HHRJ

Harvard Human Rights Journal

Enforcing the Rule of Law in the European Union, Quo Vadis EU?

By

By Dr. Venetia Argyropoulou[1]

 tel.: +35797825551

mobile: +357 97825551

e-mail: v.argyropoulou@euc.ac.cy

address: 8 Spyrou Lambrou Street

 

 

EXECUTIVE SUMMARY 

This Article explores the mechanisms available to the European Union (“EU”) to enforce the rule of law as a fundamental principle of the EU pursuant to Article 2 of the Treaty of the Functioning of the European Union. Primarily, this article reviews the rule of law crises that have occurred with alarming frequency in the aftermath of the financial crisis within the EU and explores the responses by EU institutions to such rule of law crises. This article analyses the scope of such responses as well as the role of EU institutions and recognizes the inefficiencies and shortcomings of the current EU framework. Finally, this article proposes an alternative legislative process that seeks to overcome these shortcomings: linking access to EU funding with the safeguarding of the rule of law.

 

  1. Introduction

Article 2 of the Treaty on European Union (“TEU”) prescribes that the notion of the rule of law is an important and intrinsic value of the European Union (“EU”).[2] Similarly, the European Court of Justice (“ECJ”), in one of its early landmark judgments, denoted that the European Community (“EC”) is “a Community based on the rule of law,”[3] meaning that both the acts of Member States as well as the acts of the EC would be subject to review vis-a-vis their conformity with the EC’s “constitutional charter,”— the EC Treaty.[4] Thus, rule of law in the context of the EU (“EU rule of law”) differs from the national rule of law. The latter operates solely at the level of domestic legal orders, essentially aiming to constrain the arbitrary exercise of governmental power towards those under its jurisdiction,[5] while EU rule of law generally operates at the level of EU law and the EU-state or inter-State order. EU rule of law is distinct from international legality or respect for existing EU law commitments. Rather, EU rule of law rather presents a set of higher requirements or meta-values that seek to characterize the whole legal framework of EU more generally, as well as the operation of the EU and behaviour of those subject to EU law.[6]

However, in the aftermath of the financial crisis, the rule of law in the EU has been challenged. As stated by Viviane Reding, former EU Justice Commissioner, in her speech on September 4, 2013, the EU has faced a number of “rule of law crises,” demonstrating the existence of problems of a systemic nature.[7]  The most prominent example of such crises at the time of Reding’s speech was the Hungarian government’s attempt to undermine the independence of the judiciary through the implementation of a mandatory early-retirement policy in 2011. Subsequently, there have been several equally alarming examples, most notably the Polish Government’s introduction of legislative acts to abolish the independence of the Polish Supreme Court.[8] This paper explores where the existing legal framework in the EU is sufficient to address such rule of law crises.

 

  1. The problem

As a condition of accession to the EU, States are required to comply with political criteria—the Copenhagen Criteria—which include respect for the rule of law.[9] However, the TEU does not provide for adequate safeguards to ensure that a State’s pre-accession undertakings to demonstrate respect for the rule of law will continue following that State’s accession to the EU.[10]  Hence, the EU treaties are ill-equipped to deal with Member States’ persistent violations of the rule of law.[11] Indicatively, José Manual Durão Barroso, the former President of the European Commission, called for a “better developed set of instruments”[12] to provide for a  complementary remedy to the infringement procedures provided for in Articles 258–60 of the Treaty of the Functioning of the European Union (“TFEU”) and to the “nuclear option”[13] of Article 7 TEU, which provides for the suspension of a Member State’s voting rights in case of a “serious and persistent breach” of EU values.[14] In response to this need for an improved set of instruments to deal with Member States that disrespect the rule of law, the European Commission, the Council of the EU, and the European Parliament have each devised a new mechanism. These mechanisms will be presented below.

Most significantly, in 2014, the European Commission adopted a new framework[15] aimed at strengthening the rule of law and addressing systemic threats to the rule of law.[16] This framework utilizes a three-stage approach. In the first stage, the Commission, after obtaining all relevant data and information regarding the situation in the Member State and after examining whether there is a risk of a systemic threat to the rule of law, will initiate a dialogue with the Member State concerned by transmitting a “rule of law opinion.” The rule of law opinion reflects the concerns of the Commission for a possible breach of the rule of law on the basis of available information. The relevant Member State has a right to respond to such an opinion in accordance with Art. 4(3) TEU.[17] If no resolution is reached, the second stage will follow. In the second stage, the Commission will issue a “rule of law recommendation” informing the Member State how to resolve the identified issues within a given deadline. In the third and final stage, the Commission follows up the implementation of the recommendation.  The process can be seen below:

Source: European Commission, Annex II of Communication from the Commission of 11 March 2014, COM (2014) 158

This new framework aims to act as a warning system by initiating political dialogue between the  Member State at issue and EU Institutions, so as to prevent a political crisis from rising to the level of a serious breach as defined by Article 7 of the TEU.[18] In the event that the process is unsuccessful in restoring the rule of law, the Commission may resort to any one of the instruments provided in Article 7 of the TEU.

