Is the “Community of values” capable of protecting its common values?
Rule of Law in the EU, Source: https://www.talk-business.co.uk
Almost three weeks ago on the 17th of December, Poland backtracked on the judiciary reform which has been triggering backlash in the European Union for almost three years. This event, occurring almost three years after the Commission raised its concerns over Poland, beggars the question whether EU sanction mechanisms are efficient and whether the EU is capable of protecting its values competently.
Reforms of the judicial system in Poland have been capturing headlines since 2015. 27 of the 72 Supreme Court judges faced the risk of being forced to retire. According to this reformed law, current judges are now being given the possibility to have their mandate prolonged by the President of the Republic alone. There is no criterion for the President’s decision and his decision cannot be subjected to judicial review. This is an unprecedented submission of the Judiciary under the control of the Executive in an EU Member State. And with that said, an obvious violation of the rule of law and separation of powers.
The European Commission has undertaken various actions against these violations of judicial independence. As stipulated in Article 17 (1) of the Treaty of the European Union (TEU), guarding the common values of the EU is one of the Commission’s most important roles. This is a particularly problematic role. Since the European Union is a supranational union of States, interfering in internal affairs of a Member State is very complex and has to be approached with much caution. For these reasons, it is interesting to take a closer look at the sanctioning mechanisms of the Commission in regards to infringement of common values as stipulated it Article 2 of The Treaty of the European Union (TEU).
This article will examine in its first part all three separate procedures in the case of the Commission against Poland, considering the historical background and purpose of the separate instruments. In a second part of the article, the various implementations of the different sanctions will be taken into consideration. Considered improvements of the sanctioning mechanisms will be discussed in the third part of this work, followed by a conclusion on the topic.
I. The different procedures taken against the Polish reforms
1. Structured exchange
The first step the Commission took against infringements by the polish government took place in January 2016 and transpired through the activation of the Framework for strengthening the Rule of Law.
“The purpose of the Framework is to enable the Commission to find a solution with the Member State (MS) concerned in order to prevent the emerging of a systemic threat to the rule of law in that Member State that could develop into a “clear risk of a serious breach” within the meaning of Article 7 TEU, which would require the mechanisms provided for in that Article to be launched.” (Article 4 of the Framework).
Simply put, the Commission undertakes to establish a dialogue with the respective MS and find a solution together that would make it possible to avoid the Article 7 TEU procedure.
This Framework was issued in the form of a Communication from the Commission. This type of document is used by the Commission in order to explain its policies to outside audiences. Despite providing the legislative basis for a whole procedure of exchange with a country, the Framework lacks a legislative basis itself. One argument for the existence of a legislative basis is the fact that this structured exchange is “less” than the article 7 procedure, for which the Commission has the authority. And since it has the authority to trigger the Article 7 TEU procedure, it deemed itself authorised for a “pre-article-7-procedure” in the form of a political procedure.
The structured exchange is laid out in three main stages. Firstly, the Commission assesses whether there are clear indications of a systemic threat to the rule of law in the country at stake. Secondly, if the Commission sees a systemic threat to the rule of law, it initiates a dialogue with the Member State concerned, by sending a "rule of law opinion" and substantiating its concerns. With this, the Commission gives the Member State concerned the possibility to respond. In the third stage, the Commission monitors the follow-up by the Member State to the recommendation addressed to it. If there is no satisfactory follow-up by the Member State concerned within the time limit set, the Commission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU.
In the case of Poland, there was no sufficient indication given by the Polish authorities of forthcoming measures to address the commission’s concerns. The dialogues and hearings of Polish officials indicated that the reform will be further upheld despite the backlash in the EU.
2. Article 7 Treaty on the European Union (TEU)
Due to the lack of change from the side of Poland, almost two years later, on 20 December 2017, the commission issued a proposal to the Council to adopt a decision under Article 7(1) TEU. On 27 June 2018, for the first time in the history of the European Union, the College of Commissioners decided to launch this infringement procedure.
Article 7 TEU was adopted 1997 through the Treaty of Amsterdam in light of the pending enlargement of the Union to Central and Eastern Europe. It was deemed necessary having a respective arsenal of sanctioning mechanisms as a warning to the newly established democracies against breaches of the Members’ shared principles and values laid down in Article 6 TEU. It allows the European Union to collectively intervene in order to prevent breaches.
The first part of the Article 7 procedures requires a reasoned proposal by either one third of the MSs, by the European Parliament (EP), by the Council (acting by a majority of four firths of its members after obtaining the consent of the EP), or by the Commission. A proposal of such a kind was issued by the Commission against Poland on 20 December 2017 and the procedures were launched on 27 June 2018. This determination of a breach is followed by recommendations to the respective Member State.
Secondly, the Council needs to determine unanimously and after obtaining the consent of the EP the existence of a serious and persistent breach of the values referred to in Article 2 TEU. This has not been reached in the procedures against Poland and is highly unlikely to ever take place. Viktor Orban has openly stated that he would not vote in favour of this determination. There are suggestions that other Members would as well vote against the procedures. If such a determination is met by the Council and accepted by the EP, the Council may decide (by a qualified majority) to suspend the voting rights of the respective MS in the Council.
Because of the nearly impossible hurdle of unanimity, the impact of the Article 7 procedure is limited to the political tone that it sets. when a violation of the homogeneity is marked in public.
