By Robin Leick [*]
In his blog post from 9 September 2020, Jakub Karczewski explained why a rule of law crisis in a Member State matters for the EU. Now we want to answer the question of what the EU institutions can do to prevent or tackle such a crisis.
This blog post will take a look at seven different mechanisms – some pre-existing, others suggested – that can either prevent a rule of law crisis or deal with such an ongoing crisis.[2] This post begins with preventive mechanisms and then works its way through to possible punitive mechanisms, even though it is not always possible to draw a sharp line between the prevention and the handling of a crisis.
1. The initial screening procedures
The first opening for the EU to secure certain rule of law standards within its Member States arises even before a state becomes an EU member. Before a European state is able to join the EU, it has to fulfil certain foundational requirements. It has to respect “the values referred to in Article 2”, including the value of the rule of law, “and [has to be] committed to promoting them” when applying for an EU membership (Article 49 of the Treaty on European Union (TEU)). In practise, the prospective Member State often conducts numerous preliminary talks with EU institutions in order to receive sufficient guidance.[3] After submission of the application, a thorough screening process starts.[4] Moreover, after the application or the accession the parties involved may take follow-up action if there is still room for improvement.[5]For instance, the EU Member States have accepted the accession of Romania and Bulgaria. However, jointly with the accessioning states it was decided to grant the European Commission the power to develop “appropriate measures” if Romania/Bulgaria breach (or seriously risk breaching) the functioning of theinternal market rule, and/or fail to properly implement the rules relating to mutual recognitionin criminal and civil matters.[6] Following on from that, the European Commission has created the so-called “mechanism for cooperation and verification” due to “remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies” in Romania and Bulgaria.[7]Based on country-specific benchmarks, such as the creation of “a more transparent and efficient judicial process”[8] or “measures to prevent and fight against corruption”[9], the Commission continuously reviews the developments in both countries and formulates explicit requests, such as the recommendation to repeal several Romanian emergency ordinances in 2012.[10]
2. The EU Justice Scoreboard
Similar to the initial screening of prospect or new Member States, a constant review of the rule of law observance within all the Member States is essential. The EU Justice Scoreboard plays an important role here. It is an annual analytical and comparative report of the efficiency, quality and independence of all the national justice systems of the EU Member States.[11]The Scoreboard allows the EU to detect both national and EU-wide developments and “aims to assist the EU and Member States to improve the effectiveness of national justice systems”[12].
3. Prospective Annual Rule of Law Report
In addition to the EU Justice Scoreboard, the new European Commission, led by Ursula von der Leyen, implemented[13]another tool to collect and present information about the rule of law situation in the EU: The Annual Rule of Law Report. It is part of an intended “comprehensive European Rule of Law Mechanism”[14]. The report is based on consultations with relevant stakeholders, such as judges’ and journalists’ organisations, and provides a “country specific synthesis of significant developments in Member States”[15]. The first report will be published already this month.[16]
4. The Structural Reform Support Service
Alongside monitoring, actual improvement of rule of law implementation is a key preventive tool. Many Member States strive for a better level of implementation of the EU’s values and in particular the rule of law. However, it often seems difficult for these Member States to realise these plans without any further help. Here, the Structural Reform Support Service (SRSS) comes into play. The SRSS is a service provided by the Directorate-General REFORM of the European Commission. With a budget of almost 223 million Euros for the years 2017-2020, the Directorate-General helps national public authorities to implement plans of structural improvement within individual countries.[17] The support can be targeted at widely diverse areas, including rule of law related tasks, such as anti-corruption measures or judicial reforms.[18] For example, the SRSS financed the exchange of French, Dutch and Slovenian judges in 2017 to support and advise, among other things, improvements within the Croatian administration of courts.[19]
5. The Rule of Law Framework and the Article 7 TEU procedures
Whenever a rule of law crisis is being discussed, it is likely that the so-called Rule of Law Framework and the preventive and the sanctions procedures, as set out in Article 7 TEU (“Article 7 procedures”),[20] are mentioned.