The European Commission’s new framework has attracted much attention in academia, and several concerns have been raised.[19] One major weakness of the framework is that it fails to take into account the possibility of a state’s intentional breach of rule of law, as is the case with Poland and Hungary.[20]  Indeed, this framework was put into use in the case of Poland, in the aftermath of the Poland rule of law crisis. On June 1, 2016, the Commission adopted a Rule of Law opinion,[21] which was later followed by a rule of law recommendation and a complementary recommendation[22] due to Poland’s failure to address the Commission’s concerns for breach of the rule of law. Poland responded to the recommendations in February 2017, denying any rule of law concerns vis a vis Poland’s Constitutional Tribunal.[23] On July 26, 2017, the Commission adopted a third Recommendation regarding the Rule of Law in Poland, and a final Recommendation was issued on December 20, 2017,[24] together with a Reasoned Proposal for a Decision of the Council on the determination of the clear risk of a serious breach of the rule of law by Poland under Article 7(1) TEU. In light of Poland’s  failure to restore the independence of Poland’s Constitutional Tribunal and courts,  the Commission  threatened Poland with Article 7 proceedings,[25] but Poland took only small steps to restore independence to the judiciary.[26] The Commission deemed these steps inadequate, and on December 20, 2017, the Commission activated Article 7(1) TEU for the first time by submitting a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland.[27] During the two subsequent hearings that took place before the General Affairs Council pursuant to Article 7(1) procedure, no resolution was reached, as Hungary, formed a coalition with Poland and vetoed the resolution. Following this failure, the European Commission referred Poland to the ECJ and requested that the ECJ order interim measures until a judgment on the case is issued.[28] On December 17, 2018, the ECJ issued an interim measure ordering to Poland to immediately suspend the application of the legislation relating to the retroactive lowering of the retirement age for Supreme Court judges.[29] This example demonstrates the Rule of Law Framework’s inherent weaknesses to address persistent violations of rule of law, as the negative implications of Art. 7 (1) can be prevented, when two or more States collude for the purpose of breaching the Rule of Law and avoiding inconsequence’s. It is here important to mention that the ECJ finally issued its judgement on the matter on June 24, 2019 ruling that by, lowering the retirement age of judges of the Supreme Court, Poland had breached the principle of the irremovability of judges and thus that of judicial independence which is a cornerstone of EU law.[30]

Additionally, some have questioned whether the Rule of Law Framework’s criteria for triggering a dialogue are sufficiently clear, particularly in relation to systemic threats to the rule of law.[31] Indeed, the criteria evaluated by the Commission to instigate a Rule of Law Opinion are not specified and therefore it remains the Commission’s responsibility to decide, at its discretion, whether to initiate the Framework on a specific occasion. Similarly, the Legal Service of the Council of the EU has criticised the Commission’s Rule of Law Framework as being an unlawful expansion of the Commission’s powers, as there was no legal basis in EU Treaties for creating such a Framework as a new rule of law supervision mechanism and introducing  a pre-Article 7 TEU  procedure, thereby deviating from the Article 7 TEU process.[32] Finally, even States who were expected to support a proposal from the Commission have raised some concerns. For instance, the UK has criticized the Rule of Law Framework as redundant in light of Member States’ role before the Council and the effective role of lobbying, which has its own monitoring system for governing the rule of law, including the capacity to impose sanctions for serious violations  of the principles of rule of law and human rights. [33]

Instead, the Council of the EU has somewhat formally proposed an alternative framework. On December 16, 2014, the Council of the EU and Member States adopted conclusions[34] establishing an annual dialogue amongst all Member States within the Council in its General Affairs configuration so as to promote and protect the rule of law. The conclusions were, however, unspecific and therefore the procedural aspects, limitations, and principles of the annual dialogue remain uncertain.[35] The first dialogue took place in November 2015. This proposed dialogue procedure was evaluated in 2016 during the Slovak Presidency, where it was concluded that the dialogue should be continued and reinforced by increasing the frequency of debates.[36] Nonetheless, the Council of the EU’s dialogue has not escaped criticism.[37] It has been characterised as being excessively soft[38] and inherently inefficient: Member States are themselves asked to discuss and rule on their own breaches of rule of law without sufficient control mechanisms from independent sources.[39] This inefficiency was demonstrated by the Council’s inaction in the case of Hungary as well as its delayed and limited critical reaction in the case of Poland.[40] Even the European Parliament has acknowledged that this mechanism is not the most effective means of resolving a State’s noncompliance with the EU’s fundamental values.[41] In fact, it was the European Parliament that called on the Council of the EU to activate Article 7(1) of the TEU to determine whether there was a clear risk of serious breach by Hungary of the founding values of the EU so that further measures could be taken to address this risk.[42]

