A. Introduction
It is often said that “one bad apple spoils the barrel.” In keeping with this old adage, Article 7 of the Treaty on the European Union (TEU)Footnote 1 protects the European Union when a Member State threatens to violate the core values enshrined in Article 2 TEU. This fear became a reality when Poland’s blatant disregard for the rule of law necessitated the triggering of Article 7(1) TEU in 2017. With the activation of the same preventive mechanism in respect of Hungary in 2018, the European community was faced with the alarming possibility that more than one bad apple would spoil the barrel.
Before the result of the 2023 parliamentary elections in Poland, which marked a turning point in the country’s descent into illiberalism, there had been little doubt that Hungary and Poland were prepared to defend each other’s interests, presenting a united front of resistance against the liberal and democratic values at the heart of the EU project.Footnote 2 Moreover, the likelihood that another Member State might join Hungary in the future, once the former is brought to account under Article 7(1) TEU, is perhaps diminished, in the light of these recent events, but certainly not dismissed. Indeed, this possibility is no mere speculation given recent reports of initial signs of rule of law backsliding observed in other EU Member States such as Romania, Malta, and the Czech Republic. Footnote 3
Evidently, the EU rule of law is still under threat, and it is simply a matter of time before the tides turn and the activation of Article 7(2) TEU against one (or all) of the current (or future) backsliding Member States becomes a necessity.Footnote 4 The main procedural hurdle on this path is the procedural requirement that the existence of a serious and persistent breach of values in Article 2 TEU, which any given Member State can commit, can only be determined by a unanimous decision of the European Council. Article 354 of the Treaty on the Functioning of the European Union (TFEU)Footnote 5 excludes “the Member State in question” from voting on the determinations under Article 7(1) and (2) TEU but makes no mention of exclusion from voting of any other Member State against which Article 7 TEU might be invoked at the same time. Therefore, as the situation stands, if a political decision is taken to invoke Article 7(2) TEU in respect of any other backsliding Member State (previously, Poland), there is nothing to preclude Hungary from backing up its ally in the potential vote in the European Council, thereby blocking the determination of a serious and persistent breach under Article 7(2) TEU. Footnote 6 The same will be true if Article 7(2) TEU is activated against Hungary or any other Member State if Article 7(1) TEU is triggered. Without a determination of “a serious and persistent breach” under Article 7(2) TEU, the Union cannot impose sanctions under Article 7(3) TEU. Therefore, what is actually at stake here is the overall capability of the Union to sanction a violation of Article 2 TEU through the Article 7 TEU mechanism. Footnote 7
For these reasons, it is worth exploring the legal implications of a currently hypothetical but increasingly more likely scenario where Article 7(2) TEU is activated simultaneously against more than one backsliding EU Member State. This political decision will probably be taken in an attempt to prevent the aforementioned obstruction to the implementation of this mechanism by legal means, namely by extending the exclusion from voting beyond “the Member State in question” to cover other Member States currently undergoing the same scrutiny under Article 7(2) TEU. The main aim of this interdisciplinary Article is to demonstrate, with the help of insights from trust theory in the social and political sciences, that this legal approach, which mainly finds support in the writings of Dimitry Kochenov, will fail to produce the desired effect of counteracting the EU rule of law crisis. Moreover, it will have grave negative consequences for the EU legal order and therefore must be urgently reconsidered.
Dimitry Kochenov suggests that the legal means for executing this plan to tackle the EU rule of law crisis are readily available in EU law. Footnote 8 In his view, the idea that exclusion from voting could be extended to several backsliding Member States under Article 7 TEU at the same time is “clearly” implicit in the wording of Article 354 TFEU Footnote 9 and that the alternative would mean “all the procedural requirements of Article 7 TEU, especially those requiring unanimity, would end up deprived of their intended effet utile… .” Footnote 10 Reading between the lines, when speaking of the “intended effet utile,” Kochenov seems to be referring to the practical effectiveness Footnote 11 of the procedural requirements of Article 7(2) TEU. The implication appears to be that an interpretation that allows for Article 7(2) TEU to be easily blocked by an alliance of backsliding Member States would render the provision useless, which presents a serious danger to the effectiveness of the norm. Footnote 12 Effet utile comes into play in the CJEU’s reasoning in circumstances where the uniformity and effectiveness of EU law might be jeopardized by a particular interpretation or through the conduct of a certain Member State. Footnote 13
Since the wording of the provision neither allows nor precludes Footnote 14 extending the exclusion from voting to any Member State, against which Article 7(2) TEU may be triggered at the time, there is some interpretative freedom left to the adjudicator. Footnote 15 Kochenov suggests the possibility that the extent of the exclusion could be clarified by the CJEU when an offending Member State brings an action questioning the legality of the act under Article 269 TFEU. Footnote 16 For this purpose, Kochenov suggests two possible solutions to implementing the extension of the exclusion from voting for the purposes of Article 7(2) TEU; that is, “requiring the application of Article 7(2) TEU to several backsliding [Member States] already subject to Article 7(1) TEU procedure simultaneously” (Simultaneous consideration) or “the default exclusion from the vote in the context of Article 7 TEU of any state subjected to Article 7(1) TEU in the context of any proceedings arising under Article 7 TEU without necessarily making the consideration of the value situation in several [Member States] simultaneous” (Default exclusion). Footnote 17