The Rule of Law Framework
The so-called “Rule of Law Framework”, initiated by the European Commission in 2014, “precedes and complements [the] Article 7 TEU mechanisms”[21] and acts on three stages: “a Commission assessment, a Commission recommendation and a follow-up to the recommendation”[22]. Its aim is, inter alia, to “avoid the [Commission’s] use of Article 7 TEU mechanisms” by “finding a solution through a dialogue with the Member State concerned”.[23]However, if this dialogue remains unsuccessful, the Commission – as well as several other EU institutions without such preliminary procedure – can initiate one of the Article 7 procedures.
The preventive procedure of Article 7, paragraph 1 TEU[24]
In 2003, the preventive procedure of Article 7, paragraph 1 TEU was established, as a reaction to the Austrian case,[25] which will be further explained below. This mechanism allows one to determine “a clear risk of a serious breach by a Member State of the values referred to in Article 2 [TEU, including the rule of law – R.L.]”. It can be divided into three steps:
In step one, one third of the Member States, the European Parliament or the European Commission have the opportunity to issue a “reasoned proposal” that a clear risk of a serious breach of European values, including the rule of law, by a Member State does exist. Until today, this step has been taken twice. On 20 December 2017, the European Commission initiated the preventive procedure “to defend judicial independence in Poland”. This reasoned proposal was preceded by a multitude of the Commission’s recommendations concerning the rule of law situation in Poland, which were developed within the Rule of Law Framework of the Commission mentioned above.[26] On 12 September 2018, the European Parliament initiated the early warning procedure against Hungary also because of, among other things, the rule of law defects in this Member State.
In step two, “the Council shall hear the Member State in question and may address recommendations to it”, after obtaining the consent of the European Parliament.
In step three, “the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2 [TEU, including the rule of law – R.L.]”. So far, the Council has never declared such a risk.
The sanctions procedure of Article 7, paragraphs 2 and 3 TEU[27]
The sanctions procedure was established in 1999 and has remained almost unchanged in today’s Article 7, paragraphs 2 and 3 TEU. It can be further divided in two sub-procedures. According to the Article 7(2) procedure, the European Council[28],
“acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 [TEU, including the rule of law – R.L.], after inviting the Member State in question to submit its observations.”
The Article 7(3) procedure follows on from that, by stating that the Council[29],
“acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.”
Thus, while strong sanctions might apply, the criteria for EU institutions to act are very strict: it is not only necessary to detect a serious and persistent breach of the rule of law or another EU foundational value within a Member State, but also to act by unanimity in the European Council (with the exception of the state concerned) in order to initiate the so-called “nuclear option”[30]and to issue a sanction. In practise, both conditions do not seem to encourage the application of this mechanism. In 2001, the then fourteen EU Member States decided to apply controversial measures against Austriaoutside the EU’s legal framework and thus not to draw back to Article 7 TEU in order to oppose the new Austrian governmental coalition between the centrist Austrian People’s Party and the far-right Freedom Party.[31] In the aftermath, experts argued that an EU procedure with preventive objectives was needed to “[deal with] a situation similar to the […] situation in Austria […] within the EU”[32] in the future. Thus, this case contributed to the introduction of current Article 7, paragraph 1 TEU. Furthermore, from the words of the Hungarian Prime Minister Viktor Orbán with regard to Poland it has become clear that the unanimity requirement may invite certain Member States to protect other Member States which seem to breach the rule of law.
In theory, Article 7 procedures thus provide for several far-reaching mechanisms to deal with upcoming or existing rule of law crises. In political reality, however, at least some of these tools seem difficult to use.
6. The infringement procedure before the Court of Justice of the EU
Another way to tackle difficulties with the respect for the EU foundational values, including the rule of law, is the infringement procedure before the Court of Justice of the EU. This procedure can be initiated by the European Commission[33] or by any Member State[34] and is to be directed against Member States’ failures to fulfil EU obligations. The advantages of this procedure are its low initiation requirements and the power of the Court of Justice of the EU to impose a lump sum or penalty payment on the Member State concerned, if this Member State does not take the necessary measures to comply with the judgment of the Court. However, to my knowledge, the infringement procedure has never been used to directly tackle a violation of the rule of law itself, and it is highly disputed whether this is even possible from a legal perspective.[35] Nevertheless, in recent years, the procedure was frequently used to handle the violations of certain aspects of the rule of law, especially the obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” (Article 19 paragraph 1 TEU). This topic will be further discussed in the next blog post on 23rd September 2020.