The European Parliament proposed yet another alternative mechanism: a Legislative Initiative Report on the establishment of an EU Pact on Democracy, Rule of Law and Fundamental Rights.[43] A detailed proposal for this Pact was included in the Parliament’s resolution on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, adopted on 25 October 2016.[44] This Pact would make use of existing mechanisms, but add additional elements. Instead of creating a new mechanism distinct from existing procedure, the European Parliament’s proposal aimed at improving the effectiveness of existing tools.[45] Furthermore, the Pact would introduce an annual assessment on the state of the rule of law, democracy and human rights in the EU and Member States, accompanied by country-specific recommendations. [46]   This assessment would be made by the Commission, based on a variety of indicators, including, among others, Council of Europe and UN reports. Moreover, the assessment would complement and be incorporated by instruments such as the Justice Scoreboard, thereby replacing the Cooperation and Verification mechanism for Romania and Bulgaria.[47] Although many have welcomed this framework,[48] the academic community is still skeptical about whether this framework can be successfully implemented.[49] For instance, before the European Parliament even set up any review mechanism for an assessment of the situation in Hungary, the Parliament resolved that “recent developments in Hungary have led to a serious deterioration in the rule of law, democracy and fundamental rights, which is testing the EU’s ability to defend its founding values,”[50] and called for the launching of Article 7(1) proceedings. Moreover, the Council and the Commission have not joined the Parliament’s effort to set up the EU Pact on Democracy, Rule of Law and Fundamental Rights. The Parliament requested that the Commission present a legislative proposal for the Pact in the form of an inter-institutional agreement between the European Parliament, the Commission and the Council aligning and complementing existing mechanisms by September 2017. [51] Such agreement would be adopted on the basis of Art. 295 TFEU, which provides that the European Parliament, the Council and the Commission may “by common agreement…make arrangements for their cooperation,” by enacting interinstitutional agreements of a binding nature.[52] The Commission responded to the Parliament on January 17, 2017, expressing serious doubts “about the need and the feasibility of an annual Report and a policy cycle on democracy, the rule of law and fundamental rights prepared by a committee of ‘experts’ and about the need for, feasibility and added value of an inter-institutional agreement on this matter.”[53] In such response, the Commission expressed concerns as to whether the proposal for the Pact was compatible with EU Law, as such a mechanism might undermine the role of the ECJ, which is responsible for concerning the interpretation or application of the EU Treaties.[54]

Finally, the ECJ has played a role in restoring the Rule of Law in the EU. On October 19, 2018, the ECJ issued a judgment regarding the interim proceedings against Poland. Acting in a prompt and decisive manner on the basis of Article 160(7) of the Rules of Procedure, the Court ordered Poland to adopt the following interim measures: (1) to suspend the application of the provisions of national legislation lowering of the retirement age for Supreme Court justices; (2) to take all necessary measures to ensure that the affected Supreme Court justices may continue to perform their duties in the same post, while enjoying the same status, rights, and working conditions as they did prior to enforcement of the relevant provisions; and (3) to refrain from adopting any steps to appoint new justices to the Supreme Court to replace the affected Supreme Court justices.[55] Importantly, following the ECJ’s ruling, Poland adopted the Act of 21 November 2018, through which it reinstated to the Supreme Court judges that had been forced to retire early.[56] Additionally, on  June 24, 2019 the ECJ issued its judgement  on the facts of the case of the Commission against Poland, ruling that the Polish measures (i) lowering the retirement age of the judges of the Supreme Court, and (ii) granting the President of Poland discretion to extend the active mandate of Supreme Court judges upon reaching the lowered retirement age, were in breach of EU law.[57] The ECJ came to this conclusion after analyzing the applicability and scope of Article 19(1) TEU, noting that Article 19(1) requires Member States to provide remedies that are sufficient to ensure effective legal protection, which in turn requires courts within the EU to be independent.[58] Hence, by introducing the aforementioned measures, Poland has failed to ensure the independency of its courts. This is a landmark case that not only has tremendous political implications, but also stands for the proposition that judges be independent from governments,[59] This judgement was issued after the landmark cases of Associação Sindical dos Juízes Portugueses (Case C-64/16) and the PPU LM (Case C-216/18). In that case, the ECJ noted that Article 19(1) TEU, which requires the judiciaries of both the EU and  Member States to act in conformity with fundamental rights and to act independently of other branches of government, applies to Member States’ actions regardless of whether those Member States are implementing EU law.[60] In the second case, the Irish High Court had requested a preliminary ruling by the ECJ in a national case  called Minister for Justice and Equality v Artur Celmer.  The question posed to the ECJ was whether a national judge—here, an Irish judge—should surrender a criminal suspect pursuant to a European Arrest Warrant issued by a member state of the EU. In this case Poland, due to its persistent breach of rule of law. The ECJ took the view that Member States must, in cases where they have material indicating that the requested person may not receive a fair trial in the state where extradition is sought, refrain from surrendering suspects to that State.[61] Although it is too soon to evaluate the impact of the ECJ’s judgment against Poland, the order will nonetheless put significant pressure on Poland in light of the far-reaching economic consequences that non-compliance might bring, while in light of the fact that Art. 19(1) TEU has a direct effect applying automatically to Member States, the judgement of the ECJ should be deemed to have direct application requiring the Polish Authorities, including the Courts and Judges of Poland to act in compliance with the judgement.

