An increasing number of challenges to the rule of law

In a well-noted speech on 4 September 2013, Viviane Reding, former EU Justice Commissioner, drew an interesting parallel between Europe’s economic and financial crisis and what she viewed as an increasing number of ‘rule of law crises’ revealing problems of a systemic nature.Footnote ¹² Three concrete examples were mentioned in her speech:

1. (i) the French government’s attempt in summer 2010 to secretly implement a collective deportation policy aimed at EU citizens of Romani ethnicity despite contrary assurances given to the Commission that Roma people were not being singled out;

2. (ii) the Hungarian government’s attempt in 2011 to undermine the independence of the judiciary by implementing an early mandatory retirement policy; and

3. (iii) the Romanian government’s failure to comply with key judgments of the national constitutional court in 2012.Footnote ¹³

Taken together, these episodes have been often understood as demonstrating the increasing number of instances where national authorities consciously sought to systematically undermine key EU values such as the rule of law.Footnote ¹⁴ It is indeed clear to us that numerous examples of rule of law malfunctioning in the EU, both pastFootnote ¹⁵ and present,Footnote ¹⁶ could be easily added to this list, making Reding’s case even more compelling. The Commission was therefore legitimately right to worry about the ‘threats to the legal and democratic fabric in some of our European states’.Footnote ¹⁷ Indeed, a number of European governments also expressed concerns regarding what may be more generally labelled rule of law backsliding.Footnote ¹⁸ Among many other initiatives, this led eleven Foreign Ministers to advocate the introduction of a new, ‘light’ mechanism which would enable the Commission to make recommendations or report back to the Council in cases of concrete and serious violations of fundamental values or principles such as the rule of law.Footnote ¹⁹

An inadequate framework to address the challenges to the rule of law

The suggestion of introducing a new mechanism implicitly assumes that the EU’s current ‘toolbox’ is not adequate to address the previously described challenges.Footnote ²⁰ Indeed, the former President of the European Commission himself called for a ‘better developed set of instruments’,Footnote ²¹ which would fill the space that exists at present between the Commission’s infringement powers laid down in Articles 258 and 260 TFEU, and the so-called ‘nuclear option’Footnote ²² laid down in Article 7 TEU. This diagnosis is, in our view, warranted as both procedures suffer from a number of shortcomings, with the consequence that Article 7 TEU has never been used, whereas the Commission’s infringement powers have proved ineffective to remedy systemic violations of EU values.

The so-called ‘nuclear option’ is to be found in Article 7 TEU.Footnote ²³ This provision, which was first introduced into the EU Treaties by the Amsterdam Treaty, gives the Council of the EU the power to sanction any member state found ‘guilty’ of a serious and persistent breach of the EU values laid down in Article 2 TEU. For instance, the Council could deprive the relevant member state of certain of the rights it derives from the EU Treaties, including the right to vote on EU legal acts submitted to the Council for adoption. With the Nice Treaty, Article 7 TEU was revised to further enable the EU to adopt preventive sanctions in the situation where there is ‘a clear risk of a serious breach’ of the EU values by a member state.

The two scenarios envisioned by Article 7 TEU are not formally linked with each other: preventive sanctions do not necessarily have to come first and the same member state could be theoretically sanctioned for a clear risk of a serious breach and/or a serious and persistent breach. Furthermore, different procedural requirements govern the two scenarios. In both situations, however, these procedural requirements are particularly demanding. The determination of whether there is a clear risk of a serious breach requires: (1) a proposal by one third of the member states, by the Parliament or the Commission; (2) the assent of the Parliament (i.e., a two-thirds majority of the votes cast, representing a majority of its members); (3) a majority of four-fifths of the Council’s members. As for the determination of an existing serious and persistent violation, the same conditions apply with two differences: it is for the European Council to act and it must do so in unanimity. Even though abstentions do not prevent unanimity from being reached – the country under scrutiny cannot for obvious reasons block the decision-making process – the procedural requirements make it virtually impossible that the Council would ever be in a position to adopt sanctions (e.g. to suspend the voting rights of the member state in the Council). Furthermore, the Council is actually under no legal obligation to do so even in a situation where it concludes that a member state is in breach of Article 2 TEU values. This aspect clearly shows the predominantly political nature of Article 7 TEU. The case law of the Court of Justice has further made clear that no private applicant could force the EU to trigger the application of Article 7 TEU.Footnote ²⁴