7. Prospective budget conditionality
As mentioned in the introductory blogpost, the most recent initiative to tackle rule of law shortcomings in a Member State is to make pay-outs from the EU budget and the EU coronavirus recovery fund (the so-called “Next Generation EU”) conditional upon respect for the rule of law. A proposal of the European Commission, as amended by the European Parliament, provides for the European Commission to adopt appropriate measures, such as the suspension of payments to a national government entity, if a generalised deficiency regarding the rule of law is detected. Following Article 2a of this amended proposal, a generalised deficiency shall be considered in particular in cases of an “endangering of the independence of judiciary” or a “failing to prevent, correct and sanction arbitrary or unlawful decisions by public authorities”.
In its conclusions of its special meeting in July 2020, the European Council stated that
“a regime of conditionality to protect the budget and Next Generation EU will be introduced. In this context, the Commission will propose measures in case of breaches for adoption by the Council by qualified majority.
The European Council will revert rapidly to the matter.”
This statement was seen to lead to confusion “over how the decision on a rule-of-law mechanism would be made, and which body or bodies would be responsible: whether, as Poland’s government claims, unanimity at the European Council will be required, or whether qualified majority voting in the Council of the EU is sufficient.”[36] Thus, only time will tell if and in which format the rule of law conditionality of pay-outs will be introduced.
Conclusion
EU institutions have various mechanisms at their disposal to prevent and tackle rule of law crises in the Member States. It begins with a thorough screening process before the accession and in the early stages of the membership of a new Member State. With a view to all Member States, the EU Justice Scoreboard and the prospective Annual Rule of Law Report create a factual basis for further initiatives. Such initiatives are ratherpreventive in nature, much like the Structural Reform Support Service. On the other hand, there are alsopunitive options, such as Article 7 TEU, the infringement procedure or – maybe in the future – a budget procedure. Whether all these options are capable of maintaining a sufficient rule of law standard within the EU Member States remains to be seen.[37]
An earlier version of this article incorrectly made reference to Article 47 of the Charter of Fundamental Rights of the EU instead of Article 19 TEU, when referring to the ECJ infringement procedures under Point 6. We apologize for the error.
References
[*] I would like to thank Jakub Karczewski, David Preßlein and Quirin Weinzierl for their valuable comments on a previous version of this blog post as well as Muhammad Saad Siddiqui for the linguistic revision of the text. All linked websites were last accessed on 16 September 2020.
[2] The choice of measures characterised in this blog post is partly inspired by the “EU’s Rule of Law Toolbox”, which also refers to further instruments, see https://ec.europa.eu/info/sites/info/files/rule_of_law_factsheet_1.pdf.
[3] Christoph Ohler, in: Grabitz/Hilf/Nettesheim (eds.), Das Recht der Europäischen Union (The law of the European Union), 70thed. 2020, Artikel 49 EUV (Article 49 TEU), para. 17, 23.
[4] European Commission, “EU Enlargement Fact Sheet”, p. 2, available at https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/publication/factsheet_en.pdf; Christoph Ohler (note 2), para. 32.
[5] See Christoph Ohler (note 2), para. 31, 55-57, also regarding the so-called safeguard clauses, which are discussed below.
[6] See Article 4, paragraph 3 of the Act of Accession of Romania and Bulgaria, OJ of 21/06/2005, L 157/11, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12005S/TTE&from=DE, in conjunction with Articles 37 and 38 of the Protocol Concerning the conditions and arrangements for admission of the republic of Bulgaria and Romania to the European Union, OJ of 21/06/2005, L 157/29, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12005SP&from=DE.
[7] Recital 6 of Commission Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria), OJ of 14/12/2006, L 354/56 and L 354/58, available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006D0928and https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006D0929.
[8] Benchmark no. 1 for Romania and Benchmark no. 2 for Bulgaria, see Annex of Commission Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria), note 6 above.
[9] Benchmark no. 4 for Romania, similar Benchmark no. 5 for Bulgaria, see Annex of Commission Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria), note 6 above.
[10] See further on this issue Radu Carp, “The Struggle for the Rule of Law in Romania as an EU Member State: The Role of the Cooperation and Verification Mechanism”, Utrecht Law Review 2014, 1 (9 et seqq.).
