In Romania there is a power struggle over the constitution and the presidency. The social democrat Prime Minister, Victor Ponta, wants to impeach the unpopular conservative president Traian Basescu and has tried to change the threshold necessary in the process to get it done. The Economist also lists a number of seriously worrying changes that the Romanian government wants to bring about:
"His government has replaced the ombudsman (the only brake on emergency government ordinances), grabbed control of the Monitorul Oficial, the official promulgator of laws and decrees, taken over the national cultural institute and threatened to fire the judges of the constitutional court."These changes has provoked concern in Brussels (and Berlin) over the threat to the rule of law. There is a way of sanctioning Member States that break the values of the EU: under Article 7 TEU a country in breach of these values can be stripped of its voting rights. However it's a nuclear option, and one that is difficult to threaten, never mind enforce or enact. There are two linked reasons for this: one technical and one political.
Politically it is hard for Member States to condemn a fellow Member State, and if the government of the offending Member State is aligned to either the EPP or PES (sitting in the S&D group in the Parliament), then it could have a strong lobby in its favour. Both the S&D and EPP have acted in the Hungarian and Romanian cases in support of governments that they are aligned with, as the Financial Times Blog rightly points out. The tactic used is generally to call for time while the Commission launches an investigation. This brings us to the second problem: the Commission only can investigate on narrow technical grounds, which allows for governments to make some concessions on these matters to lessen political pressure, while the measure is largely passed intact.
The Commission is equipped as a guardian of the treaties, but not as a protector of fundamental rights. To change this and to create a better culture for fundamental rights protection, it would be better for the Fundamental Rights Agency* to be empowered to assess the state of fundamental rights and compliance with the rule of law and EU values. Then it could recommend in a report what needs to be changed to bring a government back into line.
It would still be up to the Commission, Council and Parliament how they should act and if they invoke Article 7 TEU. Still, it is important that we move away from the culture of hiding behind technical requirements and changes and to a culture of debating the substance of protecting rights and the rule of law in the EU and the Member States. Even now European approval - or lack of sanction - carries a certain moral authority and legitimacy. We should make sure this is put to good use and not twisted and hollowed out to provide cover for subverting the rule of law. *The FRA's remit would probably need to be expanded for this.