Kochenov’s position deserves further exploration because it asks the right questions at the right time - before the Article 7(2) TEU procedure is triggered against a Member State. It expresses a valid and prescient concern about the dangers associated with the inherent limitations of the unanimity requirement of Article 7(2) TEU in circumstances where there is more than one backsliding Member State at the same time. Further, it highlights the importance of determining the effet utile of Article 7 TEU in this context, which opens a long overdue debate that is much needed. It is also worth noting that Kochenov’s commentary stands out among other EU Treaty commentaries, since it addresses these underlying issues in depth and proposes concrete legal solutions. Footnote 18 It is also one of only three commentaries on EU Treaties – the other two being Frank Schorkopf’s and Philipp Voet van Vormizeele’sFootnote 19 – that takes a stance on the interpretation of the procedural requirements of Article 7(2) TEU when deciding whether to use the provision against several backsliding Member States at the same time. Despite its merits, Kochenov’s position demands to be approached with the greatest caution and scrutinized with utmost care since it erroneously presupposes that there are currently no legal obstacles to taking this course of action should the political need arise. That is why this Article aims to provide more answers to Kochenov’s expertly-raised questions.
It will be shown that Article 7(2) TEU is not meant to be (and ought not to be) used simultaneously against more than one backsliding Member State in this manner. This Article argues that the proposition put forward by Dimitry Kochenov is fundamentally flawed in terms of principle (the proposed interpretation of the effet utile of Article 7 TEU) and of execution (the proposed legal solutions). More specifically, the problem is that this plan is bound to backfire: instead of contributing towards the realization of the integrationist ideal of “an ever closer union among the peoples of Europe” (Article 1 TEU), it will only lead to even greater distrust and fragmentation in the European Union. Thus, this interdisciplinary study combines legal analysis with insights from trust theory in the social and political sciences to highlight the inherent limitations of the procedural requirements of Article 7(2) TEU, which will become evident in a situation where there is more than one backsliding Member State at the same time.
To this end, this Article challenges the traditional understanding of Article 7 TEU to protect the homogeneity of the Union as defined by Article 2 TEU, which appears to be the theoretical foundation for Kochenov’s position. An unconventional reading of the effet utile of Article 7 TEU conceptualizes the provision as more than a mere means of protecting the homogeneity of the Union. It is a mechanism for promoting trust and mitigating distrust in the relationship between the Union and its Member States. To interpret the procedural requirements of Article 7(2) TEU in a manner that would authorize the extension of the exclusion from voting to more than one Member State at the same time would directly contradict this new conceptualization of the effet utile of Article 7 TEU; it would inevitably lead to greater distrust and fragmentation in the Union. By the same token, the legal solutions recommended by Kochenov would also produce the same result if implemented by the CJEU since they violate some of the general principles of EU law. Neither of these proposed solutions could be considered reasonable in the circumstances, Footnote 20 as they would undermine the legitimacy and coherence of the CJEU’s decision-making.
The effet utile of a legal norm in EU law must be placed in the big-picture context of the CJEU’s efforts to devise legal solutions to achieve the ultimate goal of the integration project – “an ever closer union among the peoples of Europe” (Article 1 TEU). Empirical evidence suggests that effet utile is used in the CJEU’s jurisprudence to “stabilize the law … and also to convey an impression of doctrinal continuity, effectiveness, and relevance.” Footnote 21 In this context, effet utile could be defined as “a legal judicial means which allows the Court to develop a coherent body of case law without risking [a] major political backlash from the Member States.” Footnote 22 In other words, the involvement of effet utile in the CJEU’s reasoning tends to the relationship between the Union and its Member States by ensuring the coherence and acceptability of the Court’s jurisprudence. Therefore, to accurately assess the effet utile of Article 7(2) TEU and its procedural requirements found in Article 354 TFEU, one must understand their role in the context of the relationship between the Union and its Member States, which is based on trust.
At this stage, it is important to justify the choice of the concept of trust as the foundation for building an argument regarding the effet utile of Article 7 TEU in the context of combating the ongoing EU rule of law crisis. The rare use of the Article 7 TEU mechanism in practice and the paucity of preparatory documents for its drafting make collecting persuasive evidence to draw conclusions about its overall purpose challenging. By association, the same goes for Article 7(2) TEU and its procedural requirements in Article 354 TFEU. For these reasons, a mere doctrinal analysis focusing solely on legitimacy may be of limited use here. The sociopolitical phenomenon of trust could help us contextualize the role of Article 7 TEU in the trusting relationship between the Union and its (backsliding or otherwise) Member States in order to define the effet utile of Article 7(2) TEU and its procedural requirements in a manner that is more accurate and faithful to the realities of the rule of law crisis in the EU.
