Faculty of Law
Academic Year 2015-16
Exam Session 1
Article 7 TEU and the Proposals for a New ‘Rule of Law
mechanism’ in the EU: a Critical Analysis
LLM Paper
by Yasmine Kaf
Student number : 01510584
Promoter: Peter Van Elsuwege
Co-reader: Femke Gremmelprez
Article 7 TEU and the Proposals for a New ‘Rule of Law mechanism’ in the EU: a
Critical Analysis
Abstract: Article 7 TEU is a vital mechanism for the safeguarding and compliance with the
fundamental values ensured in Article 2 TEU by the Member States. However, during the recent
decades the incompatibility of Member States to comply with the fundamental values have been
demonstrated for instance in Austria, Hungary and Poland. Nevertheless, Article 7 TEU has
never been triggered. By examning the procedural requirements and the context of Article 7
TEU it is clear to state that it is a very complex mechansim in nature. The procedural
requirements demonstrates the problematics of the intergovernmental nature and the reluctance
to trigger the mechansim due to diplomatic sensitivness. Further, the problematic fact that the
criteria ‘serious and persistent’ breach and ‘clear risk’ of a breach never have been defined
results in a more complex nature. By examining the Communication from the Commission to
the European Parliament and the Council regarding Article 7 TEU and comparing it to different
situation within the Member State it can be cconcluded that the mechansim in force today only
exists in theory and not in practice. The EU insitituions have recognized the deficincies in
Article 7 TEU and consequently adopted a new rule of law framework on the 14th of March
2014. The aim of the new framework is to fill the gap between the infingement procedure and
Article 7 TEU. However, the new framework does not introduce any new legal obligations and
hence, must solely be seen as a postponement for the triggering of Article 7 TEU. This study
suggests possible amendments to Article 7 TEU for it to be effective namely: Internal Action
Plans, a Monitoring Body and to ncrease the role of the CJEU. Future amendments of Article 7
TEU are crucial for the maintainance of the EU and the safeguarding of its fundamental values.
List of abbreviations
CFI
Court of First Instance
CJEU
Court of Justice of the European Union
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
EU
European Union
ICESCR
International Covenant on Economic
Social and Cultural Rights
IHRL
International Human Rights Law
TEU
Treaty on the European Union
TFEU
Treaty on the functioning of the
European Union
UDHR
Universal Declaration of Human Rights
UPR
Universal Periodic Review
UN
United Nations
Table of Content
Introduction .............................................................................................................................. 1
1 The Development of a Legal Provision Protecting the Fundamental Values of the
European Union ....................................................................................................................... 5
1.1 From the European Coal and Steel Community to the European Union ............................. 5
1.1.1 The Reflection Group and the Intergovernmental Conference of 1996 ......... 6
1.2 From the Amsterdam Treaty to the Lisbon Treaty ............................................................... 9
1.2.1 The Impact of the ‘Haider Case’ .................................................................. 10
1.3 Conclusion .......................................................................................................................... 12
2 The Deficiencies in the Safeguarding Mechanism for the Fundamental Values ........... 13
2.1 The Scope of Article 7 TEU and the Procedural Requirements......................................... 13
2.1.1 The Intergovernmental Nature of Article 7 TEU ......................................... 16
2.1.2 The Autonomy of Article 7 TEU ................................................................. 17
2.1.3 The Court of Justice of the European Union and Article 7 TEU ................. 18
2.2 The Preventative Mechanism and the Sanctioning Mechanism ........................................ 20
2.2.1’A Clear Risk of a Serious Breach’ ............................................................... 21
2.2.2’A Serious and Persistent Breach’ ................................................................. 22
2.3 Conclusion .......................................................................................................................... 25
3 The Commission’s Proposal for a New Rule of Law Framework ................................. 27
3.1 The Context of the New Framework .................................................................................. 28
3.1.1 The Three Stage Process .............................................................................. 29
3.2 The First Case to Trigger the New Rule of Law Framework ............................................. 32
3.3 Conclusion .......................................................................................................................... 38
4 Possible Amendments of the Mechanism in Article 7 TEU ............................................ 39
4.1 Internal Action Plans .......................................................................................................... 39
4.2 A Monitoring Body ............................................................................................................ 41
4.3 To increase the role of the Court of Justice of the European Union .................................. 47
4.4 Conclusion .......................................................................................................................... 50
Conclusion .............................................................................................................................. 51
Bibliography .......................................................................................................................... 54
Official Documents of the European Union Institutions .................................................... 54
Treaties ..................................................................................................................................... 54
European Commission ............................................................................................................. 54
European Parliament ................................................................................................................ 55
Council of the European Union ................................................................................................ 55
European Council ..................................................................................................................... 56
Court of Justice of the European Union ................................................................................... 56
International Documents ....................................................................................................... 56
Treaties ..................................................................................................................................... 56
Reports ..................................................................................................................................... 56
Opinions ................................................................................................................................... 57
Resolutions ............................................................................................................................... 57
Case Law ................................................................................................................................. 57
Court of First Instance .............................................................................................................. 57
Court of Justice of the European Union ................................................................................... 57
Litterateur ............................................................................................................................... 57
Books ........................................................................................................................................ 57
Articles ..................................................................................................................................... 58
Internet Consultations ........................................................................................................... 59
Introduction
The European Union (hereinafter: ‘EU’) and the Member States undertake to follow and respect
the fundamental values defined in Article 2 TEU (hereinafter: ‘fundamental values’). Such
values are defined as followed:
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the
rule of law and respect for human rights, including the rights of persons belonging to minorities.
These values are common to the Member States in a society in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between women and men prevail.”1
The rule of law and the protection of fundamental rights are crucial for the EU and it is therefore
vital that the fundamental values are promoted and protected.2 The protection of the
fundamental values is a mechanism used both in the pre-accession stage and after accession to
the EU.3 The protection of the fundamental values have not from the foundation of the EU been
incorporated within the EU acquis.4 Hence, when the EU developed from solely an economic
integration to an institution involved with constitutional aspects and political agendas the
fundamental values developed correspondently.5 Subsequently, safeguarding the compliance of
the fundamental values needed to be taken into account. Such a mechanism was therefore
incorporated within the Treaties, today found in Article 7 in the Treaty on the European Union
(hereinafter: ‘TEU’).
The EU institutions are eager to promote and protect the fundamental values found in Article 2
TEU. Specifically demonstrated within the external relations of the EU. For instance, in
Association Agreements a ‘conditionality clause’ is, in general, always inserted within the
agreement.6 The clause gives the EU the right to determine a contract void if the State concerned
does not comply with fundamental values.7 Further, the effective protection of the fundamental
values is also demonstrated within the pre-accession policy. Article 49 TEU sets out a condition
1
Consolidated Version of the Treaty on European Union [2008] OJ C115/13 Article 2.
Communication from the Commission to the European Parliament and the Council A new EU Framework to
strengthen the Rule of Law COM (2014) 158, 11 of March 2014 p 2.
3
Article 49 TEU.
4
Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European
Communities and Related Acts [1997] OJ C340/1 Article F.1.
5
Schutze, An introduction to European Law, p.8.
6
Committee on International Trade, The Application of Human Rights Conditionality in the EU’s Bilateral Trade
Agreement and other Trade Arrangements with Third Countries, 2008 European Parliament p.2.
7
Fierro, European Unions’ approach to Human Rights Conditionality in Practice, 2003.
2
1
of the compliance with the fundamental values as a requirement for accession to the EU.8
Hence, if a state does not comply with the fundamental values the accession will be delayed
until compliance of such values are demonstrated.
However, to protect and safeguard the fundamental values internally is a much more complex
issue. A safeguarding mechanism is incorporated within the Treaties namely Article 7 TEU.
Article 7 TEU provides the EU with a rule of law mechanism and the competence to impose
sanctions on a Member state when there is a ‘serious and persistent’ breach or ‘clear risk’ of
breach of the fundamental values.9 However, up until today Article 7 TEU has never been
triggered. Prima facie, the just stated might not seem to be an issue, rather it would in theory
be seen as something positive. In other words, one could assume that since Article 7 TEU never
has been triggered, the Member States have never taken measures incompatible with the
fundamental values. Contrary, it can be stated that so is not the case and that the EU has faced
situation within Member States where clear and serious breach of the fundamental values have
occurred. For instance, Hungary built a fence to keep refugees out from their territory and
Poland have adopted legislation minimizing the independency from both the constitutional
judges and the media. Regardless, Article 7 TEU has not been triggered.
The European Commission (hereinafter: Commission) has recognized the deficiencies in
Article 7 TEU.10 Thus, on the 11th of March 2014 the Commission presented a new rule of law
framework (hereinafter: ‘the new framework’), stating that it shall be a tool filling the gaps of
the infringement procedure and Article 7 TEU.11
Subsequently, the EU is powerful in protecting and safeguarding the fundamental values for
third countries. The main question for this paper however, is whether or not the EU holds such
a position internally. Hence, this paper aims at providing the reader with an understanding of
the mechanism within Article 7 TEU. As well as the reasons of why the mechanism never has
been triggered, even if situations where it should have been activated have occurred.
Additionally, this paper will try to answer the question of whether the new framework differ
8
Article 49 TEU.
Article 7 TEU.
10
European Commission “State of the Union 2012 Address – speech José Barroso of the European Commission”
SPEECH 12/596, 12 September 2012.
11
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.3.
9
2
from the already existing mechanism and whether or not it will change the situation in practice.
Hence, this paper will examine the new proposal and its function in practice regarding the
safeguarding of the rule of law.
The compliance with the rule of law will result in the maintenance of democracy and
fundamental rights. Without the rule of law democracy will not exist, and without democracy
the rule of law will not exist. The Court of Justice of the European Union (hereinafter: CJEU)
has confirmed that the rule of law is not simply a procedural requirement but rather it is a
mechanism for ensuring compliance with fundamental values.12 Additionally, it can be argued
that the year of 2015 demonstrated the urgent need for an efficient mechanism safeguarding the
fundamental values within the EU. As stated several times by the EU institutions the
fundamental values are crucial for the functioning of the EU hence, the efficient safeguarding
of the fundamental values must be equally vital.
This paper applies a legal dogmatic method for the purpose of establishing the law i.e. Article
7 TEU and the mechanism it provides.13 Further, the new rule of law framework will be
examined.
Both regional and international sources will be used in this study. Regional documents are those
adopted by the European Union and international documents are those adopted by the United
Nations and other international organizations. Further domestic situations in Member States
will be examined, also for the fact of determining and comparing them with the scope of Article
7 TEU. Further the paper refers to doctrine, international reports and studies of fundamental
values mechanism in Article 7 TEU.
Chapter 1 of the paper provides the necessary background and developments of Article 7 TEU
to provide the reader with a comprehensive understanding of the different parts of the provision.
Following the potential procedural and contextual deficiencies in the mechanism will be
examined, in order to reach a conclusion on why the provision has never been triggered. Further
situations where discussion might have occurred, or should have occurred, to trigger Article 7
TEU to provide a practical example of such deficiencies will be demonstrated. The new rule of
law framework by the Commission and consequently an analytical examination of it in practical
12
13
See for example cases: Joined Cases C-402/05 P and C-415/05 P Kadi [2008] ECR I-06351, para 316.
Korling & Zamboni, Juridisk metodlära, p.21.
3
and theoretical terms will be provided. Before demonstrating the conclusion of this paper,
certain proposals will be presented based on the establishment made in the previous chapters
provide possible future amendments. The conclusion in chapter 7 will summarize the key points
of the analysis.
4
1
The Development of a Legal Provision
Protecting the Fundamental Values of the
European Union
The incorporation of a rule of law mechanism within the EU and its Treaties did not exist until
the adoption of the Treaty of Amsterdam.14 Today such a mechanism can be found in Article 7
TEU. Article 7 TEU states that the EU institutions and its Member States can, by certain
procedures, propose that a Member State has breached the fundamental values of the EU.
Consequently, the EU may take specific measures for the purpose to ensure compliance with
the fundamental values by the alleged Member State. However, Article 7 TEU has not always
been enforce and such a mechanism has not at all times been considered to be necessary within
the EU acquis. The next session will therefor examine the history and amendments of the
development of Article 7 TEU.
1.1
From the European Coal and Steel Community to the European
Union
There are several reasons for why a fundamental values mechanism as the one provided in
Article 7 TEU did not exist in the EU acquis from the beginning. Initially, one of the reasons
being that the European Community (hereinafter: ‘EC’) before the Treaty of Maastricht solely
was an economic union with a common goal of an economic market.15 Subsequently, there was
no need for a mechanism safeguarding fundamental values or the actions of Member States
since no fundamental values existed within the EU acquis. One could further argue that the
safeguarding of Human Rights, and later on the fundamental values of the EU, was a task of
the Council of Europe.16 In other words, that it existed a division of interests between the EC
and the Council of Europe. The consequence of such division were that the EC had little or no
role in the establishment of protection of fundamental rights. Subsequently, there was no direct
need for the EC to incorporate such a mechanism within the Treaties.17
14
Treaty of Amsterdam Article F.1.
Schutze, An introduction to European Law, p.8.
16
De Búrca Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union
Fordham International Law Journal 2004 p.683.
17
De Búrca Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union
Fordham International Law Journal 2004 p.683.
15
5
Furthermore, the Member States that founded the EC18 were States from the Western part of
Europe and subsequently those Member States saw themselves as more developed States
compared to the Eastern and Central European States. The Western States were considered to
be states with functioning judicial systems protecting the rule of law and fundamental rights.19
Further, such Member States were compared to the Central and Eastern parts of Europe where
the communist parties were the ruling leaders and consequently there were a big lack of the rule
of law and democracy.20 Hence, they were of the impressions that the Western States were so
developed on the democratic level that no further guarantee and protection for their citizens
were considered to be necessary.