Unsurprisingly, while there have been many calls for activating Article 7 TEU, not least when it was revealed that several EU member states and some candidate countries colluded in the running of secret CIA prisons after 9/11,Footnote ²⁵ this provision has never been used for essentially two reasons: the thresholds for activating it, as shown above, are virtually impossible to meet, and the existence of a political convention whereby it would be politically counterproductive to do so.Footnote ²⁶ This means that with the sole exception of the Cooperation and Verification Mechanism – an unprecedented rule of law monitoring mechanism put in place for Romania and Bulgaria at the time of their accession to the EUFootnote ²⁷ – the European Commission has for the most part relied on political pressure and its well-established power to bring infringement actions before the European Court of Justice to seek changes in the countries which have been found wanting as far as respect for EU values is concerned.

Under the rules laid down in Article 258 TFEU, the Commission may initiate an infringement action against any member state that has failed to comply with its EU obligations, and may bring the matter before the Court of Justice should the relevant member state fail to comply with the Commission’s recommendation(s). Any member state failing to comply with the Court’s judgment may, under Article 260 TFEU, be brought again before the Court of Justice, which, in this instance, has the additional power of imposing financial sanctions on it.Footnote ²⁸

The Commission has traditionally claimed that the infringement procedure – and at times, the mere threat of using it – has enabled it to score a number of swift successes,Footnote ²⁹ which however may be quite legitimately regarded as Pyrrhic victories. Firstly, if the French policy regarding the deportation of Roma people was indeed amended after the Commission threatened to initiate infringement proceedings,Footnote ³⁰ it has since been shown that the legal measures adopted by France to address the Commission concerns in 2010 fell short of what is required under EU Law.Footnote ³¹ Similarly, while Hungary reviewed its legislation following its defeat before the Court of Justice, the Hungarian judges affected by the controversial legislation were never reinstated.Footnote ³² Finally, there are no indications that the Romanian constitutional conflict mentioned in Reding’s speech, which came to an apparent end in December 2012 when an agreement was reached between the President and the Prime Minister,Footnote ³³ would not have ended in a similar manner regardless of the pressure put on Romanian authorities by the Commission. The fact that Romania continues to be subject to the specific monitoring mechanism put in place at the time of its EU accession also appears to indicate the limits of the Commission’s influence over Romanian authorities.Footnote ³⁴ In any event, it is clear that battles over Article 2 TEU are far from being a story of days past. To give one but worrying example, Hungary’s Prime Minister recently advocated the establishment of an ‘illiberal state’ and referred to Putin’s Russia and Communist China as two possible models to follow.Footnote ³⁵

The call for an illiberal regime, which is not pure rhetoric in the context of the contemporary Hungarian state,Footnote ³⁶ plainly flies in the face of Article 2 TEU and yet the Commission cannot initiate any infringement action against Hungary on this sole basis. Indeed, and strictly speaking, the Commission may only initiate an infringement action against a member state for a specific violation of EU law. This is not to say that Article 2 TEU should be viewed as a mere political declaration – the Treaties make clear that EU institutions as well as EU member states ought to respect and promote the Union’s values.Footnote ³⁷ It would also be misguided to consider that EU values cannot constitute legal principles or that they completely lack legal effect. For instance, the rule of law, as a fundamental principle which underlies the whole European legal order, has already been used by the European Court of Justice both as a source from which directly actionable legal principles can be derived, and as a constitutional norm which should guide the interpretation of other legal norms.Footnote ³⁸ The rule of law, however, is not a rule of law actionable before a court. For instance, one cannot directly rely on the EU value of the rule of law to seek annulment of the acts of EU institutions.Footnote ³⁹ More generally speaking, Article 2 TEU cannot in and of itself be a cause of judicial action. In other words, because of the relatively open-ended nature of the values laid down in Article 2 TEU, this provision lacks justiciability. In procedural terms, this means that no legal proceedings against any EU country can be brought on this sole legal basis, either before national or EU courts. As far as internal threats to or breach of EU values are concerned, Article 2 TEU may instead be said to rather complement the so-called ‘nuclear option’ previously analysed. Indeed, Article 7 TEU does refer explicitly to the values laid down in Article 2 TEU and to that extent, it may be argued that Article 2 TEU comes within the lex specialis of Article 7 TEU and as such, cannot be used to trigger legal actions outside of this framework. In other words, Article 2 TEU cannot be relied upon by the Commission to initiate an infringement action under Article 258 TFEU.