In sum, the fragmentation of and variance in approaches between different EU institutions to addressing rule of law issues in the EU weakens the protection of the rule of law. It causes confusion among Member States and allows EU institutions to delay tackling rule of law crises in an effective way.

 

  1. The Solution

Finding an effective solution to the EU’s current rule of law crisis is complex. However, developments in Romania following a rule of law crisis may provide a model for the way forward. In 2012, the Prime Minister of Romania took steps to interfere with the Romanian Constitutional Court’s independence, much like the situation in Poland.[62] The situation was further escalated when the Romanian Prime Minister claimed the mandate to represent the country before the European Council, a duty that was bestowed by the Romanian Constitution to the President. The President refused to grant the mandate, leading to a major controversy between the President and the Prime Minister. The Romanian Constitutional Court issued a judgment one day prior to the meeting of the EU Council, ruling that, without the President’s mandate, the Prime Minister lacked the authority to represent Romania before the EU institutions.[63] Despite the Supreme Court’s judgement, however, the Romanian Prime Minister still appeared before the European Council as the Head of the Romanian State. The EU Commission responded immediately, inviting the Romanian Prime Minister for consultations as well as threatening to impose economic sanctions on the country. The Commission’s response prevented further deterioration of the rule of law and assisted in the restoration of the authority of the Constitutional Court.[64]  Following the exercise of such political pressure, the Romanian Prime Minister obeyed the Constitutional Court’s ruling by validating a referenda to make it easier impeach the country’s president, Traian Basescu, realizing “that his European credentials would be irreparably damaged” if he did not take steps to restore the authority of the Romanian Constitutional Court.[65] This case was successful due to: (1) the speed with which the European Commission acted; and (2) the carrot/stick approach used by the Commission—simultaneously calling for consultations and threating sanctions.

In the context of more recent rule of law crises, the EU has been criticised for acting timidly and for doing little more than make some defensive declarations made at press conferences.[66] Some have questioned whether it has the political will to address the issue at all.[67] Hence, a more proactive approach is required. As suggested by many authorities, sanctions in the form of suspension of EU funding is the most promising solution for stopping persistent and systemic noncompliance with the rule of law.[68] The immediate withholding of funds is clearly a significant motivator for Member States to restore rule of law,[69] and it allows the EU to send a clear message that it does not subsidize Member States that violate its basic values.  Such a solution was hinted at in the case of Hungary in 2017 when the European Parliament linked the respect of EU values and policies with monitoring of EU funds.[70]

Thus, the EU should devise rules on the use of funds that would render safeguarding the rule of law a necessity. While the introduction of such rules would require secondary legislation, this would not be completely novel to the EU. In the context of the Excessive Deficit Procedure, secondary legislation has already been introduced with rules allowing the withholding of funds allocated for one purpose due to breach of a different part of EU law.[71] Similarly, legislation could also provide for the award of additional funding or other benefits to countries that promote the rule of law.[72]

The secondary legislation would need to clarify processes for the withholding of funds. In particular, it would need to clearly indicate which institutions are responsible for imposing the freezing of funds. Here, there is a need for an inter-institutional process, including the assistance of the European Court of Justice, to avoid abuse of the Commission’s discretion. Similarly, the timing of the measure’s imposition and the conditions for the lifting of the freezing of funds would need to specified. Although, this process would require several specifications, it nonetheless seems to involve both the inter-institutional collaboration and the necessary incentive to ensure Member States’ compliance.