However, the above mentioned views of the community changed after the entry into force of
the Maastricht Treaty in 1993.21 The Maastricht Treaty developed the European Community
into the European Union and gave the EU a new shared policy to work towards. The EU was
no longer solely an economic institution consequently, reforms and developments were in
need.22 The Maastricht Treaty introduced the three pillar structure and also the monetary
union.23 Hence, the EU also became active in areas for instance the justice and home affair
sector and common foreign and security policy.24 With the widening of the EU acquis the
development of the fundamental values came with it.25
1.1.1
The Reflection Group and the Intergovernmental Conference of 1996
Two years after the Maastricht Treaty entered into force, in 1995, the European Council decided
to set up a Reflection Group.26 The Reflection Groups tasks were to:
“To examine and elaborate ideas relating to the provisions of the Treaty on European
Union for which a revision is foreseen and other possible improvements in a spirit of
democracy and openness.” 27
18
The founders of the EU were Germany, Belgium, Luxembourg, France, Italy and the Netherlands.
Nunberg and others, The State after Communism: Administrative Transitions in Central and Eastern Europe, p.
1-10.
20
Nunberg and others, The State after Communism: Administrative Transitions in Central and Eastern Europe, p.
1-10.
21
Consolidated Version of the Treaty on European Union, Treaty of Maastricht [1992] C325/5.
22
Delors The Maastricht Treaty IBRU Boundary and Security Bulletin 1994 p.47.
23
Delors The Maastricht Treaty IBRU Boundary and Security Bulletin 1994 p.47.
24
Delors The Maastricht Treaty IBRU Boundary and Security Bulletin 1994 p.49
25
Delors The Maastricht Treaty IBRU Boundary and Security Bulletin 1994 p.49.
26
European Council at Corfu, Presidency Conclusions 1994.
27
European Council at Corfu, Presidency Conclusions 1994.
19
6
The group was the first official committee to work on the protection of fundamental rights and
the development of the possible sanctioning of Member States.28
The Reflection Group monitored and supported the actions of the 1996 Intergovernmental
Conference which prepared the work of the Amsterdam Treaty.29 The Intergovernmental
Conferences is called upon by the European Council with the objective to negotiate
amendments to the Treaties inforce.30 During the 1996 conference, the question of protection
of the fundamental values and rights were considered for the first time.
During this period of time fundamental rights became part of the EU acquis and further they
were implemented into the fundamental values of the EU.31 With the creation of the EU, from
the EC, the fundamental values of the EU were developed and incorporated within the
Treaties.32 Additionally, as mentioned above, the Western States compared their developments
to those of the eastern and central parts of Europe. The Eastern and Central States were
considered to lack a sufficient element in their governance and protection of fundamental rights
and democracy.33 Hence, as Sadurski argues in his study of Article 7 TEU, the fact that those
countries were subject to accession discussions were a main contribution for why the topic of a
fundamental values mechanism was brought to the table during this period. 34 The Member
States deemed it was necessary to safeguard the political and fundamental values of the EU,
and those existing the Western part of Europe. Further, the Member States saw that there was
a possibility that the states from the Central and Eastern part might not comply with the
fundamental values and in such case, measures needed to be taken in order to ensure
compliance.35
However, there had been a previous suggestion, already in 1952, with a resolution of the Comité d’études pour
la Constitution européenne that the community “government” should have the possibility to interfere in a member
state if certain fundamental values for instance such as democracy was not obtained. The resolution was however
never adopted.
29
European Council at Corfu, Presidency Conclusions, 1994.
30
Thurner and Urban Pappi, European Union Intergovernmental Conferences, p.7.
31
Schutze, An introduction to European Law, p.45.
32
Grieco, The Maastricht Treaty Economic and Monetary Union and the neo-realist research programme Review
of International Studies p.23.
33
Nunberg, The State after Communism: Administrative Transitions in Central and Eastern Europe, p 1—10.
34
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.20.
35
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.21.
28
7
Therefore, the Reflection Group came with the suggestion that a rule of law mechanism should
be incorporated as a legal basis within the Treaties.36 The consequence for an alleged breach of
the fundamental values by a Member State, proposed by the Reflection Group, would be either
expulsion from the EU or to impose sanctions on the Member State concerned.37 The expulsion
measure however, was later not supported in the adoption of the mechanism due to several
motives. One of the reasons being, that it would be more sufficient to take away certain rights
from a Member State instead of just expelling it.38 One could argue that the expulsion of a
Member State is not effective in any way, even if it is a commonly used measure in other
international organizations39. Since the aim of the fundamental values are that the Member
States shall comply with them. To take expulsion measures would not lead to compliance it
would only remove the obligation from the Member State to comply with the fundamental
values.
Hence, the fundamental values mechanism shall not be seen as a threat mechanism towards
Member States to lose their membership of the EU but rather as a comply mechanism. Even if
it is possible to argue that certain elements of the mechanism inforce today in Article 7 (3) TEU
are similar to an expulsion order. For instance, the provision states that a member state can lose
it right to vote, in practice that would mean that a Member State would no longer possess the
power to influence decisions, similarly to an expulsion order. However, such a measure is only
temporary in nature while an expulsion order generally is permanent.
The proposal from the Reflection Group was by majority accepted and were not given a lot of
consideration by the Member States.40 Only 4 Member States raised comments and concerns
regarding the proposal. Only two of which had considerable remarks namely, Austria and
Italy.41 On one hand, the small amount of member state that reacted on the proposal can be
argued to be remarkable since the rule of law mechanism proposed would initiate a broader
possibility for review and sanctions. On the other hand, as mentioned above, the fact that the
36
Resolution Group Report, Promoting European Values, available at:
http://www.europarl.europa.eu/enlargement/cu/agreements/reflex2_en.htm.
37
Resolution Group Report, Promoting European Values, available at:
http://www.europarl.europa.eu/enlargement/cu/agreements/reflex2_en.htm.
38
Schermers and Blokker, International Institutional Law: Unity within Diversity, p.106.
39
See for example United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 5 and
6.
40
Resolution Group Report, Promoting European Values, available at:
http://www.europarl.europa.eu/enlargement/cu/agreements/reflex2_en.htm.
41
Schermers and Blokker, International Institutional Law: Unity within Diversity, p.106.
8
mechanism was to a large extent a response to the future enlargement for the central and eastern
countries of Europe demonstrates that the Western Member States did not fully realize that the
rule of law mechanism would play a significant role for them as well. Nevertheless, Austria and
Italy did submit a new draft proposal in 1996. Interesting however, is the fact that the proposal
made by the Italian and Austrian governments did not require as strict procedural requirements
as Article 7 TEU does today. The proposal only required majority voting and not unanimous
voting.42 Further the European Parliament gained the right for proposals of breaches and not
only the Commission and the Member States.43
However during the adoption of the first version of Article 7 TEU and consequently the
fundamental values mechanism, the less restrictive approach proposed by Italy and Austria was
not inserted. This demonstrates that even if there was not a lot of attention given or discussion
going on regarding the mechanism in the beginning, the Member States in the end were in fact
reluctant to give the mechanism a greater autonomous power. The proposal by the Reflection
Group did establish common grounds for the rule of law mechanism enforce today. For instance
it stated that a unanimous vote from the Member States was crucial for the possibility to enforce
sanctions and further that sanctions could only be given when a repeated and serious breach
existed.44 The first version of Article 7 TEU was adopted with the Treaty of Amsterdam in 1997
and it was an amendment to Article F.
1.2
From the Amsterdam Treaty to the Lisbon Treaty
The first version of Article 7 TEU found in the Treaty of Amsterdam, set out requirements for
when a breach was considered to be an actual breach. In other words, it presented the criteria
that needed to be fulfilled for a situation to fall within the provision. The article stated that the
breach of the fundamental values, defined in Article 2 TEU today, had to be of a serious and
persistent nature.45 The article additionally outlined the legal procedure to be followed when a
sufficient and persistent breach had occurred. Such proceedings could be initiated by either the
Member States or by the Commission. It was the Council of Minister’s (hereinafter ‘Council’)
task to determine whether a breach had occurred or not. The Council, acting by majority, also
had the power to suspend certain rights of the concerned Member State for a possible breach.
42
Reflection Group Reports available at: http://europa.eu/rapid/press-release_DOC-95-8_en.htm.
Reflection Group Report available at: http://europa.eu/rapid/press-release_DOC-95-8_en.htm.
44
Reflection Group Report available at: http://europa.eu/rapid/press-release_DOC-95-8_en.htm.
45
Amsterdam Treaty Article F.1.
43
9
The first version of the rule of law mechanism provided firstly, the procedural aspect and
secondly, the imposing of sanctions.46. One should point out that it is quite interesting that one
of the Member States that was eager to adopt the mechanism in Article 7 TEU was the first
State to be subject to the discussion its activation.
1.2.1
The Impact of the ‘Haider Case’
The following important development for the mechanism in Article 7 TEU came in 1999,
strongly influenced by the ‘Haider Case’. The case refers to the situation of an election in
Austria when the Freedom Party of Austria (hereinafter: ‘Freedom Party’) became part of the
Austrian government in January 2000.47 The Freedom Party had expressed xenophobic
statements. The elections in Austria took place in 1999 where the Austrian Social Democrats
won, however, they failed to form any type of government, neither a minority or collation
government.48 As a consequence a new government was formed by the Austrians people party
and the Austrian freedom-party instead.49 However due to certain views and opinions of the
new government, for instance the leader of the freedom-party had expressed nationalistic
statements, fourteen Member States declared bilateral sanctions towards Austria.50 The
question of whether the Austrian government was in line with the fundamental values in Article
2 TEU also arose during these times. However, Jochen Forwein, Marcelino Oreja and Martti
Ahtisaari, commonly known as the ‘three wise men’, concluded a report with the proposal to
terminate the bilateral sanctions.
51
This was problematic for the EU due to the possible
measures the Freedom Party might take concerning the history of the foundation of the
European Union (then the European Coal and Steel Community) and the ideologies of Hitler
and World War II.52 From the foundation of the EU the common grounds had been that no far
right party with nationalistic ideologies should enter European governments again.53 Hence, the
46
Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European
Communities and Related Acts [1997] OJ C340/1 Article F.1.
47
Art, the Politics of the Nazi Past in Germany and Austria, p.190-199.
48
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.13.
49
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.13.
50
Freeman Austria: The 1999 Parliament Elections and the European Union Member’s Sanctions Boston College
International & Comparative Law Review 2002 p.24-109.
51
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.18.
52
Schutze, An introduction to European Law, p.6.
53
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.11.
10
EU was not prepared nor did it have the political tools to deal with such a situation. However,
the report by the ‘three wise men’ found, after examinations, that the legal system of Austria
was in line with the fundamental values and the EU’s fundamental values. Further, the report
also expressed that even if the leaders and the officials of the Austrian freedom-party had
declared some controversial statements, it could not be seen as a national-socialist party.54
Nevertheless, even though the ‘three wise men’ did not find a serious and persistent breach in
the current situation of Austria, they did suggest certain amendments to the rule of law
mechanism.55 The report stated that future threats might be solved if certain improvements were
to be made regarding the mechanism safeguarding the fundamental values.56 The European
Parliament adopted the same view and was of the opinion that the mechanism should be
improved and amended. The changes were not made over night, rather the issue was subject to
intense discussion on all levels in the European Union.
Nonetheless, after intense discussions, a new proposal was adopted in the late 2000.57 It formed
the legal basis for the amendments of Article 7 in the Treaty of Nice.58 The main change that
the amendment brought with it was the preventative mechanism. Until that time the EU only
had the competence to act when a serious and persistent breach of the fundamental values
already had occurred. However, with the amendments made the mechanism could also be
triggered to act when there was a clear risk of a serious breach.59 In other words, the
amendment presented the possibility to trigger the mechanism before a certain breach had
occurred as long as a clear risk existed. Hence, one could argue that the amendment
strengthened Article 7 and the use of the mechanism. However, it still need to be determined
if ‘a clear risk’ and a ‘serious breach’ exists to be able to activate the mechanism. Subsequently,
even if a breach now could be caught at a preventative level the problem lays with the vagueness
of identifying a ‘clear risk’.
54
Report by Forwein, Oreja and Athisaari available at:
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/HOSI-1.pdf.
55 55
Report by Forwein, Oreja and Athisaari available at:
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/HOSI-1.pdf.
56
Report by Forwein, Oreja and Athisaari available at:
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/HOSI-1.pdf.
57
Treaty of Nice Amending the Treaty on European Union, The Treaties Establishing the European Communities
and Related Acts [2001] C80/1 Article F.1., Article 7.
58
Treaty of Nice Amending the Treaty on European Union, The Treaties Establishing the European Communities
and Related Acts [2001] C80/1 Article F.1., Article 7.
59
Treaty of Nice Amending the Treaty on European Union, The Treaties Establishing the European Communities
and Related Acts [2001] C80/1 Article F.1.Article 7.
11
1.3
Conclusion
The adoption of Article 7 TEU in the EU has not always existed nor has it been a matter of
course. The foundation of the EU and the institutions inforce today were, at the establishment,
solely of economic interest and the protection of fundamental rights was a responsibility of the
Council of Europe. However, this changed with the Treaty of Maastricht which introduced the
three pillar structure and further due to enlargement and the concerns from the Western
countries regarding the accession of Eastern and central European countries to the EU.
Additionally, the incorporation of a rule of law mechanism could be seen as a tool to keep
pressure on a state to comply with the fundamental values even after it becomes a Member state
of the EU. Today the mechanism provide in Article 7 TEU has been inforce for 18 years,
however as mentioned in the introduction chapter has never been triggered. Article 7 thus
provides a fundamental values mechanism in theory however the question that needs to be
answered is whether or not such a mechanism actually exists in practice.
