Since 2016, the Polish parliament has introduced several new laws that challenge the very foundation of the Polish judicial system, particularly the Polish Supreme Court. These reforms not only represent a further step of the governing Law and Justice Party (PiS) in reducing the independence of the country’s judiciary, but they also pose a threat to one of the European Union’s most fundamental principles: The rule of law. Against this background, this paper shortly outlines the legal instruments available under EU law for securing the rule of law, discusses possible weaknesses of these measures and presents alternative approaches to redress existing violations.
The rule of law represents one of the fundamental values upon which the European Union (EU) is founded and is enshrined in Article 2 of the Treaty on European Union (TEU). Stemming from the common constitutional traditions of all the Member States of the EU, the rule of law encompasses several principles, such as the principle of legality, legal certainty, the prohibition of arbitrariness of a state’s executive powers and the existence of independent and impartial courts. While respect for the rule of law is a precondition for EU membership as provided by Article 49 TEU, it is – under the Treaties – the responsibility of the European Commission (the Commission), together with the European Parliament and the European Council (the Council), to safeguard and strengthen its continuous implementation among the Member States. As Poland just recently introduced controversial judicial reforms and Hungary’s prime minister repeatedly stresses the possibility of reinstating the death penalty, this task has proven to become increasingly important during recent years.
In order to prevent the emergence of systemic threats to the EU as a community based on the rule of law, the EU Treaties provide for enforcement procedures to comply with EU law, such as the procedure under Article 7 TEU. This provision includes both a preventive and a sanctioning mechanism that can ultimately lead to the suspension of a Member State’s voting rights in the Council. As a first step, the Council can declare the existence of a “clear risk of a serious breach” of the rule of law by four fifths of its members if a Member State is considered to be close to breaching EU values. A proposal to trigger this procedure can be brought forward by the European Parliament, the Commission or by one third of the Member States. Should the mere risk of a breach of the rule of law prove to be an actual violation, both the Commission and one third of the Member States may propose to the Council to declare the existence of such a “serious and persistent breach”. This decision can only be rendered unanimously and requires the consent of the European Parliament. It further serves as a basis for the Council’s decision under Article 7(3) TEU to ultimately impose sanctions against the Member State in violation of the rule of law. However, there seems to be a political unwillingness to invoke these measures that have been described by the Commission’s former president José Manuel Barroso as representing the ‘nuclear option’. In addition, the substantive as well as the procedural requirements for initiating measures under Article 7 TEU are high. In order for the Council to determine that there is a clear risk of a serious breach of the rule of law by the Member State in question, a majority of four fifths of its members is necessary, while the adoption of sanctions under Article 7(2) and 7(3) TEU requires unanimity.
Poland introduced new legislation that encompasses, among others, the automatic dismissal and forced retirement of Supreme Court judges as well as the Minister of Justice’s discretionary power to dismiss and appoint court presidents. Although, as stated by the Commission in its most recent Recommendation, the substantive threshold of a ‘clear risk of a serious breach’ of the rule of law has clearly been met with regard to these reforms, reaching unanimity in the Council as required under Article 7(2) TEU is considered virtually impossible. Therefore, it has recently become visible how easily a single Member State can veto the imposition of sanctions under Article 7(3) TEU. As a result, sanction proceedings under Article 7 TEU are de facto suspended before even having been triggered. For the rule of law to be secured within the EU Member States, it is therefore vital to establish a system that can effectively address Member States’ violation of EU law constitutional principles, such as the rule of law.
In addition to the preventive and the sanctioning mechanisms provided by Article 7 TEU, an infringement procedure under Article 258 TFEU could be initiated. Such a procedure is applicable when a Member State has failed to fulfil an obligation under the Treaties. Since the Treaties do not expressly regulate the relationship between both provisions and this technically includes a Member State’s obligations to comply with the rule of law under Article 2 TEU, one might conclude that the mechanisms under Article 7 TEU and Article 258 TFEU could serve as complementary instruments. However, the requirement of unanimity provided for by Article 7(2) TEU was intentionally included by the Member States to establish a high threshold for the adoption of sanctions with regard to measures that are at the core of a Member State’s national sovereignty, such as judicial reforms. As infringement procedures under Article 258 TFEU are not subject to similar procedural obstacles and can be launched by the Commission, triggering Article 258 TFEU with regard to violations of the rule of law would represent a circumvention of Article 7 TEU. In order to prevent such an evasion of the procedural requirements of Article 7(2) TEU, it is necessary to interpret it as being a lex specialis, therefore rendering Article 258 TFEU partly inapplicable for breaches of Article 2 TEU. Yet, this does not exclude the possibility of initiating an infringement procedure on the grounds of a breach of EU law provisions other than Article 2 TEU – namely in areas in which Article 7 TEU does not apply – which may serve as a means of exerting greater political pressure. For example, the Commission opened an infringement procedure against Poland in July 2017. Due to the introduction of provisions that entitle the Polish Minister of Justice to prolong the mandate of judges at his discretion, the Commission raised concerns about, inter alia, a violation of Article 19 TEU. The Commission did not, however, base the infringement procedure on a violation of Article 2 TEU itself.