The EU seems to be moving in this direction. In May 2018, the Commission made a proposal for a Regulation that would grant the Commission the power to suspend, reduce or restrict access to EU funding for Member States that infringe on the rule of law in order to protect the EU’s financial interests. In particular, the proposal provided that the Commission would be responsible for recommending to the Council the suspension, reduction, or restriction of EU funds for an infringing Member State. The Council could choose to adopt the recommendation through reverse qualified majority voting, meaning that the Commission’s proposal would be adopted by the Council, unless the Council decides by qualified majority to reject the Commission’s proposal.[73] This mechanism was selected to avoid the unanimity requirement of Article 7(2) TEU as well as the four-fifths majority required by Article 7(1) TEU, both of which have been exploited by Hungary and Poland, who formed a coalition in which each country the imposition of sanctions against the other.[74] Currently, the Commission’s powers are limited to making financial revisions for administrative mismanagement of EU funds and do not include the imposition of penalties on Member States for infringing on the rule of law.[75]

In January 2019, the European Parliament supported the Commission’s proposal and suggested some amendments to the wording of the Commission’s draft regulation.[76] Hence, the European Parliament adopted resolution T8-0038/2019, referring the proposal back to the Budget  and Budgetary Control Committees for interinstitutional negotiations, pursuant to Rule 59(4), fourth subparagraph of the Rules of Procedure for the finalization of the wording of the Regulation.[77]

However, the European Council did not share the same enthusiasm for the Commission’s proposal. Instead the Legal Service of the Council questioned the legality of the proposal, by indicating, inter alia, that the proposed mechanism was not compatible with Article 7 TEU.[78] As Article 7 TEU provides for sanctions relating to any “right deriving from the application of the Treaties,” i.e. sanctions can suspend any rights that are available to the infringing  Member State and thus suspension of EU funding is already an available opportunity without the need for a Regulation.[79]  Similarly, the European Court of Auditors had expressed concerns about the discretion granted to the Commission.[80] Perhaps, however, the biggest criticism of the Commission’s proposal is that it fails to address and safeguard the rights of people who live in Member States that breach of the rule of law. The argument is that by cutting funding, instead of penalising the Government, the end beneficiaries such as students, researchers, and migrants, are penalised and economic disparities are reinforced.[81] Further, such end beneficiaries are likely to be dissatisfied with their governments due to the lack of funding and may therefore be inclined to vote against their government. This can be seen as an EU interference with Member States’ domestic affairs. A potential solution to this problem could be that the Commission undertake the management of EU funding and disburse EU funds directly to end beneficiaries or through other channels, such as NGOs, in the event that funding to national authorities is suspended.[82] However, such a solution does not appear on the horizon and appears to have little backing in EU Law.

The EU funding could also be used as a reward to states that respect the rule of law rather than as a sanction against states that do not respect the rule of law. A similar proposal has been put forth by Germany in the context of migrants’ integration. Germany proposed that the distribution of EU funds be linked to member countries’ willingness to accept and integrate migrants and that countries following these objectives would be eligible for additional funding from the EU Regional Aid.[83] Similarly, Article 20 of EU Regulation No 1303/2013 provides that each Member State will have a performance reserve consisting of 6% of the resources allocated through the European Regional Development Fund (“ERDF”), the European Social Fund (“ESF”), and the Cohesion Fund (“CF”). These funds are made available to the States on condition that certain financial milestones are met, as will be determined following the Commission’s performance review devised in accordance with Articles 21 and 22 of the regulation. Funding may be conditioned not only on financial milestones, but also on considerations safeguarding the correct use of EU funding,  which countries can do by up-keeping the rule of law.[84]

 

  1. Conclusion

This article has argued that the mechanisms currently instituted ensure the protection of rule of law in the EU are flawed and insufficient to tackle the increasing number of rule of law crises. The myriad new enforcement mechanisms, tools, and frameworks introduced by the European Institutions have been roundly criticised as vague, inefficient, and of questionable authority. Thus, a different framework is required to address systemic and persistent violators of the rule of law in the EU—one that links access to EU funding with respect for the rule of law and the core principles of the EU. Such a framework should be implemented through secondary legislation, which would allow the European Commission and the European Court of Justice to take measures for the de-escalation of a crisis and the restoration of rule of law. Such a proposal has now been put forward by the EU Commission and may constitute a strong deterrent for persistent violators of the rule of law.  Although this proposal has not escaped criticism and it remains difficult to assess how this withholding mechanism would work, linking EU financing to the rule of law, either in the form of a penalty or in the form of a reward, it is the only realistically available remedy sufficient to address and prevent rule of law crises in the EU.

 

 

 

[1] Lecturer of European University of Cyprus, PhD Tilburg University.

[2] Treaty on European Union art. 2, Aug. 7, 2012, 2012 OJ (C 236) 17 [hereinafter TEU].

[3] Case 294/83 Les Verts v. Parliament, 1986 E.C.R. 1339 ¶ 23

[4] Laurent Pech, The Rule Of Law As A Constitutional Principle Of The European Union 3 (Jean Monnet Program, Working Paper 04/09, 2009), http://jeanmonnetprogram.org/wp-content/uploads/2014/12/090401.pdf [https://perma.cc/B6B4-D2YM].

[5] See MARTIN LOUGHLIN, FOUNDATIONS OF PUBLIC LAW, 333–337 (2014) (providing a general overview).

[6] See Sir Arthur Watts, The International Rule of Law, 36 German Y.B. Int’l. L. 15, 16, 22 (1993).

