EU affairs minister on Monday (16 September) discussed for the first time in public concerns over respect for the rule of law within EU member states.

The ministers were focusing on plans by the European Commission to report on rule of law developments in each member state annually, and a German-Belgian proposal to have EU countries monitor each others' rule of law.

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Finnish EU minister Tytti Tuppurainen (m) is a key supporter for more rule of law tools (Photo: Council of the European Union)

In recent years, the EU has been struggling to deal with member states, especially Hungary and Poland, where judicial overhauls and other key legislation weakened democratic checks on the government.

The EU can either target specific domestic measures which appear to break EU rules, or launch a sanctions procedure, known as Article 7 - which ultimately needs unanimity of member states to punish their peer, a very unlikely scenario.

During the discussions on Monday, which was pushed by the current Finnish presidency of the EU, clear divisions emerged between member states that want stronger monitoring, and those that have already been targeted by existing tools and worry about new ones.

While several ministers highlighted the need for a well-functioning rule of law as the basis of the EU, ministers from Hungary and Poland emphasised the particular national characteristics of different legal traditions.

"The EU is not just a collective of states which want to enhance its economic well-being through mutual trade, but we are also a union of values, like democracy, fundamental rights, and rule of law," Dutch foreign minister Stef Blok warned.

"We have all freely subscribed to these values, we can and should be held accountable when it comes to prospecting these values in practice," he said, adding: "The erosion of rule of law we have seen in the recent years should be a concern for all of us."

Blok agreed with the commission's proposal for annual monitoring to "detect negative developments before the problems escalate", and argued for international experts in be involved.

He also said the scope of the monitoring should also include fundamental rights, corruption and democracy.

Blok argued that after the commission's annual report, member states should discuss the findings, possibly on the basis on the German-Belgian proposal.

Sweden's EU affairs minister Hans Dahlgren also supported upping the EU's legal toolbox.

"It is only through the rule of law that we can guarantee that our fundamental values are well protected. It is a necessary part of every modern democracy, it is the soul of our union," he said.

"For the single market to function we need have full confidence that our prosecutors and our courts function in a truly independent way, without undue influence from political leaders," Dahlgren added.

'No one-size-fits-all'

Poland's minister for EU affairs warned that new tools could be used for political purposes.

"I subscribe to all remarks, everything we said about the importance of the rule of law, our mutual trust, also for the functionality of the common market, but it doesn't mean that in the name of the rule of law we can do whatever we want," Konrad Szymanksi told his colleagues.

He said that Poland could support the new commission mechanism as "it could lower the risk of double standards" by checking all EU countries.

Szymanski cited Article 4 of the Lisbon treaty - stating that the EU should respect the national identities of member states, and their political and constitutional structures - warning EU institutions not to overstep their competencies.

Szymanksi also argued that any new mechanism cannot feed additional arguments and findings into the ongoing Article 7 sanctions procedure, launched against Poland by the commission in 2017.

Hungary's justice minister echoed Poland, saying that "the concept of the rule of law has a different meaning in the different member states".

"The primary responsibility to ensure the respect for the rule of law lies first and foremost with member states and national institutions," Judit Varga said.

"Therefore there is no one-size-fits-all solution to enforce this rule of law mechanism," she said.

EU commission vice-president, responsible for rule of law issues, Frans Timmermans, hit back by saying that the European Court of Justice's (ECJ) rulings prove that there is a common concept for the rule of law.

"The core meaning of the rule of law is the same for the EU which results in equal requirements for all member states," he said, adding that rule of law is an EU matter, and needs to be addressed by EU institutions, "for legal assessment by the ECJ and political assessment by council and EU parliament".

The Dutch commissioner said rule of law means separation of powers, that "judges should be able to rule without political interference, there should be free media, journalists should be allowed to work without having to be afraid for their lives," and that "civil society should be able to flourish without being silenced by political pressure, academia should be to allowed to work operate freely".

"That's the European way of life, by the way," he said, referring to the controversial name new EU commission president-elect Ursula von der Leyen chose for a new migration portfolio.

Timmerman's point-man role confronting both Budapest and Warsaw during the outgoing commission was widely seen as torpedoing his chances as becoming the next commission president earlier this summer.

Under the von der Leyen commission, Timmermans' tasks will be taken over mainly by Belgian foreign minister Didier Reynders, one of the authors of the German-Belgian initiative, who is now entangled in an alleged corruption saga.

Von der Leyen is also aiming to relaunch the commission's currently sour relations with Hungary and Poland.

However, Timmermans warned that those ministers who thought that the von der Leyen commission will have a different approach on rule of law, "are in for a disappointment or surprise".