Sophie in ‘t Veld’s bizarre proposal for a “Rule-of-Law” mechanism

sophie in t veldOne of the reasons the EU is so unpopular with most citizens is that many politicians, mediocre though they may be, once they have made it into one of the EU institutions seem to develop a superiority complex: they believe that they are now somehow superior to all national parliaments and governments, and entitled to control and censure them.

One particularly colourful specimen of this mistaken self-perception is a new initiative, spear-headed by the Dutch Liberal MEP Sophie In ‘t Veld, pushing for “the establishment of an EU mechanism on democracy, the rule of law and fundamental rights”.

Democracy, rule of law, and human rights certainly all sound very good, which turns them into perfect “Trojan horses”, allowing even the most dubious politicians to claim a moral high ground to promote ideas that would otherwise be non-sellers. This appears to be the reason why Sophie is using these words so lavishly whenever she wants to push one of her radical social agendas. But with politicians like her one must always look more closely, and then one often discovers that what is camouflaged as “human rights” covers up something completely different.

With regard to the proposal at hand, the case is quite clear: it is about institutional power, which Sophie wants to allocate to herself and her peers, i.e. those who share her radical ideology. At the same time this intended power shift would be a shift from democracy to bureaucracy and from elected politicians to unelected “experts”. It would take away power from democratically elected parliaments and governments at national level, subjecting them to the control of unelected public servants and academics who, while not bearing any responsibility for the government of real people in real countries, supposedly “know it better”. In short, precisely at a moment when Euroscepticism and nostalgia for the national state are reaching all-time highs, this proposal does all it can to provide further fuel for these attitudes. The people hate unelected bureaucracies, so let us give still more of them – this seems to be the underlying idea.

Although obviously Mrs In ‘t Veld’s proposal (though it may find some support in the European Parliament’s LIBE Committee, which is stuffed with radical politicians with similar outlooks and world-views as Sophie herself) has not even a remote chance of becoming reality, it is nevertheless worth reading for all who want to understand the déformation professionnelle that has befallen wide parts of the Brussels bulb.

In a nutshell, this proposal seeks to revive Ex-Commissioner Viviane Reding’s idea of a new “Rule-of-Law Mechanism”, but in an extended, bureaucratized and more radical form. It would create a permanent mechanism under which the EU would continuously monitor the performance of Member States with regard to Democracy, Rule of Law, and Human Rights (abbreviated as “DRH”). The benchmarks for this monitoring would be set out in a “scoreboard” that would “elaborated by an independent panel of experts and adopted by the Commission”. (Although the pretension is that the mechanism would serve to assess the DRH performance of both the EU and its Member States, it would actually result in the EU institutions assessing the Member States…). The exact scope and meaning of the benchmarks to be met would thereby be left to experts and bureaucrats, with Member States having no influence on deciding which standards they should meet.

But there is more. The assessment of Member States’ performance should, according to the proposal, be made by an entirely new bureaucratic body consisting of:

  • 28 “independent experts” (each designated by one Member State),
  • ten academic experts designated by the federation of All European Academies (ALLEA);
  • ten experts designated by the European Network of National Human Rights Institutions (ENNHRI);
  • two experts each designated by the Venice Commission and the Council of Europe Human Rights Commissioner;
  • ten former judges designated by CEPEJ;
  • two experts each designated by the United Nations (UN) and the Organisation for Economic Co-operation and Development (OECD),
  • chaired by the President of the FRA Scientific Committee.

All together, this makes 63 persons, to which a sizeable secretariat must be added. It is not clear whether being one such expert is supposed to be a full-time job, but considering the amount of assessments to be made, it probably must be.

These experts will censure the EU Member States on anything they do, be it or not covered by one of the competences that the EU Treaties have conferred to the EU. In other words, this panel is to be Europe’s new super-judiciary institution whose competences and powers have no bounds.
Quite grotesquely, the panel will not examine, nor otherwise deal with, any concrete shortcomings on “DRH” that may be reported to it, but it will simply hand out scores – “green”, “yellow” and “red”. And, as a cherry on the top of the cake, these scores will be “carried out on an anonymous and independent basis by each of the panellists in order to safeguard the independence of the DRF expert panel and the objectivity of the DRF Scoreboard”.

And of course, bad scores shall not remain without consequences. According to Mrs. in ‘t Veld’s project:

“Where a Member State has yellow scores on one third of the indicators, it shall be considered that there is a clear risk of a serious breach of the values referred to in Article 2 TEU and that there are sufficient grounds for the invocation of Article 7(1) TEU. The Commission, the Council and the European Parliament shall each discuss the matter and take a reasoned decision, which shall be made public.”


“In case a Member State has red scores on more than one quarter of the indicators, or if it has red scores on one or more indicators over a period of at least two years, or if despite a dialogue with the Commission or an Article 7(1) procedure the number of red scores increases, it will be considered that there is a serious and persistent breach of the values referred to in Article 2 TEU and that there are sufficient grounds for the invocation of Article 7(2) TEU. The Commission, the Council and the European Parliament shall each discuss the matter and take a reasoned decision, which shall be made publically (sic!) available.”

In other words, the aim is – at a time when the EU is struggling to keep all Member States in the fold – to use the so-called “nuclear option”, i.e. the suspension of membership rights”, routinely and frequently in order to impose on them social choices that they would not make for themselves. And of course, all depends on who will be among the 63 anonymous bureaucrats – but we may assume that Mrs. in ‘t Veld already has a plan to stack that panel with some like-minded cronies. A country decides to protect the human rights of the child before birth, and thus to limit or prohibit abortion? Red mark!!! A country resists pressures to support the controversial “Equal Treatment Directive”, which effectively would undermine the freedom of citizens to choose their own contractual partners? This cannot go unpunished – give it a yellow mark. A country reforms its judiciary to limit judicial activism? Red alarm!!!!

The danger with absurd proposals like this is not that they might be implemented, but that even a “compromise” that includes just ten percent of what is proposed would be dangerous. Indeed, this kind of anonymous assessment carried out by unelected “experts” on the basis of unclear and malleable criteria is the perfect contradiction of what Mrs. in ‘t Veld claims she wants to protect: the rule of law. The only result of such a proposal would be a new unelected bureaucracy with new powers, all at the expense of citizens and taxpayers.

When will the Brussels bulb at last understand that they are not the feudal lords of the EU? Only when the EU will have fallen apart?