[7] Viviane Reding,Vice-President of the European Commission, EU Justice Commissioner, European Parliament Press Conference: A new Rule of Law initiative (Mar. 11, 2014).

[8] Grezgkorz Ekiert, How To Deal With Poland And Hungary, 13 Social Europe Occasional Paper 7 (2017).

[9] Accession Criteria – European Neighbourhood Policy and Enlargement Negotiations, European Commission (June 12, 2016), https://ec.europa.eu/neighbourhood-enlargement/policy/glossary/terms/accession-criteria_en, archived at https://perma.cc/3JGA-UAG4.

[10] Laurent Pech & Kim Lane Scheppele, Illiberalism Within: Rule Of Law Backsliding In The EU, 19 Cambridge Y.B. Eur. Legal Stud. 3, 3 (2017).

[11] Dimitry Kochenov and Laurent Pech, Upholding The Rule Of Law In The EU: On The Commission’s Pre-Article 7 Procedure As A Timid Step In The Right Direction 1 (European University Institute Working Paper RSCAS 2015/24, 2015), http://cadmus.eui.eu/bitstream/handle/1814/35437/RSCAS_2015_24.pdf [https://perma.cc/5GPZ-AV2V].

[12] José Manual Durão Barroso, President of the European Commission, European Parliament Plenary Session: State of the Union address 2013 (Sept. 11, 2013).

[13] Dimitry Kochenov, Busting the myths nuclear: A commentary on Article 7 TEU (EUI Working Paper LAW 2017/10, 2017), http://cadmus.eui.eu/bitstream/handle/1814/46345/LAW_2017_10.pdf?sequence=1 [https://perma.cc/U4W8-QQV9].

[14] Kochenov & Pech, supra note 10, at 2.

[15] Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law, COM (2014) 158.

[16] As European Commission President Barroso noted in his State of the Union address in September 2013, the framework “should be based on the principle of equality between Member States and activated only in situations where there is a serious and systemic risk to the rule of law, and triggered by predefined benchmarks.” Barroso, supra note 11.

[17] Paola Mori, Strumenti giuridici e strumenti politici di controllo del rispetto dei diritti fondamentali da parte degli Stati membri dell’Unione europea, in Verso i 60 anni dai Trattati di Roma: Stato e prospettive dell’Unione europea (A. Tizzano, ed., 2016).

[18] See Roberto Baratta, Rule of Law ‘Dialogues’ Within the EU: A Legal Assessment, 8 Hague J. Rule L. 357, 364 (2016).

[19] See e.g. Kochenov & Laurent Pech, supra note 10, at 12–15; see also Carlos Closa  Reinforcing EU monitoring of the Rule of Law: Normative Arguments, Institutional Proposals and the Procedural Limitations, in Reinforcing rule of law oversight in the European Union 15, 35 (Carlos Closa and Dimitry Kotcenov eds, 2016); Gábor Halmai, The Possibility and Desirability of Rule of Law Conditionality, 11 Hague J. Rule L. 1 (2019).

[20] Pech & Scheppele, supra note 9, at 7.

[21] European Commission Press Release IP/16/2015, Commission adopts Rule of Law Opinion on the situation in Poland (Jun. 1, 2016).

[22] Commission Recommendation (EU) 2016/1374 as of 27 July 2016 regarding the rule of law in Poland,2016 O.J. (L 217).

[23] Ministry of Foreign Affairs Republic of Poland, MFA statement on Poland’s response to European Commission’s complementary Recommendation of 21 December 2016, Ministry of Foreign Affairs, Republic of Poland. (2017), https://www.msz.gov.pl/en/news/mfa_statement_on_poland_s_response_to_european_commission_s_complementary_recommendation_of_21_december_2016_ [https://perma.cc/S63K-K7NH].

[24] Commission Recommendation (EU) 2017/9050 as of 20 December 2017 regarding the rule of law in Poland,2017 O.J. (L 217).

[25] European Parliament, Rule Of Law Concerns In Poland: How The Article 7 Procedure Would Work, [Publication] (2018).

[26] James Shotter, EU Says Poland Needs To Take Further Action On Rule Of Law, Financial Times, Apr. 9, 2018, https://www.ft.com/content/045ce10a-3c15-11e8-b9f9-de94fa33a81e [https://perma.cc/5NDV-CQDB].

[27] European Commission Press Release IP/18/5830, Rule of Law: European Commission refers Poland to the European Court of Justice to protect the independence of the Polish Supreme Court (Sept. 24, 2018).

[28] Id.

[29] Case C-619/18 R, Order of the Court (Grand Chamber) of 17 December 2018, European Comm’n v. Republic of Poland, 2018 E.C.R. 1021 ¶ 1.

[30] Id. ¶ 17.

