Values, norms, obligations – or what?

by Bob Cox

What is “DRF” – and why has the EU got itself into a pickle about it? Are some member States trashing the rules? Remember – in the EU we are proud of calling ourselves a community of values. That’s the starting point. But how do we protect those values?

By rule of law. Few EU citizens grasp this essential fact about the EU. National and local politicians, nearest to citizens, rarely mention it. The EU is a system based on rule of law; EU law has primacy over national law. That means – when there’s a conflict between national law and EU law, EU prevails. Watching over that respect for that principle are the European Commission and Parliament, of course. And ultimate arbiter is the European Court of Justice (ECJ) – the EU’s Supreme Court in language people would understand.

Instead of historical brute rule by Vikings, Frankish warlords, various Napoleons, Stalins, Hitlers and their kin, the EU has created a common rule of consensus, anchored in democracy and primacy of EU law.

How? The Lisbon Treaty on European Union (TEU) enshrines protection of fundamental rights in EU law with a legally binding Charter of Fundamental Rights. Article 2 of the TEU says: ‘the Union is based on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. It provides for a sanction mechanism in the event of a ‘serious and persistent breach’ by a member State of those values. The EP can call for application of these sanctions and must consent to their implementation. Elsewhere there is a Treaty reference to “respect for fundamental rights and the different legal systems and traditions of the member States”. Poland’s de facto leader, Jaroslav Kaczynski, sees that as argument for putting popular will above European law.

This is when the problems start. Several eastern and central European (ECE) states, still struggling to throw off anti-libertarian heritages from their all too recent past, smart at what they see as being treated as errant schoolboys by paternalist “western” EU partners. A key plank in Brexit too is rejection of the authority of the ECJ.

It is relatively straightforward to identify member States failing to apply directives and regulations for carbon emissions, trade restrictions, bathing water norms, safety instructions and so on. Few member States have a clean record on this score. Applied democracy, rule of law and human rights (DRF), is much more open to interpretation. For example, all member States: legislate NGOs – especially financially and fiscally; have laws governing higher education – some more than others, especially where public universities are concerned; have press and media laws. Nor is it easy classify individual abuses – albeit repeated – axiomatically as deliberate policy. But in a number of the newer member States patterns of abuse have emerged.

An anecdote says much. On the eve of the Mitteleuropa enlargement a learned lady from a candidate country told this author: "They (the political class) are behaving themselves impeccably in the run-up to membership. Once in the EU they'll revert to their bad old habits." She proved right. Old totalitarian reflexes have sought to harass media freedom and fostered constitutional abuse in many of these countries. 

So, shouldn’t the EU avoid “western” paternalism, respect those “fundamental rights and the different legal systems and traditions”, forget about DRF and stick to a core mandate of economic affairs? No modern democracy – nation state or EU – can simply hive off economics from DRF in some sort of Orwellian “1984” world, while still paying lip service to the rights of welfare, social & political participation, and consent of its citizens. Many citizens – recent elections have shown - are fed up with sensing that governments and political institutions, are more sensitive to the siren-songs of business than to voters who put these governments into power in the first place.

Article 7 of the TEU provides an ultimate “nuclear option” against a recalcitrant member State. This can include suspending that state’s voting rights. Like nukes in the Cold War, Article 7 is primarily conceived as a deterrent. Conflict in the EU about respect of DRF is ultimately healthy. It demonstrates that the EU is not just a factory of technocratic nuts and bolts but a political arena where values take centre-stage.  Two quotes from leading European statesmen sum it up. For Emmanuel Macron “Europe isn’t a supermarket” where you cherry-pick. “It is a community of solidarity”. Or Guy Verhofstadt to Orban: “You want our money, but not our values.” Pulling no punches over DRF is proof that the EU wants to take its citizens with it. While avoiding Big Brother paternalism we say to recalcitrant states – you signed up, you stick to it.