Post-Accession Conditionality and Compliance
With the adoption of the Treaty of Amsterdam, Article 7 TEU was introduced. According to this provision, the EU has competence to impose sanctions on Member States who do not respect the fundamental principles of democracy and the rule of law.
The EU is a political community of states that share the common principle of constitutionalism. The purpose of the Union is to guarantee the stability of the reciprocal relations and the general acceptance of common institutions shaped according to those principles. In January 2000, the EU had not adopted sanctions under Article 7 TEU against any Member State. The inclusion in the Austrian Cabinet of representatives of the Freedom Party of Austria (Freiheitliche Partei Osterreichs; FPO) induced the Member States of the EU to adopt measures that resembled the sanctions provided for by Article 7 TEU.[72] FPO was considered to be ‘a right wing populist political party with extremist expressions’.[73] FPO officials were reported to have made ‘statements that can be interpreted as xenophobic and which indicate praise for Austrian Waffen SS veterans’[74] Apparently, an interpretation of constitutional practices and interpretations of the existing legislation in violation of the principles of constitutionalism were considered a plausible and undesirable scenario. This risk did not emerge from the mere observation of the letter of the constitutional law, but mostly from the possible epiphany of an illiberal living constitution.[75] However, in June 2000, a mission of three ‘wise men' from the Council of Europe suggested that the international obligations and the constitutional and legislative provisions of Austria allowed the lifting of measures adopted by the Council of Europe. The governing bodies of the institution followed this advice and accepted the recognition that the existing guarantees in Austria did not justify the initial fears.In November 2002, the Bureau of the Parliamentary Assembly of the Council of Europe asked the Venice Commission to provide an Opinion on the conformity of the proposed revision of the Constitution of Liechtenstein with the fundamental principles of the Council of Europe. The Commission went further and examined the impact of the proposed draft amendments on democracy in the Principality. The identification of the actual compliance with the principles of democracy, which ‘in Europe... [is] the only accepted form of government', was at stake.[76] This reasoning referred to the principle of conditionality, which requires conformity with the democratic principle. Democracy is a condition for the continuity of membership of the Council of Europe and the EU. According to the Commission, the existence of democracy requires: (i) free parliamentary elections of a representative body; (ii) the effective enjoyment of individual rights; (iii) the admissibility of the restrictions of rights only to uphold the democratic system; (iv) the accountability of the executive to the people; (v) the primacy of the power of the elected assembly; (vii) compliance with the rule of law; and (viii) objective guarantees for the independence of the judges. According to the Commission, the proposed amendments to the Constitution of Liechtenstein enlarged the powers exercised by the Prince Regnant in the legislative and executive field without any democratic control or judicial review. A serious step backwards was considered a possible development, while a further transition towards a fully fledged constitutional monarchy could be endangered. All these developments could lead to the isolation of Liechtenstein within the European community of states.
Notwithstanding the critical opinion of the Venice Commission, the proposal to amend the Constitution of Liechtenstein was adopted and published in the Official Journal on 15 September 2003. The new text stated that the Prince Regnant ‘is not subject to the jurisdiction of the Courts and does not have legal responsibility’.
The powers of the Prince Regnant in respect of the government were enlarged and he was entrusted with the power to veto bills voted for by the Diet. A compromise solution was adopted for the appointment of the judges. The move by the Principality induced the Parliamentary Assembly to initiate a political dialogue with the Liechtenstein Diet. The Venice Commission has not been called upon to issue any other Opinion in this case. The focus of the monitoring activity was on the overall system of government of the Principality, while the piecemeal technical approach of the adopted measures was set aside.A general approach to the internal constitutional order of Romania was again at the centre of an intervention of the European authorities. Romania was admitted to the EU in 2007; however, its shortcomings in implementing the European principles and values suggested the establishment of a Cooperation and Verification Mechanism to monitor the progress in implementation of the obligations of membership. According to a Report of the European Commission dated 18 July 2012, the behaviour of the Romanian authorities ‘raised serious doubts about the commitment to the respect of rule of law or the understanding of the meaning of the rule of law in a pluralist democratic system’. Romania’s compliance with the European engagements was at risk due to ‘political challenges to judicial decisions, the undermining of the constitutional court, the overturning of established procedures and the removal of key checks and balances’.[77] The EU focused not only on specific acts of the Romanian authorities, but also on concrete political events and the interpretative attitudes of the Romanian authorities in constitutional matters. The European initiative required something more than a monitoring of legislative and administrative measures.
This approach was adopted by the Secretary General of the Council of Europe when he asked the opinion of the Venice Commission on the compatibility with constitutional principles and the rule of law of actions taken by Romania.
The request was evidently submitted in the interest of the Council of Europe, but was also on behalf of the European Union. It implied an evaluation of the overall behaviour of Romanian authorities. An ascertainment of factual elements appeared essential in view of the compliance with the Commission’s mandate. The Commission was not convinced of the constitutionality of ordinances, decisions and procedures. According to the Opinion,[78] restricting the powers of the parliament and bypassing judgments of the constitutional court by governments’ emergency ordinances raised doubts and perplexities. Many events and even several statements of the concerned authorities demonstrated ‘a worrying lack of respect among representatives of State institutions for the status of other State institutions, including the Constitutional Court as the guarantor of the supremacy of the Constitution’.[79] As stated by the Commission, the respect for a constitution cannot be limited to the literal execution of its operational provisions.The very nature of a Constitution is that, in addition to guaranteeing human rights, it provides a framework for the State institutions, and sets out their powers and their obligations. The purpose of these provisions is to enable a smooth functioning of the institutions based on their loyal cooperation.[80]
The institutions shall have ‘the interest of the State as a whole in mind, including, as a consequence, the interests of the other institutions and those of the parliamentary minority’.[81]
V.
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