A new line of European case law adopted by the European Court of Justice (ECJ) holds the promise that the Commission will be more capable of protecting fundamental EU values from ongoing rule of law violations.
The ongoing violations of the rule of law in Poland and Hungary in the zeitgeist of ‘illiberal democracy’ are perceived as a systemic challenge to the core values of the European Union. As noted by many authors, this trend within the Union has been entrenched due to the complacency of the European Commission’s lethargic (and mostly reactive) actions. The European Commission has two different sets of tools at its disposal with regard to breaches of the rule of law: infringement procedures and Article 7 TEU protocol. However, at the beginning of the 21st century, the Commission forwent its role as the “guardian of the treaties” by not taking coordinated action, hesitating to develop a common response, and advancing a more cautionary approach (soft power oriented), rather than a substantive one. However, a recent development in case law by the European Court of Justice has provided the Commission with scope conditions to countervail the harmful effects of the breaches of the rule of law within the European Union.
The 1999 Austrian elections resulted in the far-right Freedom Party (Freiheitspartei Österreichs, hereafter FPÖ) winning 26.9 percent of the vote and joining the coalition government with the conservative party. This led to intense turmoil in the European Union: in particular, there was a grave concern for any potential violations of European values by the coalition government. In turn, the European Parliament passed a resolution condemning the FPÖ, which in and of itself, should have been reason enough to trigger the Article 7 procedure. Yet, despite this, Member States opted for bilateral action limiting relations to bureaucratic affairs.
Likewise, during the mid-2000s, Hungary imposed a national scheme requiring compulsory retirement of judges, prosecutors, and notaries reaching the age of 62 that lacked any substantive basis. The Commission referred Hungary to the European Court of Justice (ECJ), but after five years of waiting for a judgment, the Commission accepted financial compensation as an acceptable remedy – oblivious to the damning effect on the independence of the judicial branch in the country.
In light of further rule of law breaches in 2012 by Poland and Hungary, the then Commission President José Barroso and Vice-President Viviane Reding further complicated the enactment of Article 7 procedure, which allows for sanctions or even the suspension of membership; by labeling it as ‘the nuclear option’, they preempted any political support for its enactment, thus politicizing its use. Conversely, the Commission created the Rule of Law Framework (RLF) as a preventative mechanism to address threats to Article 2 of the TEU, which states the founding values of the Union, without the existence of a serious and persistent breach. Though this was the preferred course of action by the Commission trying to address the attack on judicial independence in Poland and Hungary, time and time again the RLF proved ineffective in remedying the systemic violations of EU values.
Political Impasse and New Hope
In 2016, the Commission revoked the self-imposed ‘nuclear action’ label to the Article 7 procedure, looking to enact it against Poland and Hungary. Alas, the design of its clauses resulted in political gridlock precluding any pathways for sanctions. The first section of this procedure. Article 7 (1), can be enacted either by the Commission or a two-thirds majority of Member States, yet, it only assesses whether there is a ‘clear risk of serious breach’ of the values enshrined in Article 2 TEU. While, the second section, Article 7 (2) contains the sanctions mechanisms, but requires unanimity by the European Council (excluding the concerned state). Without the benefit of hindsight, this procedure appeals to the consensus-based politics that characterize the EU. However, in the context of two ‘illiberal’ Member States that alternate the use of their veto power, the deployment of sanctions is virtually impossible.
In the light of this political gridlock, a new line of case law established by the European Court of Justice has brought newfound success to the Commission. Previously, it was understood that there was no basis in the treaties of the union to adopt measures strictly connected to Article 2 TEU, as this was widely seen as a purely normative provision. In fact, cases Gerhard Fuchs and Peter Köhler v Land Hesse and European Commission v Hungary grounded their judgments in the Equality Framework Directive leaving no room for rulings based solely on Article 2. Nonetheless, in the Portuguese Judges case, the Court ruled to effectively protect judicial independence across the Union ruling that national courts are European courts. More importantly, it grounded its reasoning in the second paragraph of Article 19 (1) TEU. The section reads that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.
Derived from this novel re-interpretation of the second subparagraph of Article 19 (1), the Commission has found a new successful avenue for addressing the Rule of Law crisis. Particularly, in the cases A.K. and Others, Commission v Poland (C-619/18), and Commission v Poland (C-791/19). All of these cases have already been ruled in favor of the Commission expanding its scope of policy action. Taking this into consideration, Article 19(1) TEU has provided the Commission with a new legal platform to use in infringement proceedings against the Member States who attempt to undermine the independence of their courts.
As in previous instances, the ECJ has given new life to attempts to deepen integration within the EU with its rulings. However, the prospects of Poland voluntarily complying with them, or the EU enforcing them, are unpromising at most. Last Thursday, October 7th, the Polish Constitutional Tribunal declared that core elements of EU primary law were incompatible with the Polish Constitution. In principle, this restricts the binding of ECJ rulings to the limits drawn by the Polish Constitution, trumping the principle of primacy of EU law. For let us not forget that the preservation of EU values underpins all other aspects of integration (be it economic, political, or social) and no European-wide project can exist without them. Thus, the Commission cannot rest on its laurels but should strive for stronger enforcement mechanisms that have a bite to it, and can be triggered by general consensus rather than resourcing to the ECJ.