The idea of the rule of law, based on the conviction that “not people should rule, but the law”, is deeply rooted in the European legal culture. Although it comes from different traditions, in Anglo-Saxon countries and in wider European tradition it is identified with the classical concept of the ‘rule of law’, and in […]
The idea of the rule of law, based on the conviction that “not people should rule, but the law”, is deeply rooted in the European legal culture. Although it comes from different traditions, in Anglo-Saxon countries and in wider European tradition it is identified with the classical concept of the ‘rule of law’, and in the modern law of continental Europe it is linked to the concept of the ‘rule of law’ – its essential contents is the subject of a broad consensus.
There is no doubt that the rule of law in the functioning of public authorities is an imperative condition for the effective protection of citizens’ rights and freedoms. In order to have rules which are binding and – as Friedrich von Hayek wrote: “make it possible to predict with a high degree of certainty how the authority will use its powers to apply coercion in given circumstances, and allow to plan individual’s actions accordingly”1, the rule of law must apply not only to the enforcement procedures, but also to the process of the lawmaking itself.
The basic meaning of the notion of the “rule of law” – also referred to as a formal approach – is the obligation of public authorities to comply with the law, which manifests itself in the principle of legalism, i.e. the actions of public authorities “on the basis and within the limits of the law”2. In the Polish legal system it is reflected in Article 7 of the Constitution3, which constitutes the principle of legalism, which in turn is a component of the principle of the rule of law, expressed in Article 2 of the Constitution4. In the EU system of law, the principle of the rule of law is rooted in Article 2 of the Treaty on European Union, which established the rule of law5. A separate notion is “the rule of law in the material sense”, i.e. compliance of the binding legal norms with the basic substantive standards, specific for a given system of law6.
To describe the scope of their study, the authors of this paper use the narrow concept of “procedural lawfulness” (procedural rule of law, procedural legality)7, which means the standard, according to which:
a) procedural standards are established and are structurally equivalent to the basic requirements of the legal system in question, while the way in which they are formulated allows for adequate protection of the legal value, for the security of which they were established;
b) procedural standards are applied in practice;
c) effective mechanisms are in place to monitor the correct application of procedural standards 8.
The concept of the ‘procedural rule of law’ in the process of law enforcement is defined as “guaranteeing the reliability and predictability of the process and establishing appropriate mechanisms for the control of officials” and other public authorities applying the law9. As far as the lawmaking process is concerned, these should refer to a situation in which there are formal guarantees of the reliability of legislative procedures allowing for the implementation of constitutional functions of state bodies, as well as mechanisms for the control of the compliance therewith, as well as their application in practice.
The study is devoted to the analysis of the functioning of the European Parliament from the point of view of the standards of the procedural rule of law, with particular emphasis on the rule of law in the legislative process. In addition, the solutions adopted in the European Parliament have also been analysed in terms of their rationality and efficiency.
The research covered several areas of PE functioning which are essential from the perspective of the rule of law – the manner of conducting votes, including their pace and the established methods of counting votes, the manner of determining the quorum and the standards of document circulation. The research team analysed all the votes conducted at EP plenary sessions from November 2017 to October 2018, taking into account also a number of selected plenary sessions from the earlier and later periods.
Comparative studies on the models of organisation of the legislative process show that the standards of decision-making , including the voting model applied in the parliaments of a number of European Union Member States – and in particular in the parliaments of central European countries – are much more in line with the requirements of the rule of law than those adopted in the European Parliament itself. The studies whose conclusions can be found in this work show that the European Parliament has so far failed to introduce certain procedural solutions which, in an increasing number of European countries, are beginning to be regarded as an obvious standard. It is most surprising that the European Parliament has still failed to make an adequate use of the achievements of modern technology, which have been available for decades and which make it possible to guarantee the reliability of the legislative procedure.
The present report is not only a study presenting in which areas of the functioning of the European Parliament it is possible to identify deficits in the procedural rule of law, but also a call for the elimination of these deficiencies. The authors hope that it will start a broad discussion on the problems outlined herein.