The Commission is thus left with one legal option when it comes to dealing with what may be viewed as national breaches of EU values: pursuing individual instances where national authorities do not implement or correctly apply specific provisions of EU law. No infringement action would, however, be possible regarding areas not governed by EU law or in the situation where the national violation of EU values is of a political and diffuse nature. This meant, for instance, that in the absence of any general EU legislative competence over the independence and impartiality of national judiciaries, the Commission had no choice but to rely on the EU principle of non-discrimination on the ground of age to challenge Hungary’s legislation regarding the compulsory retirement of judges. The limited scope of the Commission’s legal challenge unfortunately did not allow it to impose effective remedies that would have prevented the undermining of the independence and impartiality of Hungarian’s judicial system by the national government.Footnote ⁴⁰ And while the scope of Article 7 TEU is not confined to the areas regulated by EU law, but also allows the Union to act in the event of a breach in which member states act autonomously, i.e., in their own exclusive areas of competence, this provision, as previously noted, has been understood as a ‘nuclear option’ which is there to deter and not to be used, save in an extreme situation such as a coup d’etat.

This leaves the EU with an extremely limited set of legal tools to address systemic violations of EU values at national level. This is particularly problematic for a number of important reasons, which one may summarise as follows: Where a country experiences ‘constitutional capture’ by illiberal forces,Footnote ⁴¹ i.e. a government’s systematic weakening of checks and balances, or is governed by elected officials whose official programme is the dismantlement of the liberal democratic state, these violations of EU values do not simply affect the citizens of the relevant member state.Footnote ⁴² They also affect EU citizens residing in that country as well as all EU citizens through this country’s participation in the EU’s decision-making process and the adoption of norms that bind all in the EU. Europe’s regulatory and judicial interconnected space is also built on the principle of mutual trustFootnote ⁴³ and an absolute requirement of mutual recognition of judicial decisions,Footnote ⁴⁴ which can hardly survive when one national system ceases to be governed by the rule of law. In addition to these negative externalities, any country disregarding the rule of law threatens the exercise of the rights granted to all EU citizens regardless of where they reside in the EU.Footnote ⁴⁵ Finally, the legitimacy and credibility of the EU are both undermined when it ceases to be able to guarantee internal compliance with the values it has sought – with relative successFootnote ⁴⁶ – to uphold and promote in its external relations.

The Commission therefore had a point when it noted that ‘the confidence of all EU citizens and national authorities in the legal systems of all other member states is vital for the functioning of the whole EU’.Footnote ⁴⁷ This, in turn, plainly justifies an increased monitoring and policing of EU member states by the EU itself and this was indeed precisely the aim of the new framework adopted by the Commission in March 2014.

Triggering factors

Before describing how the new ‘rule of law dialogue’ is supposed to work in practice, one must note the Communication’s emphasis on the notion of ‘systemic threat’. It would be wrong therefore to assume that the Commission sought to gain a new power to examine individual breaches of fundamental rights or routine miscarriages of justice via its new rule of law framework. Rather, the Commission merely sought to gain a new, additional tool to address threats to the rule of law ‘which are of a systemic nature’.Footnote ⁴⁸

As a preliminary point, the Commission sensibly attempts to offer a working definition of the notion of the rule of law. In a similar fashion to a study previously adopted by the Venice Commission,Footnote ⁴⁹ the European Commission’s Communication reflects the view that there is now a consensus on the core meaning of the rule of law and that this concept essentially entails compliance with the following six legal principles:Footnote ⁵⁰

1. 1) Legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws;

2. 2) Legal certainty;

3. 3) Prohibition of arbitrariness of the executive powers;

4. 4) Independent and impartial courts;

5. 5) Effective judicial review including respect for fundamental rights;

6. 6) Equality before the law.

