The EU’s proactivity in dealing with ‘rule of law-related’ matters is undisputed.
As emphasised already, the EU actively engages in ensuring that candidate states comply with the rule of law before allowing their accession: this is done by enforcing the Copenhagen Criteria, which have become the customary law on membership. Nevertheless, it would be wrong to think that such EU engagement is confined to pre-accession situations solely. In fact, the EU is also active in respect of Member States already belonging to the Union and in this field has multiple instruments to influence the protection of the rule of law. Although such instruments differ depending on whether they aim to monitor, prevent or sanction rule of law deficiencies, they ultimately all contribute to the purpose of ensuring Member State’s compliance with the value of the rule of law.
In the last decade the EU even added two new items to its toolbox, expanding its capacity to monitor the rule of law. Currently, in addition to the well-established but highly controversial ‘Article 7 TEU procedure’, the EU can count on the Commission’s ‘Rule of Law Framework’, on the Council’s ‘Rule of Law Dialogue’.
Although there has been no concrete case, theoretically the classic ‘Infringement Procedure’ could also be used for Article 2 TEU systemic rule of law violations. However, due to the substantive vagueness of the latter article and the existence of ‘Article 7 TEU procedure’ as lex specialis already targeting such violations, the recourse to this or other analogous options is dubious and disputed in the literature. It is argued that the use of ‘Infringement Proceedings’ is complementary to the supervision mechanism provided for in Article 7(1) TEU, but on the other hand that the weakness of the former in tackling persistent and systemic breaches renders its adoption questionable and unlikely.
The following sections will look in turn at the main instruments available to the EU, notably, ‘Article 7 TEU procedure’, the Commission’s ‘Rule of law Framework’ and the Council’s ‘Rule of Law Dialogue’.
‘Article 7 TEU procedure’: two sides of the same coin
Article 7 TEU is unique of its kind, as it enshrines two different mechanisms to address situations of systemic non-compliance with EU values: its first paragraph entails a preventive function, while its second and third paragraphs provide for a means to sanction non-complying Member States. Article 7 TEU as we know it today represents the outcome of an evolution determined by those historical and socio-political factors which resulted in the Treaties of Amsterdam and Nice. In fact, whereas the sanctioning tool under paragraphs (2-4) was the original mechanism foreseen in the Amsterdam Treaty, the preventive mechanism under paragraph (1) was added only with the Nice Treaty. The reason for this enhancement was to – in the notorious words used by Sadurski in his recapitulation of the story of Article 7 TEU – ‘add a bite to a bark’, since triggering the sanctioning mechanism was complex and perceived only as a last resort.
The ‘preventive’ mechanism
Article 7(1) TEU empowers the Council to determine the existence of a ‘clear risk of a serious breach by a Member State of the values referred to in Article 2’, including therefore the rule of law. The determination of any risk is to be made by a majority of four-fifths of Council members, following the submission of a ‘reasoned proposal’ by one-third of the Member States, by the EP or by the Commission, and only after the Council has heard and possibly submitted recommendations to the Member State in question, following the same procedure. Once the determination is made, the Council is required to verify whether the grounds for the determination continue to apply.
Therefore, the procedure established in this provision calls into play both the Member States and the institutions and allows for the Union to act preventively. By determining that there is a risk, the EU would deter the Member State from pursuing its violations of Article 2 TEU and thereby pre-empt the occurrence of a serious breach.
The sanctioning ‘nuclear option’
On the other hand, paragraphs (2-4) of Article 7 TEU concern the determination of the ‘existence of a serious and persistent breach’ of the values of Article 2 TEU in a Member State and the possibility to sanction the latter for its conduct. Unlike for paragraph (1), the determination in this case is done by the European Council acting by unanimity, following a proposal by one-third of the Member States or by the Commission, after it has obtained the consent of the EP and has invited the Member State in question to submit its observations. If a serious and persistent breach is determined existent, the Council may decide, acting by the qualified majority and taking into account all relevant consequences, to ‘suspend certain of the rights deriving from the application of the Treaties to the Member State in question’. The suspension includes ‘the voting rights of the representative of the government of that Member State in the Council’. It does not follow that the Member State in question will then be able to avoid its obligations under the Treaty, as the latter will ‘continue to be binding on that State’.
Clearly, the preventive aspect is easier to achieve thanks to the voting arrangements provided, whereas for the sanctioning mechanism the contrary holds true. This is also the reason why the latter has been dubbed ‘nuclear option’: the involvement of the European Council and the fact that the mechanism is not confined to situations where Member States ‘implement EU law’, but to all their acts or omissions resulting in a serious and persistent breach of the values, renders it a highly political tool and explains the high procedural threshold to be met.
Ultimately therefore, ‘Article 7 TEU procedure’ represents a double-edged knife in the hands of the Union, both to incentivize and enforce Member State’s compliance with the values of Article 2 TEU, in particular the rule of law. As discussed above, its preventive blade was armed against Hungary and Poland and it is yet to be seen how the story will continue.
The Commission’s ‘EU Framework to Strengthen the Rule of Law’
In 2014 the Commission implemented a framework, outside the scope of Article 7 TEU, to address threats to the rule of law which are of ‘systemic nature’. In line with its ‘pre-preventive’ character, the framework consists of a three-step structured dialogue: firstly, the Commission assesses the situation in the Member State concerned; secondly it issues a recommendation based on said assessment; lastly, it monitors how the state follows up on its non-binding recommendation.
The logic underlying this instrument is to engage in a dialogue with the non-complying government and in spite of the non-binding nature of the recommendation, to deter future misbehaviours threatening the rule of law, avoiding the triggering of Article 7 TEU. It is up to the state to cooperate with the Commission and this questions therefore the effectiveness of the procedure: Poland’s unsuccessful case may hint at this.
The Council’s ‘Rule of Law Dialogue’
In a similar vein, in 2014 the Council decided to establish an annually held dialogue among all Member States within its General Affairs configuration ‘to promote and safeguard the rule of law in the framework of the Treaties’. Whereas the Commission’s ‘Rule of Law Framework’ operates on a case-by-case basis and targets threats to the rule of law by engaging with backsliding Member States only, the Council’s mechanism aims at promoting a culture of respect for the rule of law by instituting a constructive dialogue between all its members. Therefore, the Council’s initiative provides the Member States with a formal setting to discuss among ‘peers’ ways to enhance and promote the rule of law.
The three instruments presented so far represent the current main mechanisms the EU can deploy to foster a culture of respect for the rule of law and to incentivize compliance with this foundational value in the Member States. Nevertheless, the widespread understanding of ‘Article 7 TEU procedure’ as last resort option, the ‘soft-law’ character of the Commission’s and Council’s initiatives and the current status quo, cumulatively prompted the EU institutions to come up with a new solution for effectively tackling critical rule of law deficiencies within the EU. The next section considers a long-awaited but contentious proposal made to deal with such situations.