12
2
The Deficiencies in the Safeguarding
Mechanism for the Fundamental Values
The mechanism within the Treaties is solely a mechanism towards the Member States and
hence, does not provide a method to be used towards individual breaches of the fundamental
values.60 Furthermore, for individual breaches of the fundamental values one could turn to the
European Court of Human Rights (hereinafter: ECtHR).61
A common name for the mechanism provided in the Treaties ‘the nuclear bomb’ and it is
generally known that Article 7 TEU is a last resort mechanism.62 Furthermore, the EU has
during the last years faced situation in Member States where discussion have been subject to
whether or not Article 7 should be invoked. One could even argue that such situations have
been systematic during the years.63 Nevertheless, upon till today the mechanism has never been
activated. Thus, leaving one to wonder and realizing that deficiencies in Article 7 TEU must
exist since the objectives and aim of the article has not yet been achieved. In other words,
safeguarding and securing the compliance of the fundamental values defined in Article 2 TEU.
Therefore, an examination on the possible deficiencies in mechanism will be examined below
as well as a definition on Article 7 and the functioning of the mechanism in order to provide
clarity on the issue.
2.1
The Scope of Article 7 TEU and the Procedural Requirements
Article 7 TEU aims to ensure that the fundamental values of the EU are ensured and respected
by Member States even after their accession to the union.64 The mechanism can be triggered
when there is a serious and persistent breach of any of the fundamental values. It can be divided
into two mechanisms: a preventative mechanism and a sanctioning mechanism.65
60
Article 7 TEU.
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 Article 34.
62
Communication from the Commission to the European Parliament and the Council A new EU Framework to
strengthen the Rule of Law COM (2014) 158, 11 of March 2014 p.2.
63
Bogdandy and Ioannidis Systematic Deficiency in the Rule of Law: What it is, What has been done, What can
be done Common Market Law review 2014.
64
Article 7 TEU.
65
Communication from the Commission to the Council and the European Parliament on Art. 7 of the Treaty on
European Union: Respect for and promotion of the values on which the Union is based: COM (2003) p.4.
61
13
The preventative mechanism in Article 7 (1) TEU gives the Council the opportunity to send a
warning to the concerned Member State before a serious breach has occurred. The sanctioning
mechanism, Article 7 (3) TEU, provides the Council with the right to freeze certain rights from
a Member State deriving from the Treaties including, the right to vote when a serious and
persistent breach already has occurred. The two mechanism co-exist however they are not
dependent on one another.66
The European Parliament, the Member States and the Commission may put forward a proposal
to trigger Article 7 TEU to the Council.67 Further, citizens of the EU also have the indirect
capability to put forward a proposal to trigger the mechanism. The indirect right was introduced
by the Lisbon Treaty which provided the new mechanism called the European Citizens
Initiative (hereinafter ‘ECI’).68 The provision allows European citizens to invite the
Commission to submit a proposal within the framework of their powers for instance, the
proposal to trigger Article 7 TEU however, a minimum of 1 million signatures are required.
The use of the ECI mechanism to trigger Article 7 TEU has been initiated in the case of
Hungary.69 In Hungary, after the 2011 democratic election, the Fidesz party won a large
majority of the parliamentary seats. Shortly afterwards a new constitution was adopted.70 The
issue with the new constitution was founded in the fact that it abolished the checks and balances
leaving the country with an illiberal political order.71 Further a lot of amendments have been
adopted into the Hungarian legal order more specifically provisions regarding immigration,
putting immigrants in a more vulnerable position.72 One could further argue that the new
constitution hence was in direct conflict with the fundamental values in Article 2 TEU which
promotes democracy and the rule of law. Over a million European citizens from approximately
7 EU Member States at least shared that view and therefor filled an ECI which was registered
by the Commission on the 30th November 2015.73
66
Article 7 TEU.
Article 7 TEU.
68
Consolidated Version of the Treaty on European Union [2008] OJ C115/13 Article 11 (4) TEU.
69
European Commission, Press Release ‘Commission registers European Citizens' Initiative on EU fundamental
values in Hungary’, 15/6189, Brussels 30 November 2015.
70
Kovács and Attila Tόth Hungary’s Constitutional Transformation European Constitutional Law Review 2011
p.190.
71
Kovács and Attila Tόth Hungary’s Constitutional Transformation European Constitutional Law Review 2011
p.191.
72
European Commission, Press Release ‘Commission opens Infringement Procedure against Hungary concerning
its Asylum Law’ 15/6228, Brussels 10 December 2015.
73
European Commission, Press Release ‘Commission registers European Citizens' Initiative on EU fundamental
values in Hungary’, 15/6189, Brussels 30 November 2015.
67
14
Until today the Commission has not taken a decision whether or not to put forward the proposal
as the ECI submitted intends. However, by examining statistics, there have been 30 ECI
submitted since the instrument was introduced and only three of them have been deemed
admissible by the Commission though, none of the cases have been followed up with a legal
measure.74 Subsequently, it could be argued that the odds that the Commission will move
forward with the submission are not high at stake. Subsequently, it is most likely that the ECI
submission will not trigger a proposal from the Commission.
Further, if a proposal is submitted the European Council by qualified majority can, with
consent of the European Parliament, determine that there exist a clear risk of a Member State
to be in serious breach with one of the fundamental values of the EU. If the Council determines
that such risk exists it shall interact with the Member state concerned through a hearing and the
Council has the possibility to give recommendation concerning the issue.75
The European Council may determine that a serious and persistent breach already has occurred,
in that case the Council can decide to determine certain rights of the Member state concerned.
Article 7 TEU does not define the type of sanctions that can be given, except the determination
of a governments voting rights. Consequently, leaving the Council with a wide margin of
discretion when imposing sanctions. In case there is a serious and persistent breach of the
fundamental values the council may determine to suspend certain rights, in other words there
are no actual legal obligations to do so even if an actual serious and persistent breach exists.
Subsequently, once again, one could question whether or not a fundamental values mechanism
even exists in practice. Hence, it could be argued that triggering Article 7 TEU actually would
not in itself be what is called the ‘nuclear bomb’, rather the position of the Councils actions are
what is seen as the ‘nuclear bomb’. Even if Article 7 TEU would be used in a given situation,
the sanction given could be minor. Therefore, it could be concluded that it is not the mechanism
in itself rather it is the symbolism of the triggering of Article 7 TEU that is deterrent.
However, deciding not to activate Article 7 TEU when there is either a clear risk or a serious
and persistent breach of the fundamental values must be seen as a nuclear bomb backfiring on
74
75
European Union Guide to the European Citizen’s Directive 2015 p.26-28.
Consolidated Version of the Treaty on European Union [2008] OJ C115/13 Article 7 (1) TEU.
15
the citizen of the EU. The fundamental values are a safeguard for the citizens from the Member
States acting contrary to the fundamental values. However, the main issue with the Article 7 is
the fact that it has never been concluded that a clear risk or serious and persistent breach even
exist. Still, it could be argued that even if the determination of such risk or breach would be
concluded, the triggering of Article 7 TEU might not even occur. Resulting in another
problematic and complex situation regarding the procedural requirements for the activation of
the rule of law mechanism.
2.1.1
The Intergovernmental Nature of Article 7 TEU
Further, as demonstrated it is the European Council and the Council that will determine and
evaluate whether or not a risk or breach exists.76 This shows the political nature of the
mechanism. The European Council and the Council are both intergovernmental institutions
meaning that they represent the interest of the Member States rather than the EU interests as
such.77 As previously mentioned, the activation of Article 7 TEU is already politically sensitive
in its nature and the fact that it is the European Council and the Council that will decide on the
matter must be argued to add certain sensitivity to the matter. One could also question if the
voting of the Member States, to determine if a breach have occurred, will solely be based on
factors of the breach. The question arises since it is not unreasonable to take into account the
different diplomatic relations between the Member States. The guarantee of neutrality and
independency from governments and States are firstly not a legal obligation neither is it logical
since the tasks of a state is to protect its own interests.
Further it could be argued that there is an indistinct reason for the political nature of the
procedure. The procedural requirements of Article 7 TEU can be seen as a safeguard for the
Member States. The fact that it lays within the responsibilities of the intergovernmental
institutions to define whether or not a breach or risk has occurred results in the fact, as
previously mentioned, that diplomatic relationships and political sensitiveness will be taken
into account. Additionally, the political nature of the mechanism has been recognized by the
Commission though it is not seen as a negative feature.78 Rather the Commission embraces
76
Article 7 TEU.
George and others, Politics in the European Union, p.12.
78
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union, Respect for and Promotion of the Values on which the Union is Based, COM (2003) 606, 15
October 2003, p.6.
77
16
diplomatic channels as a resolution instead of activating the ‘nuclear bomb’.79 However, Article
7 TEU aims to protect the fundamental values of the EU and not those of the Member States. It
can be argued that the European Council and the Council essentially are not the preeminent
fitted institution to determine whether or not a breach of such interest exists since both
institution are of intergovernmental character. Consequently that could be one of the reasons
for why Article 7 TEU never has been triggered. However, it shall not be forgotten that also the
Commission, which fully represents the union’s interest, has been reluctant in activating the
mechanism.
2.1.2
The Autonomy of Article 7 TEU
The mechanism is not limited solely to areas of the EU competence, it is also applicable in areas
where the Member States have exclusive autonomy.80 Hence, the EU could interfere
correspondingly to breaches also occurring on the domestic level of a Member state. It has been
argued that it would be contradictory and also ineffective if the EU could or should ignore
breaches of the fundamental values occurring in fields in the competence of the Member
States.81 The Commission justified such interference with the fact that if a situation is serious
to the extent that it can be caught by Article 7 TEU, it is likely that it would be undermining the
trust between Member States and the very foundation of the EU regardless on which territory
it occurs.82
That serious breaches of the fundamental values can also be caught by Article 7 TEU even if
they fall outside the competence of the EU demonstrates the unique position of the fundamental
values mechanism. In other words, breaches of the fundamental values can be found also on
domestic areas where the Member States have sovereign autonomy. This is interesting when
compared to the infringement procedure. The Commission can solely activate the infringement
79
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union, Respect for and Promotion of the Values on which the Union is Based, COM (2003) 606, 15
October 2003, p.6.
80
Sadurski Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement and Jörgen Haider Sydney Law
School Legal Studies Research Paper 2010 p.26.
81
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union, Respect for and Promotion of the Values on which the Union is Based, COM (2003) 606, 15
October 2003, p.5.
82
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union, Respect for and Promotion of the Values on which the Union is Based, COM (2003) 606, 15
October 2003, p.5.
17
procedure in areas where the EU has exclusive or partial competence.83 Consequently, an
infringement procedure can be activated in the field of internal market law however, it could
never be activated in the field of CFSP contrary to Article 7 TEU which can be triggered on
any field.
However, it can be argued that the sole existence of Article 7 TEU gives the EU the competence
to act in any matter when the fundamental values are not respected since it deals with such
essential principles. That view has been confirmed by the EU, and demonstrates the unique
possibilities with the mechanism in Article 7 TEU if triggered.84
The competence to act on areas where the Member States have exclusive competence gives the
mechanism of Article 7 TEU a very unique position, creating another reason for the Member
States to generate a further safeguard regarding the use of the mechanism.
2.1.2
The Court of Justice of the European Union and Article 7 TEU
As demonstrated, almost every EU institution plays a role regarding Article 7 TEU. However,
one relevant institution is not: the CJEU. The CJEU do, in general, have exclusive jurisdiction
to interpret the provisions in the Treaties however that is not the case concerning Article 7
TEU.85 Article 269 TFEU state as followed:
“the Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the
European Council or by the Council pursuant to Article 7 TEU solely at the request of the Member
State concerned by a determination of the European Council or of the Council and in respect solely
of the procedural stipulations contained in that Article”
In other words, the jurisdiction of the CJEU regarding Article 7 TEU stretches only to the
reviewing of the procedural requirements. The problematic of this was demonstrated in the case
Luis Bertelli Galvez v. Commission.86 The Case concerned Mr.Bertelli, a Spanish lawyer, who
filed a complaint to the Commission regarding an alleged unlawful persecution by the Spanish
83
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European
Union [2012] OJ C326/47 Article 258.
84
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union, Respect for and Promotion of the Values on which the Union is Based, COM (2003) 606, 15
October 2003, p 6.
85
Article 7 TEU.
86
T-337/03 Luis Bertelli Galvez v. Commission ECR 2004 II-01041.
18
courts over a period of 20 years.87 Mr.Bertelli claimed that the Spanish court did not comply
with the fundamental values set out in Article 6 EU (today Article 2 TEU) and that the
Commission for that reason should propose to trigger Article 7 to the Council accordingly with
Article 7(1).88 However, the Commission claimed that only when there is a breach of
community law, is there a possibility for the Commission to interfere and in Mr.Bertellis case
it was solely an internal matter.89 As demonstrated earlier Article 7 TEU is not exclusively
limited to the exclusive or partial competence of the EU, so Mr.Bertelli took the case to court
stating that the Commission failed with its obligation to submit to the Council a proposal to
invoke article 7. The Court of First Instance (hereinafter ‘CFI’) stated:
“The EU Treaty (…) gives no jurisdiction to the Community judicature to determine whether the
Community institutions have acted lawfully to ensure the respect by the Member States of the
principles laid down under Article 6(1) EU (today Article 2 TEU) or to adjudicate on the lawfulness
of acts adopted on the basis of Article 7 EU (today Article 7 TEU), save in relation to questions
concerning the procedural stipulations contained in that article, which the Court may address only
at the request of the Member State concerned.”90
Subsequently, even if the Commission failed to act, the judiciary of the EU does not have any
competence to take measures. This case not only demonstrates the issue with jurisdiction,
moreover the reluctance of the institutions to use Article 7 TEU is also revealed. However, once
again, the wording of Article 7 TEU solely provides the Commission with a possibility to
propose the activation. It does not provide the Commission with a legal obligation to do so.
