THE STATE OF THE EUROPEAN UNION Towards a new legislative term

THE STATE OF THE EUROPEAN UNION 40 In itself, this dialogue means that debate of the an- nual report already forms part of the political priorities of the Council of General Affairs of the EU and of the central agenda of the European Parliament. And this means, in turn, that this exercise will move from being a significant naming and shaming exercise to a political examination of constitutionality which guarantees the process of European integration set out in the found- ing treaties. As J. BAQUERO CRUZ says: “The Treaties should be understood as an inter-generational constitu- tional pact: previous generations were bound by them and they will also bind current and future generations, for reasons that are important and well understood. The Union entails this constitutional self-limitation or it loses its raison d’etre”. 7 The Spanish Presidency of the Council of the Union is aware of this responsibility and the need to evaluate, from now to the end of 2023, how the Rule of Law Mechanism is working and which recommendations should be included in it in the form of conclusions of the Council of General Affairs, as were included in the conclusions of the Finnish Presidency of 19 November 2019, following a meeting of the Council of General Affairs. 8 In its programme for the current Presidency, it states that, “During the second half of 2023, priority will be given to evaluating the Rule of Law Mechanism and reaching a consensus on Conclusions”. 9 Independently of the political compromises that have to be negotiated by the Spanish Presidency, it seems clear that this Annual Rule of Law Mechanism already constitutes a political and institutional priority that can- not be ignored, despite the fact that it is not formally binding. Respect for the rule of law forms part of the obli- gations of all states, acquired upon joining the EU, to respect the common values of article 2 of the TEU. The consequence of this commitment, freely and voluntarily acquired, is – as the CJEU clearly states in its judgement of 20 April 2021 in the Repubblika case – that “A Mem- 7 Idem, p. 438. 8 Council of the European Union, doc. 14173/19. 9 Programme of the Spanish Presidency of the Council of the Eu- ropean Union, second half of 2023: “Europe, closer”, p-15. https:// spanish-presidency.consilium.europa.eu/media/e4ujaagg/the-span- ish-presidency-programme.pdf ber State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU… The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independ- ence of the judiciary.” 10 And this is the meta-constitutional value of the mechanism: to constitute the point of collective evalu- ation, analysis and recommendation which all Member States are required to fully respect as “a condition for the enjoyment of all of the rights deriving from the ap- plication of the Treaties”. 11 Does the report of 5 July 2023 reflect these require- ments? In my view, with respect to the value and ap- plicability of the recommendations contained in the an- nual reports, we face a situation similar to that of the proclamation of the Charter of Fundamental Rights of the European Union at the European Council of Nice in December 2001. Although it was only the entry into force of the Treaty of Lisbon in 2010 that would give the Charter a binding legal character with “the same legal value as the Treaties” (article 6.1 TEU), from the moment of its proclamation the CJEU treated it as a key element in interpreting its decisions and the general principles of EU law. Could this mechanism play a similar meta-consti- tutional role? I think the judgement in the Repubblika case points in that teleological direction. A separate question is whether we can place all the responsibility of guaranteeing respect for article 2 TEU on the shoul- ders of the Court, bearing in mind that the sanctions procedure established in article 7 has been shown to be inoperable to date, because it is an intergovernmental mechanism which is blocked ab initio by the require- ment for unanimity, and approached from a standpoint more typically associated with public international law than with the supranational integration law of the EU. 12 10 C-896/19, EU:C:2021:311, paragraphs 63 and 64. 11 Idem, paragraph 63. 12 BAQUERO CRUZ, J. op. cit., pp. 441-442.