In recent years, the European integration project has been seriously pressured by the forces of fragmentation, which has resulted in “eroding, rather than building up, trust among the EU’s member states, public agencies, economic and social actors, and populations.” Footnote 23 The rule of law in the EU has been identified as the main vulnerability in the EU legal order with respect to trust. Footnote 24 Through their refusal to apply EU legislation and their rigid stance when it comes to national sovereignty, the national interest, self-determination, and trust between Member States, the EU is in danger of being undermined. Footnote 25 In addition, the lack of trust and distrust in the EU project has culminated in a “conflict of values,” which found expression in Brexit as well as the constitutional reforms threatening the independence of the judicial systems in Hungary and Poland. Footnote 26 There is “a fundamental lack of trust between EU Member States, as well as between at least some of them and the EU institutions.” Footnote 27 Thus, current scholarship indicates that the rule of law crisis in the EU could be framed as a crisis of trust based on a conflict of values.
In this context, Armin von Bogdandy claimed that “… it is theoretically robust to construe the European rule of law with theories of trust, and to address the crisis of the European rule of law as one of distrust against and between public institutions.” Footnote 28 According to this account, trust and law share a “complementary” relationship, in that they are “interrelated and support each other.” Footnote 29 Similarly, trust and legitimacy “reinforce each other.” Footnote 30 To respond to the EU rule of law crisis effectively, Armin von Bogdandy recommends that legal instruments be “evaluated according to whether they help avoid an escalation of distrust and enable continued cooperation which implicitly nurtures trust.” Footnote 31 This is why the Article 7 TEU mechanism needs to undergo an assessment in the context of (dis)trust.
This Article adopts an understanding of the concept of trust in rational choice theory, which claims that trust is the product of a cognitive process in which “the trustor calculates, or predicts, the trustee’s level of trustworthiness.” Footnote 32 Russell Hardin’s theory of trust as encapsulated interest explains how trust bonds rational actors together. It must be noted that if “A trusts B to do X,” then trust is limited to a particular context; that is, A trusts B to deal with a specific matter (X) in a specific situation, not in all cases. Footnote 33 Hardin explains his theory of trust in the following terms:
Your trust turns not directly on your own interests but rather on whether these are encapsulated in the interests of the trusted. You trust someone if you believe it will be in her interest to be trustworthy in the relevant way at the relevant time, and it will be in her interest because she wishes to maintain her relationship with you. Footnote 34
Therefore, trust is not generated based on mere expectations of the partner’s behavior in the relationship but on the reasons behind such behavior. Footnote 35 Hardin clarifies that “[t]he typical reason for the expectations is that the relations are ongoing in some important sense,” whether it is in the context of a dyadic (one-way trust or mutual trust) or a thick (group or societal) trusting relationship. Footnote 36 Thick trusting relationships define trust and distrust dynamics between Member States and the EU on an interstate and interorganizational level. This is because EU Member States share a rich history and an ongoing relationship of repeated cooperation among themselves and the Union on a wide array of issues. Footnote 37
Following that line of thought, let us presuppose that a breach of the values in Article 2 TEU could be conceptualized as a betrayal of trust, sanctioned by Article 7 TEU, if viewed from the perspective of the EU and its law-abiding Member States. Building on Russell Hardin’s theory of trust as encapsulated interest, Henry Farrell argues distrust results from power Footnote 38 asymmetries in the trusting relationship between two parties, which, in this case, are the backsliding Member States and the EU. Footnote 39 Farrell further claims power is defined by the ability to make credible commitments to your partner: “To say I am incapable of making credible commitments to you is to say (among other things) that you are incapable of retaliating effectively should I betray your trust.” Footnote 40 In other words, the tipping point of power in the trusting relationship is understood by Farrell as follows: “The point at which I am so powerful that I can no longer make credible commitments to you is the point at which I am so much more powerful than you that you can no longer trust me.” Footnote 41
Reflecting on Henry Farrell’s theory detailed above, the most appropriate interpretation of the effet utile of Article 7 TEU (more specifically, of Article 7(2) TEU in conjunction with Article 354 TFEU) must be such that neither party reaches past the tipping point of power, otherwise the legal rule will generate distrust between the parties in the trusting relationship. Note that this is not a requirement for equal power. It simply means that the procedural requirements under Article 7(2) TEU must be interpreted in such a way that neither the offending parties (taken together or separately), nor the rest of the EU, community should be at a clear disadvantage, rendering them incapable of prevailing when voting.