[31] Kochenov & Pech, supra note 10, at 12.

[32] Opinion of the Council Legal Service, Commission’s Communication on a New EU Mechanism to Strengthen the Rule of Law, at http://data.consilium.europa.eu/doc/document/ST-10296-2014INIT/en/pdf . But see Laurent Pech and Kim Lane Scheppele, Illiberalism Within: Rule Of Law Backsliding In The EU, 19 Cambridge Y.B. Eur. Stud. 3, 12, (arguing that the framework falls within the Commission’s powers stemming from Art.7 TEU); Carlos Closa  supra note 19, at 35.

[33] UK House of Lords, Review of the Balance of Competences between the United Kingdom and the European Union (2014).

[34] Council of the European Union Press Release 16936/14, 3362nd Council meeting (Dec. 14, 2014).

[35] See Closa  supra note 19, at 35.

[36] Council of the EU, Rule of Law – Evaluation of mechanism, Note no. 13980/16, Nov. 9, 2016,

[37] See G. Toggenburg & J. Grimheden, The Rule of Law and the Role of Fundamental Rights, in Reinforcing rule of law oversight in the European Union 147 (Carlos Closa and Dimitry Kotcenov eds, 2016).

[38] Halmai, supra note 19.

[39] Laurent Pech and Kim Lane Scheppele, Illiberalism Within: Rule Of Law Backsliding In The EU SSRN Electronic Journal, 12 (2017). For a more detailed discussion, see Closa, supra note 19, at 35; Roberto Baratta, Rule of Law ‘Dialogues’ Within the EU: A Legal Assessment, Hague Journal on the Rule of Law 8, 2 (2016).

[40] For a more detailed discussion, see Peter Oliver and Justine Stefanelli, Strengthening The Rule Of Law In The EU: The Council’s Inaction 54 J. Common Market Stud. __ (2016).

[41]Wouter van Ballegooij and Tatjana Evas, An EU Mechanism On Democracy, The Rule Of Law And Fundamental Rights, European Parliamentary Research Services, 18 (2016),

[42]  European Parliament, Rule of law in Hungary: Parliament calls on the EU to act, Press release, 12 September 2018.

[43] European Parliament, Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)).

[44] European Parliament, Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), P8_TA-PROV (2016) 0409

[45] Olivier De Schutter, The EU Fundamental Rights Agency: Its Past and Possible Future 21 (CRIDHO Working Paper 2018/3, May 2018).

[46] European Parliament, Resolution of 10 June 2015 on the situation in Hungary, (2015/2700(RSP)), P8_TA-PROV(2015)0227, para 12.

[47] European Parliament, Resolution of 14 November 2018 on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental rights (2018/2886(RSP)).

[48] See Laurent Pech et al., An EU Mechanism on Democracy, The Rule of Law and Fundamental Rights, European Parliamentary Research Services (2016).

[49] See Petra Bard et al., An EU Mechanism On Democracy, The Rule Of Law, And Fundamental Rights: Assessing The Need And Possibilities For The Establishment Of An EU Scoreboard On Democracy, The Rule Of Law And Fundamental Rights 24 (University of Groningen Faculty of Law Research Paper Series No. 18/2016, April 2016); De Schutter, supra note 45, at 25–29.

[50] European People’s Party Press Release, Prime Minister Orbán to comply with EU laws and EPP values following meeting with EPP Presidency (Apr. 29, 2017).

[51] European Parliament, Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), P8_TA-PROV (2016) 0409

[52] Art. 295 TFEU.

[53] European Commission, Follow up to the European Parliament resolution on with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, adopted by the Commission on 17 January 2017  (2017) (SP(2017)16-0).

[54] Olivier De Schutter, The EU Fundamental Rights Agency: Its Past and Possible Future (CRIDHO Working Paper 2018/3, 2018).

[55] Court of Justice of the European Union PRESS RELEASE No 159/18 Order of the Vice-President of the Court in Case C-619/18 R Commission v Poland, 19 October 2018.

[56] Poland Reverses Law On Removing Judges, BBC News (Nov. 21, 2018), https://www.bbc.com/news/world-europe-46296859 [https://perma.cc/UMJ7-PZVN].

[57] European Court of Justice, European Commission v. Republic of Poland, C-619/18 R, 2019,ECLI:EU:C:2019:531, ¶ 126

[58] Id., ¶¶ 57–58

[59] European Court of Justice, European Commission v. Republic of Poland, C-619/18 R, 2019,ECLI:EU:C:2019:531 ¶ 58.

[60] European Court of Justice, Associação Sindical dos Juízes Portugueses v Tribunal de Contas. Case C-64/16, ECLI:EU:C:2018:117, ¶ 53.

[61] European Court of Justice, Request for a preliminary ruling from High Court (Ireland), C-216/18 PPU, ECLI:EU:C:2018:586, ¶ 80.

