Professor Susana Sanz Caballero has been invited by the prestigious European and Ibero-American Academy of Yuste Foundation to participate in a course that focuses on the protection of common values in the European Union in times of crisis, such as the one we are currently experiencing, which threatens the survival of the rule of law in the EU.
The Yuste Foundation is an organization created in 2017 as a result of the merger between the European Academy of Yuste Foundation and the Extremadura Center for Studies and Cooperation with Ibero-America with the purpose of fostering Spain’s relations with the rest of Europe and with Ibero-America.
Constituted to serve as a non-profit public entity, the Foundation carries out activities of a cultural, scientific, research and dissemination nature through the granting of scholarships, the organization of courses and the promotion of R&D&I activities. In addition, this entity is responsible for awarding the Charles V European Prize, whose purpose is to highlight the work of leaders who stand out for their commitment to the EU process as well as for their contribution to strengthening the cultural, scientific or historical values of Europe.
As part of its cultural and research spirit, the Foundation has developed the course “The protection of common values in the EU” within the framework of the Jean Monnet EUCOMMIT Module, which aims to create a forum for dialogue, reflection and debate between academia, political actors, students, professionals and society in general, on the common values of the EU as an international organization not only of economic and political integration, but also cultural, in which the values of democracy, the social rule of law and the principle of separation of powers are of special relevance.
The course, which was held at the Monastery of San Jerónimo de Yuste, the Foundation’s headquarters, was distributed over three days on July 11, 12 and 13, during which different academic experts, professors in areas such as Constitutional Law, International Public Law, Philosophy of Law, as well as magistrates, political advisors and members of the Infantry Corps of the General Staff, met to exchange and share their impressions on the protection of values in the EU.
The present and future challenges of the EU, the meaning and scope of Art. 2 TEU, the challenge of illiberal states, cultural integration and the migration challenge, as well as peace as a global value and the Russian invasion of Ukraine were some of the topics discussed.
Dr. Sanz was responsible for opening Panel 6 entitled “The Protection of Values” in which also participated Mr. Juan Manuel Rodríguez Barrigón, Professor of International Public Law and International Relations at the University of Extremadura, as well as Mr. Ignacio González Vega, Magistrate of the Provincial Court of Madrid and contact point of the European Judicial Network in the criminal order.
Susana Sanz wanted to begin her speech by clarifying that she was not going to talk about the symptoms or attacks on the EU’s system of values, but instead, she would try to propose different solutions on how some of the EU Member States (especially Poland and Hungary) can get out of the illiberal slope that they have started downhill and without brakes.
This was precisely the focus of Dr. Sanz’s presentation, who proposed as many as twenty-five measures of different kinds that could help to alleviate the worrying situation of democratic decline that is being experienced in the EU.
The following are the different measures that the Professor has proposed and shared with the audience.
1.Judicial measures
First of all, Dr. Sanz wanted to highlight the role that the CJEU is playing in the defense of EU values as well as the importance of continuing to resort to preliminary rulings and appeals for failure to fulfil obligations that have contributed to form a real jurisprudential saga in which the CJEU, in the face of an initially hesitant European Commission, became the European actor that best knew how to react to this crisis of values. In this way, Susana Sanz wanted to emphasize the “imperative need to continue appealing to the CJEU even at the risk of collapsing the Court”, especially taking into account the extensive use that is being made of the remedy of non-compliance by the Commission as well as the great work being carried out by the internal Courts making strategic use of the preliminary ruling in those cases in which the values of the Union are violated.
As for the proposed measures, the Professor referred to the following (and possible) judicial means of resolving this situation:
- Modify the actions for failure to comply obligations in such a way that not only the European Commission, but also all those victims and individuals who may be affected by the illiberal acts of the non-compliant States can promote its interposition.
- To explore in greater depth the path of Article 267 TFEU, a path that allows domestic judges to collaborate in the defense of the rule of law in their country by submitting a preliminary question to the CJEU. This is a mechanism that the Professor considers particularly reliable, since it is the domestic judges who know best the situation in their respective countries.
- Encourage more precautionary measures provided for in Articles 278 and 279 TFEU, which can be requested in the framework of direct appeals. In this case, Susana Sanz recalled that there are already cases of precautionary measures applied against Poland with the aim of paralyzing the application of laws that are controversial with the democratic values of the EU until the Court can rule on the merits of the case.
- Making a strategic use of applications to the ECtHR. Although this Court is an institution belonging to the Council of Europe, Dr. Sanz considers that it is providing a vitally important service in the defense of the Rule of Law through the individual complaints that reach it, for example: cases of violation of the principle of independence of judges and courts, harassment of the media and NGOs….
- Closely related to the previous point, the Professor proposes as a measure the promotion of inter-State applications before the ECtHR, recalling that most of the existing applications are filed by an individual against one of the 46 States that are party to the European Convention on Human Rights but that, however, little has been explored the way of art.33, which allows a State to file an application against another State.
- Not to process Euro-order requests issued by countries in which a clear deterioration of the rule of law is detected, an interesting initiative that some Courts are already applying and which has the support of the CJEU. This is a measure that, in the words of Dr. Sanz, has “a positive and a negative side”; on the positive side, Professor Sanz states that it is a way of encouraging compliance with the rule of law by preventing the surrender of a defendant or accused person to a Member State that cannot guarantee the independence and legitimacy of its courts. However, it can generate as a counterpart the destruction of the judicial system of the State in question, preventing or delaying the incarceration of potentially dangerous criminals.
- Ignoring the decision of the authorities to deny visas to persons critical of the government when there is a suspicion of partisan use in order not to allow persons uncomfortable with the regime to enter the territory of the Union.
