The European Commission has presented a new procedure to be used in case of a future systemic and serious breach of rule of law in the Member States. As President Barroso has stated, rule of law is one of the fundamental values the EU is based on and the Commission´s role, being Guardian of the Treaties, is to uphold it. Until now, the EU lacked an early warning mechanism which would indicate possible systemic breaches of rule of law. The only possibility under the Treaties was the “nuclear” Article 7 of TEU which, upon activation by the Council, withdraws the Member State´s voting rights. This is, however, considered to be an extreme measure and was never used (although considered e.g. in case of Austria or Hungary). On the other hand, in case of breach of EU law, there is a standard administrative and legal infringement procedure. This, however, does not cover the general rule of law quality.

According to President Barroso and Commissioner Reding, the EU needs an effective rule-of-law assessment tool and framework for dialogue in case a systemic breach occurs in a Member State. The new procedure does not add new powers to the Commission, but rather codifies a procedure for a role foreseen for the Commission under the Treaties. The Commission will monitor the Member States for possible breaches of the rule of law which could lead to the activation of Article 7. If such risk is identified, the Commission will gather all available information and will send the Member States a “rule-of-law opinion”, thus initiating a dialogue that should lead to a favorable solution.