COVID-19 emergency measures must comply with the rule of law

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Emergency measures to curb the spread of COVID-19 have taken a heavy toll on Europe’s civil society. Although mostly justifiable and necessary to save lives, these measures should never offer a carte blanche to governments to turn what was initially an urgent response into the permanent demise of the rule of law. So finds a recent EESC hearing.

The European Economic and Social Committee has conducted a virtual hearing on the fundamental rights, democracy and rule of law aspects of the COVID-19 crisis.

Held on the occasion of Human Rights Day on 10 December, the webinar explored how the emergency measures taken by Member States to tackle the pandemic have affected the situation of Europe’s employers, workers and civil society organisations, especially seen in the light of the EU Charter of Fundamental Rights.

There was also discussion of the institutional response to safeguarding the rule of law and democratic principles at a time of unprecedented crisis such as the COVID-19 emergency.

The event took place shortly before EU leaders concluded the historic EUR 1.8 trillion deal to help EU countries emerge from the crisis as unscathed as possible, after it had been blocked for weeks over the rule of law conditionality issue. The webinar brought together representatives of not just employers’ organisations, trade unions and human rights organisations, but also European institutions and academics. It was organised by the EESC’s Group on Fundamental Rights and the Rule of Law (FRRL Group), set up in 2018 to monitor developments in fundamental rights and the rule of law in the Member States.

In his opening remarks, Cristian Pîrvulescu, president of the EESC’s FRRL Group, explained: With this hearing we hope to feed into a larger debate allowing for organised civil society to play its role as a key actor in finding solutions for Europe to emerge from this crisis. We think it is very important to shine a light on the situation of civil society organisations, employers and workers. We want to see if any of their rights have been particularly endangered due to the impact of COVID-19.

The consequences of the first lockdown in Spain were dramatic – more than 100 000 companies closed down, commented Javier González López of CEPYME (Spanish Confederation of SMEs). Most severely hit had been those operating mainly in transport, storage, leisure or tourism, and the hospitality sector. Thousands would go out of business for good.

Although Mr González López thought that decision-making affecting employers had not been transparent and proportionate enough and there had been insufficient consultation and information, one measure introduced by the Spanish government – the temporary employment adjustment scheme – had been yielding results and was helping companies survive in terms of labour force.

Nicola Countouris, Director of the Research Department, European Trade Union Institute (ETUI), said that although several COVID-19 measures had impinged on fundamental rights of workers such as freedom of association or the right to strike, we should not rush to conclude that this constituted a breach of the Charter as such.

Many human rights are not absolute and can be balanced against other rights which are equally fundamental, Mr Countouris argued. They can be derogated from in limited or exceptional circumstances, such as the COVID-19 emergency, which can be seen as threatening the life of a nation. In that context  governments are granted a margin of discretion, but this should not offer a carte blanche for them to restrict human rights.

The measures have to comply with the rule of law and the principles of proportionality and necessity so as to protect values that society recognises as fundamental. They should be time-limited and regularly scrutinised for their impact on human rights.

Alexis Deswaef, vice-president of FIDH (International Federation for Human Rights), spoke about the dire consequences of the emergency measures on civil society organisations, who had already seen their operating space shrinking even before the crisis.

Civil society organisations are now being criminalised in many countries, not just in those where there are legitimate concerns about their upholding of the rule of law, but also in those that are considered as the cradles of the human rights movement, said Mr Deswaef.

Yet these organisations are playing a key role in promoting EU values during the pandemic when these risk being weakened by measures taken by the authorities. Their role is equally paramount in ensuring that the exit from the crisis takes place in accordance with the rule of law and democratic principles.

We have to be sure that the measures taken comply with the rule of law toolbox, stressed Mr Deswaef. We have to insist on the rule of law mechanism and on solidarity across Europe. These must not be just empty words.

He highlighted the importance of putting in place measures to protect elderly citizens and their carers and pointed to a gap in the measures that seemed to have totally ignored the homeless. He also referred to the situation of migrants and detainees as being particularly dire during the COVID-19 crisis.

Álvaro De Elera, member of the private office of Věra Jourová, Commissioner for Values and Transparency, presented some tools with which the Commission was trying to make sure that all EU democracies would emerge from the crisis strengthened. This was to be done through the scrutiny of emergency measures, raising awareness of the rights of citizens, protection of journalists, and also through overseeing the implementation of the recovery funds each country will obtain under the reinforced Multiannual Financial Framework (MFF).

The Commission’s new strategy on the Charter of Fundamental Rights will strengthen its application in Member States and increase citizens' knowledge and awareness.

Its annual rule of law reports, the first edition of which was issued in September 2020, will assess the situation in every Member State and should act as a preventive tool to detect emerging problems. The 2020 report had a heading concerning the impact of COVID-19 measures and this will be repeated in the report for 2021.

The new Democracy Action Plan, published at the beginning of December, complements the tryptic and announces future measures in the area of free and fair elections, media freedom and the fight against disinformation.

Terry Reintke MEP, from the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE), said that some Member States had used the crisis as a pretext to attack certain fundamental rights of citizens. She also called on the European Commission to use to the full the measures already at hand, such as infringement and Article 7 procedures.

Concerning the connection between the EU budget and the rule of law, Ms Reintke said this had been a long battle, in which the European Parliament had already taken a position back in 2018. She insisted that legal decisions, not political declarations, should be the sole benchmark for the implementation of rule of law conditionality.

Ms Joelle Grogan of Middlesex University, London, presented the findings of the RECONNECT H2020 Project and the Re:constitution programme, which explored the use of power in response to the pandemic from the perspective of the rule of law in over 70 countries, including all EU Member States. The research showed a diversity of responses by state authorities, some opting for proclaiming a state of emergency and others choosing to adapt their ordinary laws.

Just because some countries have declared an emergency is not by itself an indication of abuse, said Ms Grogan. What we should focus on is how power is used. We have seen that good practices correlate to indicators like the rule of law, scrutiny and the inclusion of civil society.

She referred to an August 2020 paper of the RECONNECT project which highlighted best practices in the initial response of some countries to the pandemic. These good practices are also the ones which should be respected now that we are going to move into the crisis management phase aimed at a return to normality: decisions should be definite, clear, coordinated, transparent and well communicated.

We needed, thought Ms Grogan, to watch out for the normalisation of emergency powers and for government attempts to permanently shift power away from parliaments and the judiciary, making it inaccessible to scrutiny and oversight.

We should be worried but also aware, she concluded.