- Ratification of Protocol 16 to the ECHR by all EU Member States that have not yet done so. This Protocol allows the highest courts of the Member States to submit a request for an opinion to the ECtHR on questions of principle relating to the application and interpretation of the rights and freedoms defined in the ECHR. In this regard, the Professor recalls that, at present, there are 15 EU States that have not yet ratified the Protocol, including Spain.
2.Non-judicial measures
- Replicate the diplomatic boycott of Austria in 2000. Professor Sanz recalled that it is common to think that the decline of the rule of law in the EU began in Hungary in 2010, but it should be remembered that in 2000 there was already a symptom of democratic decline when a coalition between a conservative party and a xenophobic party came to power in Austria. Dr. Sanz recalled that even then all the alarm bells went off in Europe and, consequently, the European states showed their rejection by excluding Austrian diplomats from certain official acts.
- Dr. Sanz has also proposed as a measure that the EU should increase the number of visits to States where illiberal practices and tendencies are taking place. Visits that would be, as the Professor described, “visits at the highest level” headed by the President of the European Commission, the Commissioner for values or the High Representative for Foreign Affairs and Security Policy.
- To turn the European Parliament into a platform that gives a voice and invites representatives of Judges’ Associations, NGOs, opposition groups… of all those who denounce malpractice in matters of EU values. In this sense, the Professor has highlighted the importance that the institution that represents the interests of European citizens can give a voice to those who denounce illiberal practices as well as situations of abuse or harassment to carry out a more active defense of EU values.
- As a complementary measure to the previous one, Dr. Sanz has proposed boycotting the initiatives of illiberal states or even preventing their members of the European Parliament from attending the speakers’ gallery, something about which, she says: “It would be necessary to modify the Rules of Procedure of the Parliament”. The Professor wanted to stress the possibility that this last measure, which aims to prevent the right to speak of members belonging to States with openly illiberal practices, could be described as restrictive of the right to freedom of expression. Susana Sanz alleges that: “Authoritarian voices in Parliament are being given a voice, or rather, a loudspeaker, if they are allowed to speak without any limits”.
- Expel from the parliamentary groups of the European Parliament the governing political majority groups that do not comply with the principles and values of the Union. The Professor points out that, although it may entail the risk of the expelled party joining another more extremist parliamentary group in the parliamentary arc, this measure has already been used recently.
- In line with the above measures that put the spotlight on the European Parliament, Dr. Sanz also considers a future reform of the European Rules of Procedure to prevent these parties from joining any other parliamentary group. “We would cut off their subsidies, their possibility of action, the possibility of being in Commissions, in the European Parliament’s bureau… Something that may be controversial but that has already happened with Fidesz, the ruling party in Hungary that was expelled from the European popular group in 2021” -says Prof. Sanz-.
- The need to continue imposing daily fines such as those provided for in Article 260 TFEU. In this case, Professor Sanz states that this is not a new measure, as they have already been applied against Poland, which to this day has not yet complied with their payment. In this sense, Dr. Sanz reflects on the fact that non-compliance with these fines may have been one of the motivations that led to think about the conditionality mechanism, which guarantees the withdrawal of European funds that would correspond to those countries that refuse to comply with the fine. Given the possibility that this measure could have “perverse” effects, such as affecting innocent people or condemning society to a lack of development, Prof. Sanz proposes the possibility of creating intelligent sanctions that affect and harm only the illiberal leader and his closest environment: his Ministers, Secretaries of State, Directors of the companies that feed off the regime…
- Intensify the investigations carried out by the anti-fraud office as well as the inspections of the European Court of Auditors.
- Stop distributing European funds to the owners of media, companies or universities sympathetic to the regime.
- Prof. Sanz also believes that the EU should report more and better on the democratic deficits it detects.
- One measure that has aroused the interest of the audience has been to propose an Erasmus for adults, something that Dr. Sanz says “It has a correlation with the above. Many of the ills can be cured by traveling and maybe part of the problems of the rule of law can be cured by traveling, getting to know other cultures”. The Professor has thus advocated the existence of an Erasmus beyond the one that already exists for students: an Erasmus for retirees, for the self-employed, salaried workers… In short, an Erasmus that allows people from countries that are not currently liberal democracies to come into contact with others that are open and tolerant democracies.
- Closely related to the above, Dr. Sanz proposes the possibility of intra-European exchanges between public officials from Ministries, Municipalities, Regional Governments, Ombudsman’s Offices, Transparency Bodies, Complaints and Claims Commissions. In such a way that, for a period of time, those who belong to States with serious and systematic non-compliance with the rule of law can coexist with others who belong to countries where there is a high level of compliance with the rule of law, such as Finland or Luxembourg, among others.
- Create a special fund to finance from the EU the activities of NGOs, associations, foundations, universities, private human rights institutions, media and even associations of judges and prosecutors, to finance them economically in such a way as to ensure their operation, showing solidarity, especially in the countries most affected by the crisis of the rule of law.
- Skipping the turn of the rotating Presidency of the EU Council of Ministers. Skipping the European Semester of the country that is not a liberal democracy has been another of the measures proposed by Dr. Sanz.
- The creation of a European Rule of Law Agency so that it can receive complaints from individuals who consider themselves victims of violations of the rule of law.
3.Measures entailing a reform of the Treaties
- Create a European remedy of amparo before the CJEU. A measure that Prof. Sanz has stated could be very interesting due to the lack of regulation of a remedy provided for in the EU Charter of Fundamental Rights in cases of violation of fundamental rights.
- A Protocol 14 bis of the EU to be able to expel a Member State from the EU. Dr. Sanz pointed out that, although no international organization likes the idea of having to expel its Member States, this measure is becoming increasingly necessary, since the EU, although it is an international organization, is also, and above all, a community of law.
