Justice and Schengen

What doesn’t work well?

The Schengen area is one of the main achievements of the European project, which allows the unrestricted movement of over 400 million people, with a paramount value for both citizens and businesses. It is a unique space in history and in the world. However, in response to the COVID-19 pandemic, most Member States have reintroduced controls at internal borders or closed such borders, in part or in full, including for European citizens and their family members. These controls have affected the rights and freedoms of citizens enshrined in European Union law.

Another aspect that makes the Schengen area not fully functional is that 14 years after joining the European Union, Romania, along with 3 other Member States, are not yet part of it, although all the necessary conditions for the full application of the Schengen acquis have been fulfilled by Romania since 2011.

What are the solutions we propose?

First of all, we constantly call on the Council and the Member States to complete the Schengen integration of all EU Member States. The Council is due to present a new draft decision on the full application of the provisions of the Schengen acquis in Bulgaria and Romania as soon as possible. Only through solidarity, responsibility and mutual trust between Member States can the future of the Schengen not be fragmented.

Secondly, a quick return to a fully functioning Schengen area is essential. The Commission must take over the coordination of actions at the European level, aiming at the unitary approach that the COVID-19 crisis presents to the health of European citizens while maintaining the Schengen area as an uncontrolled area at internal borders, especially in the context of digital green certificates.

Thirdly, we call on the Commission to draw up a proposal to reform the Schengen governance, adapted to the new challenges, leading to the strengthening of mutual trust between Member States and the guarantee of effective legislative instruments that would allow a coordinated and unified European response challenges such as the COVID-19 pandemic, while maintaining the right to free movement and the absence of internal border controls.

What doesn’t work well? 

Protecting European values ​​is at the heart of European citizenship and is embedded in the DNA of European identity. Liberal democracy is currently undergoing strong attacks from both inside and outside the European Union. 

Protecting and promoting the rights and freedoms of European citizens should be a major political priority as this is synonymous with protecting the European project itself. Democracy, fundamental rights and the rule of law are not just abstract ideals, they are essential, in very concrete terms, for the functioning of the Union.

The decline in the rule of law and fundamental freedoms in some Member States can seriously affect the mutual trust so necessary for cooperation at the European level, especially in the Area of ​​Freedom, Security and Justice and jeopardizes the achievement of the objectives of the Union as defined in Article 3 of the Treaty. Respect for fundamental rights is vital for common migration and asylum policies, as well as for police and judicial cooperation. And the rule of law is not only a guarantee of respect for the rights of every European citizen, but it is also essential for the completion of the European common market and investor confidence.

The crisis of the rule of law in several Member States poses an existential threat to the European project and calls into question existing institutional and procedural guarantees at the European level. Although, over time, the European Union has gradually adopted a series of instruments designed to defend European values ​​(introduction of Article 7, European Rule of Law Mechanism, Annual Report on the Rule of Law.) European citizens find that the systematic destruction of the rule of law in some Member States has not been addressed at Union level. Many Europeans feel that the EU has been politely debating for years how anti-democratic developments in the Member States can be stopped without anything concrete happening. Both Hungary and Poland are currently subject to extended Article 7 proceedings before the Council to determine the existence of a clear risk of a serious breach of the rule of law by the Polish authorities (notified by the Commission in 2017) and a clear risk of a serious breach by the Hungarian authorities of many of the EU’s core values ​​(sent to the Council by Parliament in 2018). These procedures remain blocked in the Council, and the situation in these two countries is only deteriorating.

As the experience of recent years shows, corruption with European funds and the slippage in the rule of law are closely linked. European action to protect the rule of law and fundamental rights must therefore be targeted where corrupt politicians will be hurt the most. According to a recent survey, almost eight in ten Europeans (77%) support the idea that the EU should provide funding to Member States only if the national government implements the rule of law and democratic principles. The December 2020 Regulation establishing a general conditionality regime for the protection of the Union budget must be applied urgently and consistently.

What are the solutions we propose?

The Joint Declaration on the Conference on the Future of Europe explicitly mentions “European rights and values, including the rule of law” among the topics to be addressed. The Conference on the Future of Europe is therefore a unique opportunity, working together with European citizens, to find answers to the crisis of the rule of law in Europe.