Based on a broad formulation of trust in the EU, constructed based on theories by Russell Hardin and Henry Farrell, two possible scenarios lead to distrust of the Union, as represented by EU institutions and the Court of Justice of the European Union (CJEU). When the Union fails to deal with backsliding Member States effectively, it damages the trusting relationship between the Union and its law-abiding Member States. It causes distrust of the Union since it would show itself incapable of effectively sanctioning the offending Member States. Suppose the EU institutions and the CJEU fail to apply and interpret EU law coherently and legitimately. In that case, the distrust towards the Union that backsliding Member States are already experiencing will deepen and intensify due to being on the receiving end of such (perceived) unfair treatment. The bottom line is, regardless of which scenario plays out, using Article 7(2) TEU against more than one backsliding Member State at the same time in this manner would inevitably produce further distrust and fragmentation in the relationship between the Union and its Member States.
The following sections of this Article elaborate on this position in detail. In Section B, the traditional account of the effet utile of Article 7 TEU as a means of protecting the Union’s homogeneity is presented. It seems likely that this conventional understanding served as the starting point for Dimitry Kochenov’s overall assessment of the effet utile of Article 7(2) TEU and its procedural requirements, as well as the legal solutions he proposes for extending the exclusion from voting beyond “the Member State in question.” Section C contains an unconventional interpretation of the effet utile of Article 7 TEU based on the trust theory, which asserts that the effet utile of Article 7 TEU is not simply to uphold the homogeneity of the Union but to promote trust and mitigate distrust between the Union and its Member States. Further, some justification for the theoretical and methodological choices made regarding the applicable trust theory will be provided while presenting a more critical outlook for pre-emptively addressing some of the main objections that may arise in response to the proposed understanding of trust. If the CJEU decides to interpret the effet utile of Article 7 TEU in the traditional way, then the provision’s wording needs to be scrutinized more closely. For this reason, a thorough analysis of the wording of Article 7(2) TEU and Article 354 TFEU is laid out in Section D. The outcome of the analysis indicates that it is not possible to extend the exclusion from voting for the purposes of Article 7(2) TEU to more than one Member State at a time; that is, “the Member State in question.” In principle, the general purpose and context of the provision could override this conclusion and lead to the CJEU authorizing the extension of exclusion from voting for the purposes of Article 7(2) TEU. That is why it is essential to scrutinize the two legal solutions proposed by Dimitry Kochenov more closely, Footnote 42 which the CJEU is likely to adopt. The analysis detailed in Section E will show that these legal solutions violate some of the general principles of EU law. If the CJEU decides to implement either, this would lead to further distrust and fragmentation in the EU. Finally, the conclusion presented in Section F summarizes these results and suggests a recommended course of action for counteracting the EU rule of law crisis in light of these findings.
B. The Effet Utile of Article 7 TEU as a Mere Means of Protecting the Union’s Homogeneity?
Let us begin by exploring the origins and development of the traditional understanding of the effet utile of Article 7 TEU as a mechanism designed solely to protect the homogeneity of the Union. As it stands today, the provision was reaffirmed in its entirety by the Treaty of Lisbon (2009), but the idea for such a measure was first introduced in the Treaty of Amsterdam (1999). Although the ultimate function of Article 7 TEU could be characterized as punitive and remedial, the importance of the preventive component, which first appeared in the Treaty of Nice (2001), has been recognized as significant. Footnote 43
The necessity for a mechanism to sanction a Member State for violating human rights was not immediately obvious in the foundational years of the European Community when its sole focus was building a single market and promoting economic prosperity. Footnote 44 The tides turned when the Treaty of Maastricht (1992) initiated the process of the European Union’s gradual transformation into a more constitutionally oriented and politically involved international organization. Footnote 45 Furthermore, measures for protecting core EU values were hardly necessary when the Union comprised a close-knit community of Western countries that shared a “perceived commonality of political and legal cultures of the original like-minded members.” Footnote 46 With the possibility of enlargement of the Union looming on the horizon, the need for such a mechanism became clear and pressing. Footnote 47 EU decision-makers were, in all likelihood, cognizant of the challenges associated with prevalent and systemic human rights abuse and undemocratic political practices in post-communist Central European (and later, Eastern European) candidates for membership of the Union. Footnote 48
Thus, the idea that EU values must be fortified against a potential assault by several new members seems to have precipitated the introduction of Article 7 TEU. It could easily be surmised that the EU lawmakers designed Article 7(2) TEU to be activated against more than one Member State. Whether it was envisioned that the new Member States would experience a rule of law crisis at the same time or that they would be acting in concert to undermine EU values is less clear. The common denominator between the new members would have been their limited experience of democratic governance. On this basis, it stands to reason that the corresponding procedural requirements were most likely devised so that the offending Member States would be prevented from teaming up to block the rule’s implementation. This seems like the most likely route to take if one were to seek appropriate logical and theoretical justification for Kochenov’s conclusion on the effet utile of Article 7 TEU. In other words, the purpose behind Article 7 TEU is traditionally understood to be the following:
With the provision, the Union aims to sanction a Member State which can no longer be considered a democratic state that abides by the rule of law or even one which is on the road to becoming a dictatorship … The sanction mechanism serves as protection of the homogeneity in the EU against one or more Member States’ rejecting the fundamental values of the Union. Footnote 49
As protected by Article 2 TEU, homogeneity means “the similarity between particular legal principles not only in relation to the integrated Member States among themselves but also in relation to the Union itself.” Footnote 50 The homogeneity of the Union needs to be safeguarded against interference from backsliding Member States because it fulfills four functions: “to serve as a foundation for reaching consensus among the Member States for the purposes of enabling integration, to stabilize the legitimacy foundation of the Union, to facilitate the construction of a European identity, and to guarantee the Union functions in good order.” Footnote 51 The idea of penalizing the odd deviation from the norm seems to define the legislative intent at the core of Article 7 TEU – if the provision is understood as a mechanism for protecting the homogeneity of the Union.