While the European Commission did accept that ‘the precise content of the principles and standards stemming from the rule of law may vary at national level, depending on each Member State’s constitutional system’,Footnote ⁵¹ it also suggested, rightly in our view, that the six elements previously listed stem from the constitutional traditions common to most European legal systems and may be said to define the core meaning of the rule of law within the context of the EU legal order. This is not to say that some minor criticism is not warranted. For instance, it is difficult to understand why the principle of equality before the law is distinguished from the broader notion of fundamental rights, which may be thought to necessarily include it. Three additional sub-components are also arguably missing from the Commission’s list: the principle of accessibility of the law, which requires that the law must be intelligible, clear, predictable and published; the principle of the protection of legitimate expectations; and the principle of proportionality. The principle of legality may, however, be understood as encompassing the requirement that the law must be accessible, and the protection of legitimate expectations is closely linked to the principle of legal certainty. As for the principle of proportionality, its limited use in English administrative law may have led to its exclusion from what has been presented as a consensual list. Be that as it may, two additional important points are made by the European Commission: the rule of law must be understood as a ‘constitutional principle with both formal and substantive components’ and it is also one which ‘is intrinsically linked to respect for democracy and for fundamental rights.’Footnote ⁵² It is submitted that the Commission’s assessment accurately reflects the dominant understanding of the rule of law in Europe and that these two aspects could be viewed as the essential characteristics of what may be termed Europe’s rule of law approach.Footnote ⁵³ In other words, most national legal systems in Europe do reveal a broad conception of the rule of law, which requires compliance with formal/procedural as well as substantive/material standards. The EU and the Council of Europe similarly promote a conception that is not indifferent to the content or the substantive aims of the law and which encompasses elements of political morality such as democracy and substantive individual rights.Footnote ⁵⁴ While the Commission’s understanding of the rule of law is clearly outlined, which should in turn help other EU institutions when and if they have to decide on the materiality of a national breach in this area, the notion of threat of a ‘systemic nature’Footnote ⁵⁵ is, by contrast, not made particularly clear.Footnote ⁵⁶ It is only stated that this type of threat may result from ‘the adoption of new measures or of widespread practices of public authorities and the lack of domestic redress’.Footnote ⁵⁷ In this context, the Commission Communication’s references to the case law of the Court of Justice and of the European Court of Human Rights are unhelpful and largely off-point.Footnote ⁵⁸ There is also a degree of confusion between the notions of systemic threat and systemic violation, which is crucial in the context of the proposal. It is, for instance, difficult to understand if this new recourse to the notion of a systemic threat is meant to signal a different substantive test or whether it should simply be understood as broadly synonymous with the notion of a ‘serious and persistent breach’ currently mentioned by Article 7 TEU. This is an important issue as the Commission’s proposed mechanism has been described as a new pre-Article 7 TEU procedure, as will be shown below. One may finally note that despite Barroso’s call to address serious and systemic threats to the rule of law,Footnote ⁵⁹ the Commission’s communication does not explicitly mention ‘serious’ as a criterion to trigger the new proposed mechanism. Similarly, there are no signs of the pre-defined benchmarks promised by Barroso, prior to the publication of the Commission’s Communication and on the basis of which this new mechanism was supposed to be triggered.Footnote ⁶⁰

A new pre-Article 7 TEU procedure

With respect to the mechanics of what the EU Justice Commissioner has described as a new ‘pre-Article 7 procedure’,Footnote ⁶¹ it is important to distinguish between three main procedural stages, which are supposed to be themselves governed by three key principles.

