In the last couple of years, the EU has been faced with a new legal challenge: a ‘rule of law crisis’.
Poland and Hungary are among the prime examples of Member States in which compliance with the value of the rule of law is questioned and allegations of breaches are being investigated. The paramount legal principle of the rule of law is enshrined in Article 2 TEU and represents one of the main values underlying the EU legal order. Upholding the rule of law is pivotal for ensuring the correct functioning of democratic institutions and for preventing public power abuses. The importance of this principle is reflected even more in the context of the EU, a value-based legal order, which can operate effectively only if the mutual trust between its members is not broken.
Against this unprecedented backdrop, it is interesting to examine the possibilities the EU has to monitor and influence the protection of the rule of law in the Member States. Hence, the aim of this paper is to analyse the different tools and mechanisms the EU can use to protect the rule of law in its Member States so as to ensure that the value enshrined in Article 2 TEU is complied with. The research question tackled is: ‘What are the available and proposed mechanisms at EU’s disposal to ensure that Member States comply with the value of the rule of law enshrined in Article 2 TEU?’
The focus of the paper will be on the available post-accession monitoring and sanctioning mechanisms as well as on a recent controversial Commission proposal linked to the rule of law. Through the adoption of the doctrinal method, these EU instruments are structurally analysed and their alleged weaknesses examined, with the view to enhancing the reader’s understanding of the causes which led to the ongoing ‘rule of law crisis’. The analysis of the various instruments is substantiated by references to academic articles, policy and working papers and studies.
Section 2 is centred on the value of the rule of law enshrined in Article 2 TEU. A conceptual explanation of the rule of law and of its importance within the EU context will be given as point of departure to understand the necessity of having EU mechanisms in place capable of upholding it. The situation in Poland and Hungary will be briefly touched upon to illustrate examples of rule of law infringements. Section 3 presents the various means the EU disposes to protect the rule of law in its Member States, namely: ‘Article 7 TEU procedure’, the Commission’s ‘EU Framework to Strengthen the Rule of Law’, and the Council’s ‘Rule of Law Dialogue’. Before discussing these, the alleged inaptness of launching ‘Infringement Proceedings’ for persistent breaches of EU values will be addressed. Section 4 examines the ‘Commission 2021-2027 budget proposal linked to rule of law’ as a future mechanism to successfully urge the Member States in their compliance with the rule of law value. Section 5 draws the conclusions of the paper and includes some personal remarks of the author.
The value of the rule of law and violations thereto in the EU’s constitutional architecture
The value of the rule of law as founding legal principle common to the Member States.
The rule of law is one of the most important principles of law, representing the backbone of any modern constitutional democracy. Conceptually this principle requires that not only natural or legal persons but also the entity of the state is bound by the law. On the one hand, observance of the rule of law prevents abuses of public power and arbitrariness, as it allows for states’ action only on the basis of well-established legal rules. On the other, it ensures that the state and its organs are exposed to the control of the law itself, which provides for all the necessary checks and balances while guaranteeing all relevant safeguards.
The rule of law features prominently in both EU primary and secondary law. Since it is one of the principles stemming from the constitutional traditions of the Member States, Article 2 TEU lists it among the set of values upon which the EU is founded and which are ‘common to the Member States’. Within the value-based architecture of the EU, the respect for the rule of law is arguably of essence, acting as prerequisite for the protection of the remaining EU founding values, namely: freedom, democracy, equality and respect for human rights. In fact, there is an interdependence, or better an intrinsic link, between the respect of the rule of law and that of other EU values: without the rule of law, there is no certainty that the remaining values are safeguarded.
The paramount importance attached to this principle is noticeable also in the context of accession of new candidate states: the Copenhagen criteria make EU membership conditional on the respect for the rule of law. The current situation of mutual trust and mutual recognition between Member States, which enables the very functioning of the Union’s legal order as a ‘Community of law’, would not be conceivable if the rule of law were not upheld by acceding states. In the latter scenario, all the members of the Union would be affected and not cooperate anymore, further undermining the EU decision making legitimacy.
Amounting to an EU value, the rule of law consequently represents one of the specific objectives the Union aims to promote. The obligation to actively advance the value of the rule of law lies not only with the EU and its institutions, which must mutually cooperate in this respect, but rests also with the Member States. The latter, pursuant to the principle of sincere cooperation, must facilitate the Union in the achievement of its tasks and ‘refrain from any measure which could jeopardise the attainment of the Union’s objectives’. This requirement entails that Member States should strive for initiatives promoting EU values and avoid anything contrary to their fulfilment even when exercising their residual competences, that is, even in the areas where they maintain their sovereign power.
It follows from the foregoing, that EU law provides a solid constitutional base for an active ‘EU engagement’ to ensure that the values enshrined in Article 2 TEU, and in particular the rule of law, are complied with. Unfortunately, however, serious concerns regarding the disruption of the rule of law have been resurfacing lately: the next subsection sheds some light on two striking cases.
Alleged breaches to the value of the rule of law: Poland and Hungary as background examples
Within the context of operation of EU law, the rule of law requires that all public powers act within the constraints set out by law, in accordance with the remaining EU values and under the scrutiny of impartial and independent courts. More specifically, it requires firstly the respect of the principles of legality and legal certainty, secondly the prohibition of arbitrariness of the executive powers and the respect of the separation of powers, and lastly effective judicial protection by independent courts.
As mentioned above, it especially is due to the presumption that this principle is respected that Member States mutually trust and recognise each other. This trust was allegedly broken with respect to Poland and Hungary in the aftermath of various episodes marking serious deficiencies in their efforts to give full effect to the legal principle.
Ever since it took office in 2015, the Polish Government, led by the Law and Justice party (PiS), implemented multiple reforms affecting, inter alia, the freedom of press and the Polish judiciary. As regards the latter, the reforms targeted the system of legitimate constitutional review and the composition of the judiciary in higher courts, systemically disrupting the rule of law requirement to guarantee independent and impartial effective judicial protection.
Similarly, since 2010 the Hungarian Government led by Viktor Orbàn has prompted a rule of law ‘backsliding’ of the country. The reorganization of the Constitutional Court and electoral system drastically empowered the executive, hindering the system of checks and balances and undermining the notion of trias politica.
Both Member States are currently under the procedure of Article 7 TEU, triggered in December 2017 by the European Commission against Poland, and in September 2018 by the European Parliament against Hungary. These two recent developments exemplify how concrete and burning the issue of the ‘rule of law crisis’ is in the EU’s agenda. The next sections delve deeper into the technicalities of Article 7 TEU and explore other mechanisms at EU’s disposal for the protection of the rule of law in the Member States.