Jacob van de Beeten
Increasingly, the EU is using Treaty instruments to enforce the common values of Article 2 Treaty on the European Union (TEU) – human dignity, freedom, democracy, equality, the rule of law and human rights – in recalcitrant Member States. With the adoption of the Sargentini report in the European Parliament, Hungary is now – like Poland – facing the Article 7(1) TEU procedure under which the European Council can determine the existence of a “clear risk of a serious breach” of the rule of law. In response, Hungary has challenged the legality of the Parliament’s vote.
Simultaneously, Poland is under the continuous scrutiny of the European Commission with regards to judicial reforms proposed by its government. Not only did the Commission trigger the procedure provided by Article 7(1) TEU in December 2017, but it has also initiated various infringement procedures to protect the independence of the Polish judiciary. Only weeks ago, the ECJ ordered Poland to suspend the application of its national legislation aimed at lowering the retirement age for the judges sitting in the Supreme Court.
The unfolding of this legal battle about the rule of law within Member States of the EU raises important questions about the constitutional configuration of the European legal order. On the one hand, it may be useful to refer to the doctrinal-technical approach and thus wonder to what extent the EU institutions have the competence to directly intervene in recalcitrant Member States. On the other hand, it raises more theoretical questions about the (im)possibility of “value enforcement” through law. This contribution will first address the former question, outlining where the European Court of Justice draws the limits of the material scope of EU law in addressing the basic constitutional ordering of the Member States. Secondly, it will argue that scholars and policy makers should look beyond the “enforcement of values” and focus on how values can be promoted.
- Rule of law enforcement and the scope of EU Law
Since commissioner Viviane Redding was among the first to address the “rule of law crisis” back in 2013, many commentators have asked the question of how the EU should respond to Member States that flout the common values enshrined in Article 2 TEU. According to the principle of conferral (Article 5 TEU), the scope of EU law is restricted to those areas of national law that fall within the material scope of EU law. As a consequence, there are extensive “grey zones” in which the competence of the EU is limited or completely absent.
Moreover, despite the Court’s assertion that EU law even takes primacy over national constitutional law, national courts have generally disputed the autonomous nature of the European legal order in this regard. Therefore, for a long time the basic constitutional configuration of the Member States, such as the form of government, the structure of the judiciary and the election system, seemed to remain outside the ambit of EU law.
This was the main reason to include a sanctioning mechanism in the TEU that was adopted under the Maastricht Treaty of 1992. The sanctioning mechanism of Article 7 TEU is designed to enforce the common values of Article 2 TEU. For this reason the material scope of the procedure is not confined by the general EU competence limitations, but the mechanism is applicable in all areas of activity of the Member States. However, sanctions can only be imposed by unanimous agreement of the Member States and the ECJ has no role to play in the procedure.
Given this political and discretional nature of the Article 7 procedure, the debate among legal scholars has started from the proposition that this sanctioning procedure is impracticable, ineffective and as such unable to tackle the current rule of law crisis. Even now that Hungary and Poland are facing the procedure, it is unlikely that they will be charged with any sanction eventually. The procedure enshrined in Article 7(2) TEU requires unanimity in the Council. Clearly, the mechanism does not foresee a scenario where there is more than one rogue Member State in the EU. Consequently, the sanctioning mechanism as a whole is toothless.
For these reasons, some legal scholars have sought to devise new mechanisms to circumvent the restrictions imposed by Article 7 TEU. As was pointed out on this blog before, in early 2014 it was already suggested that Article 2 TEU should be read in combination with Article 19 TEU, which binds Member States to guarantee effective legal protection in the fields covered by Union Law.
This suggestion was taken up by the ECJ in the Associação Sindical dos Juízes Portugueses v Tribunal de Contas (ASJP) case. Although the facts of the case concerned austerity measures taken by the Portuguese government, the Court used the case as a chance to extensively elaborate on the principle of judicial protection. The Court emphasised that Member States must ensure that any court or tribunal that may rule “on questions concerning the application or interpretation of EU Law” (para 40) must meet the requirements of judicial protection under Article 19(1) TEU. In this way, the Court declared itself competent to assess whether the judicial systems of Member States meet the standards of judicial independence in the meaning of the acquis. In the words of Judge von Danwitz, “any disrespect of the guarantee of judicial independence will have to be considered an infringement [of Article 19 TEU] if the judicial body in question is likely to be confronted with questions of Union law.”
The Commission has indeed seized this opportunity and invoked Article 19 TEU in the pending infringement procedures regarding the Polish Act on Common Courts and the Law on the Supreme Court, which forces 40% of the judges into retirement including the first President of the Court. In regards to the latter procedure, only weeks ago the ECJ approved the Commissions request for interim measures and ordered the Polish government to suspend the application of the provision relating to the lowering of the retirement age for Supreme Court judges. Although the main judgement in this case still needs to be rendered, this interim order of the ECJ fully shows the implications of the ASJP judgement for the EU constitutional order: judicial reforms no longer fall outside the scope of EU law.
At the same time, the ECJ has also set limits to the enforcement of the common values via the acquis. In the Celmer case, the Irish High Court asked the ECJ whether the Irish state is still obligated to deliver a suspect in case the court has found that the issuing Member State’s judicial system is no longer operating under the rule of law. To the dismay of many commentators, the ECJ ruled that as long as the Member State in question has not been sanctioned under the Article 7(2) procedure, the obligation to extradite cannot automatically be suspended. Particularly, Kim Lane Scheppele argued that the ECJ “reduced the systemic protection of these values to a naked political judgment of the Member States.”