The three procedural stages involve assessment, recommendation, and follow-up by the Commission. They may be described as follows. In the assessment phase, the Commission assesses whether there are clear preliminary indications of a systemic threat to the rule of law in a particular member state and send a ‘rule of law opinion’ to the government of this member state, should it be of the opinion that there are. In a situation where no appropriate actions are taken, the recommendation phase is supposed to commence: a ‘rule of law recommendation’ may be addressed to the authorities of this country, with the option of including specific indications on ways and measures to resolve the situation within a prescribed deadline. The Commission’s follow-up consists of the Commission’s monitoring of how the relevant member state is implementing the recommendation mentioned above. Should there be no satisfactory implementation, the Commission would then have the possibility – not the obligation – to trigger the application of Article 7 TEU.Throughout the whole process, three fundamental principles are in play. Firstly, only systemic threats or violations of the rule of law may trigger the activation of this new mechanism, not minor or individual breaches. Secondly, unlike the current rule of law monitoring tool specifically developed for Romania and Bulgaria, this new procedure is supposed to apply equally to all member states, regardless of their date of entry into the EU, size, and so forth. Thirdly, while the Commission continues to remain the guardian of EU values, third party and/or external expertise may be sought when necessary. The EU Fundamental Rights Agency, the Council of Europe (in particular, the European Commission for Democracy through Law also known as the Venice Commission) and judicial networks such as the Network of the Presidents of the Supreme Judicial Courts of the EU may therefore be asked to provide expert knowledge, notably during the assessment phase.

According to the Commission itself, this new framework is based on its current powers as provided for by existing EU Treaties,Footnote ⁶² and would merely complement existing instruments, notably the Article 7 procedure and the infringement procedure laid down in Article 258 TFEU. However, this assessment is not unanimously shared. To give a single example, the Council’s legal service has expressed its opposition to the Commission’s proposal, alleging — to oversimplify — an unlawful power-grab by the Commission.Footnote ⁶³ As will be shown below, while this may well be considered a highly damaging assertion, it is only one of the arguments that have been raised against the Commission’s rule of law framework, the most significant of which will be reviewed below.

Positive substantive features

The Commission should first be commended for adopting, as discussed above, a reliable sketch of the core meaning of the rule of law and the main elements contained within it. This was by no means an easy task considering the multiple and at times, conflicting and problematic definitions of the rule of law which one may easily encounter in academic scholarship.Footnote ⁶⁴ The Commission’s new pre-Article 7 procedure also departs from the most widely discussed proposals that have been made prior to the publication of its communication, mostly by EU scholars. Before briefly explaining why the Commission was for the most part wise to do so, a succinct overview of these proposals is in order. In a nutshell, the proposals in question come down to the following key features:

1. (i) Compulsory exit: It has been suggested that the EU Treaties should be amended to give the EU the power to force a chronically non-compliant EU member state out, whereas the EU Treaties currently foresee only voluntary withdrawal from the Union;Footnote ⁶⁵

2. (ii) The EU Charter of Fundamental Rights as a federal standard: According to this proposal defended by the former EU Justice Commissioner, Article 51(1) of the EU Charter of Fundamental Rights, which provides that its provisions only bind national authorities when they are implementing EU law,Footnote ⁶⁶ should be repealed so as to make all EU fundamental rights ‘directly applicable in the member states, including the right to effective judicial review’;Footnote ⁶⁷

3. (iii) Enabling EU jurisdiction via EU citizenship rights: First hinted at by Advocate General Poiares Maduro in Centro Europa,Footnote ⁶⁸ this proposal essentially suggested allowing national courts, in a situation where fundamental rights of EU citizens would be systemically violated, to invite the Court of Justice to review the legality of national actions in the light of Article 2 TEU, notwithstanding the fact that these violations may occur in wholly internal situations from a legal point of view, that is, outside the traditional scope of application of EU law;Footnote ⁶⁹

4. (iv) ‘Outsourcing’ of EU values’ monitoring: The President of the Venice Commission has proposed the delegation of the task of monitoring of EU countries’ adherence to the rule of law to his organisation on the ground that it has a solid track record when it comes to assessing and offering solutions to rule of law related problems in the 47 contracting parties to the Council of Europe;Footnote ⁷⁰

5. (v) Creation of a new EU institution: Closely related to the previous proposal but in opposition to the idea of externalising any monitoring tasks and/or sanctioning powers, the setting up of a ‘Copenhagen Commission’Footnote ⁷¹ has been suggested with the view of subjecting current EU member states to a similar level of monitoring as EU candidate countries while removing this task from the European Commission, as it would have failed in this endeavour;