Indeed, the option of imposing sanctions under Article 7(3) TEU is only open to the Union when the unanimity threshold is met – when all Member States but one (“the Member State in question”) vote in favor of the determination of a serious and persistent breach in Article 7(2) TEU. In this sense, the unanimity requirement is the true gatekeeper to EU values. As such, it must be the focal point of any discussion on the effet utile of Article 7 TEU.
The Reflection Group Report of the 1996 Inter-governmental conference, which paved the way for the Treaty of Amsterdam, sheds light on the discussions in response to the “urgent need” to introduce a mechanism for protecting fundamental rights in the context of “[enhancing] the Union’s image as a community of shared values.” Footnote 52 The report explicitly highlights the measure’s relevance “above all in the run-up to enlargement.” Footnote 53 Although no mention is made of the unanimity procedural requirement in the context of Article 7(2) TEU, the same report documents lengthy discussions on unanimity in decision-making procedures in the area of Common Foreign and Security Policy. These findings offer insight into the rationale behind using the unanimity procedural threshold in EU primary legislation at this particular moment. It is revealed there that unanimity may impede efficiency in decision-making at the EU level due to the “the risk of deadlock,” which also prompted the discussion of alternative and related decision-making methods. Footnote 54 Proponents of unanimity believe that “consensus at the right of veto [is] essential in matters which lie so close to the heart of national sovereignty,” Footnote 55 which, arguably, is equally applicable to the protection of EU values under Article 2 TEU. It was made expressly clear that greater efficiency through the procedural requirement of unanimity must not be pursued at the expense of the legitimacy of decision-making at the EU level since, “in some cases it might not be acceptable for a State to be put into a minority,” especially when the protection of “a fundamental or vital national interest” is at stake. Footnote 56
This description aligns closely with a Member State’s contribution to defining the values “common to the Member States” under Article 2 TEU. It follows that introducing the unanimity requirement in Article 7(2) TEU could be interpreted as safeguarding a Member State’s “fundamental or vital national interest.” Therefore, unanimity could be conceptualized as a “power-balance stop,” which guarantees that a Member State is powerful enough to protect its “fundamental or vital national interest” in cases where it finds itself in a minority of one. Thus, any procedural voting requirement that grossly interferes with a Member State’s ability to defend this “fundamental or vital national interest” – such as an interpretation of Article 354 TFEU that allows the extension of the exclusion from voting beyond “the Member State in question” – is certainly going to be regarded as seriously questionable from a legitimacy perspective since it threatens to interfere with this essential power balance.
If one is to correctly implement Article 7 TEU to effectively manage the forces of fragmentation that threaten to tear the Union apart, one needs to understand what holds the Union together. The notion of homogeneity implicit in Article 2 TEU is essential to preserve the constitutional integrity of the Union since it sets the standard of values for its Member States. However, to say that the effet utile of Article 7 TEU is to uphold the homogeneity of the Union would be insufficient and thus inaccurate. Homogeneity is not an end in and of itself – it is a prerequisite to building trust among the Member States and between the Union and its Member States. Trust is the foundation of mutual recognition, which is essential to EU integration. If the product of the implementation of Article 7 TEU is distrust, achieving homogeneity would be pointless. Therefore, the actual effet utile of Article 7 TEU is to promote trust and mitigate distrust, not simply to ensure homogeneity of values.
C. The Effet Utile of Article 7 TEU as a Means of Promoting Trust While Mitigating Distrust Between the Union and its Member States
The following section presents a more detailed overview of the proposed understanding of trust (and distrust) to define the effet utile of Article 7 TEU within the framework of the EU rule of law crisis. The theoretical justification for its applicability in this particular context will be put forward. The methodological and theoretical choices made in this study are scrutinized more closely, and some potential weaknesses and vulnerabilities are identified. The central idea is to adopt a critical perspective on the proposed reasoning and pre-emptively counter some of the objections likely to be raised in response to it.