[11] See European Commission, Press release from 10 July 2020, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1316.
[12] European Commission, “2020 EU Justice Scoreboard - Questions and Answers”, available at https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1315.
[13] The Annual Rule of Law Report was initiated in 2019 by the former European Commission, see European Commission, “Strengthening the rule of law within the Union - A blueprint for action”, COM(2019) 343 final, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0343&from=EN.
[14] Ursula von der Leyen, “A Union that strives for more – My agenda for Europe, Political Guidelines for the next European Commission 2019-2024”, pp. 14-15, available at https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf.
[15] European Commission, “The 2020 EU Justice Scoreboard”, Fact sheet July 2020, available at https://ec.europa.eu/info/sites/info/files/2020_eu_justice_scoreboard_factsheet.pdf.
[16] European Parliament, “Legislative Train 8.2020”, available at https://www.europarl.europa.eu/legislative-train/api/stages/report/current/theme/a-new-push-for-european-democracy/file/2020-annual-rule-of-law-report.
[17] Directorate-General for Structural Reform Support, “Helping EU Member States carry out growth-enhancing reforms” (2020), pp. 2, 4, available at https://ec.europa.eu/info/sites/info/files/srss-information-brochure_en_2.pdf.
[18] Directorate-General for Structural Reform Support (note 16), p. 5.
[19] See European Commission, “Three years Structural Reform Support Service” (2018), p. 14, available at https://ec.europa.eu/info/sites/info/files/report-on-the_3-years-of-the-srss_en_.pdf.
[20] Following the structuring of the European Commission (note 2), p. 4.
[21] European Commission, “A new EU Framework to strengthen the Rule of Law”, COM(2014) 158 final, p. 3, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0158&rid=9.
[22] European Commission (note 20), p. 7.
[23] European Commission (note 20), p. 7.
[24] Designation similar to European Commission (note 2), p. 4.
[25] See Ruffert, in: Calliess/Ruffert (eds.), EUV/AEUV Kommentar (TEU/TFEU Commentary), 5th ed. 2016, Artikel 7 EUV (Article 7 TEU) para. 2.
[26] See European Commission, “Further strengthening the Rule of Law within the Union – State of play and possible next steps”, p. 3, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0163&from=EN.
[27] Designation and classification inspired by European Commission (note 2), p. 4.
[28] The European Council is an EU institution that consists of the Heads of State or Government (e.g. presidents, prime ministers) of the Member States and is responsible for defining the EU’s general political directions and priorities (Article 15 paragraphs 1, 2 TEU). The European Council should not be confused with the Council (see note 28 below).
[29] The Council is another EU institution that consists of a representative of each Member State at ministerial level (e.g. ministers of educations if the Council discusses the education issues) and is responsible, jointly with the European Parliament, for exercising legislative and budgetary functions (Article 16 paragraphs 1, 2 TEU). The Council shall not be confused with the European Council (see note 27 above).
[30] José Manuel Durão Barroso, “State of the Union address 2013”, available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_13_684.
[31] For further information regarding the European opposition against the controversial Austrian coalition see Ian Black, “Europe rallies against Haider coalition”, The Guardian, 4 February 2000, available at https://www.theguardian.com/world/2000/feb/04/austria.ianblack.
[32] See Report by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja, 8/9/2000, para. 117, available at https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/AUT/INT_CCPR_NGO_AUT_89_8061_E.pdf.
[33] Article 258 Treaty on the Functioning of the European Union(TFEU).
[35] Regarding the latter, see e.g. Kim Lane Scheppele, “Enforcing the basic principles of EU law through systemic infringement actions”, in Closa and Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (2016), pp. 105-132.
[36] Maria Wilczek, “Poland celebrates EU budget success but confusion remains over rule-of-law conditionality”, Notes from Poland, 21 July 2020, available at https://notesfrompoland.com/2020/07/21/poland-celebrates-eu-budget-success-but-confusion-remains-over-rule-of-law-conditionality/.
[37] For further reflections and initiatives, see the European Commission’s summary of the stakeholder contributions 2019, available at https://ec.europa.eu/info/sites/info/files/ruleoflaw_summary_150719_v3.pdf as well as a special Eurobarometer survey, available at https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/87324.