6. (vi) New application of the existing infringement procedure: Under this proposal, the Commission should aim to present a ‘bundle’ of infringement cases to the Court of Justice in order to present a clear picture of systemic non-compliance as regards Article 2 TEU and gain the additional power to subtract any EU funds that the relevant member state may have been be entitled to receive;Footnote ⁷²

7. (vii) Peer review: Finally, mutual peer review of each EU country’s adherence to the rule of law, on the basis of periodic reports to be assessed by national governmental representatives, has also been suggested.Footnote ⁷³

None of the aforementioned proposals is flawless.Footnote ⁷⁴ Those requiring Treaty change, like the compulsory exit one, are not politically realistic. Similarly, enabling litigants to rely on the EU Charter of Fundamental Rights in any situation would be difficult to reconcile with the principle whereby the EU is an organisation ‘on which the member states confer competences to attain objectives they have in common based on conferred powers’.Footnote ⁷⁵ Allowing the Commission and the Court to exercise broad discretion in bundling violations to demonstrate a breach of Article 2 TEU (even if such a breach is found to exist in conjunction with other provisions) would also most likely be seen as legally threatening and politically unacceptable by national governments.

Less intrusive proposals are also potentially problematic. The creation of a new EU monitoring body would add another layer of bureaucracy, whereas the Commission and/or the Fundamental Rights Agency could potentially improve their monitoring capacities provided that they are given the resources, and in the case of the Fundamental Rights Agency, a clear mandate to do so.Footnote ⁷⁶ By the same token, those who believe that the Commission and the Agency may not be in the position to deliver could be too optimistic to assume that a newly-created EU body would necessarily be more capable. As far as the outsourcing of rule of law monitoring is concerned, this avenue may seriously undermine the EU’s understanding of itself as a mature autonomous constitutional system if the very heart of what it is about – the key values it adheres to, promotes, and is based on – is outsourced to a different organisation such as the Venice Commission, however attractive this solution may sound considering the good reputation of the Council of Europe’s advisory body.Footnote ⁷⁷

The key issue in any event is less monitoring than enforcement. This is why the externalisation of EU member states’ adherence to the rule of law to Council of Europe’s bodies is not a particularly promising avenue. In fact, enforcement is the weak spot of all the academic proposals on the table. To put it in a rather informal manner, one does not bring about the rule of law by kicking out a member state that seems to follow a dangerous path irreconcilable with its EU membership. The same applies to allowing the courts of that member state to send more questions to the Court of Justice or merely enabling the Commission to impose financial sanctions on the ‘rogue state’, which is part of what the system infringement proposal is about. In a situation where some states are by definition non-compliant, new avenues of safeguarding EU values are indispensable.

In this context, the refinement of the EU’s current infringement proceedings and enhancement of the Commission’s sanctioning powers may be viewed as the most seducing proposal. Undertaking a change of this nature without first amending the Treaties would, however, be controversial and possibly unlawful. Viewed in this light, one may understand better why the Commission decided to put forward an eminently ‘light touch’ mechanism which builds on and complements an already existing – albeit never used – procedure. By avoiding Treaty change, the Commission sensibly avoided a situation akin to asking turkeys to vote for Christmas. The Commission’s pre-Article 7 procedure also suggests that the Commission is well aware of the need to tread carefully in this area since the Union, as a democratic constitutional system, is currently not mature enough to move into the highly sensitive business of enforcing relatively open-ended and contested values against reluctant national authorities.

Positive features from a competence point of view

The Commission’s new procedure may therefore be reasonably described as anything but revolutionary. In essence it merely requires any ‘suspected’ member state to engage in a mere dialogue with no new, automatic or direct legal consequences should the member state fail to agree with any of the recommendations previously adopted by the Commission. It is therefore difficult to understand the criticism whereby the Commission’s pre-Article 7 framework would not be ‘compatible with the principle of conferral which governs the competences of the institutions of the Union’.Footnote ⁷⁸ Similarly, one may remain unconvinced by the additional argument that only the member states – and not even the Council – could establish, via an intergovernmental agreement supplementing the EU Treaties, ‘a review system of the functioning of the rule of law in the member states’,Footnote ⁷⁹ which would reflect a ‘peer review approach’ without any compulsory involvement of the EU institutions unless the Council, i.e. the national governments, decide otherwise.

