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

The Rule of Law Situation in the European Union 61 and multilateral cooperation between European institu- tions, governments, parliaments and national judiciaries, as well as with civil society, through a yearly cycle steered by the Commission. This Mechanism was proposed by Commission Pres- ident Ursula Von der Leyen in her opening statement to the European Parliament on 16 July 2019: “Threats to the rule of law challenge the legal, political and economic basis of how our Union works. Ensuring the respect of the rule of law is a primary responsibility of each Member State (…) Strengthening the rule of law is a shared re- sponsibility for all EU institutions and all Member States. […] I will ensure that we use our full toolbox at Europe- an level. And I support an additional comprehensive European Rule of Law Mechanism, with an EU- wide scope and objective annual reporting by the European Commission. The monitoring approach will be the same in every Member State” 23 . This Mechanism, on a yearly basis, has existed since 2020 24 , is divided into 27 chapters structured around four pillars, and follows the outline displayed in the infographic below ( Figure 4 ) 25 , basically consisting of an initial phase in which the Commission sends written questionnaires not only to the state powers, but also to civil society (1); based on the replies received the Com- mission organises visits to all the states (2); and finally it writes up its annual report on the rule of law, with, for the first time in 2022, a series of recommendations for the states (3). True, this Mechanism, like the Framework, has been designed as a preventive instrument and it includes no formal obligation for the states to follow up on the rec- ommendations gathered in the annual report. However, it represents added value with regard to the Framework, 23  Von der Leyen, Ursula: A Union that strives for more. My agenda for Europe. Political guidelines for the next European Commission 2019-2024. Strasbourg 2019. 24  Communication from the Commission (COM(2020) 580 final of 30.9.2020: 2020 Rule of Law Report. The rule of law situation in the European Union. 25  See note 12. as it is not a procedure that can be seen as preparation for triggering Article 7 in a bilateral dialogue, rather it is a multilateral dialogue that seeks to take the most precise picture possible of the positive and negative develop- ments on safeguarding the rule of law in the EU states, supporting the efforts of the states, underscoring the pos- itive developments and identifying where improvements must be made. Moreover, this Mechanism aims to become a suc- cessful example of “peer evaluation” as the European Semester already is, focusing on the rule of law situation and, through the recommendations, on a fundamental methodological instrument, in extreme cases, to trigger the new response mechanisms that, apart from a hypo- thetical use of Article 7, enable sanctioning the offending state: via the judicial review of alleged infringements of the values of Article 2 TEU and through the new financial conditionality mechanism. Returning to the two instruments that the EU has available to it to target and sanction action at nation- al level that prevents the rule of law from functioning properly on a domestic level, thus impacting the EU as a whole, the Commission, as the guardian of the Treaties (Article 17.1 TEU), and the Court of Justice as guarantor of respect for the law in the interpretation and applica- tion of the Treaties (Article 19.1 TEU), have become the two main battering rams that, despite initial sceptisim over their powers to intervene, have breached the barrier of respect for “national identities and their fundamental structures, political and constitutional” (Article 4.2 TEU). With regard to the establishment of a policy of ju- dicial review by the Court of Justice of the EU to prevent or sanction threats or infringements caused by the action of the institutions of a state that are contrary to the proper functioning of the principles of the rule of law at national level, the starting signal was the Court of Justice judgment of 27 February 2018 on the request for a preliminary ruling C-64/16 26 , relative to whether the salary reduction measures applied to Portuguese mag- 26  Judgment AssociaçaoSindicaldosJuízesPortugueses. (EU:C.2018:117).