Leo Hotham and Lucas Nacif
According to Article 2 of the Treaty on European Union (TEU), the European Union (EU) is founded on the common values of its Member States: ‘respect for human dignity, freedom, democracy, equality, and the rule of law’. The Article in itself is non-obligational, and lacks a substantive dimension, and as such appears to be aspirational. It is, however, protected against serious breach by the procedures contained in Article 7 TEU.
This Article was introduced by the Treaty of Amsterdam, to advance the European constitutional project by creating a form of ‘constitutional troubleshooting’, placing the individual at its centre and providing protection from ‘state arbitrariness’. The provision entrusts the Council with an arsenal of political measures aimed at rectifying a breach of Article 2. Firstly, Article 7(1) TEU enables the Council, acting by four-fifths majority, to take pre-emptive action, after a proposal by the Commission, Parliament or one-third of the Member States, to declare ‘a clear risk of serious breach’ of Article 2 TEU. The Council, acting by unanimity, may furthermore declare ‘the existence of a serious and persistent breach’, at which point the Council has at its disposal a sanctioning mechanism, able to strip Member States in breach of rights derived from the Treaties. In this post, we will argue that, despite the gravity of the Commission’s recent recommendation, it will unlikely have a lasting impact, due to the current political climate alongside the onerous procedural requirements of Article 7 TEU.
The Polish Constitutional Crisis
On 20 December 2017, after almost two years of repeated efforts to engage the Polish authorities in constructive dialogue, the Commission made a reasoned proposal to the Council to adopt a decision under Article 7(1) TEU.
While this comes after an extended accumulation of concerning activity by the government of Poland, this Commission decision to take unprecedented action seems to have been triggered by the passing of laws on the Polish Supreme Court and National Council for the Judiciary. The Polish Parliament approved these overhauling judicial reforms despite wide disapproval from the European Parliament the Council of Europe, the Council of Bars and Law Societies of Europe, the UN’s Special Rapporteur, and even from Poland’s own Supreme Court.
This new legislation is a threat to the rule of law in a number of ways. First, it lowers the Supreme Court retirement age from 70 to 65, terminating the mandate of 37% of judges, including that of the opposition-appointed First President. This allows the President of the Republic to: (i) fill the judicial vacuum with political appointees; and (ii) personally appoint an acting First President on a free, ad hoc basis, pending the judicial appointment procedure. A provision is also in place to allow the President to make non-reviewable decisions to extend the mandate of judges of his choosing, creating an ‘additional tool through which to exert influence on individual judges’. The Venice Commission considers these provisions to ‘jeopardise the independence of the judiciary’ and to be in breach of Article 6(1) ECHR.
Second, the law creates two new Supreme Court chambers, to be dominated by newly appointed judges: (i) a chamber assessing cases brought by a new extraordinary appeal procedure, deemed ‘dangerous for the stability of Polish legal order’; and (ii) a chamber tasked with reviewing proceedings against Supreme Court judges under the new disciplinary system, whose operation is ultimately controlled by the President of the Republic and the Minister of Justice.
Finally, the new legislation establishes an appointment regime for the National Council for the Judiciary, the body which, according to the Polish Constitution, safeguards the independence of judges. The law provides ‘premature termination of the mandate of all judge-members’; new appointments are to be made by the legislature, with no requirement of endorsement by the judiciary. The Venice Commission has concluded that this will lead to the ‘far-reaching politicisation of the body’.
The Commission considers the current situation in Poland to be a ‘systemic threat to the rule of law in Poland’, which ‘creates a serious risk for the functioning of Polish democracy’. It is now up to the Council to determine whether to invoke Article 7 TEU.
Gravity of Breach
In order for measures under Article 7 TEU to be taken against Poland, the Council must find that its reforms pose a “clear risk of a serious breach… of the values referred to in Article 2”. If further, punitive measures are to be taken under Article 7(2) TEU, the Council, by unanimity, must determine Poland’s breach to be “serious and persistent”. This latter threshold is substantially higher than that applicable to Article 7(1) TEU. Imposing sanctions is only justified when the extent of the disobedience is such that the Member State is incompatible with others and EU institutions for the purposes of decision-making.
As to what in particular would constitute a breach of the rule of law under Article 2 TEU, the Treaty says very little. In an attempt to provide clarity, Closa, Kochenov and Weiler determine three characteristics of such a breach: (i) ‘unconstitutional constitutionalism’ whereby power is abused through perfectly legal means; (ii) dismantlement of the liberal democratic state; (iii) systemic corruption. All these appear to be present in the current Polish crisis.
Despite the international condemnation, the likelihood that the Council will find Poland to be in ‘serious and persistent breach’, is unlikely due to Article 7 TEU procedural hurdles.
Article 7 TEU appears to provide the Council with tools with which they can restrain EU Member States currently exhibiting authoritarian tendencies. However, due to procedural limitations, Article 7 TEU is, in the present formulation, ineffective. Relying on such provisions against Poland will not likely produce any significant effects. This is mainly due to the requirement under Article 7(2) TEU that the Council act by unanimity, excluding the Member State whose behaviour is in question, in declaring the state of affairs as a ‘serious and persistent breach’. As it currently stands, Hungary has vowed to veto such measures being taken against Poland.
Poland is therefore unlikely to face sanctions; this means that Article 7 TEU is ultimately an ineffective enforcement mechanism for upholding the values in Article. This is evidenced not only by the procedural limitations of Article 7 TEU, but also by the EU’s response to Hungarian disobedience in the past. Despite Hungary’s attack on the independence of its judiciary, which has been condemned both by the European Court of Justice and the European Court of Human Rights, the country continues to benefit from billions of euros of EU investments.