One could assume that it would be in the interest of the Commission to make such a proposal
when it deemed it was necessary. Nevertheless, practice shows us otherwise.
The aim of Article 7 TEU is of great value for the respecting of fundamental values within the
EU in theory. The grounds that Article 7 lays down are of great importance since it gives the
EU the possibility to protect fundamental values such as democracy and human rights. The
protection of fundamental rights in the EU institutions have been subject to a lot of
87
CFI, T-337/03, 2 April 2004, Luis Bertelli Galvez v. Commission, ECR 2004 II-01041 para 5.
CFI, T-337/03, 2 April 2004, Luis Bertelli Galvez v. Commission, ECR 2004 II-01041 para 5.
89
CFI, T-337/03, 2 April 2004, Luis Bertelli Galvez v. Commission, ECR 2004 II-01041 para 6.
90
CFI, T-337/03, 2 April 2004, Luis Bertelli Galvez v. Commission, ECR 2004 II-01041 para 15-16.
88
19
discussions.91 And the fact that Article 7 TEU provides the EU with a mechanism safeguarding
such rights are in essence vital and a great step towards the loss of democratic deficit. By
providing a safeguarding and sanctioning mechanism the EU is demonstrating the importance
of the fundamental values within the Member States and its institutions. In other words, Article
7 TEU demonstrates that the maintenance of the fundamental value, democracy included, are
essential for the EU and to not maintain them will lead to consequences such as sanctions.
However, one should still remember the fact that Article 7 TEU has never been triggered even
in situations where it could be argued that the fundamental values have been breached. There
are several deficiencies in the rule of law mechanism regarding the procedural requirements.
Firstly, the fact that there is such a huge influence of intergovernmentalism to determine
whether or not a breach or clear risk exists. It can be argued that an intergovernmental institution
essentially do not have the expertise to determine whether or not a breach has occurred
regarding the interest of the EU since they mainly represents the Member States interests.
Secondly, the wording of the provision demonstrates that there is not an actual legal obligation
for the Council to sanction a member state if a serious breach or a clear risk exist. Since the
Council may determine to suspend certain rights, rather than that it shall suspend certain rights.
It could be argued that the fundamental values mechanism only exists in theory and not in
practice. Therefor it is crucial to examine Article 7 TEU in its practical aspects as well, even if
it never has been triggered discussion of its triggering in certain situations has occurred
2.2
The Preventative Mechanism and the Sanctioning Mechanism
In addition to the procedural deficiencies regarding Article 7 TEU, there is further a contextual
issue. There is, as mentioned above, two mechanisms incorporated within Article 7 TEU. A
preventative mechanism and a sanctioning mechanism. Hence, apart from the complex
procedural requirements two criteria’s need to be satisfied in order to activate either of the two
mechanisms. The requirement to satisfy certain criteria in order to rely on a Treaty provision is
not extraordinary, rather it is often incorporated within the Treaty provisions. Nonetheless, the
mechanism in Article 7 TEU has never been triggered contrary to other provisions.
91
See for example: Alston and others, The EU and Human Rights, p.6-13 and Von Bogdandy The European Union
as a Human Right Organization? Human Rights and the core of the European Union Common Market Law review
2000 p.1-20.
20
2.2.1
A Clear Risk of a Serious Breach
Concerning the preventative mechanism it can be triggered only when there is a clear risk of a
serious breach of the fundamental values. The problem however, is to determine what a ‘clear
risk’ means in practice. There is no exhaustive meaning and therefore it puts a high threshold
for the triggering of the preventative mechanism. The Commission provided an example for
what a clear risk might be in practice namely:
“[…] the adoption of legislation allowing procedural guarantees to be abolished in wartime is a
clear risk; its actual use even in wartime would be a serious breach”.92
Further, it is not sufficient for a situation to be caught by Article 7 TEU solely if there exists a
clear risk, rather the clear risk must lead to a serious breach. Subsequently one could draw the
conclusion that changing, adding or removing legislation that goes against the fundamental
values of the EU would constitute a clear risk.
A recent situation regarding a clear risk for a serious breach is the situation with Hungary and
the statement of re-introducing the death penalty. Hungarian Prime Minister Viktor Orbán
stated at a press-conference on the 28th of April 2015 the following “The death penalty question
should be put on the agenda in Hungary”.93 To introduce the death penalty is evidently
incompatible with human dignity as defined as one of the fundamental values.94 The first
reaction of the Commission was however not to consider whether or not this was against the
rule of law, rather one could argue that the problem at hand was not dealt with. The first vice
president of the Commission stated that public consultation was a good way of developing
policies within the society.95 However, the European Parliament questioned the stated and the
view of the Commission resulting in a second statement.96 In the second statement the
Commission firmly stated that the reintroduction of the death penalty was incompatible with
92
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union, Respect for and Promotion of the Values on which the Union is based, COM (2003) 606, 15
October 2003, p.7.
93
Gotev, G, ’Commission Shies away from Warning Orbán over Death Penalty’
http://www.euractiv.com/section/elections/news/commission-shies-away-from-warning-orban-over-deathpenalty/ (last accessed 2016-05-16).
94
Article 2 TEU.
95
Gotev, G, ’Commission Shies away from Warning Orbán over Death Penalty’
http://www.euractiv.com/section/elections/news/commission-shies-away-from-warning-orban-over-deathpenalty/ (last accessed 2016-05-16).
96
.
21
the fundamental values. The statement further declared that if the death penalty would be
reintroduced then the Commission would not hesitate to trigger Article 7 TEU.97
One should keep in mind that Hungary already has been in similar situations regarding the issue
of compliance with the fundamental values for instance regarding their immigrations laws.98
Hence, it could be questioned if the preventative mechanism in Article 7 TEU should have been
triggered regarding the statement of re-introducing the death penalty arguably constitutes a
‘clear risk’ of a serious breach of the fundamental values.
2.2.2
A Serious and Persistent Breach
To trigger the sanctioning mechanism the breach need to be both ‘serious’ and ‘persistent’. The
Commission has communicated that for a breach to be of serious characteristic then both the
objective and the consequence of the breach need to be taken into account.99 When taking the
objective in consideration the vulnerability of social classes shall be analysed as a determining
factor.100 Immigrants are used as an example to define a vulnerable social class.101
Subsequently, if a national measure is taken that will affect a specific vulnerable group in the
society resulting in an more vulnerable position for such group, then such a breach could be
considered to be of ‘serious’ nature.
The year of 2015 will almost certainly be known as the year Europe, and consequently EU,
experienced one of the worst immigration crisis in centuries. However even in crisis, the
fundamental values shall still be respected and obtained by the Member States.102 It could be
argued that such was not the case in Hungary. Hungary has been one of the main transit
countries for refugees traveling to reach other Member States such as for instance Sweden and
Germany to seek asylum. Due to the high amount of passing refugees, Hungary constructed a
European Commission, ‘European Parliament Plenary – Commission statement on the situation in Hungary First
Vice-President Timmermans Strasbourg’, SPEECH 15/5010, Strasbourg 19 May 2015.
98
European Commission, Press Release ‘Commission opens Infringement Procedure against Hungary concerning
its Asylum Law’ 15/6228, Brussels 10 December 2015.
99
Communication from the Commission to the Council and the European Parliament on Art. 7 of the Treaty on
European Union: Respect for and promotion of the values on which the Union is based: COM (2003) p.8.
100
Communication from the Commission to the Council and the European Parliament on Art. 7 of the Treaty on
European Union: Respect for and promotion of the values on which the Union is based: COM (2003) p.8.
101
Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty
on European Union, Respect for and Promotion of the Values on which the Union is based, COM (2003) 606, 15
October 2003, p.8.
102
European Union Agency for Fundamental Rights, The European Union as a Community of values:
Safeguarding Fundamental Rights in time of crisis, 2013.
97
22
fence on the Serbian-Hungary borders with the aim of keeping refugees out.103 Further,
amendments to the Hungarian asylum legislation has been adopted, putting a threshold so high
on the granting of asylum, leaving it almost impossible to obtain such status.104 The
Commission started an infringement procedure against the amended asylum laws on 10th of
December 2015.105 Until today no further comments or actions have been taken regarding the
situation. However, if Hungary would refuse to follow the Commission, and possible the CJEU,
directions it might be argued that the situation in Hungary would satisfy the criteria ‘serious
breach’. The laws adopted and the fence constructed by Hungary must most definitely be argued
to affect a vulnerable group, creating a more vulnerable situation then the refugees already are
in. Hence, it can be questioned why the infringement procedure was triggered regarding a
serious breach of the fundamental values instead of Article 7 TEU.
Further the result of the breach must also be taken into consideration. The Commission has
defined it as follows:
“The result of the breach might concern any one or more of the principles referred to in Article 6.
Even if it is enough for one of the common values to be violated or risk being violated for Article 7
to be activated, a simultaneous breach of several values could be evidence of the seriousness of the
breach”.106
The definition given must be stated to be quite astonishing since it suggests that several
breaches is a clear indicator that a serious breach has occurred. However, Article 7 TEU shall
not be dependent on the amount of breaches of the fundamental values, rather it depends on
whether or not the rule of law is at stake – one breach or a hundred should not make a difference.
The Commission points out that it is in fact enough with a single breach of the fundamental
values for the breach to be considered a serious one. Nevertheless, it also confirms that several
breaches are a greater indicator for it to actually constitute a serious breach making the use of
Article 7 TEU even more complex. As pointed out in the previous section regarding the
situations in Hungary, it can be concluded that the different breaches by Hungary most
Amnesty International Report The State of the World’s Human Rights 2016 p.42-43.
Hungarian Asylum Act: Act LXX of 2007 on Asylum, Unofficial English translation available at:
http://helsinki.hu/wp-content/uploads/Act_LXXX_of_2007_on_Asylum.pdf.
105
European Commission, Press Release ‘Commission opens Infringement Procedure against Hungary concerning
its Asylum Law’ 15/6228, Brussels 10 December 2015.
106
Communication from the Commission to the Council and the European Parliament on article 7 of the Treaty
on European Union, Respect for and promotion of the values on which the Union is based, COM (2003) 606, 15
October 2003, p.8.
103
104
23
definitely should amount to the triggering of Article 7 TEU since they are systematic threats.
Hence, once again, it can be argued that the Commission should have activated Article 7 TEU
instead of the infringement procedure regarding the refugee situation in Hungary.
Further, the breach must additionally be persistent for it to be caught by Article 7 TEU. In other
words, it is not enough for a breach to be solely serious in nature it also has to be an ongoing
breach. The common definition of ‘persistent’ is, in this case, that the breach most have lasted
over a time period.107 A breach that occurred a single time will therefore not be considered to
be a breach under Article 7 TEU. However, a definition of what a time period mean in practice
does not exist. Therefore, it can be everything from a month to a year. Subsequently, there is
no real definition of what ‘persistent’ actually means. The Commission has given an example
regarding the determination of a ‘persistent breach’ namely, the fact that a Member State has
been convicted for the same kind of breach in other courts for instance the European Court of
Human Rights (hereinafter ‘ECtHR’) and if no measure to comply with its obligations has been
taken.108 It is generally known that the mechanism in Article 7 TEU is a last resort mechanism,
however with the vague definitions presented above it is not surprising that the provision never
has been triggered.
Additionally, the given indicator by the Commission also demonstrates the ineffectiveness of
the mechanism in Article 7 TEU. To take a case in front of the ECtHR can take years, the
ECtHR endeavours to deal with a case within 3 years after the submission came in however, it
is not a guarantee and the process can take longer.109 In other words, a breach or breaches of
the fundamental values can then occur in the Member States for over 3 years before Article 7
TEU can even be triggered. As stressed previously the mechanism provided in Article 7 TEU
exists to ensure compliance and to safeguard the fundamental values, it is therefore insufficient
that the determination of a breach might take up to a half decade before the mechanism even
can be triggered.
107
Communication from the Commission to the Council and the European Parliament on article 7 of the Treaty
on European Union, Respect for and promotion of the values on which the Union is based, COM (2003) 606, 15
October 2003, p.8.
108
Communication from the Commission to the Council and the European Parliament on article 7 of the Treaty
on European Union, Respect for and promotion of the values on which the Union is based, COM (2003) 606, 15
October 2003, p.8.
109
European Court of Human Rights ‘The ECHR in 50 questions’
http://www.echr.coe.int/Documents/50Questions_ENG.pdf (last accessed: 2016-05-16).
24
Due to the activation of the infringement procedure in the situation within Hungary, regarding
the reforms of the immigrations laws and the construction of the wall, could indeed be subject
to verdict from the CJEU stating that the actions of Hungary are violations of EU law. However,
it is as likely that Hungary would choose not to comply with its sanction, or simply just pay the
penalty.110 Subsequently, if such a situation arose Article 7 TEU could be a possible mechanism
to activate since Hungary in that case still would not comply with the fundamental values.
However, having the guidelines provided by the Commission in mind it might not be possible
to trigger the mechanism before the situation has been determined to be a breach of the ECHR
by the ECtHR and that might take approximately 3 years.111 Further, by that time period the
crisis might be over and the fence abolished and the immigration laws be amended to comply
with the fundamental values. Hence, when Article 7 TEU might be trigged a breach of the
fundamental values will no longer exist. In order words, Article 7 TEU would no longer be a
possible mechanism to trigger. It can be argued that the activation of the mechanism is to ensure
compliance by the fundamental values and not to pose sanctions on Member States. Therefore,
in the given fictional situation with Hungary and the compliance of the fundamental values it
might be seen as a positive development that there is no need to trigger Article 7 TEU. However,
in such outcome it would not be the EU that possess the power to ensure compliance with its
fundamental values and therefor the mechanism must be stated to be ineffective and
insufficient.