Political pressure could also be exerted through an individual or inter-state application to the European Court of Human Rights (ECtHR). In 2016, the ECtHR issued a judgment in the case of Baka v. Hungary stating that Hungary violated Articles 6(1) (right to a fair trial) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR) with regard to the forced retirement of András Baka, the former President of the Hungarian Supreme Court, who had criticised certain aspects of the government’s constitutional reforms as being incompatible with the rule of law. However, there are several reasons why an application to the ECtHR – whether initiated by a Member State or an individual person – does not appear to be a promising measure regarding an immediate enforcement of the rule of law. Although both individual applications and applications brought by one state against another are allowed, the latter only rarely occurs. A state will be expected to initiate a proceeding for the protection of a person or group, when a consistent pattern of human right’s violations exists in a given country. In the light of violations of the rule of law in Poland, this scenario seems to be quite unlikely. With regard to individual applications, a case can only be brought to the ECtHR after domestic remedies have been exhausted as indicated by Article 35(1) ECHR. Hence, the ECtHR can only tackle the consequences of a breach of the rule of law in the form of human rights’ violations, but is unable to effectively and immediately combat the breach of the rule of law itself.
As the requirement of unanimity in the Council is one of the main obstacles in imposing sanctions against a Member State, joint proceedings under Article 7 TEU might be initiated under the condition that two states have been found to pose a risk to the rule of law. It is currently being discussed whether the Council should be entitled to determine the existence of a breach in the meaning of Article 7(2) TEU with regard to both Member States in the context of a single procedure. Unanimity requires 27 states to vote in favour of the adoption of sanctions against the state in violation of the rule of law. As Hungary has emphasised that it will veto any such decision with regard to Poland, it is currently very unlikely that the necessary votes under Article 7(2)TEU could be obtained in the Council. On the grounds that states under review do not participate in the vote, the initiation of a joint proceeding against Poland and Hungary would therefore make it possible to prevent both states from permanently shielding each other from sanctions. However, this approach rests on an interpretation of Article 7 TEU that would most probably not have been approved by the Member States as it bears the risk that the requirement of unanimity would in fact be turned into a majority decision. It could incite a political debate about the extent of the EU’s power to intervene in a Member State’s national affairs at a time when cohesion within the EU is essential in order to preserve political stability.
Against this background, the Commission established a new framework that primarily aims at finding a solution through an open dialogue with the Member State concerned which is currently being implemented with regard to Poland. However, a process like this requires cooperation on both sides and is deemed to fail when a state refuses to follow any kind of recommendation issued by the Commission. It is the author’s opinion that the enforcement of the rule of law will always represent a political controversy that cannot necessarily be solved through one mechanism alone but rather needs a balanced approach. Maintaining a transparent dialogue with the Member State in question is as important as being able to impose sanctions in order for the Member States to respect the EU’s common values and acknowledge the Commission’s authority as guardian of the Treaties. In order to protect the foundation of the European Union, the EU’s institutions, especially the Commission, should take decisive action with regard to the enforcement of the Treaties and sanction violations of the rule of law with a suspension of certain rights of a Member State. Even though a new interpretation of Article 7 TEU is expected to face resistance in the community of Member States, the possibility to initiate joint proceedings against two Member States could be seen as an opportunity to get out of the current gridlock.
 Article 17 TEU, for example, states, that the Commission shall ensure the application of the Treaties including Article 2 TEU and the rule of law. Further, Article 7(1) TEU establishes the right of the Parliament and the Commission to make a reasoned proposal to the Council with regard to existent threats to the values referred to in Article 2 and therefore assigns responsibility to these institutions to protect the rule of law.
 Prof. Matthias Niedobitek, Europarecht – Grundlagen der EU (De Gruyter 2014) 62.
Patricia Jaworek has studied law at the University of Hamburg where she completed a one-year specialisation in European and Public International Law. In 2014, she studied at Lund University in Sweden as an exchange student. In September 2018, Patricia will start a Master in International Law at the Fletcher School of Law and Diplomacy.