Council’s inactivity shows disregard for the values enshrined in Article 2 TEU, which has in practice shown itself to be largely obsolete. A possible explanation for the Council’s unwillingness to follow through with enforcement proceedings is that a Member State is wary of condemning another for its violation of Article 2 TEU, as this could backfire. Additionally, the scope of Article 7 TEU reaches far beyond situations which fall squarely within the EU’s jurisdiction – EU institutions are clearly aware of the risks associated with crossing the line of national sovereignty. The decision to invoke Article 7(2) TEU is an extremely serious one – some press sources have deemed it a ‘nuclear option’. Therefore, notwithstanding the challenges posed by its procedural requirements of Article 7(2) TEU, the European Council would nonetheless be more inclined to resolve matters diplomatically. This leads to issues when Member States refuse to cooperate, as is the case currently with Poland.
This is ultimately a sign that the EU Treaties suffer from procedural defects. Muller argues that Article 2 TEU lacks any obligational characteristic, as the effect of “values” is only to provide guidance to Member States, but not duties. Furthermore, while the TEU has a mechanism for voluntary withdrawal of a Member State under Article 50, it lacks any expulsion mechanisms. This means that there is no deterrence behind the supposed ‘nuclear option’ under Article 7 TEU. Although introducing an expulsion mechanism under the Treaty could contradict the aims of an “ever closer union” under Article 1 TEU, it could nonetheless be beneficial in ensuring that the rule of law is effectively respected in the EU.
Currently, Article 7 TEU ‘can only be used in the most outrageous and acute factual constellations’; proposals for the establishment of monitoring or early warning mechanisms have been disregarded for years. If EU institutions are serious about the European constitutional project and upholding their constitutional values, they must consider reforming the current enforcement mechanism. This would significantly increase the legitimacy of the EU’s interventions.
New enforcement mechanisms could be created either within or outside the Treaty framework. One type of extra-acquis course of action would be an ad hoc intervention. This was seen in response to the rise of the FPÖ in Austria in 2000, where 14 Member States imposed bilateral sanctions, outside the Treaty framework, rather than using the procedure currently included under Article 7 TEU. Another type of action would be to create formal structures outside the scope of the Treaty entrusted with the duty to monitor and protect the rule of law in the EU. This was seen in the creation of the European Financial Stabilisation Facility, a public limited liability company incorporated by Eurozone countries, providing a basis for the European sovereign crisis containment framework. What a structure of a similar nature could achieve in this context depends on Member States’ political commitment to upholding Article 2 TEU principles.
Longer-term solutions would, however, require remaining within the Treaty framework, so as to furnish them with more deeply entrenched gravity, and to give them greater legal and political legitimacy. If the effectiveness of Article 2 TEU could be ensured in this context, and given more of a backbone, then EU institutions would not be limited to, and confined by, the current procedural formulation of Article 7 TEU; Poland would more likely cooperate in the face of real, punitive measures.
A number of solutions were proposed during the Global Governance Programme of the Robert Schuman Centre for Advanced Studies in the European University Institute on 16 January 2014. These included, firstly, reading Article 2 TEU in conjunction with Articles 4(3), 3(1), and 13(1) TEU, from which we are able to derive an abstract mechanism by which EU values should be enforced. Article 3(1) TEU states that the Union’s aim is to promote inter alia its ‘values’; Article 13(1) TEU requires the Union to have an ‘institutional framework which shall aim to promote its values’. As Christophe Hillion argues, these provisions, coupled with Article 4(3) TEU, which requires the Union and Member States to assist each other in carrying out tasks flowing from the Treaty, could provide a sufficiently solid constitutional basis for the protection of the rule of law under Article 2 TEU. A determining factor would be how the duty to ‘promote’ the fundamental values of the EU included therein is interpreted.
Another suggestion advanced at the same event was to read Article 2 TEU in the light of Article 19 TEU, which ensures effective legal protection in fields covered by EU law. This has already been considered by the Commission, but may be problematic considering that, despite the judicial reforms, Polish courts have not been barred from enforcing EU law.
It was additionally proposed that deploying Article 2 TEU in combination with Article 258 TFEU would endow the former with teeth by connecting it to a more concrete enforcement procedure. The most straightforward solution, however, seemed to be adding a fining mechanism to Article 7 TEU, along the lines of that of Article 260 TFEU. This amendment would have to be made in accordance with the ordinary revision procedure outlined in Article 48 TEU, and accordingly would require Member State consensus, which could be difficult to acquire considering likely Polish and Hungarian opposition. Considering the lengthy and costly amendment procedure, the best solution may after all be an ad hoc one.
Despite the unprecedented gravity of Poland’s breach of Article 2 TEU, the procedural requirements of and diplomatic implications for issuing sanctions pursuant to Article 7 TEU are such that the mechanism is not likely to be exercised. The Commission’s proposal, and any subsequent Council activity, are merely symbolic moves – Poland’s continued alliance with Hungary means the veto power of the latter will render the Council paralysed, unable to take any punitive legal action. It may be argued that Article 7 TEU appears an ineffective enforcement mechanism for Article 2 TEU, and will continue to be so, as long as there are mutually-supportive Member States whose principles run contrary to those embodied in Article 2 TEU, or until the mechanism is reformed.
Leo and Lucas are LL.B. students at Dickson Poon School of Law, King’s College London.
 Hermann-Josef Blanke and Stelio Mangiameli, The Treaty on European Union (TEU) A Commentary (Springer 2013) 356.
 Theodore Konstadinides, The Rule of Law in the European Union – The Internal Dimension (Hart Publishing, 2017).
 The Treaty on European Union (TEU) A Commentary, op. cit., 352.
 Ibid 353.
 Ibid 366.