2.3
Conclusion:
It is fair to state that the triggering of Article 7 is very complex in nature due to several reasons.
However, two main reasons can be distinguished. Firstly, due to its complex procedural
requirements for instance regarding the fact that all the EU institutions play a role as well as the
Member States in the procedure. Secondly, it is very complex due to the fact that the triggering
of Article 7 TEU leads to a very sensitive political situation. To trigger Article 7 TEU would in
practice mean to declare that a Member State does not comply with fundamental rights and the
fundamental values of the EU. The just stated is indeed the entire aim of the mechanism,
however Member States are deterrent to activate it because the possible consequences that the
state itself will be the next target.
110
Article 258 TFEU.
European Court of Human Rights ‘The ECHR in 50 questions’
http://www.echr.coe.int/Documents/50Questions_ENG.pdf (last accessed: 2016-05-16).
111
25
By reading Article 7 TEU and the threshold it holds it might, per se, seem as low requirements
to ‘fulfil’ and consequently to trigger Article 7 TEU. However, practice as well as the
examination in this paper has demonstrated otherwise. Fortunately, the ineffectiveness of the
rule of law mechanism in Article 7 TEU have been recognized by the EU institutions.
Subsequently, the Commission launched a new rule of law mechanism complementary to
Article 7 TEU, in 2014.
26
3
The Commission’s Proposal for a New Rule of
Law Framework
The President of the Commission, Mr. Barroso, stated in his annual speech to the European
Parliament in 2012 that “We need a better developed set of instruments, not just the alternative
between the ‘soft power’ of political persuasion and the nuclear option of Article 7 TEU”112.
The Justice and Home Affairs Council likewise stressed the need for development regarding
the protection of the rule of law.113 Subsequently, the EU institutions have showed
acknowledgement of the great importance of the protection and maintaining of the rule of law
and additionally the fact that certain events in Member States have demonstrated the lack of
respect for the rule of law.114
The new rule of law mechanism was adopted on the 14th of March 2014.115 The new framework
is a supplementary mechanism for both the infringement procedure and Article 7 TEU, it is
therefore not a replacement of the rule of law mechanism inforce today.116 The adoption of the
new mechanism is the result of two debates held by the College of Commissioners regarding
the rule of law in the EU117 The outcome of those debates simply and clearly demonstrated that
the rule of law mechanism and protection of the fundamental values needed urgent development
in order to be able to deal with the rule of law deficiencies within the EU.
The new framework will as mentioned be a supplement to Article 7 TEU. However, the
question that need to be answered is how the new mechanism differ from the already existing
mechanism and whether or not the new framework will change the situation in practice.
European Commission ‘State of the Union 2012 Address – speech José Barroso of the European Commission’
SPEECH 12/596, Brussels 12 September 2012.
113
Council of the European Union ‘Council conclusions on fundamental rights and rule of law and on the
Commission 2012 Report on the Application of the Charter of Fundamental Rights of the European Union’ Press
Release 137404, Luxembourg 6 and 7 June 2013 p.4.
114
Communication from the Commission to the European Parliament and the Council A new EU Framework to
strengthen the Rule of Law COM (2014) 158, 11 of March 2014 p.6.
115
Communication from the Commission to the European Parliament and the Council A new EU Framework to
strengthen the Rule of Law COM (2014) 158, 11 of March 2014 p.7.
116
Communication from the Commission to the European Parliament and the Council A new EU Framework to
strengthen the Rule of Law COM (2014) 158, 11 of March 2014.
117
European Commission, ‘European Commission presents a framework to safeguard the rule of law in the
European Union’, Press Release 14/237, Strasbourg 11 March 2014.
112
27
3.1
The Context of the Rule of Law New Framework
The new mechanism is solely based on the EU Treaties, i.e. it does not confer any new
competences on the Commission.
118
The mechanism sets out to provide a more effective
protection than Article 7 TEU gives. The new mechanism aims at providing the EU with an
instrument that can be triggered in situations where the requirements in Article 7 TEU are not
fulfilled but still consist of a threat to the rule of law. The new framework can be triggered in
situations:
“[W]here the authorities of a Member State are taking measures or are tolerating situations
which are likely to systematically and adversely affect the integrity, stability or the proper
functioning of the institutions and the safeguard mechanisms established at national level to
secure the rule of law”119
Hence, it introduces a mechanism with a lower threshold. Hence, the criteria to trigger the new
framework is lowered from ‘clear risk’ to ‘likely’. In theory to prove that a situation might
‘likely’ breach the fundamental values is a lower threshold than to prove that it exists a ‘clear
risk’ however, there is no clear definition of what ‘likely’ actually constitutes in practice.
However, debates are constantly ongoing on what the definition of rule of law essentially is.
Consequently, it can be argued that if there is no clear definition of the rule of law it is
impossible to have definition for when the rule of law actually have been breached.
Nevertheless, a common partial understanding of rule of law exists. It defines that the rule of
law outlines that no one, either legal nor natural person or international organizations, stands
above the law.120 In other words, the law is on top of the hierarchy of society and neither
governments nor private parties shall take actions putting them above the law. Subsequently,
the law shall be followed at all times. A great amount of the uncertainty of Article 7 TEU and
when it can be triggered lays, as demonstrated in the previous section, with the unclear
definitions of what actually constitutes ‘a clear risk’ and a ‘serious breach’. It can be argued
See: European Commission, ‘European Commission presents a framework to safeguard the rule of law in the
European Union’, Press Release 14/237, Strasbourg 11 March 2014 and Communication from the Commission to
the European Parliament and the Council: A new EU framework to strengthen the Rule of Law, COM (2014) 158
final/2 p.9.
119
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.6.
120
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.3-4.
118
28
that to determine whether a measure or a situation is ‘likely’ to be a threat is just as unclear as
the definitions given in Article 7 TEU.
Further, the measure must be systematic and harmful towards the rule of law in contrast to the
requirements of Article 7 TEU where the breach must be persistent and serious.121 The main
objective of the new framework is to deal with systematic threats towards the rule of law.122
Subsequently it can be argued that the new framework does fill a gap within Article 7 TEU.
Namely, in those cases where Member States breaches the fundamental values but the situations
are not considered to be of such serious nature that it can be caught by Article 7 TEU. One
could argue that such breaches are already covered by the infringement procedure however, the
infringement procedure can only deal with breaches of EU law and hence where the EU has
competence to act. The new framework on the other hand, would be able to deal with systematic
breaches on national level that falls outside the EU competence, similar to the mechanism in
Article 7 TEU.
3.1.1
The Three Stage Process
The framework consists of a three stage process: “a Commission assessment, a Commission
recommendation and a follow-up to the recommendation”.123
The initiating for the assessment under the first stage can be based on indications from
recognized institutions, available sources and particularly from the European Union Agency for
Fundamental Rights and the Council of Europe. The Commission will carry out an investigation
regarding the indications and based on the information provided by the examination it will
assess whether a systematic threat to the rule of law exists.124 Further, if the Commission would
be of the opinion that a systematic threat exists it will send a ‘rule of law opinion’ to the
concerned Member State giving the state an opportunity to respond.125 If the situation is not
121
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.6-7.
122
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.7.
123
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.7.
124
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.7.
125
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.7-8.
29
resolved at the first stage the Commission will issue a ‘rule of law recommendation’.126 The
recommendation will consist of detailed reasons for the concerns and a recommendation that
the Member State solves the issue within a time limit. In specific cases the recommendation
may also consist of measures and ways to resolve the situation.127 In the third stage a monitor
procedure will be carried out by the Commission. It will consist of a dialogue between the
concerned Member State and the Commission regarding the solved or unsolved situation at
hand. If the situation in a Member State does not change so it is in line with the rule of law after
the three stage process then the mechanism in Article 7 TEU might be triggered by the
Commission. 128
The new framework is prima facie a positive development for the deficiencies in the rule of
law. Firstly, due to the official recognition of the ineffectiveness of the mechanism in Article 7
TEU. Secondly, since it in certain ways fill a gap between the infringement procedure and
Article 7 TEU since the EU now can act when it comes to breaches falling outside the EU
competence but is not serious enough to trigger Article 7 TEU. Nevertheless, the Commission
stated that the new framework is a contribution for the strengthening of the protection and
maintaining of the rule of law equally in all Member States. It recognizes the ineffectiveness of
the two alternatives existing today, the infringement procedure and the mechanism in Article 7
TEU. However, by examining the new framework one could conclude that it has not developed,
strengthen or brought anything new with it in addition to the infringement procedure and Article
7 TEU. Simply for the reason that it does not introduce a new mechanism on any level. The
new framework solely introduces the first step of the infringement procedure: notice and
recommendation.
The new framework does not introduce any legal obligations towards either the Commission or
the Member State concerned it simply is a recommendation and in certain situations a
recommendation will not be given at all.129 The new framework will notify the Member State
concerned about the issues and consequently if they do not comply or satisfy with the rule of
126
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.7.
127
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.8.
128
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.8.
129
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.8.
30
law, then the Commission might trigger Article 7 TEU. In other words, it can be argued, that
the new framework is just postponing the activation of Article 7 TEU. The Commission does
indeed state that the new framework does not take away the possibility to directly activate
Article 7 TEU if a serious and persistent breach or clear risk of breach exist.130 However, as
demonstrated according to the EU and its institutions, the requirements of Article 7 TEU has
never been meet until today. Hence, the practice will most likely just delay the use of Article 7
TEU further.
The new mechanism does fill a gap between the infringement procedure and the mechanism in
Article 7 TEU regarding the possibility to act on areas where the Member States have autonomy
but where the requirements of Article 7 TEU are not fulfilled. However, this is only a theoretical
resolution since in practice even if a situation is caught by the new framework there is no legal
consequences for the concerned Member State. The consequence is in fact the possibility to
trigger Article 7 TEU. It can therefore be argued that the new framework simply clarifies the
conditions of Article 7 TEU. The Commission argued in the preamble that the reason for the
adoption of the new framework is founded on the fact that the soft law mechanism and the
nuclear option is not sufficient today.131 Nevertheless, the new framework adopted must be seen
to be even more insufficient than both the infringement procedure and the mechanism in Article
7 TEU. Whereas the infringement procedure and Article 7 TEU provides for a sanctioning
mechanism, the new framework lacks of such measure. In other words, the framework can be
triggered but in practice it will not lead to anything except communication. Hence, as stated
above, there will be no practical consequence for a Member State if it chooses not to comply
with the communication by the new framework making it insufficient in practice. Additionally,
contrary to the infringement procedure the new framework does not provide any time
guidelines. In other words, the Commission will send certain recommendations on measures
regarding a situation within a Member State without no specific time directions of when the
measures should be taken etc. In practice that could mean that new frameworks dialogue can
take months or even years, delaying the activation of Article 7 TEU further,
130
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.7.
131
Communication from the Commission to the European Parliament and the Council: A new EU framework to
strengthen the Rule of Law, COM (2014) 158 final/2 p.2.
31
Even if one could argue that the new framework is remarkably similar to the procedure in
Article 258 TEU inforce today the Council argued that the Commission by adopting the new
framework breached the principle of conferral. The Council Legal Service stated that:
“[T]here is no legal basis in the Treaties empowering the institutions to create a new
supervision mechanism of the respect of the rule of law by the Member States, additional to
what is laid down in Article 7 TEU”132
However, by examining the new framework it is clear that the Commission has not conferred
any new powers just simply acted within the powers conferred upon them in Article 7 TEU and
Article 258 TFEU. The new framework does not establish a new legal act. Rather it is a
clarification of the administrative work of the Commission in the pre-accession stage before
triggering both the infringement proceeding and Article 7 TEU. Specifically, it can be argued
that Article 7 (1) TEU explicitly gives the Commission the power to set guidelines, as the ones
inserted in the new framework. In other words, by entitling the Commission with the right to
submit proposals of breaches the right to investigate should rationally come with it.
Furthermore, the sanctioning mechanism, in other the legal act, is still exclusive competence of
the European Council and the Council.
On the one hand, it can be argued that the reaction of the Council is the reluctance of the
Member States to develop the mechanism in Article 7 TEU. On the other hand, in March 2013
four Member States, Germany, the Netherlands, Denmark and Finland sent a letter to the
president of the Commission.133 They argued that the development of a new rule of law
mechanism was called for. However, the fact that four Member States out of 28 have raised
concerns are not enough to demonstrate that the majority of the Member States are of the view
that Article 7 TEU need to be developed. Hence, the opposition of the Council is questionable
and one could draw the conclusion that reluctance to develop the rule of law mechanism exists
within the Member States national governments.
132
Council of the European Union Opinion of the Legal service considering the Commission Communication on
a new EU Framework to Strengthen the Rule of Law: compatibility with the treaties, Doc. 10296/14 para 24.
133
Council of the European Union Opinion of the Legal service considering the Commission Communication on
a new EU Framework to Strengthen the Rule of Law: compatibility with the treaties, Doc. 10296/14 para 8.
32
3.2
The first Case to trigger the New Rule of Law Framework
Contrary to the mechanism provided by Article 7 TEU, the new rule of law framework has been
activated, namely in the current situations in Poland. The situations in Poland are in theory
similar to the ones the EU faced in 2010 with Hungary. After elections in Poland a Eurosceptic
party came to power specifically, the Law and Justice Party.134 After it came to power the Law
and Justice party implemented certain legal reforms towards the media and the Constitutional
Tribunal.135
The reforms made have been argued to restrict the fundamental values and the checks and
balances.136 The legal reforms regarding the Constitutional Tribunal set off an alarm clock in
November 2015 when the new legislator decided to amend the Law on the Constitutional
Tribunal.137 The amendments presented the possibility to annul judicial nominations made by
the previous legislator and consequently introduced the right for the new legislator to appoint
new judges.138 Further the time of office was also reduced from 9 years to 3 years. Subsequently,
after carrying out the amendment of the law, the new legislator in Poland annulled the decision
from the previous legislator and appointed 5 new judges.
