European affairs ministers decided yesterday (16 December) that a “dialogue” would take place once a year in the Council, to discuss “the safeguard of the rule of law in the framework of EU treaties”, a diplomatic way to designate breaches to the rule of law, such as those which recently took place in Hungary and Romania.

In Hungary, the centre-right government of Prime Minister Victor Orbán has pushed through a controversial media law, and has largely extended its control over the central bank and the judiciary. In Romania, centre-left Prime Minister Victor Ponta has made attempts to subjugate the Constitutional Court, and made use of emergency ordinances affecting the status of fundamental institutions.

The European Commission’s attempts to react to such developments have shown its limitations in bringing EU members to task.

The idea that EU members should create mechanisms to enforce the rule of law has been spearheaded by Germany, Denmark, Finland and the Netherlands. These countries take the view that if the Union has been able to advance in improving economic governance, it could do the same with safeguarding the rule of law.

The EU is equipped with the Article 7 (3) of the Treaty of the European Union which can suspend voting rights of member states in breach with EU treaties, but this instrument is seen as a “nuclear bomb”. In that sense, a mechanism is sought that could be the middle ground between suspicions of breaches to rule of law, and punishment by so-called nuclear means.

The European Parliament has repeatedly called on the Commission to create a community instrument to tackle those sensitive issues.

Recently, the Italian Presidency presented a paper, titled “Ensuring respect for the Rule of law in the European Union” and analysing the state of play in terms of instruments for respecting the rule of law in the EU. The paper suggests that the Council where member states sit should play a central role in order to contribute to a common understanding on compliance with the rule of law in accordance with the Treaties.

Also, the paper speaks of an “evidence-based approach” which still needs to be defined.

Following their discussion, EU ministers adopted the decision that a “dialogue” will take place once a year in the Council, prepared by EU ambassadors. Then the Council will decide, as needed, “to launch debates on thematic subject matters”. By the end of 2016, the experience will be evaluated.

What is certain is that member states have not given any extra ground to the Commission to evaluate the member states’ compliance with the rule of law.