3. Article 258 Treaty of the Functioning of the European Union (TFEU)
Nonetheless, the arsenal of the European Union is not limited to the Article 7 procedure.
On the 24th September 2018, the European Commission referred Poland to the European Court of Justice (CJEU) due to the same violations that led to the Article 7 procedure. The Commission has requested an expedited procedure at the CJEU, to obtain a final judgment as soon as possible.
With this referral, the Commission also asked the CJEU to order interim measures, restoring the Supreme Court to its situation before 3 April 2018, when the contested new laws entered into force. On the 19 October 2018, the CJEU ruled on case C-619/18 R (Commission vs. Poland). This preliminary injunction decision obliges Poland to immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges. The final judgment of the CJEU followed on the 17th December, forcing Poland to immediately suspend the application of the provisions of the judicial reforms relating to the lowering of the retirement age for Supreme Court judges.
On that same day, Polish president Andrzej Duda formalised the backtrack on the controversial Supreme Court law, reinstating the forcibly retired judges following the CJEU ruling – nearly three years after the first recommendation of the Commission on this matter was addressed to the Polish government.
In its decision Commission vs. Germany C-431/92, the CJEU ruled that the Commission alone is able to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations. Even in the case of Article 259 of the Treaty on the Functioning of the European Union (TFEU), Member States are obliged to bring the matter before the Commission prior to bringing actions against another Member State.
The infringement proceedings pursuant to Article 258 TFEU are not typical judicial proceedings aiming at upholding individual rights. Its main objective is the EU legal order as a fundament of the Community of Law. The Commission fulfils its function as a protector of the Treaties as set out in Article 17 TEU:
“It shall oversee the application of Union law under the control of the Court of Justice of the European Union.”
Hence, the infringement procedure is defined as an “objective” legal procedure and does not entail the penal purpose of other contentious cases. Pursuant to Article 260 TFEU , the CJEU enacts a declaratory judgment. This judgment binds the infringing State to abolish the activity, discarded as an infringement to EU values. Notwithstanding the lack of direct enforcement on this Judgment, non-compliance with it is itself an infringement, which can be pursued with a second court ruling according to the Article 258 procedure. Before the Treaty of Maastricht, this second court ruling was itself again only a declaratory judgment. Paragraph 2 of Article 260 TFEU, newly introduced by the Maastricht Treaty, now gives the CJEU the power not only to declare non-compliance with the first judgment, but also to impose a lump-sum or penalty payment on the Member State concerned (so-called “Follow-up procedure”). This grants the Commission an easily employable and more potent tool against repetitive infringements.
This procedure has led to countries putting a lot more effort into fulfilling their obligations from CJEU Judgments.
II. Possible soft law implementations of the procedures
The triggering of the various infringement procedures itself has negative impacts within the international community. For instance, the Zloty usually weakens when conflicts with the EU escalate.
January 2016: First official determination of a systemic threat to the rule of law in Poland by the Commission.
December 2017: Triggering of the Article 7 TEU procedure by the Commission against Poland.
Arguably the most important impact is the weakening of the principle of mutual trust. This principle is essential for the European Union because of the character of the EU as a “community of law”. This characterisation was popularised by Walter Hallstein in the 1960s. It has been further specified as “integration through law”. It summarises the idea that the EU is a Union of States, which share common legal values and uphold these values as a community. It is manifested in the conditions for entering the European Union, set in Article 49 TEU:
“Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.”
Without this principle in force, collaboration is unimaginable in fundamental areas like judicial collaboration in civil law, criminal law and the execution of European Arrest Warrants, even the Single Market.
On the 14th November 2018 the EP called for a comprehensive, durable and objective EU mechanism for the protection of democracy, the rule of law and human rights. The EP expressed concerns for the fact that the Commission has not reasoned a proposal for such an instrument so far and called upon the Commission to work with the Resolution on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental rights as reasoned by the EP. This mechanism provides for an annual evidence-based and non-discriminatory review of all Member States (MS) for compliance with the requirements of Article 2 TEU. However, The existing tools do not give the Commission itself the necessary authority to fulfil its role as a guardian of the common values.
The Framework for strengthening the rule of law is not a flawed idea, since it shows the willingness of EU organs to discuss something they deem an issue instead of directly imposing sanctions on Member States. However, it is disputable if two years of “structured exchange” are necessary before potent measures are taken. After the Commission’s recommendation to Poland on the 27 July 2016, the Polish Minister of domestic affairs, Marius Błaszczak, threatened the EU with a “Polexit”, stating that the Commission has obviously not learned its lesson from the case with the UK.
The Article 7 procedure, on the other hand, is highly dependent on the political situation in the Member State in question. A populist government building reputation upon anti-EU rhetoric is unlikely to change its course. Only hours after the Commission started with the early warning system of Article 7 TEU, president Andrzej Duda signed two further disputed Polish laws, infringing upon judicial independence in Poland.
The case with the Polish judicial reforms gives the impression that the only effective tool in the Commission’s pocket against determined rule-breakers is its authority to submit the case to the CJEU. For now, the Union is proving effective in protecting its values as a whole. However, the fact that the ultima ratio (the last and most extreme measure) of forcing Governments to pay (with tax money) is the only way of upholding a community of values based on mutual trust certainly suggests the necessity of new enforcement tools.
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EU Press releases:
 Whilst article 258 regulates the failure to comply with EU law, article 260 has a much narrower ambit. It regulates the failure to comply with a judgment of the CJEU.