By Bronagh Kieran
Threats to the rule of law in Hungary and Poland have been subject to a flurry of media attention over the past year. In Poland, the government has been systematically replacing judges, while in Hungary, the president has advocated for illiberal democracy and undermined the judiciary. In light of these challenges, the EU has triggered Article 7, the “nuclear option” for non-compliant member states.

This blog post sets out a definition of the rule of law, introduces the Article 7 TEU mechanism, discusses some of the limitations of Article 7 and briefly lists alternative measures the EU may use to respond to threats to the rule of law.

What is the rule of law?

Rule of law refers to a collection of principles and safeguards which prevent arbitrary or tyrannical use of the law. A cornerstone of rule of law is the independence of the judiciary. This has its basis in the idea of separation of powers;[1]whereby the three organs of state (the executive, the legislature, and the judiciary) hold each other accountable through a system of checks and balances.

In the European context, the principle of rule of law is referred to in Article 2 of the TEU and further defined by the Venice Commission in their Checklist on the Rule of Law. Rule of Law is important for the European Union for a variety of reasons, some of which are listed below.

• Systems such as the European Arrest Warrant System rely on mutual recognition between the judiciaries of different member states. The Celmer case before the Irish High Court demonstrated how a threat to rule of law in Poland has knock-on effects for cooperation throughout the Union.
• Business cooperation relies on stability, which is put at risk when the government of a member state can make laws rapidly and without review.
• The residents of a “rogue” member state may be denied access to effective justice.

What is Article 7?

Article 7 of the TEU acts as a safeguard for the rule of law within the EU. It sets out a process whereby the EU engages in dialogue with an offending member state, and ultimately may impose sanctions against them. The process for Article 7 is as follows:

• Article 7(1):  On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council makes a determination of a clear risk of a serious breach of EU values by a member state.
• Article 7(2): Member states decide that a serious and persistent breach of EU values has taken place.
• Article 7(3): provides for a sanctions mechanism against the state. These sanctions notoriously include the suspension of voting rights in the Council and the European Council.

So far, Article 7(1) has been triggered against Poland (December 2017) and Hungary (September 2018).

Using Article 7 for Poland and Hungary

In the hallways of Brussels and Strasbourg, there is an implicit understanding that the sanctions outlined in Article 7(3) will not be imposed against Poland or Hungary. Sanctions can only be considered after a unanimous decision by the Council. Moreover, sanctions are only imposed following a vote of qualified majority.[2]

In the current situation where two states are subject to the Article 7 mechanism, it would be in the interest of both states to vote against the sanctioning of the other. Moreover, there are a myriad of political interests at play, including the following:

• Regional politics may influence the outcome of any vote; member states are often reluctant to reprimand their neighbours.
• Brexit also complicates things. All EU member states must assent to any negotiated deal with Britain. Subjecting Poland and/or Hungary to sanctions will make their assent less likely.
• Orban and his party Fidesz are affiliated with the European People’s Party (EPP), the largest party in the European Parliament. EPP also exerts influence in the Commission.

Given these political considerations, the mechanism may be somewhat lackluster in terms of the threat it poses. Moreover, according to civil society actors from the states affected, the prolonged nature of the mechanism enables “rogue” governments to continue to legislate and undermine the rule of law.

Alternatives to Article 7

Below are some alternative measures that the organs of the Union may utilise to address infractions of the principles of the rule of law in Poland and Hungary:

The Proposed Multiannual Financial Framework

The multiannual financial framework (MFF) is the long-term budget laid out by the Commission every seven years. The proposed MFF for after 2020 includes a conditionality based on the rule of law. According to an official Commission communication:

“The Commission is now proposing to strengthen the protection of the EU budget from financial risks linked to generalised deficiencies as regards the rule of law in the Member States. If such deficiencies impair or threaten to impair sound financial management or the protection of the financial interests of the Union, it must be possible to draw consequences for EU funding. […]”

Article 258 TFEU

The Commission may initiate infringement proceedings against a member state when they fail to fulfil an obligation under the Treaties. This is in accordance with article 258 of the TFEU. For example, the Commission referred a law reforming the Polish Supreme Court to the European Court of Justice in September 2018. The law lowered the retirement age of judges and effectively enabled a “purging” of the Supreme Court. In October, the European Court of Justice issued an injunction against the law.

Other Member States

There is a risk that the threat to the rule of law could spread to other countries in the region. Ideally, the EU will be able to address these risks before the situation worsens. Monitoring mechanisms and dialogue are crucial in the process of de-escalation. Some of the tools available are listed below:

EU Justice Scoreboard

The EU Justice Scoreboard is “an information tool that helps the EU achieve more effective justice” by presenting “data on the independence, quality, and efficiency of national justice systems”.

Annual Rule of Law Dialogue

The annual Rule of Law Dialogue involves regular thematic discussions of the key values on which the Union is based. It was established by EU Council Conclusions in December 2014.

A New EU framework to Strengthen the Rule of Law, 2014

The framework sets out a procedure for dialogue to prevent the escalation of systemic threats to the rule of law. The Commission utilised and exhausted the 2014 Framework with Poland. This process culminated in the triggering of Art 7 against Poland.

European Parliament (LIBE Committee)

The parliamentary committee on civil and political rights (LIBE) monitors inter alia the rule of law throughout the EU. The Parliament (in plenary) triggered article 7 against Hungary following an own initiative report by the LIBE Committee.

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[1] https://www.lawteacher.net/free-law-essays/constitutional-law/historical-development-of-separation-of-powers-constitutional-law-essay.php

[2] “Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council […]” Article 7(3) TEU.

Bronagh studied Law with Philosophy at University College Dublin where she was active in the university philosophy society. Since graduating in 2017, she has completed a legal internship and a traineeship in the Council of Europe’s liaison office to the EU. In this time, she also performed as a part of Nolla Theater Collective. Bronagh’s interests include the rule of law, jurisprudence, and environmental protection.