I. Applying the proposed understanding of trust (and distrust) in the present context
The legal uncertainties surrounding the procedural requirements of Article 7(2) TEU, contained in Article 354 TFEU, doubtlessly have a bearing on the trusting relationships that bond the European Union and its Member States. This is true regarding the connection between the Union and the backsliding Member States and between the Union and the rest of its Member States. Indeed, the European Parliament openly admits that “any clear risk of a serious breach by a Member State of the values enshrined in Article 2 of the TEU does not concern solely the individual Member State where the risk materializes, but also has an impact on the other Member States, on the mutual trust between them and on the very nature of the Union and its citizens’ fundamental rights under Union law.” Footnote 57
At the same time, promoting and preserving mutual trust in the Area of Freedom, Security and Justice has been identified as a priority of the highest order in implementing Article 7 TEU. The European Parliament Resolution on the Treaty of Amsterdam made it clear that mutual trust, as the foundation of the relationship between the Member States and EU institutions, is vital for realizing the new opportunities created by the Treaty, including the introduction of Article 7 TEU. Footnote 58 Since then, the need to safeguard mutual trust in the Area of Freedom, Security and Justice has been a recurring theme in communications between the EU institutions and European Parliament Resolutions on combatting the EU rule of law crisis. Footnote 59 However, this Article explores a more complex understanding of trust that includes, but is not limited to, mutual trust in the Area of Freedom, Security and Justice.
To elaborate on this representation of trust, let us view the trusting relationship between the European Union and its Member States from two perspectives. On the one hand, trust is understood as the law-abiding Footnote 60 Member States’ confidence in the Union’s capacity to devise and implement appropriate mechanisms in EU law to sanction backsliding Member States and thus overcome (or at least contain) the rule of law crisis in its territory. On the other hand, trust denotes the confidence that backsliding Member States have in the Union: EU law will be applied fairly and equitably by Union institutions and interpreted coherently and legitimately by the CJEU when it comes to the determination and sanctioning of their potential breach of Article 2 TEU. This twofold understanding of trust is integral to the interstate and interinstitutional relations that bond the Union and its Member States, which is evident in the European Commission’s 2019 Communication to the European Parliament, the European Council, and the Council:
If the rule of law is not properly protected in all Member States, the Union’s foundation stone of solidarity, cohesion, and the trust necessary for mutual recognition of national decisions and the functioning of the internal market as a whole, is damaged … An issue related to the rule of law in one Member State impacts the Union as a whole and so, whilst national checks and balances should always be the first recourse, the Union has a shared stake in resolving rule of law issues wherever they appear. Recent challenges to the rule of law in some Member States have triggered concern about the ability of the Union to address such situations. Confidence that shortcomings can be resolved would help to strengthen trust both between Member States and between the Member States and EU institutions. Footnote 61
Thus, it is argued that the effet utile behind Article 7 TEU is safeguarding the trusting relationships between the Union and its Member States by promoting trust, while mitigating distrust.
Let us now place these findings in the context of Henry Farrell’s theory on the tipping point of power in a trusting relationship, which was explained in detail above. If Article 7(2) TEU is activated against two or more backsliding Member States simultaneously, to effectuate Kochenov’s proposed plan of action, the CJEU will end up being caught between a rock and a hard place. If the CJEU authorizes the extension of the exclusion from voting, the outcome would be more distrust and fragmentation in the Union.
If two (or more) Member States are allowed to block the Article 7(2) TEU mechanism, the power balance is tipped in favor of the backsliding Member States, generating further distrust among the rest of the Member States towards them (and towards the Union itself, since it has shown itself powerless to stop them). If the divide between the EU community and the backsliding Member States becomes greater, this will result in further fragmentation within the Union since there is no mechanism in the EU Treaties to allow for the expulsion of an offending Member State.
On the other hand, if the CJEU issues an interpretation that excludes more than one backsliding Member State from voting, the balance of power shifts in favor of the EU. The power asymmetry in a typical case where only one Member State is disqualified from voting is not so great as to produce distrust. However, to deprive a backsliding Member State of the potential support from another Member State simply because it might vote in its favor would be taking this a step too far, past the tipping point of power. This move will doubtlessly alienate the backsliding Member States further and give ammunition to their governments to support their anti-EU propaganda, have a disheartening effect on those members of their population whose personal beliefs are more closely aligned with EU values, and embolden other Member States currently on the brink of backsliding, to follow through with their plans. Finally, it will give the proponents of Brexit a reason for gloating.