139
The new amendments and the
actions of the legislator became subject before the Constitutional Tribunal and it delivered two
rulings on the matter within a week namely on the 3th of December and the 9th of December
2015.140
The rulings stated firstly, that the previous legislator does possess the possibility to nominate
three judges during his mandate but the other two nominations shall be carried out by the new
legislator. In other words it stated that the new legislator cannot annul the three judges appointed
by the previous legislator but does have the possibility to appoint two new judges during his or
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
135
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
136
European Parliament, ‘Poland, is rule of law at risk at the country?‘, Press Release 20160118STO10406, 19
January 2016.
137
European Parliament, ‘Poland, is rule of law at risk at the country?‘, Press Release 20160118STO10406, 19
January 2016.
138
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
139
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
140
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
134
33
mandate. Secondly, the Constitutional Tribunal stated that the reducing of the terms of office
for the judges were unlawful. 141
Nevertheless, the rulings of the Constitutional Tribunal were never implemented.142 Instead the
head of government appointed the five judges that the new legislator nominated.143 Further
additional amendments were adopted into the legislation, making it more difficult for the
Constitutional Tribunal to proceed with a judicial review.144 The just stated is clearly
problematic for the rule of law. The judiciary, in a democratic society based on the rule of law,
shall be independent and the exclusive interpreter of the law.145 In other words, if one does not
comply with the verdicts by the judiciary then one simply does not comply with the law. The
fact that the government of Poland refuses to comply with the rulings of the Constitutional
Tribunal are not compatible with the rule of law. Supplementary, to adopt legislation making it
difficult for the judiciary to execute judicial reviews in order to determine if a situation is
compatible with the constitution must further be considered to be incompatible with the rule of
law. This due to the fact that it takes away the possibility from the judiciary to determine
whether or not the rule of law in practice is obtained.
On the last day of 2015, 31 of December 2015, the situation developed further in Poland. An
additional law was adopted, the so called ‘small media law’.146 The law removed the
independency from the radio broadcast and the television broadcaster putting them under the
Treasury minister.147 The law further called for the direct removal of the management boards
existing before the adoption of the law. Repeatedly the issue in this matter is linked to the fact
that the media shall be an independent supervisor of the state. The media shall not be controlled
or influenced by the government. The media provides the citizens with independent information
Gotev, G, ’Commission Shies away from Warning Orbán over Death Penalty’
http://www.euractiv.com/section/elections/news/commission-shies-away-from-warning-orban-over-deathpenalty/ (last accessed 2016-05-16).
142
European Parliament, ‘Poland, is rule of law at risk at the country?‘, Press Release 20160118STO10406, 19
January 2016.
143
European Parliament, ‘Poland, is rule of law at risk at the country?‘, Press Release 20160118STO10406, 19
January 2016.
144
See for instance: European Parliament, ‘Poland, is rule of law at risk at the country?‘, Press Release
20160118STO10406, 19 January 2016.
145
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
146
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
147
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
141
34
allowing the public to form choices regarding their political decisions.148 The freedom of the
press is therefore an essential element for democracy, which is one of the fundamental values
defined in Article 2 TEU. As mentioned previously democracy and the rule of law goes hand
in hand, it is not possible to get one without the other.
Regarding the situations in Poland the Commission took the decision to trigger the new rule of
law framework.149 Previous to that however, the Commission recommended Poland to address
the European Commission for Democracy through Law, generally known as the Venice
Commission regarding the constitutional reforms.150 The Venice Commission is an advisory
body for the Council of Europe and its tasks are to provide legal advice to States regarding
human rights, democracy and the rule of law in order for the Member States values to be in line
with the EU standards.151 Poland did in fact send a request to the Venice Commission however
proceeded with the amendments prior to a response.152 Nonetheless, the Venice Commission
did give an opinion on the matter and stated, in fact, that the amendments made by Poland are
against the rule of law.153 Explicitly the Venice Commission stated that the combination of the
amendments are not solely a breach against the rule of law but that it also endangers the
democratic systems. 154
Hence, it can be argued that such amendments at least satisfied the ‘persistent’ criteria in Article
7 TEU. As stated under section 2.1.2 the Commission provided an example namely:
“The fact that a Member State has repeatedly been condemned for the same type of breach over
a period of time by an international court such as the European Court of Human Rights or by
non-judicial international bodies such as the Parliamentary Assembly of the Council of Europe
European Parliament, ‘Press Freedom in the EU Legal Framework and Challenges’, Briefing 554214 April
2015 p.1.
149
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
150
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
151
Hoffman-Riem The Venice Commission of the Council of Europe – Standards and Impacts Oxford University
Press 2014 p.579-580.
152
European Commission, ‘European Parliament Plenary – Commission statement on the situation in Hungary
First Vice-President Timmermans Strasbourg’, SPEECH 15/5010, Strasbourg 19 May 2015.
153
European Commission for Democracy through Law (Venice Commission) Opinion on amendments to the act
of 25 June 2015 on the constitutional Tribunal Of Poland CDL-AD (2016) 001 Venice 11 March 2016
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)001-e.
154
European Commission for Democracy through Law (Venice Commission) Opinion on amendments to the act
of 25 June 2015 on the constitutional Tribunal Of Poland CDL-AD (2016) 001 Venice 11 March 2016
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)001-e para 90.
148
35
[…] has not demonstrated any intention of taking practical remedial action is a factor that could
be taken into account. [bold text added]”155
Subsequently, the amendments adopted by Poland must most likely be seen as a ‘persistent’
breach of the fundamental values. Firstly due to the opinion delivered by the Venice
Commission, a non-judicial international body of the Council of Europe, stating that the
amendments by Poland are breaching the fundamental values. Secondly, the fact that Poland
choose not to postponement the adoption of the amendments before the opinion from the Venice
Commission was delivered, in other words showed no intention to take practical remedial
actions. Hence, it can be argued that the Article 7 TEU should have been triggered immediately
instead of the new framework.
However, a dialogue regarding the reforms of the media and the Constitutional Tribunal were
triggered between the Commission and Poland, and on the 13th of January this year an
assessment to trigger the new rule of law framework was started.156 The response was supposed
be delivered by mid-march this year however, such response has not been made public until
today.
Hence, the new rule of law framework has been triggered within two years of its adoption,
demonstrating a willingness of its use. However, one could question whether or not it is
effective in its practice. This due to the fact that Poland has not only breached the rule of law
in systematic occasions but that the breaches are also persistent. Additionally, the breaches
could also be argued to be of a specific serious character. Firstly, Poland have consciously
chosen to neglect the ruling of its Constitutional Tribunal. Secondly it has adopted and
implemented a media law going against the rule of law and democracy. Thirdly, even if notified
by the Commission and given a recommendation to turn to the Venice Commission, Poland
chose to adopt the amendments to the legislation before receiving a response to whether this
reforms are compatible with EU law. If these breaches are not seen as persistent and serious, or
at least as a clear risk of serious breach, it can be questioned if any situation arising will ever
meet the criteria set out in Article 7 TEU.
155
Communication from the Commission to the Council and the European Parliament on Art. 7 of the Treaty on
European Union: Respect for and promotion of the values on which the Union is based: COM (2003) p.8.
156
European Commission, ‘College Orientation Debate on recent developments in Poland and the Rule of Law
Framework: Questions & Answers’, Memo 16/62, Brussels 13 January 2016.
36
Further, there is a possibility with the new framework that it will result in more serious breaches.
Since, Poland did not hesitate to adopt legislation contrary to the recommendations from the
EU and before the delivery of the opinion of the Venice Commission. Consequently, nothing
hinders Poland from continuing on such pace and adopting further legislation contrary to the
fundamental values. Rather the opposite is demonstrated that Poland will, if desiring to do so,
adopt any kind of legislation regardless of the ongoing procedure with the new framework.
Hence, the possible amendments could lead to more serious breaches. Even if the new
framework would be carried out in its full three stage process whereas Poland still would not
comply with the rule of law there is no consequence or sanctioning mechanism provided in the
new rule of law framework. Hence, the consequence would be to trigger Article 7 TEU to ensure
compliance. In other words, the new rule of law framework must be considered to constitute a
detour for the activation of Article 7 TEU.
It is clear that Poland is aware of the fact that it is not complying with the fundamental values
set out, if not at the beginning when adopting the amendments then at least after the notification
from the EU. When Poland has the possibility to adopt legislation that goes against the rule of
law and the democratic system without any actual consequence it might signalize to the other
Member States that it is possible to adopt similar actions. It is more important than it might
never have been in the history of the EU, that the EU demonstrates its position when it comes
to the compliance with the rule of law and the fundamental values. This specifically due to the
high amount of Eurosceptic parties at power in the different Member State.157 One the other
hand, in the case of Poland contrary to the situation in Hungary, the Eurosceptic party was
elected by a democratic election.158 In other words, the reforms made by the party might have
been in the interest of the citizens and to start the rule of law framework might put fuel to the
Euroscepticism. Nonetheless, even if the amendments made were supported by the citizens it
does not change the fact that they are not compatible with the rule of law and the fundamental
values.
If Article 7 TEU would have been triggered immediately after the first dialogue with Poland,
or in the case of Hungary and Austria, the situations might look different. Firstly, if the
fundamental values mechanism would have been triggered immediately in the case of Austria
157
Van der Brug and De Vreese, Unintended Consequences of European Parliamentary Elections, p.255
Werner Müller, J, ‘The problem with Poland’ available at:
http://www.nybooks.com/daily/2016/02/11/kaczynski-eu-problem-with-poland/ (last accessed: 2016-05-16).
158
37
then it might have had a deterrent effect for the other Member States. Secondly, the triggering
of the mechanism also sets the EU in a more powerful position taking actions and not solely
giving speeches. Nevertheless, one shall not forget the political sensitiveness that arises in these
kind of situations. Even if the Commission would give a proposal of the triggering of Article 7
TEU, it is most likely that it would meet resistance in the Council. Especially in the case of the
diplomatic relationship between Poland and Hungary. Poland and Hungary share a similar
political philosophy and many similarities can be drawn with Viktor Orbáns party.159 However
the similarities of the politics are only the newest developments of the relationship between
these two States, which goes back a long way in history.160 For example evidence of their close
relationship can be demonstrated from the times when Donald Tusk, today the president of the
European Council, was prime minister in Poland and often defended Hungary and its actions in
discussions with the Western.161
3.3
Conclusion
The new rule of law framework does not consist of an intergovernmental nature it is simply a
procedure within the powers of the Commission. Hence, if the new framework would have
provided a sanctioning mechanism it might not only have solved part of the situation in Poland
today but also certain aspects regarding the deficiencies with the mechanism in Article 7 TEU.
The Commission has stated that the new rule of law framework is intended to be an addition to
Article 7 TEU, in other words it is supposed to be fill a gap of the mechanism provided by the
Treaties. However, as examined in this section, the new framework does not offer a
development either in practice or theory, it is simply a dialogue with no legal consequences
which already exist both in the infringement procedure and in Article 7 TEU.162 The situation
in Poland further demonstrates the ineffectiveness of the new framework. Hence, it must be
established that the new rule of law framework does not provide a sufficient and efficient
mechanism in tackling the non-compliance of the fundamental. Neither does the mechanism
change anything in practice.
159
Innes Party Competition in Postcommunist Europe: The Great Electoral Lottery Comparative Politics 2002
p.15.
160
Innes Party Competition in Postcommunist Europe: The Great Electoral Lottery Comparative Politics 2002
p.15-30.
161
Radio Poland, ‘PM Tusk Defends Orban amid EU Crisis Talk’ http://www.thenews.pl/1/10/Artykul/83652,PMTusk-defends-Orban-amid-EU-crisis-talks- (last accessed 2016-05-16).
162
For instance compare: Article 258 TFEU and Article 7 TEU and Communication from the Commission to the
European Parliament and the Council: A new EU framework to strengthen the Rule of Law, COM (2014) 158
final/2 p.1-8.
38
4
Possible Amendments of the Mechanism in
Article 7 TEU
During the examinations under the previous sections it has become clear that the rule of law
mechanism incorporated in the Treaties and the new rule of law framework are not sufficient
in an effective way to deal with breaches of Article 2 TEU. As stressed several times in this
paper the maintaining and compliance of the fundamental values and the rule of law are crucial
for the foundation of the EU. Hence, there are an alarming need for developments and
amendments specifically regarding the increasing number of breaches of the fundamental
values by the Member States. Therefore, this section will provide suggestions on reforms and
amendments towards the mechanism inforce today.
4.1
Internal Action Plans
As mentioned in the introductory chapter, the EU possess efficient powers to guarantee the
maintaining of the fundamental values set out in Article 2 TEU regarding non EU Member
States. One of the approaches used have been the so called positive conditionality approach.
The positive conditionality approach aims at providing economic benefits for third countries
that demonstrates concrete development regarding EU integration. For instance, demonstrating
compliance with the shared values and institutional reforms163
One suggestions would be to have Internal Action Plans for the Member States. It can be argued
that the positive conditionality approach would place the Member States in different positions
due to the different prerequisites the Member State possess. However, the positive
conditionality approach would not be discriminating in nature since all Member States would
have the equal chance of being rewarded in its compliance with the fundamental values. In such
case the positive conditionality would be a permanent fixed amount received every second year
depending on progression and maintenance of the fundamental values. Contrary, it shall be
noted that different Member States have different prerequisites to achieve the goals and
progressions. When comparing the history and development of the Nordic countries, such as
Sweden, Finland and Denmark, to Moldova and Ukraine there are different starting points due
Committee on International Trade, The Application of Human Rights Conditionality in the EU’s Bilateral Trade
Agreement and other Trade Arrangements with Third Countries, 2008 European Parliament.
