By Jordan Ziehr
The last decade has seen a number of European Union Member States experience significant democratic backsliding, which has presented a challenge to the EU’s commitment to uphold the rule of law. In Poland, attacks on the independence of the judiciary led to an EU attempt to enforce its requirements that Member States uphold the values of the EU. The Polish legislature passed a number of amendments to the Law on the Constitutional Tribunal, including allowing for the annulment of judicial appointments and requiring a two-thirds majority of the full bench to pass decisions.[1] As a result, in 2017, the European Union triggered Article 7(1) procedure of the Treaty on European Union (TEU), which allows the European Council to determine whether there is a clear risk of a serious breach of European Union values.[2] In Hungary, the government undertook similar measures to Poland, implementing a mechanism designed to install party loyalists on the Constitutional Court and to limit the Court’s independence.[3] In addition, the Hungarian government cracked down on the freedom of the press and stigmatized human rights Non-Governmental Organizations.[4] As was the case with Poland, the European Union triggered Article 7(1) TEU proceedings against Hungary in 2018. However, neither Hungary nor Poland has experienced any suspension of rights as a result of these proceedings.
Under Article 7(1) TEU, for a finding of clear risk of a serious breach by four-fifths of the European Council, they can trigger Article 7(2) TEU, at which point there must be a unanimous vote by the European Council in order to find that a serious and persistent breach of EU values has occurred.[5] Needless to say, these particularly high bars have not been cleared in the proceedings against Hungary and Poland. The Article 7 TEU procedure was once considered to be the EU’s ‘nuclear option’ when it comes to enforcing its membership requirements, but these recent experiences with its implementation have demonstrated its unwieldiness. The process, which emphasizes the building of a constructive dialogue with the Member State being investigated for a breach of EU values, takes too long to get anywhere near achieving results.[6] The longer the process drags on, the more time an authoritarian regime has to consolidate power and enact policies for its own benefit.[7] In addition, the need for unanimity in the Article 7(2) TEU procedure all but ensures that a Member State will never be in found in breach, as it would only take one other Member State who is sympathetic to the regime under investigation to thwart the unanimous vote.[8]
There have been efforts to strengthen the EU’s ability to uphold the rule of law. In May 2018, the European Commission introduced a plan (the “Conditionality Regulation”), which would allow the EU to condition the disbursement of funds on compliance with EU values regarding the rule of law.[9] Such a measure was originally designed to be triggered by a qualified majority (55 percent) of EU Member States.[10] Considering that Poland and Hungary both rely heavily on EU funds, this measure seemed well-suited to address the issues with enforcement through Article 7 TEU. However, the final version that was passed suffers from many of the same issues as Article 7 TEU. The new Conditionality Regulation first requires the European Court of Justice to rule on the legality of the mechanism before it can be implemented.[11] This delay still allows authoritarian regimes to consolidate power and perpetuate rule of law abuses while the measure is being considered. In addition, the mechanism can only be triggered after funds have been misspent, which significantly hampers its use as a preventative tool.[12] While the new Conditionality Regulation represents an important acknowledgement of the Article 7 TEU failures and an attempt at reform, its shortcomings make more effective enforcement of EU values unlikely. However, the new measure only went into effect at the beginning of 2021, so it remains to be seen how effective it will be in practice.
[1] Martina Coli, Article 7 TEU: From a Dormant Provision to an Active Enforcement Tool?, 10 Perspectives on Federalism E-272, E-286 (2018).
[2] Id. at E-290.
[3] International Federation for Human Rights, Hungary: Democracy Under Threat 1, 4–7 (2016).
[4] Laurent Pech & Kim Lane Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, 19 Cambridge Y.B. Eur. Legal Stud. 3, 23 (2017).
[5] What is Article 7, the EU’s ‘Nuclear Option’?, Politico (Sep. 12, 2018), https://www.politico.eu/article/graphic-what-is-article-7-the-eus-nuclear-option/.
[6] See Laurent Pech & Kim Lane Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, 19 Cambridge Y.B. Eur. Legal Stud. 3, 27 (2017).
[7] Id.
[8] See Iuliana-Mădălina Larion, Protecting EU Values: A Juridical Look at Article 7 TEU, 25 Lex Et Scientia Int’l. J. 160, 165 (2018).
[9] Lili Bayer & Andrew Gray, Brussels Unveils Battle Plan to Hit ‘Illiberal Democracies’, Politico (May 1, 2018), https://www.politico.eu/article/mff-commission-eu-budget-proposal-brussels-looks-to-link-eu-payouts-to-justice-standards/.
[10] Id.
[11] Kim Lane Scheppele, Laurent Pech, & Sébastien Platon, Compromising the Rule of Law While Compromising on the Rule of Law, Verfassungsblog (Dec. 13, 2020), https://verfassungsblog.de/compromising-the-rule-of-law-while-compromising-on-the-rule-of-law/.
[12] Id.