II. Adopting a critical perspective on the proposed understanding of trust (and distrust)
That being said, the analysis of the concept of trust and its applicability in this context would be incomplete without serious consideration being given to its potential theoretical and methodological vulnerabilities. Perhaps the most obvious and natural choice for a theory of trust that could assist EU lawyers in counteracting the EU rule of law crisis is mutual trust in the Area of Freedom, Security and Justice, since it has been developed and applied by the CJEU. The following shows why the notion of mutual trust in its current theoretical state is ill-equipped on its own to provide us with the necessary insight to work out an adequate solution to the problem at hand.
Valsamis Mitsilegas contends that it is possible to use the mutual trust paradigm as a stepping stone for advancing an overarching understanding of trust in a Union that engages different levels of trusting relationships – between the Union and its Member States and between the Union and its citizens. Footnote 62 It is doubtful that this research agenda could be fulfilled based on the current state of knowledge about mutual trust, illustrated by Michael Schwarz’s detailed and comprehensive overview of the CJEU’s construction of the notion of mutual trust in the Area of Freedom, Security and Justice. Schwarz’s work is particularly notable, as it recognizes the relevance and contribution to this problem of theories of trust in the social sciences, much like Russell Hardin’s did.
Having analyzed the CJEU’s jurisprudence on the subject of mutual trust, Michael Schwarz concluded that “[t]he Court conceives of trust as a three-part relation, where one Member State (trustor) trusts another Member State (trustee) to observe the pertinent provisions of EU law (object of trust).”Footnote 63 Schwarz argues that mutual trust follows the fiduciary logic of mutual recognition, which ultimately constitutes recognition trust – “a four-part relation, where one Member State trusts another on behalf of an individual to abide by the pertinent fundamental rights standards.”Footnote 64 More importantly, Schwarz recognizes that the CJEU equates trust with reliance, suggesting that the trustee’s internal justification for compliance is irrelevant and its relationship with the trustor is predicated simply on “the formal reciprocity of quid pro quo.”Footnote 65 Schwarz dismisses Hardin’s theory of trust as encapsulated interest as a matter of reliance, not trust, on the grounds that “[i]f the (assumed) motivation for the trustee’s commitment makes no difference as [long] as she generates the expected output, then trust cannot be distinguished from mere reliance.”Footnote 66 In Schwarz’s view, recognition trust follows the well-trodden path of legality so closely that the Court’s insistence that compliance with Article 2 TEU values justifies the existence of mutual trust “appears tautological.”Footnote 67
A significant problem with this account, which prohibits the extended application of the notion of mutual trust thus theorized to the legal problem of the effet utile of Article 7 TEU, is that Schwarz misinterprets Hardin’s theory of trust as mere reliance. Contrary to Schwarz’s claim, the motivation for a trustee’s commitment does matter in Hardin’s theory. In fact, it constitutes the very reason for the trusting expectations being formed – “[t]he typical reason for the expectations is that the relations are ongoing in some important sense.”Footnote 68 In the case of the EU, the trusting relations were established and continued on an ongoing basis, thus earning the status of thick relationships because EU Member States share the same values as enshrined in Article 2 TEU (as is evident from Article 49 TEU, which sets out the eligibility requirements for Union membership). In addition, thick relationships are not only the source of knowledge for the trustor about the trustee’s trustworthiness, but an incentive for them to be trustworthy.Footnote 69 The reputational effects in the thick community (of EU Member States) have a “substantial” impact on the trustworthiness among the members of that community: “Reputational effects give me an incentive to take your interests into account even if I do not value my relationship with you merely in its own right. They do this indirectly because I value relationships with others who might react negatively to my violation of your trust.”Footnote 70 Therefore, the rational assessment that the trustee will prioritize the need to safeguard the thick relationship with the trustor informs their ultimate decision to trust, but without this motivation, the option to trust would not have been on the table in the first place.
Furthermore, according to Schwarz, “recognition trust is trust in the law, i.e. law as object matter of trust.” Footnote 71 At the same time, Schwarz maintains that “recognition trust is trust through law” and elaborates on the effect that “… legal monitoring, controlling and sanctioning mechanisms attest to trust reservations. Equally, they enable the generation or stabilization of justified trust by providing anchor points for assessing trustworthiness and laying the groundwork for building or enhancing future trust.” Footnote 72 Even if one were to disregard the aforementioned theoretical reservations and endeavor to extend the application of Schwarz’s theory to the present scenario, the result would be disappointing. These theoretical observations fail to provide us with practical guidelines and standards on the issue of precisely how to apply these mechanisms in practice in the interpretation (or drafting) of EU Treaties and other legal instruments, in order to build trust or mitigate distrust in/through law effectively.