In the judgement, the Court emphasised that the principle of mutual trust between the Member States and the principle of mutual recognition are of fundamental importance for the proper functioning of the European legal order. Apart from exceptional cases, there is a legal presumption that Member States observe fundamental rights, so that a refusal to execute an EAW can only be considered in exceptional circumstances (paras 35-43 of the judgement). The importance of the principle of mutual trust for the proper functioning of the European legal order thus prevents the Court from stepping in. As such, it recognises the primacy of the political procedure under Article 7 over legal proceedings using the widened scope of the acquis
Of course, the legal battle between the ECJ and the governments of Poland and Hungary is still raging and cases concerning the rule of law are pilling up in the Court’s docket. In a latest turn of events, the Polish prosecutor general has asked the Polish Constitutional Tribunal to declare the preliminary ruling procedure of art. 267 TFEU unconstitutional. Likely, this will require the ECJ to step in even more prominently than it has done so far.
- The Limits of value enforcement through law
At the same time, the expectations of the ECJ’s capacity to remedy the situation should not be overstated. Both the design of Article 7 procedure as well as the recent judgements of the ECJ seem to be aimed at the protection of the EU legal order, rather than to enforce the common values within the Member States. Moreover, one can ask to what extent it is even desirable that the basic constitutional order falls within the scope of EU law. From this perspective, one could argue that in the Celmer case the ECJ recognised that, in the words of Wojchiech Sadurski a purely legal remedy is insufficient to solve “an essentially political problem”.
Nonetheless, much of the debate about the constitutional and political crisis in Poland and Hungary has so far been conducted in a legalistic and juridical vocabulary – the consistent reference to a ‘rule of law crisis’ by the European Commission is exemplary in this regard. As a consequence, insufficient attention is paid to the question to what extent values can be enforced through legal means at all.
In this context, it is important to recall the insight of Weiler pointing out that in Western liberal democracies the compliance with the rule of law “rests on a political culture that internalizes […] obedience to the law rather than to expediency”. Any assessment of the current rule of law crisis should start with the assumption that “the life of the law […] lies outside official institutions as much as, arguable more than, it does within them”. Martin Krygier, the author of this phrase, has consistently argued against an ‘anatomical’ approach to the rule of law. He uses this term to refer to the tendency of legal scholars to define the rule of law exclusively as a checklist of legal institutions, norms and principles.
Krygier says that such a formalistic and legalistic approach to the rule of law is inadequate, and instead advocates for a teleological approach to the rule of law. He argues the rule of law should be understood with reference to its main purpose and goal, i.e. to prevent the arbitrary exercise of power. In order for the law to be an effective limit on the exercise of political power, Krygier recognises that law “needs to count as a source of restraint and a normative resource, usable and with some routine confidence used in social life”. It is thus important to acknowledge that institutions and legal norms depend on conditions that depend on sociological, cultural and political factors rather than strictly legal ones.
It is therefore of importance that legal scholars take such factors better into account when addressing the rule of law within the EU. This does not mean that legal scholars should not reflect on how the acquis can be used to respond to the ‘rule of law crisis’. Yet, this is not the only, nor the most important question to be asked. Rather, scholars should ask to what extent legal tools at European level can play a role in shaping the conditions that allow the rule of law to flourish in the Member States. Moreover, such a perspective on the rule of law urges caution on those who call on the ECJ to step in. Several socio-legal commentators have suggested the shallow institutionalisation of the rule of law in Central and Eastern European countries is a consequence of the fact that commitment to the rule of law did not extend beyond a narrow political and legal elite in these societies. Transforming the rule of law into a rule of judges is therefore not a real solution to the rule of law crisis Europe is currently facing.
Jacob van de Beeten is holds a LLM from LSE and is currently a Blue Book Trainee at the European Commission. The views expressed in this blog are his own.
 Neil Walker, ‘The Rule of Law and the EU: Necessity’s Mixed Virtue’ in Gianluigi Palombello and Neil Walker (eds), Relocating the Rule of Law (Hart Publishing 2009), 133
 Paul Craig and Gráinne de Búrca, ‘The Relationship between EU Law and National Law: Supremacy’ in EU LAW: Text, Cases and Materials (OUP 2015), 378-408
 For a different view: Bojan Bugaric, ‘Protecting Democracy inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism’, in Carlos Closa and Dimitry Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (CUP 2016), 82-102
 J. H. H. Weiler, ‘The Political and Legal culture of European Integration: an exploratory essay’ (2011) 9 International Journal of Constitutional Law 3-4, 690
 Martin Krygier, ‘The Rule of Law and ‘the Three Integrations’ (2009) 1 Hague Journal on the Rule of Law 1, 24
 Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’ in Gianluigi Palombello and Neil Walker (eds) Relocating The Rule of Law (Hart Publishing 2009),
 Ibid., 13
 For example: Paul Blokker, ‘EU Oversight and Domestic Deviation from the Rule of Law’ in Carlos Closa and Dimitry Kochenov (eds) Reinforcing Rule of Law Oversight in the European Union (CUP 2016).