Streamlining the procedure for Article 7

The Council’s inability to protect the Union’s values ​​is regrettable and has facilitated the disregard by Member States subject to this procedure. The Council’s hesitations can be circumvented by reviewing the following issues:

• Elimination of the unanimity rule and realignment of the majorities provided for in paragraphs 1 and 2 of this article 

Unanimity in the European Council is needed today to determine the existence of serious and persistent breaches of the Union’s values, while a four-fifths majority of Council members and the consent of the European Parliament are needed to determine a clear risk of a serious breach. These high thresholds for activation today make the mechanism, also called the “nuclear option”, difficult to use. Realigning majorities to four-fifths for both would provide more flexibility.

• Introducing clear timelines for the adoption of sanctions to prevent proceedings from dragging on without substantial results.

Ensuring complementarity and coherence: a European framework for the protection of democracy, the rule of law and fundamental rights

The European framework for the protection of the rule of law is today like puzzle pieces that do not intertwine well enough. The annual rule of law report, a monitoring cycle applicable to all Member States launched in September 2020, must become the central pillar of coherent and determined action to protect the Union’s values. In order to prevent regressions in the rule of law, beyond descriptive elements, it must contain a serious assessment of the situation and country-specific recommendations, with clear objectives and implementation deadlines. The annual rule of law report could thus be used to concretely apply budgetary conditionality.

The Conference on the Future of Europe could be a decisive moment for the establishment of an EU mechanism for democracy, the rule of law and fundamental rights, in the form of an interinstitutional agreement integrating the Union’s currently disparate arsenal of instruments. The European Parliament has called for this since 2016 and has clarified its position in 2020, extending it to democracy and fundamental rights. This would replace the various instruments, including the CVM and the rule of law mechanism, and be strengthened by “clear country-specific recommendations, with a timetable and objectives for their implementation”. Infringements would lead to the measures provided for in Article 7, infringement proceedings or the implementation of budgetary conditionality.

This coherent mechanism would also allow the European Parliament to be involved in Article 7 hearings. The European Parliament is currently excluded from hearings under Article 7, even when it is the institution that initiated the procedure, as was the case with Hungary. The additional political pressure exerted by the European Parliament is a necessary ingredient for speeding up procedures.

The Interinstitutional Agreement would also mark the solemn commitment of the main actors in the Article 7 procedure to apply it seriously, respecting the prerogatives of each institution and promoting sincere cooperation between them.  The European institutions should agree on ways to increase the effectiveness of hearings, including their regular organization.

Strengthening press freedom and media pluralism at the European level

Pluralism and freedom of the press are essential vectors for the rule of law, democratic accountability and the fight against corruption.  The European Commission is analyzing the situation regarding the independence of regulators, media ownership, public advertising, the safety of journalists and access to information. However, the EU does not have its prerogatives in this area, and the Commission relies on internal market rules to promote and protect media pluralism and to support the media sector. In the context of the growing violations of press freedom and attacks on journalists in Europe, this fragmented approach is insufficient. We, therefore, propose expanding the Union’s shared competences to cover this sector, as well as creating a European Press Freedom Observatory to constantly monitor the situation in the Member States. At the same time, we support the establishment of a permanent fund dedicated to supporting investigative journalists and a European rapid alert platform for journalists threatened in the Union.

The proposed changes will provide both guarantees of trust for citizens in the judiciary and professional guarantees for those who dedicate their lives to protecting common European values ​​such as freedom, democracy, equality, human dignity, respect for human rights and the rule of law. The European Union must provide its citizens with the security, well-being and quality of life they expect, and professionals with the necessary framework to be able to play their role in combating cross-border crime and extremist behaviour as effectively as possible.

The accession of Romania and the other states to the Schengen area will undoubtedly bring advantages for both tourists and freight carriers, by removing the control of travel documents. Roads by plane, train, bus or personal car will automatically become shorter, and in the case of carriers, even cheaper. The economy will reap these full benefits. Romania will become the most important Schengen border as a geostrategic positioning in the entire Union.

According to the Eurobarometer survey on the Future of Europe, 32% of Europeans consider respect for democracy, human rights and the rule of law to be the Union’s main asset. In 14 European countries, it is considered the most important asset of the Union. The proposed changes will help maintain the Union as a true champion of freedom and justice in Europe and in the world. A functional and efficient mechanism in terms of democracy, the rule of law and fundamental rights, which will replace the CVM mechanism for Romania, once the obligations in terms of justice and the rule of law are met, are essential milestones in this process.