163
39
to the fact that the Nordic countries for instance do not have an issue with corruption which are
a common issue in the previous mentioned States.164
However, other international organizations and hence their Treaties have similar systems even
though there are States with different prerequisites. For instance in the International Covenant
on Economic, Social and Cultural Rights (hereinafter: ‘ICESCR’) States are supposed to take
measures to ensure the rights to the individuals calculated on the capacity that the different
States possess.165 Similarly, an alternative for the EU Member States would be to have Internal
Action Plans. Action Plans already exist within the EU, it is a mechanism used towards the
ENP and pre-accession States.166 The Action Plans aim at setting out the political and economic
reforms a State need to achieve in order to comply with EU integration. The reforms in the
Action Plans shall be accomplished within a time period of 3-5 years.167 Correspondingly,
Internal Action Plans could be adopted for the Member States setting out the different reforms
and progressions that each Member State need to improve in other to comply with the
fundamental values. Subsequently, this would mean that the Member States would have
different goals to work towards depending on the means available to them. Therefore, in the
end of the two year period all Member State would receive the economic benefit, if they
complied with their individual Internal Action Plan.
Arguably, it could be considered to be contrary to offer such benefits to the Member States
since the fundamental values in fact are values created by the Member States themselves. In
other words, the fundamental values are the creation of the Member States and why should they
be offered a compensation to follow their own fundamental values. However, one must examine
the practical reality. It is true that the EU would not exist without its Member States but the EU
is not solely an intergovernmental institution it is also a supranational institution.168 Turning
back to history, as stated in Chapter two of this paper, there was no need for a fundamental
values mechanism nor where there any fundamental values of the EU. However, the EU as an
164
Transparency International Report The State of Corruption: Armenia, Azerbaijan, Georgia, Moldova and
Ukraine 2015.
165
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
United Nations, Treaty Series, vol. 993, Article 2.
166
Smith The Outsiders: The European Neighbour Hood Policy International Affairs 2005 p.763-764.
167
See the Individual Action Plans for Third Countries available at: http://eeas.europa.eu/enp/documents/actionplans/index_en.htm.
168
Tsebelis and Garett The Institutional Foundations of Interngovernmentalism and Supranationalism in the
European Union International Organization Journal 2001 p.385-388.
40
institution developed leading to the adoption of a fundamental values mechanism.169 For that
reason, it can also be argued that since the EU and its institutions have developed further,
additional amendments need to be incorporated in the acquis. Subsequently, recent time has
proven that Member States also need to be motivated in order to comply with the fundamental
values. The Internal Action Plans would not replace the mechanism in Article 7 TEU, rather it
would be an additional instrument for Article 2 TEU. Hence, there would still remain
deficiencies in Article 7 TEU if the Member States would not comply with the Internal Action
Plans and hence fundamental values but the Internal Action Plans could reduce the amount of
such situations.
A possible problem with the Internal Action Plans, is that the positive conditionality and the
Internal Action Plans could result in insubstantial reforms by the Member States. Rather, the
reforms would be shallow in order to receive the ‘award’. Therefore, a monitoring body would
need to be in place in order to have a ‘watchdog’ function. Such a body would no simply have
the aim of supervising the Internal Action Plans but rather the aim of the body would be to
safeguard the rule of law and the other fundamental values defined in Article 2 TEU.
4.2
A Monitoring Body
One task of the Commission is to safeguard the Treaty and represent the interest of the EU. 170
Included in those tasks are the power to start the infringement procedure, the possibility to
propose the activation of the mechanism in Article 7 TEU and the activation of the recent
adopted new rule of law framework. Hence, the Commission is in way the monitoring body of
the fundamental values and the rule of law. However, as demonstrated trough this paper the
possibilities available for the Commission is unfortunately not sufficient and effective to
guarantee the compliance with the fundamental values.
Further, as mentioned above, a body safeguarding democracy, rule of law and human rights
already exist in Europe namely the Venice Commission. However, one shall keep in mind that
the Venice Commission is an independent body under Council of Europe and hence, is not a
169
170
Shaw, Law of the European Union, p.331-334.
Article 17 TEU.
41
part of the EU acquis.171 Additionally, the opinions given by both the Council of Europe and
Venice Commission are not legally binding. 172
Therefore, it would be reasonable if a new monitoring body, with the right to adopt legally
binding decisions, were introduced within the EU institutions with the sole aim of safeguarding
the fundamental values. The monitoring body should be an independent body with an
autonomous right to adopt decisions and a direct right to trigger Article 7 TEU. The monitoring
body would be built upon different levels. For instance like the structure of the Commission.
The Commission consists of 28 Commissioners with different Director-Generals (hereinafter:
‘DGs’.)173 Each Commissioner is specified in a specific area for instance, a Trade
Commissioner focusing on the trade aspect of the EU. Under each Commissioner there are DGs
working towards for instance, trade. In other words, the monitoring body would be built on the
same structure a main body with a common goal namely, the protection and insurance of the
fundamental values but with different DGs working towards the different fundamental values.
Hence the work of the monitoring body would need to be divided into different areas. The
different delegations would work to monitor and safeguard the different fundamental values.
The tasks of the monitoring body could in such case be similar to the Universal Periodic Review
(hereinafter ‘UPR’), a mechanism and method used by the United Nations (hereinafter ‘UN’).174
The UPR is a process regarding all the UN Member States concerning their Human Rights
records, in other words it is a state-driven process. The UN Member States are evaluated on
their improvements towards human rights and are given the opportunity to present the measures
taken. The UPR are monitored by the Human Rights Council.175 The UPR was created during
the same time as the Human Rights Council.176 Hence, the creation of a new body with a
monitoring mechanism is achievable within an international organization. Similarly the
monitoring body could be built upon delegations with responsibilities towards the different
areas within the EU, for instance one group focusing on the Eastern part and another group
Hoffman-Riem The Venice Commission of the Council of Europe – Standards and Impacts Oxford University
Press 2014 p.579-580.
172
Hoffman-Riem The Venice Commission of the Council of Europe – Standards and Impacts Oxford University
Press 2014 p.580.
173
Schutze, An introduction to European Law, p.21-31.
174
General Assembly resolution 60/251, Human Rights Council, A/RES/60/251 (2 April 2006), available at:
undocs.org/A/RES/60/251.
175
General Assembly resolution 60/251, Human Rights Council, A/RES/60/251 (2 April 2006), available at:
undocs.org/A/RES/60/251.
176
General Assembly resolution 60/251, Human Rights Council, A/RES/60/251 (2 April 2006), available at:
undocs.org/A/RES/60/251.
171
42
focusing on the Central part. In such scenario each group would maintain the responsibility to
monitor and safeguard all fundamental values defined in Article 2 TEU, in the specific
delegated regions. In other words, the delegation would be monitoring all fundamental values
in the specific region. Hence, there would be a main body with different working groups
dedicated to ensure the compliance of the fundamental values within a specific region.
Another option would be to have similar DGs as the Commission, working towards specific
areas of law instead of regions. Contrary to the UPR, the different delegations within the EU
monitoring body would be divided to work towards the listed fundamental rights instead of
focusing on a State and the fundamental rights overall. For instance, one subgroup would be
dealing with the rule of law, another subgroup with democracy and a third subgroup with human
rights. In such division each group would be responsible for the monitoring of all EU Member
States regardless of their geographical area, but the rule of law group would only deal with the
monitoring of rule of law and consequently not democracy or human rights. Consequently, like
the structure of the Commission, there would for instance be a ‘rule of law’ subgroup and a
‘human rights’ subgroup under the monitoring body. Regarding the substantial work of the
different groups it would essentially be of a monitoring position, for instance regarding the
Internal Action Plans. The subgroups would be monitoring the Member States progress
regarding the different areas appointed. Further reports would be made regarding the possible
achievements of the States. Subsequently, the subgroups of the monitoring body should control
the development of the Member States and take decision giving detailed effect to the
safeguarding and insurance of the fundamental values in Article 2 TEU.
In other words, the subgroups of the monitoring body would be able to take legally binding
decisions. For instance, if the subgroups of the monitoring body concludes that a situation in a
Member States do not comply with the fundamental values it would have the competence to
send an opinion clarifying the situation and what measures the Member States concerned need
to adopt in order to comply with the fundamental values. If the Member States concerned does
not adopt such measures, the sub-groups should be able to trigger Article 7 TEU against the
Member State directly. Further, even if the possibility for the monitoring group to trigger Article
7 TEU directly resolves the issue of the reluctance of the EU institutions to trigger it, the
sanctioning issue still remains. In other words, the Council would still not have a legal
obligation to adopt sanctions even if Article 7 TEU was triggered. Hence, a solution to the just
stated would be if the power of determining what kind of sanction that will be adopted should
43
lay in the competence of the Commission. The Commission has the role as the ‘watchdog’ of
the treaties and therefor it is rational that such power should be incorporated within their
competences, correspondingly as it does with the infringement procedure.177 The Commission
has experience of adopting sanctions towards the Member States when not complying with their
obligations under EU law. Hence, the competence to do the same under Article 7 TEU should
in practice not be a complex obligation for the Commission. Furthermore, the right of the
Member States and the European Parliament to submit proposals to the trigger Article 7 TEU
would still remain and additionally the Council and the European Council could be given the
same right to put forward such proposals. However, as Müller argues, the monitoring body
could be advised in the determination of the sanctioning.178 The monitoring body would be the
expertise body and therefore it is suitable that they should have an influence regarding the
adopting of the sanctions.
It can be argued that since the Commission is the watchdog of the treaties the monitoring of the
fundamental values and the triggering of Article 7 TEU should be of exclusive competence to
the Commission and that subsequently, there would be no need for a monitoring body.
However, as stated several times, the fundamental values are of vital importance for the
functioning of the EU and therefor it would need an institution solely focusing on safeguarding
the fundamental values. Additionally, even if the Commission is in essence the representative
of the EU interests it is not fully an ‘apolitical’ institution.179 In other words, to safeguard the
fundamental values in essence an independent autonomous body without any other interests is
needed.
Furthermore, if the sub-groups after examinations in the specific filed of a certain Member
State, discoveries worrying features that might lead to breaches of the fundamental values then
preventative measures shall be adopted. For instance reforms, in the concerned area, adopted
within a specific time limit. Additionally, if the Member State still would not comply with the
fundamental values then the monitoring body and the sub-groups would have the possibility to
trigger Article 7 TEU. Hence, the monitoring body would also provide a deterrent effect, since
it has the possibility to activate Article 7 TEU.
177
Article 17 TEU.
Müller Safeguarding Democracy inside the EU Translatic Academy 2013 p.25.
179
The Commission is still an institution represented by each one of the 28 Member States.
178
44
However, an issue arising concerns the interpretation of the Treaties. This due to the possible
situation when the sub-groups of the monitoring body would decide to activate Article 7 TEU.
It could be argued that when doing so the sub-groups are interpreting Article 2 TEU to
determine whether or not the Member State have complied with the fundamental values. The
CJEU has exclusive jurisdiction regarding the interpretation of the Treaties.180 Meaning that no
other institution, body or court have the possibility to rule on the interpretation of any of the
Articles within the Treaties. The EU has dealt with situations when the exclusivity of the
interpretation of the CJEU has been at stake. For instance, regarding the establishment of a
European Free Trade Association (hereinafter: ‘EFTA’) Court regarding the accession of the
EU to the European Convention of Human Rights (hereinafter: ‘ECHR’). In both cases the
CJEU opposed the creation of either an EFTA court or the accession to the ECHR to safeguard
the exclusive competence of the CJEU to interpret the Treaties.181 However, it can be argued
that the CJEU does not have exclusive jurisdiction over Article 2 TEU. Article 7 TEU States
that it is up to the Council to determine whether or not a breach of the fundamental values has
occurred.182 Further, the establishment of certain bodies with the competence to adopt legally
binding decisions is not a new phenomenon. For example, such bodies frequently exists under
association agreements.183
An issue with Article 7 TEU that a monitoring body could resolve is that it would be able to
tackle an immediate breach. To tackle breaches of the fundamental values with the mechanism
inforce today, must be argued to be impossible to confront direct threats and breaches. This due
to the fact that Article 7 TEU provides no institution with the autonomy to take direct measures
in case of a breach, rather the use of the mechanism requires an extensive and complex
procedure.184 A monitoring body would provide the EU with the possibility to tackle immediate
threats and risks, since it would not require the involvement of the rest of the EU institutions.
Further a monitoring body, which would be a neutral and independent body, would not be
affected by the diplomatic relationships of the different Member States to the same extent as
the Council and the European Council. Hence, the monitoring body would simply have the
fundamental values in interest.
180
Article 263 TFEU.
See CJEU, Opinion 2/13 of 18 December 2014, CJEU, ECLI:EU:C:2014:2454 and ECJ Opinion 1/91 of 14
December 1991 ECLI:EU:C:1991:490.
182
Article 263 TFEU.
183
For instance the EEA Council and the EU-Turkey Association Council.
184
Article 7 TEU.
181
45
Additionally, the monitoring body could provide the citizens with the initiative to file a petition
towards a Member State if the fundamental values have been breached. Subsequently, if the
monitoring body would receive a concerning amount of petitions regarding a specific Member
State then the monitoring would be able to start an investigation that might lead to the triggering
of Article 7 TEU. It is important to keep in mind that the fundamental values that the EU is
built upon often generates into rights of the individual. Some could argue that individuals could
turn to ECtHR if their rights under human rights law, where most of the fundamental values
defined in Article 2 TEU is included. However, it is equally important to keep in mind that the
Council of Europe and the EU are not the same international organization. With the adoption
of the right to EU citizenship, the obligation of the EU to protect those citizens also developed.
