[Opinion] A German judge: my fears on rule of law in EU

Yet one of the biggest challenges aims at the very heart of the Union: the undermining of the rule of law from within by member states.

However, I feel that at times our discussion of the rule of law is too abstract.

Despite an abundance of philosophical and legal definitions dating as far back as Aristotle, it is difficult to grasp it in our daily life. In most member states, rule of law is just a matter of fact.

As Dwight D. Eisenhower once put it, the clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there was no rule of law.

As a German national, I see German history as a constant warning to defend the rule of law – and to be vigilant to detect even the slightest beginnings of its erosion.

A strong democracy and rule of law is the cornerstone for an open European society and the future of the European Union, its member states and regions.

This holds particularly true for my home region North Rhine-Westphalia.

We are Germany’s most densely populated Land at the heart of Europe with nearly 18 million inhabitants and vibrant investment locations. The rule of law is the benchmark for citizens and investors who seek just governments, freedom and prosperity in the regions.

Nations with trustworthy, efficient legal systems are more likely to attract foreign direct investment than nations with troubled legal institutions.

However, several member states face serious challenges. Within only a few years, we have witnessed growing authoritarian backsliding, corruption failures and threats to free media and journalists.

Judges vs Governments?

As state secretary at the Ministry of Justice and a former judge myself, I feel particular pain at any restrictions and authoritarian controls of the judiciary.

The principle of judicial independence is one of the core values of the EU, laid down in the Charter of Fundamental Rights and the treaties.

Mutual trust in rule of law standards is the basic prerequisite for judicial cooperation in the Union. The EU, like any political community, will fall apart when its fundamental values are no longer shared by all.

The European Commission has taken unprecedented steps in reacting to rule of law breaches. The first Rule of Law Report is an important element of the European toolbox to identify and diminish such deficiencies.

I strongly encourage the commission as the guardian of the treaties and welcome the conditionality regime for an access to EU budgets.

Wherever necessary, infringement procedures according to Article 7 TEU should be applied. Europe must give a strong and unanimous answer to anyone who questions our core values.

This will not suffice though.

Sanctions alone will not uphold the fundamental principles of the European Union. While we cannot do without a strong punitive mechanism, our fundamental principles have to be strengthened in a positive manner.

Member states and regions must act. If we want Europe and its values to prevail, we need hands-on concepts to promote a positive development in our regions.

It is vital to foster the concept of rule of law among our citizens.

This is why we offer basic legal education in Germany and start with the youngest, with law classes taught by professionals at our schools.

Furthermore, Germany has initiated the so-called “Pact for the Rule of Law” between the federal level and the states.

The pact includes the creation of 2,000 new posts for judges and prosecutors by end of 2021. North Rhine-Westphalia has already (over)fulfilled its part.

But rather than to praise ourselves, we have to be self-critical.

If we want others to take the rule of law seriously, we have to live up to our own ambitious standards. We should start in our home regions, identify and tackle what goes wrong or needs to be changed for the better.

For example, the rule of law report mentions that in Germany there is the possibility for mnisters of justice to instruct prosecutors. While extensive constitutional safeguards and practical guidelines are already in place, our legislature elaborates further amendments and improvements in certain cases.

We should also be vigilant with respect to the way we respond to the Covid pandemic.

Some governments have taken drastic measures, not always compliant with the rule of law. Emergency declarations have been imposed, in some cases parliaments and other democratic control mechanisms were suspended; measures that affect the freedom of expression or assembly and privacy rights have been enacted.

To live up to our own standards, we have to be alert and scrutinise the necessities for governmental restrictions at every level – European, national and regional.

A prosperous future for the European Union can only thrive from within, with the regions as the heart of Europe.