Framing the Rule of Law: The Contribution of the Venice Commission to the Implementation of the Rule of Law in Europe

The Rule of law principle represents one of the most important pillars of the Common European Heritage. As expressed in the Preamble and in Article 2 of the Treaty on European Union, Rule of Law is one of the founding values shared between the European Union and its Member States. In its 2014 A new EU Framework to strengthen the Rule of Law the European Commission recalls that “the principle of the Rule of Law has progressively become a dominant organisational model of modern constitutional law and international organisations to regulate the exercise of public powers”. Similarly, both in the Preamble of the Statute of the Council of Europe and the Preamble of the European Convention on Human Rights, the Rule of Law is recognised as one of the three “principles which form the basis of all genuine democracy” and an element of common constitutional heritage. In the European scenario, both the European Union and the Council of Europe have acted in several respects with a view to promoting and strengthening the Rule of Law through many of their bodies. This paper intends to study the contribution offered by the Venice Commission, the advisory constitutional body of the Council of Europe, to the protection and strengthening of the Rule of Law principle among its Member States. The added value of this research concerns the Commission’s innovative methodological approach to the Rule of Law principle. Until now, the Rule of Law has been approached from a theoretical point of view, in an attempt to give it a definition that would include all the doctrinal theories elaborated on the principle. The Venice Commission, on the contrary, after identifying a consensus between its Member States on the core elements of the Rule of Law, the Rechtsstaat and the État de Droit, has elaborated a checklist for evaluating the state of the Rule of Law in single countries, following a practical approach. This original approach aims to facilitate a correct and consistent understanding and interpretation of the notion of the Rule of Law and, therefore, to facilitate the practical application of the principles of the Rule of Law at a national level. The research will first analyse the work conducted by the Commission in identifying and selecting the common European values constituting the implementation of the Rule of Law principle. In order to do so, it will concentrate on the study of the “Rule of Law Checklist”, adopted by the Venice Commission in 2016. After outlining the benchmarks of the Rule of Law principle in Europe, the paper will examine its practical implementation within the Commission’s Member States. This analysis will be carried out by taking into account the standards defined by the Commission on the one hand and, on the other, by evaluating their practical application in the Commission’s opinions. For this purpose, it will be useful to proceed to a cross-study of the Venice Commission’s Checklist and the relevant opinions. The rationale of the research will be to demonstrate the ever- increasing relevance of the Venice Commission as a soft law body not only in Europe but also in the international scenario and its fundamental contribution to the strengthening and implementation of the Rule of Law in Europe.