MOTION FOR A RESOLUTION on the rule of law situation in the European Union and the application of the Conditionality Regulation 2020/2092

B9‑0320/2021

European Parliament resolution on the rule of law situation in the European Union and the application of the Conditionality Regulation 2020/2092

(2021/2711(RSP))

The European Parliament,

– having regard to Articles 2, 5, 7 and 15 of the Treaty on European Union (TEU),

– having regard to Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget[1] (the Conditionality Regulation),

– having regard to Opinion No 1/2018 of the European Court of Auditors of 17 July 2018 concerning the proposal of 2 May 2018 for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States[2],

– having regard to the opinion of the Legal Service of the Council of 25 October 2018 concerning the compatibility with the EU Treaties of the proposal for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States,

– having regard to the conclusions of the European Council adopted on 11 December 2020,

– having regard to the actions for annulment brought in the Court of Justice of the European Union by Hungary (C-156/21) and Poland (C-157/21) questioning the legality of the rule of law conditionality mechanism,

– having regard to Rule 132(2) of its Rules of Procedure,

A. whereas the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities;

B. whereas the limits of Union competences are governed by the principle of conferral, which in consequence means that competences not conferred upon the Union by the Treaties remain competences of the Member States;

C. whereas Article 2 of the TEU does not confer any material competence upon the Union and only lists certain values that ought to be respected by both the institutions of the Union and its Member States when they act within the limits of the powers conferred on the Union by the Treaties, and without affecting those limits;

D. whereas Article 2 of the TEU is not a directly effective provision and may not be pursued under the procedures set out in Articles 258-260 and 267 of the Treaty on the Functioning of the European Union;

E. whereas a breach of the values of the Union, including the rule of law, may be invoked against a Member State only if it acts in an area for which the Union has competence based on specific competence-setting Treaty provisions;

F. whereas respect for the rule of law by the Member States cannot be the subject matter of an action by the institutions of the Union, irrespective of the existence of a specific material competence to frame the action, with the sole exception of the procedure described in Article 7 of the TEU;

G. whereas only Article 7 of the TEU provides for a Union competence to supervise the application of the rule of law, as a value of the Union, in a context that is not related to a specific material competence or that exceeds the scope of competences;

H. whereas Article 7 of the TEU does not set a basis to further develop or amend the procedure described within it;

I. whereas there is the limitation on the jurisdiction of the Court of Justice with regard to the rule of law, in that it only has the power to review respect for the procedural stipulations contained in Article 7 of the TEU and solely at the request of the Member State concerned;

J. whereas the notion of the rule of law is interpreted differently from one Member State to another;

K. whereas a Europe of Homelands is one of the visions of the European Union, which consists of creating economic ties while maintaining the political distinctiveness and sovereignty of the united countries;

L. whereas the EU institutions have no competence to adopt any definition of the values listed in Article 2 of the TEU, in particular of the notion of the rule of law, as they were not given this competence in the Treaties;

M. whereas in the absence of relevant competence, by adopting such a definition, the institutions would be in breach of the Treaties and the definition would be contrary to the TEU;

N. whereas the European Council must provide the Union with the necessary impetus for its development and must define the general political directions and priorities thereof;

O. whereas the European Council may adopt conclusions in the exercise of its competence under Article 15 of the TEU to provide impetus for the Union’s development;

P. whereas such conclusions are neither in conflict with the Conditionality Regulation, nor do they contradict or amend it;

Q. whereas it is not unprecedented or unusual for the Commission to adopt guidelines setting out how it will apply and implement legislation in a certain area and whereas there is nothing illegal about the Commission’s choice to develop and adopt guidelines for the implementation of the Conditionality Regulation;

R. whereas all interpretations set out in the guidelines will be statements of how the Commission understands the Conditionality Regulation;

S. whereas the Commission and Parliament seem to want to use the rule of law conditionality mechanism against Member States that are defending the primacy of their traditional values and their own constitutions;

T. whereas the Commission is independent in carrying out its responsibilities and whereas until the guidelines are finalised, the Commission may decide not to propose measures under the Conditionality Regulation;

1. Underlines that the rule of law is primarily about acting on the basis and within the limits of the law and the Treaties;

2. Stresses that the only possibility for interference by the Union in matters related to respect by the Member States of the Union’s values as such is Article 7 of the TEU; emphasises that Article 7 of the TEU is complete and exhaustive;

3. Considers it legally unacceptable to introduce a de facto new rule of law control mechanism, which is also confirmed by the opinion of the Legal Service of the Council of 25 October 2018;

4. Calls for the Article 7 rule of law procedures to be completed before a contra legem action is taken on the basis that ‘if I cannot achieve my objective within the existing law, I will break the Treaties’;

5. Stresses that the organisation of the judiciary is the exclusive competence of the Member States;

6. Regrets the extension of the Court of Justice’s competences, such as in case C-121/21, which undermines trust in the European Union and the principles of proportionality and loyalty, which stem directly from the Treaties;

7. Instructs its President to forward this resolution to the Council and the Commission.