One may be forgiven for finding the opinion of the Council’s legal service both unpersuasive and ill reasoned. As a preliminary point, we believe that the Commission, being one of the institutions empowered, under Article 7 TEU, to trigger the procedure contained therein, should in fact be commended for having established clear guidelines on how such triggering is to function in practice. Furthermore, a strong and convincing argument can be made that Article 7(1) TEU already implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis.Footnote ⁸⁰ It may therefore be compellingly argued that Article 7 TEU already allows the monitoring of EU member states prior to the determination of a serious breach of EU values given the obvious need for the Council to be able to rely on solid factual evidence before eventually finding against a ‘rogue state’. In other words, it may be submitted that the powers of monitoring member states with respect to Article 2 TEU values are inherent in the powers of the Council and the right of initiative of the Parliament, Commission and member states under Article 7 TEU.Footnote ⁸¹ One should finally recall that the European Commission said as much in 2003 in its Communication on Article 7 TEU without the Council expressing any objection then.Footnote ⁸²

To the extent that the new pre-Article 7 procedure exists to make possible the activation of Article 7 TEU – it would not have been called pre-Article 7 procedure otherwise – and that Article 7 makes clear that the Commission may submit a reasoned proposal to the Council to enable it to adopt recommendations prior to the determination of a clear risk of a serious breach of EU values – a task which could hardly be fulfilled without some monitoring framework – it may therefore be reasonably concluded that the Commission did not breach the principle of conferred powers when it adopted this new procedure in March 2014, as it had already implicitly but necessarily been empowered to monitor national compliance with the rule of law under Article 7 TEU. This interpretation is further confirmed by the repeated requests made by the Council to the Commission to develop assessment tools as regards national compliance with Article 2 TEU values.Footnote ⁸³

Moreover, given the overwhelming level of political, legal and economic interdependence between the EU member states, the principles of mutual trust and mutual recognition of judgments which underlie the EU’s Area of Freedom, Security and Justice as a whole – not to mention the blatant, continuing disregard for EU values in at least one EU country – the Commission, if anything, fulfilled (or at least attempted to fulfil) its duty as guardian of the TreatiesFootnote ⁸⁴ by putting forward a framework that would make Article 2 TEU more operational in practice. As noted previously, the Court of Justice recently reaffirmed, in the strongest possible terms, that the EU’s legal structure is based on the fundamental premiss that each member state shares with all the other member states, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU.Footnote ⁸⁵

This could be logically construed as necessarily implying not only the right but also a duty on EU institutions, in the absence of any possibility to force a member state out of the Union, to safeguard the EU’s ‘constitutional settlement through intervention within member states’.Footnote ⁸⁶

Positive procedural features

On the procedural plane, the key strength of the Commission’s framework is that it could be easily deployed alongside other well-established procedures such as the infringement procedure laid down in Articles 258 and 260 TFEU. The Commission’s pre-Article 7 procedure may indeed be understood as an attempt to bridge – albeit rather rudimentarily – the gap currently existing between the main form of action for ‘standard’ and specific violations of EU law and the main procedure dedicated to ‘exceptional’ and systemic violations of EU values laid down in Article 7 TEU. In this sense, the Commission’s proposal is reminiscent of some of the academic proposals listed above, as it attempts to build a new soft system of enforcing EU values on recalcitrant national authorities alongside the long-established procedure dedicated to guaranteeing the application of EU law sensu stricto.

