THE STATE OF THE EUROPEAN UNION. Reforming Europe in a time of war

THE STATE OF THE EUROPEAN UNION 56 Reasons for taking action The concept of the rule of law is not exclusive to the EU, it is a concept of universal validity, as every member state of the United Nations recognised at the World Summit in 2005, under the section “Democracy, human rights and rule of law” and, on a European level, we have a complete “check list” drawn up by the Venice Commis- sion in 2016 6 . In addition, the EU, in this context, applies this concept in its partnership and cooperation agreements with third states as a shared commitment to democratic principles, human rights and the rule of law, a commit- ment that results in the promotion of these principles in multilateral fora and in mutual coordination in the ad- vancement of these principles in international relations 7 . Having said that, how has our acquis on the subject been constructed? The reference to the values of democracy, respect for fundamental rights and primacy of the rule of law have implicitly formed part of every advance in the political construction of the EU, as such important milestones as The Hague Summit of 1969 or the solemn Declara- tion of Stuttgart of 1983 8 demonstrate, yet we had to wait until the Treaty of Maastricht in 1992 for this to be enshrined in the current Article 2, just at the birth of the European Union with an explicitly political purpose, making respect for them a condicio sine qua non to become a member of the EU, as appears in the current Article 49 of the TEU. It was the intention of the drafters of the Treaty of Maastricht to have a “Magna Carta” of values common 6  Both references appear in the document by the Venice Commission of the Council of Europe: The Rule of Law check list. Strasbourg 2016. 7  See by way of example Article 6 of the Partnership Agreement on Relations and Cooperation Between the EU and its Member States, of the One Part, and New Zealand, of the Other Part, concluded on 5 October 2016 and entered into force on 21 July 2022, following the deposit of the final instrument of ratification. BOE 27 July 2022, p. 107414. 8  To follow the course of this aspiration towards European Political Union, a fundamental reference continues to be,Truyol y Serra,Antonio: La integración europea. Madrid 2000. to all the states and to the EU itself. It would serve pro- grammatic purposes rather than as a series of principles that would require specific and regulated protection in the club of the most advanced democracies on a global scale, beyond the need to carry out an in-depth “screen- ing” of how the countries of Central and Eastern Europe recently incorporated into the European family after the fall of the BerlinWall and the candidates for EU accession conformed to these values 9 . However, reality soon began to demonstrate that there had to be a binding mecha- nism that allowed sanctioning cases where the values of Article 2 of the TEU might be breached. This was the origin of Article 7 of the TEU, introduced in its present form in two phases. First, in the Treaty of Amsterdam in 1997, when a mechanism of sanctions was established in the event of the “determination of the existence of a serious and persistent breach by a Member State of the values mentioned in Article 2”; and, second, with the addendum in the Treaty of Nice in 2001 adding the current Paragraph 1 of Article 7 with the clear purpose of blocking the drift towards a breach of Article 2, as it consists of determining “the existence of a clear risk of a… breach”. If an infringement procedure was incorporated into the Treaty of Amsterdam as a kind of nuclear option that would never come to be used, because it stands as a de- terrent in itself, the forming of a coalition government in Austria in late 1999 with the participation of the far-right and populist party FPÖ, raised the issue that a populist and, to use a current term, “illiberal” drift was not just a theoretical exercise but a situation that could actually arise in any state. And in the face of such an event the infringement mechanism devised in Amsterdam did not provide a solution, since there was no “serious and per- sistent” breach, but a “clear” risk.That is why those who drafted the Treaty of Nice considered it essential to create a preventive mechanism not bound by the shackles of 9  This resulted in the so-called Copenhagen criteria, determined by the European Council in 1993 and today incorporated into Article 49 of the TEU. Riches, Christopher and Pamowski, Jan: Copenhagen criteria. https://www.oxfordreference.com/view.