During Finland’s Presidency of the Council of the EU in autumn 2019, the rule of law and its development were prominent items on the agenda. These topics have received a great deal of attention in recent years, not least because certain EU Member States have adopted legislative amendments that have been widely considered to erode the rule of law.
“During its presidency, Finland took decisive action to promote the rule of law in the European Union. As a kind of continuation to this policy, we have set up a project to examine the rule of law from a legal perspective and specifically in the EU context,” says Juha Raitio, Professor of European Law at the University of Helsinki.
Juha Raitio, Allan Rosas, former judge at the European Court of Justice, and Pekka Pohjankoski, doctoral candidate at the University of Helsinki, will be jointly heading the research project called “The Rule of Law, Finland, and the European Union”. The project is a government-funded analysis, assessment and research project.
How to define the rule of law is a key question
The research topics will be approached from two perspectives. The first of these focuses on the concept and criteria of the rule of law in the context of EU law.
“Our premise is that the rule of law cannot be defined whichever way you want nor can the concept be claimed to be meaningless,” says Raitio.
As a minimum, the rule of law is usually considered to require independent courts, a free press and protection for fundamental and human rights.
The concept of the rule of law plays a key role for the unity and future of the European Union, seeing as it is one of the Union’s fundamental values.
“Sharing a common value base is the only way that the Member States can preserve mutual trust. The EU can only rely on the Member States’ own enforcement mechanisms, which makes the question a very sensitive one,” Raitio explains.
The other perspective looks at ways to address negative development and to protect the rule of law within the EU.
“A very practical question deals with the actions that the Union can legally take regarding Member States. Does the Union have any constitutional instruments for addressing negative development? For example, can it cut off funding to Member States?” Pekka Pohjankoski muses.
Trust as the foundation
Poland and Hungary are repeatedly mentioned in connection with negative rule of law development. Among other things, these two countries have carried out legislative amendments that undermine the independence of the court system.
Why should events taking place in Poland and Hungary be of concern in Finland?
“How Member States define the rule of law is a big political question. Can they define the concept internally or is the rule of law a legal concept, whose meaning the Member States derive from the EU’s fundamental values?” Raitio asks.
This is not just a theoretical discussion nor a discussion merely about values. If mutual trust and the common value base begin to crumble, the consequences will soon be experienced as practical problems.
“To take an example, we have common rules for the criteria based on which a person suspected of a criminal offence can be extradited to another EU Member State. Should there be reason to doubt the impartiality of the country’s courts, the extraditing country must determine whether individuals can be surrendered to such a Member State in the first place,” Pohjankoski says. According to Pohjankoski, there is a risk of problems spreading into other areas if trust is shaken.
“The rules and principles of the EU are based on the idea of the Member States’ systems functioning appropriately, even though this has not been specifically provided for in EU legislation. Were this not the case, the EU’s internal cooperation mechanisms would be at risk.”
While Poland and Hungary may often be portrayed as problem countries, other countries – including Finland – will also come under scrutiny. According to Raitio, the research is likely to result in both criticism and praise for Finland.
Finland, too, has recently experienced problems related to the rule of law and its implementation. One of the most prominent of these is the alleged malfeasance of Foreign Minister Pekka Haavisto. The incident generated a great deal of public discussion concerning the suitability of the Constitutional Law Committee of the Finnish Parliament as a venue for handling criminal cases. One of the questions brought up was whether a Member of Parliament who has demanded that a case of malfeasance be initiated against a minister can sit on the Constitutional Law Committee ruling on the case. Another topical example relates to the remote sale of alcohol, which has given rise to criminal procedures, even though no legal provision expressly prohibiting the remote sale of alcohol is in force.
According to the researchers, problematic issues can most likely be found in all Member States. The essential point is to identify whether such issues are systematic and intentional. In other words, it is important to differentiate between degrees of severity.
While there is no indication of the Finnish government and officials knowingly taking action that conflicts with Western values, our country may have its own weaknesses.
“The Finnish rule of law relies quite heavily on consensus, that is, on the idea that we have strong norms that everyone respects. However, our legal structures may be less detailed, and in this sense weaker, than in other countries,” Pohjankoski points out.
An international voice
Government-funded analysis, assessment and research projects differ from other academic research projects in that the research is based on questions posed by the government, for which decision-makers hope to get research-based answers. One could assume, therefore, that these research projects are better placed to influence topical decision-making.
In contrast to the majority of analysis, assessment and research projects, the rule of law project has a strong international dimension. An international English-language publication will also be drawn up as part of the project. This will be carried out jointly with what are known as ‘resource collaborators’, which in practice means top-level EU law scholars or high-ranking EU officials. The international network operating in connection with the research project is called the Helsinki Rule of Law Forum. It helps give the project greater academic weight to ensure that the research results do not exclusively serve the practical needs of ministries. The international dimension also increases the project’s societal impact and provides added value to decision-makers.
“We plan to invite the ministries’ representatives to our expert seminars, which we will organise jointly with our resource collaborators. This will provide the ministries with perspectives on the rule of law from various parties, not only from us. We hope this will work as a European voice that reaches the government. I believe it can be of great practical importance,” says Raitio.