Procedurally speaking, another positive aspect of the Commission’s proposal lies in the obvious readiness of the Commission to consult a wide range of expert bodies. The Fundamental Rights Agency, the Venice Commission and other bodies as well as non-governmental organisations and think tanks are all explicitly mentioned. This is to be welcomed. It was indeed important to avoid duplication by taking into account the work already done by EU bodies such as the Fundamental Rights Agency as well as bodies from the Council of Europe and the UN.Footnote ⁸⁷ The Commission’s clear willingness to rely on third parties’ expertise should not only enhance the proposal’s likely effectiveness but also avoids the potential shortcomings of any outright outsourcing of EU problems which would in all likelihood further undermine the authority of EU institutions and citizens’ confidence in them. This is why it would seem more appropriate to rely, for instance, on the expertise of the Venice Commission to assess, on a case-by-case basis, the reality of any potential breach of the rule of law in any EU member state while maintaining any enforcement-related procedure ‘in-house’. While consultation is welcome, the task of guaranteeing compliance with the core values of EU constitutionalism should not depend on non-EU bodies, and the proposal of the Commission, in this regard, is well thought and sensibly designed.

To conclude on the positive aspects of the Commission’s rule of law framework, the suggested ‘pre-Article 7 procedure’ wisely navigates the potential traps related to the substance of the concept of the rule of law. It is further designed in such a way that it can be implemented without going through an extremely time consuming Treaty amendment process with no guarantee of any ‘happy ending’. Finally, it enables the Commission to avail of other EU and non-EU bodies’ expertise to build a case against any EU member state while allowing the Commission to complement its well-established power to initiate infringement actions against national authorities with a new procedure that should allow it to simultaneously investigate systemic violations of EU law.

Weak features

The Commission’s pre-Article 7 procedure seems to be well designed until one begins examining how effective it would be at remedying the diagnosis it reflects. It is in the context of the proposal’s effectiveness that the main weakness of the proposal lies, potentially annihilating all of the positive points previously highlighted.

To begin with, the proposal is based on the presumption that a discursive approach, that is, a dialogue between the Commission and the member state possibly in breach of Article 2 TEU is bound to produce positive results. The validity of this presumption is questionable. Indeed, once we move towards really problematic cases, i.e. the countries where the ruling élite has made a conscious choice not to comply with EU values, then a totally different picture emerges. If such a conscious choice has been made, socialisation in the framework of a new pre-Article 7 TEU procedure is unlikely to bring about any meaningful change and an end to any systemic attempt to breach EU values in the relevant member state.

A number of additional shortcomings can be highlighted. First of all, the Commission has failed to clarify how it understands the notion of ‘systemic threat’. This is, however, a crucial point, as the triggering of the new procedure depends on the presence of systemic threats of the rule of law rather than minor or individual breaches. The Commission should therefore ‘clearly define the concept of “systemic threat” vis-à-vis both isolated violations on the one end of the scale and systemic violations on the other end, and to be prepared to take action at an early stage’.Footnote ⁸⁸ In this context, yet another possible point of criticism comes to light: the Commission’s failure to offer any clear distinction between a systemic threat and a systemic violation. One would, however, hope that systemic violations of the rule of law should more easily trigger the new procedure than systemic threats, which could be more diffuse and harder to quantify in practice. When one adds to the picture the absence of any clearly pre-defined benchmarks – despite contrary assurances by former Commission President Barroso – it becomes clear that the Commission’s new procedure may end up as unworkable as Article 7 TEU, with which it is intimately connected. The Commission’s decision to reserve for itself the power to trigger the pre-Article 7 TEU procedure further sends a mixed message, especially given the flexible and not strictly legal character of the procedure. Indeed, it suggests that the Commission is keen to preserve an absolute discretionary power to decide when any particular member state ought to be assessed. It would have been more politically astute and more effective to grant other EU institutions or national governments and/or national parliaments the right to oblige the Commission to investigate any EU member state, which would still have left the Commission with the complete discretion to decide whether there is or not a risk of a systemic breach of the rule of law.

Leaving aside the uncertainties surrounding the triggering of the Commission’s procedure, one may furthermore regret some key procedural elements that are likely to further prevent a meaningful and effective enforcement of EU values. The confidential nature of the whole discussion to be held between the Commission and the member state under investigation will prevent a ‘name-and-shame’ environment from crystallising, a feature which would most likely add significantly to the effectiveness of the procedure. The non-legally binding nature of the ‘rule of law recommendation’ to be addressed to the authorities of any country where systemic threats have been identified, and the non-automatic recourse to Article 7 TEU should the recalcitrant member state fail to comply, further increases the likelihood of protracted discussions and ineffective outcomes.