The CJEU stated in Ruiz Zambrano that:
“Article 20 TFEU precludes national measures which have the effect of depriving citizens of the
Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as
citizens of the Union”.185
The ECI is indeed inforce today, however, it requires at least a million signatures from a specific
percentages of the Member States for the citizens to be able to file a petition. With the
monitoring body the protection of the citizen’s right under the fundamental values would be
increased in a drastic manner. Further, with the possibility to file a petition, pressure not only
from the EU but also from the Member States national population would arise. Subsequently,
the Member States themselves would not only be pressured to comply with the fundamental
values but they would also gain advantage of following them since it would result in a satisfied
population.
For example, if a monitoring body as described above, would have been in force in the last
decade, it is possible to argue that the situations in Poland and Austria would look different
today. Specifically with the situation in Austria with the ‘Haider Affair’. After the election and
the far right party forming a government, a large amount of the citizens of Austria formed a
demonstration.186 With the demonstration the Austrian citizens expressed their dissatisfied
185
Case C-34/09 Ruiz Zambrano [2011] ECR I-1177 para 42.
Freeman Austria: the 1999 Parliament Elections and the European Union Member’s Sanctions Boston College
International and Comparative Law review 2002 p.114-118.
186
46
opinions of the new formed government.187 With the monitoring body those citizens would have
had the possibility to express their opinions by filing a petition to the monitoring body. Indeed,
the ‘three wise men’ did come to the conclusion that the Austrian government did not breach
the fundamental values, however that was by the initiation by the Member States and not by the
citizens. As argued previously the fundamental values generally results in individual rights
hence, it can be argued that it should be a legal right for the EU citizens to have the right to file
a petition.
However, the creation of a monitoring body would need the consent of the Member States, at
least for the body to have a legal basis within the Treaties.188 Further, there is a possibility that
the deficiencies existing today regarding Article 7 TEU and the definition of a ‘serious and
persistent breach’ would also exist in the work of the monitoring body. The different sub-groups
might define possible situations within the Member States differently, in other words, the rule
of law sub-group might interfere within a Member State on a specific level where the minority
sub-group would fail to interfere on the same level. Subsequently it would lead to different
levels and definitions of when a situation, measure or amendment are considered to be a breach.
On one hand, such a situation might be resolved by the monitoring body by providing guidelines
and checklists for whenever an action, measure or situation shall be considered to be a breach.
One the other hand, guidelines are also open for interpretation and are not legally binding, they
are simply recommendations. Further the question of who or what will be responsible to provide
the monitoring body with the definitions that will be incorporated within the guidelines, still
exist. As mentioned above, the CJEU has exclusive jurisdiction to interpret the Treaties, and it
has provided us with several clarifications of complex definitions regarding EU law.189 It can
be argued that the lack of CJEU’s role within Article 7 TEU and Article 2 TEU is the main
reason for the deficiencies of Article 7 TEU.
Freeman Austria: the 1999 Parliament Elections and the European Union Member’s Sanctions Boston College
International and Comparative Law review 2002 p.114-118.
188
Article 48 TEU.
189
See for instance: Joined Cases C-46 & 48/93 Brasserie du Pêcheur and Factortame II [1996] ECR I-1029,
Case 6/64, Costa v. ENEL [1964] ECR and Case C-41/74 Van Duyn [1974] ECR 1337.
187
.
47
4.3
To Increase the Role of the Court of Justice of the European
Union
The CJEU is the judicial body of the EU and as pointed out several times it has exclusive
jurisdiction to interpret and clarify the Treaty provisions. However, the CJEU does not have
exclusive jurisdiction over CFSP, which is expressly stated within the Treaties.190 The CFSP is
hence solely a competence within the autonomy of the Member States. Contrary, the
fundamental values in Article 2 TEU and the mechanism provided by Article 7 TEU are not
expressly stated to fall outside the scope of the competences of the CJEU. Still, the CJEU does
not have any competence regarding the protection, safeguarding and interpretation of the
fundamental values rather than the compliance of the procedural procedure to activate Article
7 TEU. The CJEU has the competence to evaluate a situation in the infringement proceeding,
hence it is questionable why the CJEU does not possess the same competence regarding Article
7 TEU191
However, the main issue with the compliance of the fundamental values and the mechanism
provided in Article 7 TEU is not depending on the reluctance of the Member States to comply
with the sanctions or recommendations. Rather, it is the reluctance by the EU institutions to
trigger the mechanism overall that is the underlying issue.
To increase the role of the CJEU regarding Article 7 TEU could improve the deficiencies in
several ways. Firstly, the role of the CJEU could be of a similar character as it has regarding
the infringement proceeding. However, a similar role as in the infringement procedure would
require the actual triggering of Article 7 TEU. In other words, the main issue of the reluctance
to trigger Article 7 TEU would still remain. Subsequently, the CJEU’s role would have to differ,
in order for it to fill the gap of the current deficiencies of Article 7 TEU. Instead of using the
CJEU as last instance to ensure compliance with the fundamental values, the CJEU could be
turned to as a first instance. The Member States, the Commission, the Council and the European
Council would have the right to propose to the CJEU that a certain Member State has breached
or is at clear risk of breaching the fundamental values of Article 2 TEU. The CJEU would then
proceed with an examination regarding the alleged breach and develop a decision on whether
or not a penalization should be given. Further, the rulings of the CJEU would therefor set
190
191
Article 275 TFEU.
Article 258 TFEU.
48
jurisprudence on when and how a specific Member State breached or was in clear risk of
breaching the fundamental values. Hence, the CJEU would in its examinations, clarify the
requirements set out in Article 7 TEU. For the CJEU to determine that a Member State breached
the fundamental values it would need to define that the breach was serious and persistent
enough to be caught by Article 7 TEU. Hence, the CJEU would clarify when a situation in a
Member State was ‘serious and persistent’ or if it constitutes a ‘clear risk of a serious breach’.
In the future such definitions would also be able to simplify the procedural complexity set out
in Article 7 TEU. Consequently by providing a clear definition of the requirements, situations
regarding breaches of the fundamental values would be able to be caught on an earlier stage.
Simply due to the use of a comparative approach. If a situation similar to another situation
already has been determined upon there is no need for a deep and comprehensive examination.
However, if conflict arises then the CJEU would be the final institution to determine upon the
interpretation of the situation and the Treaty articles.
It could be argued that a reform like the above mentioned would simply change the mechanism
in theory and not in practice since it would still require the institution or the Member States to
actually propose an examination. Therefore, the role of the CJEU could increase together with
the establishment of a monitoring body. The monitoring body would exist in the same way as
described in section 4.2, however, the issue of clarifications of the criteria in Article 7 TEU
would be resolved. If the monitoring body would trigger Article 7 TEU and the Commission
would adopt a sanction that the Member State concerned does not agree with it, a preliminary
ruling could be filed. Preliminary rulings are instruments for the national courts to ensure their
compliance with EU law.192 The national courts of the Member States can refer a question to
the CJEU asking whether or not a situation is compatible with EU law. The same instrument
can be used to ensure that the criteria set out in Article 7 TEU are fulfilled. In other words, if a
Member State does not agree with the sanction adopted or the triggering of Article 7 TEU the
national courts of the Member State can ask the CJEU to deliver a preliminary ruling regarding
the situation. Hence, the CJEU would deliver an opinion clarifying when a breach is either a
‘clear risk of a serious breach’ or if it is a ‘serious and persistent breach’ since it would state
whether the situation in a Member State fulfilled the criteria in Article 7 TEU. Subsequently,
not only would the issue with the vague definitions been resolved but also the political
sensitiveness arising with the triggering of Article 7 TEU. Simply because in such case it would
192
Article 267 TFEU.
49
not be a Member State calling out another Member State regarding the compliance of the
fundamental values. Therefore the sensitivity and tensions, as well as the deterring effect of a
proposal to activate Article 7 TEU between the States would not be an issue. The fact that it is
the CJEU that would determine whether or not a breach exist also takes away the sensitivity
from the Council, an intergovernmental institution, to decide upon such matter. Further the
determination of a breach would not be depending on a unanimous vote but rather by facts and
the application of the law.
The increasing of the role of the CJEU when it comes to safeguarding the fundamental values
and to activate the mechanism in Article 7 TEU can be argued to be crucial in an institution
built upon rule of law. Firstly, it is excessively stated that the CJEU has exclusive jurisdiction
over the interpretation of the Treaties.193 Hence, to identify whether or not there has been a
breach of the fundamental values should fall within the scope of the CJEU competences. It can
be argued to be contrary to the rule of law to not let the judiciary actually apply and interpret
the law. Further, the role of the CJEU could illuminate two of the crucial issues with the
mechanism inforce today, namely the diplomatic sensitiveness and the unclear definitions of
‘clear risk’ and ‘serious and persistent’ breach.
4.4
Conclusion
The three proposed amendments and developments of the mechanism provided by Article 7
TEU would not be proceeded and made official during night. Treaty amendments and
competence aspects would need to take place resulting in a complex procedure. However, such
developments are vital for the future and functioning of the EU. Hence, the three amendments
have the possibility to co-exist to strengthen their purposes and aims resulting in compliance of
the fundamental values.
193
See Section 5: The Court of Justice of the European Union TFEU.
50
Conclusion
While the protection of the fundamental values constitutes a basic premises regarding the
external relations and pre-accession policy of the EU, the protection of the fundamental values
internally are not as evident. The maintaining and safeguarding of the fundamental values
externally are far more extensive than the protection of the fundamental values internally. The
protection of the fundamental values are evident for the functioning of the EU. However, the
mechanism enforced today namely Article 7 TEU, must be seen as insufficient for several
reasons.
Article 7 TEU was not a part of the EU acquis at the foundation however, it became of vital
importance for the acquis after the development of the EU. Hence, this study can conclude that
Article 7 TEU today, is no longer a suitable or efficient tool to ensure compliance of the
fundamental values. From this study it can be concluded that Article 7 TEU are both insufficient
and ineffective. Firstly, due to its complexed procedural requirements involving almost all EU
institutions resulting in it ineffectiveness. Secondly, due to its intergovernmental nature and the
diplomatic sensitiveness resulting in reluctance to trigger the mechanism. Thirdly, for the lack
of definitions. In other words, Article 7 TEU can be triggered either if there is a ‘clear risk’ of
a serious breach or if a ‘serious and persistent’ breach already has occurred. However, there are
no clear definitions of what ‘persistent’, ‘serious and ‘clear risk’ actually mean in practice.
Fourthly, for the actual non-legal obligations for the Council to activate it when a breach has
been determined to exist. Thus, even if a serious and persistent breach would be determined to
exist in the future there is no legal obligation for the Council to actually adopt sanctions. By
examining different situations within the Member States together with the fundamental values
and the Communication from the Commission to the European Parliament and the Council it
can be concluded that situations have arisen where Article 7 TEU should have been triggered
to fulfil its aim. Furthermore, it must be established that the breaches of the fundamental values
by the Member States have been systematic during the last decade however, Article 7 TEU has
never been activated. Hence it must be concluded that the safeguarding mechanism enforce
today simply exists in theory and not in practice.
The EU and its institutions have acknowledge the deficiencies of Article 7 TEU. The
Commission adopted a new rule of law framework on the 14th of March 2014 stating that it
would hold the function to fil the gap of Article 7 TEU. Further, the new framework have been
51
triggered in the situation with Poland and the amendments of its legislation. Hence, prima facie,
the new framework might seem to complement Article 7 TEU. However, the framework does
not provide any definite changes with the protection of the rule of law in practice. Whereas,
Article 7 TEU if triggered provides a sanctioning mechanism, the new framework simply
provides a dialogue. The new framework provides no additional legal act, it could simply be
argued that it instead delays the triggering of Article 7 TEU specifically when examining the
situation in Poland.
Furthermore, the safeguarding and compliance of the fundamental values are essential for the
functioning of the EU. Hence, amendments must be made in order to provide such a mechanism.
This paper suggests three possible future amendments. A possible amendment is the Internal
Action Plans for the Member States, they would be similar to the Actions Plans used in the ENP
resulting in a positive conditionality approach. Subsequently, developing goals for the Member
States to achieve regarding the fundamental values resulting in a financial contribution if
achieved. Consequently, the goal with such plans would be to encourage the Member States to
comply with the fundamental values with a ‘reward’ if doing so. Further, an independent and
autonomous monitoring body is proposed to tackle the deficiencies in Article 7 TEU. The
monitoring body would have the right to directly trigger Article 7 TEU after examinations of a
situation in a Member State. The monitoring body would consist of sub-groups monitoring the
different fundamental values in each Member States. Additionally, the monitoring body would
provide the possibility for individuals to submit petitions regarding breaches of the fundamental
values. The possibility for the monitoring body to directly activate Article 7 TEU would resolve
the political sensitiveness since it would be an independent body. Further, the Commission
would be the body determining the sanction after consulting with the monitoring body,
resolving the issue of the non-legal obligation of the Council to do so. However, one issue still
remains namely the vague definitions. Even if a monitoring body could directly activate Article
7 TEU if a ‘clear risk’ or a ‘serious and persistent’ breach had occurred, there are still no
directions of what the two criteria actually means in practice. However, such a situation could
be resolved by increasing the role of the CJEU. Today the CJEU only has jurisdiction regarding
Article 7 TEU in the determination of the procedural procedure and whether it followed the
provision. However, if a situation was brought before the CJEU regarding whether the
fundamental values had been breached the CJEU would set precedence of what a ‘clear risk’
and ‘serious and persistent’ breach mean in practice. Though, the CJEU would only be able to
set such precedence if the case was actually taken in front of it. Hence, if the monitoring body
52
would decide to trigger Article 7 TEU and consequently the Commission would adopt a
sanction, the Member States could be able to be given the right to ask for a preliminary ruling.
The CJEU would then be able to clarify the criteria in Article 7 TEU and the safeguarding of
the fundamental values would no longer only exist in theory but also in practice.
53
8
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