[62] See Vlad Perju, The Romanian double executive and the 2012 constitutional crisis, 13 Int’l J. Con. L. 246, 256–59  (2015) (discussing the rule of law crisis in Romania).

[63] Id. at 257.

[64] See Valentina Pop, EU Warns Romania On Rule Of Law, Euobserver (2012) https://euobserver.com/political/116896 [https://perma.cc/CU7Q-V47H].

[65] Perju, supra note 62, at 273. However, recently, Romania has questioned a report of the Commission which criticized developments in the judiciary and criminal legislation in Romania, noting that it would challenge the report before the ECJ.

[66] See Konrad Niklewicz, Safeguarding the rule of law within the EU: lessons from the Polish experience, 16 Eur. View 281 (2017).

[67] Henry Goodwin, The ‘rule of law crisis’, Europe’s most existential challenge, EUI Times (Jan. 31, 2018).

[68] See Kim Scheppele, Systemic Infringement Actions, in Reinforcing Rule of Law Oversight in the European Union 15, 127 (Carlos Closa and Dimitry Kotcenov eds, 2016).

[69] Id.

[70] Gábor Halmai, From the ‘Rule of Law Revolution’ to The Constitutional Counter-Revolution in Hungary, Eur. Y.B. Human Rights (2015).

[71] Art. 126 TFEU.

[72] Jasna Šelih, Ian Bond, & Carl Dolan, Can EU funds promote the rule of law in Europe? 13 (Centre for European Reform, 2017).

[73] Halmai  supra note 19.

[74] Marcin Goclowski, Poland says it will block any EU sanctions against Hungary, Reuters (Sept. 13, 2018), https://www.reuters.com/article/us-eu-hungary-poland/poland-says-it-will-block-any-eu-sanctions-against-hungary-idUSKCN1LT0ND [https://perma.cc/M28T-3SUE].

[75] Dimitar Lilkov, A step too far? The Commission’s proposal to tie EU budget payments to compliance with the rule of law, London Sch. Econ. Eur. Pol. & Pol’y (Oct. 2, 2018),  https://blogs.lse.ac.uk/europpblog/2018/10/02/a-step-too-far-the-commissions-proposal-to-tie-eu-budget-payments-to-compliance-with-the-rule-of-law/ [https://perma.cc/V28E-4SC7].

[76] European Parliament, Report on the proposal for a regulation of the European Parliament and of the Council

on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324 – C8-0178/2018 – 2018/0136(COD)).

[77] European Parliament resolution of 12 February 2019 on the implementation of the Treaty provisions concerning enhanced cooperation (2018/2112(INI))

[78] Council of the EU, Onion of the Legal Service  dated 25 October 2018 on the Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union´s budget in case of generalised deficiencies as regards the rule of law in the Member States- Compatibility with the EU Treaties (2018), 2018/0136(COD). For a criticism of this Legal Opinion, see Kim Scheppele, Laurent Pech, Daniel Kelemen, Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism, Verfassungsblog, (Nov. 12, 2018), https://verfassungsblog.de/never-missing-an-opportunity-to-miss-an-opportunity-the-council-legal-service-opinion-on-the-commissions-eu-budget-related-rule-of-law-mechanism/, DOI: https://doi.org/10.17176/20181115-215538-0 [https://perma.cc/MAF4-YBNG].

[79] Leonard Besselink, The Bite, the Bark and the Howl. Article 7TEU and the Rule of Law Initiative, in The Enforcement of EU Law and Values (2017).

[80] European Court of Auditors, Opinion No 1/2018 concerning the proposal of 2 May 2018 for a regulation of the European Parliament and of the Council on the protection of the Union´s budget in case of generalised deficiencies as regards the rule of law in the Member States (2018)

[81] See, e.g., Danuta Hübner, View: EU must not surrender to illiberal forces, Euronews (Dec. 29, 2017),  www.euronews.com/2017/12/29/view-eu-must-not-surrender-to-illiberal-forces [https://perma.cc/TQ9J-7JBK]. Similarly, former Commissioner László Andor argues that as a consequence of political conditionality, poorer regions would suffer because of their illiberal governments. László Andor, Cohesion & Conditionality in the EU, Progressive Economy (2017).

[82] Jasna Šelih ,Ian Bond & Carl Dolan, Can EU funds promote the rule of law in Europe?, Center for European Reform, (Nov. 21, 2017), https://www.cer.eu/publications/archive/policy-brief/2017/can-eu-funds-promote-rule-law-europe [https://perma.cc/VCX4-QBC4].

[83] Jim Brunsden & Mehreen Khan, Germany Wants EU To Reward States For Taking Migrants, Financial Times (Feb. 21, 2018), https://www.ft.com/content/abb50ada-1664-11e8-9376-4a6390addb44 [https://perma.cc/HZE7-FETH].

[84] Id.