THE STATE OF THE EUROPEAN UNION Towards a new legislative term

THE STATE OF THE EUROPEAN UNION 42 – transparent and non-discriminatory state advertising; – safeguards against the unjustified removal of con- tent from online media. The Regulation project also proposes the creation of a new independent European Media Services Com- mittee; and proposes establishing strengthened mecha- nisms for cooperation between the national regulatory authorities and bodies of Member States. Defence of the rule of law beyond dialogue. The arsenal beyond the procedure of article 7 TEU From this perspective, the annual Rule of Law Report constitutes the most advanced political and institu- tional statement of the trends, challenges, progress and threats with regard to the rule of law within the EU in spheres in which the capacity to improve the situation through use of the regulatory arm is more difficult in the absence of competencies attributed by the Treaties. And in the absence of an effective sanctions procedure, the conditions for which are not currently provided by article 7 TEU, we need to turn to political arbitration mecha- nisms based on dialogue. Clearly, when we discuss issues that are key to na- tional sovereignty, such as the organisation of judicial powers or establishing institutional counterweights, and which are a major focus of pillars 1 and 4 of the report, this political dialogue and constitutional loyalty is fundamental, constituting the maximum expression of the minima moralia referred to above, and which finds expression in the framework of the specific recom- mendations addressed to the 27 Member States. And these recommendations are more than a mere rhetorical exercise because, as the Commission explained when presenting the report in July 2023, 65% of the recom- mendations adopted in the third report of 2022 have been addressed in full or in part by Member States. 15 Despite the justified criticism of the true scope of this mechanism (and the risk of creating false expec- 15 Available: https://digital-strategy.ec.europa.eu/es/news/rule-law- report-2023-progress-65-recommendations-further-action-needed tations 16 by presenting this as a mechanism backed by sanctions when the only recourse is the procedure of article 7 TEU, a Gordian knot which still has to be cut), it is an excellent example of the capacity of the EU to use common approaches which go beyond the strict defini- tion of competencies to respond to existential threats to the European constitutional consensus for which the Treaties have not provided adequate solutions. As J. Baquero Cruz asks: “…when several Member States begin to dismantle the Rule of Law in broad daylight… should the Union remain impassive, as if it was none of its business?”. 17 In any case, it is important to stress the major legisla- tive activity under way as a result of the analysis and rec- ommendations contained in these reports. This in itself al- ready constitutes a positive dimension of this mechanism, and to some extent demonstrates that the Commission’s caution in invoking article 7 TEU, adding a series of instru- ments to avoid pressing the “nuclear button”, has helped to establish inter-institutional mainstreaming which has strengthened both mutual trust and the legislative ambi- tion to protect the values of article 2 TEU. 18 A different question, and one which merits further consideration, concerns the recommendations in the first pillar of the report regarding justice systems and, in particular, the issue of shared criteria of judicial in- dependence and, to a lesser degree, in the fourth pillar, consideration of the system of institutional counterbal- ances. It is not surprising that the main concerns of the European Commission and of the vast majority of the stakeholders involved are concentrated in this area of the annual dialogue cycle. In particular, with respect to the mechanisms for ap- pointing and dismissing judges and their statutory con- ditions, it is vital that the Mechanism becomes not just an institutional reference but that its recommendations 16 PECH, Laurent & BARD, Petra: “The Commission’s Rule of Law Re- port and the EU monitoring and enforcement of Article 2 TEU values”. Study requested by the LIBE and AFCO committees of the European Parliament, 2022, pp. 66 and ss. 17 BAQUERO CRUZ, J.: op. cit., p. 437. 18 With regard to criticism of the Commission for being “fearful”, the following article remains pertinent. MANGAS MARTÍN, Araceli : “Polonia en el punto de mira: ¿Sólo riesgo de violación grave del es- tado de derecho?” Revista General de Derecho Europeo no. 44 (2018, pp. 1 and ss.