be located in organisational terms would need to be discussed at a later date. Likewise, this forum will go beyond targeting only those judges and prosecutors who regularly participate in cross-border training exercises or attend practitioners’ meetings. In this way, the primary importance of the rule of law can be shown both within and outside of the judicial system.

In light of the above to kick off a dialogue on justice specific topics on the rule of law the Ministers of Justice are invited to exchange views on the following questions on the basis of the first Rule of Law Report published by the Commission:

1. Which justice-related aspects, developments and best practices of the rule of law do you consider to be particularly important, especially with regard to judicial independence and the quality and efficiency of the justice system?

2. In your view, could it be beneficial to encourage judges to participate in the exchange of views on fundamental European values and on the rule of law? A dialogue forum (possibly called "judges@europe") in which the different legal and constitutional traditions also have their place and which facilitates an open exchange of views on equal terms concerning the values that bind all Member States?