Thus, the theoretical foundations of mutual trust seem unable to adequately respond to the research agendas on trust and law in the EU set by Valsamis Mitsilegas and Armin von Bogdandy, which were both discussed earlier in this study. This finding justifies the need to break free from the theoretical confines of mutual trust to search for a more productive and practicable approach to theorizing the trusting relationships on interstate, interorganizational, and interpersonal levels in the Union, such as the one proposed here.
Having clarified why the reliance on the mutual trust paradigm taken on its own would be unhelpful in these circumstances, let us turn to the question of why this particular understanding of trust, as opposed to any other alternative available in the social or political sciences, was preferred. When it comes to trust as the expression of a trustor’s beliefs about the trustee’s intentions (that is, trustworthiness) or the trustor’s willingness to accept risk or vulnerability with regard to these intentions, three definitions are commonly cited:
Trust is a psychological state comprising the intention to accept vulnerability based on positive expectations of the intentions or behavior of another (Rousseau et al., 1998).
Trust is a willingness to be vulnerable to another party based on both the trustor’s propensity to trust others in general and on the trustor’s perception that the particular trustee is trustworthy (Mayer et al. 1995)
Trust is a belief in, and willingness to act on the basis of, the words, actions and deeds of another (McAllister, 1995)Footnote 73
However, none of these approaches to defining trust is useful for the following reasons. First, these options fail to offer a practicable solution on how to approach the interpretation of the procedural requirements of Article 7(2) TEU to build trust and mitigate distrust. Second, even if there were some valuable takeaways for the present purposes, an assessment based on either of these methods would amount to a monumental research task of collecting empirical evidence in the form of cross-sectional surveysFootnote 74 on the current or future experience of (dis)trust of the governments of all 27 EU Member States and their citizens. This research effort would need to be repeatedly made at different points in time to ascertain the trusting or distrusting mindset of the subjects of the survey before and after a certain event (for example, the CJEU ruling on the interpretation of the procedural requirements of Article 7(2) TEU). Clearly, this is a methodological and practical challenge of great magnitude and complexity. More importantly, the usefulness of this approach for distrust prevention is limited by the need to measure trust post-factum; that is, after the CJEU has already issued its ruling. If the surveys were conducted prior to the event, based on a hypothetical future scenario, their accuracy and ability to measure trust would still be questionable. In such a case, the governments of EU Member States would be unlikely to commit themselves to a formal political stance before the event has actually happened because such diplomatic choices are typically made only when strictly necessary and in response to a set of current, real, and concrete circumstances, and not in the abstract. Even if a EU citizen is prepared to commit to a response in the survey, they may very well change their mind and take a (dis)trusting stance towards the Union, depending on how their respective national government represents the situation and how that government ends up being treated by the Union and the rest of EU Member States in reality.
By contrast, the proposed understanding of trust is grounded in the rational choice theory, which allows for an assessment of trust whereby “the trustor calculates, or predicts, the trustee’s level of trustworthiness.”Footnote 75 These calculations require knowledge of “the potential gain, the potential loss, and the probability that the trustee is trustworthy.”Footnote 76 Therefore, assessing the trustee’s (the Union’s) trustworthiness in these circumstances requires insight into the motivations and objectives of the Union and its institutions. This is publicly accessible information and is readily available to Member States and their citizens (the trustors) and any researchers interested in investigating this phenomenon as it has been extensively recorded in the EU Treaties and the CJEU rulings as well as in the written communications, legal instruments, and reports and other official documents issued by Union institutions.
Rational choice theory has its disadvantages: “it assumes an idealized model of human nature, resorts to reductionism, does not account for culture and identity, and neglects social embeddedness.”Footnote 77 Nevertheless, it would be inaccurate to say that the rational choice theory presupposes an idealized, perfectly rational world.Footnote 78 Rather, rational choice theory aims to paint a more internally consistent and predictable picture of societal relations by enabling the objective assessment of future behavior based on the motivations and state of knowledge of any trustee in this position. The alternative presupposes sketching a profile of the trustee with a particular cultural background, identity, and beliefs. This impersonal approach is better suited to characterizing the Union as a trustee since it would allow us to avoid the common mistake of anthropomorphizing an international organization as a trusting actor, which will be discussed next.
This brings us to the necessity of specifying precisely which type of trusting relationships are engaged in constructing the proposed trust model. After all, concerns could be rightfully raised that both Hardin and Farrell’s theories on trust were originally intended to be primarily applicable in the context of interpersonal relationships. This suggests that their applicability in the context of explaining the dynamics of the relationship between the Union and its Member States or among the Member States could be doubted.
In response to such criticism, it must be stressed that the proposed approach has already gained some support in the academic community of social and political sciences. The theory of trust used here has been successfully applied in international relations to describe the relationship between the Union and its Member States, albeit for exploring EU intelligence sharing.Footnote 79 Moreover, a study of international relations by Brugger, Hasenclever, and Kasten recommends the adoption of an “encompassing concept of trust,” trust between collective actors (international organizations, states) and non-collective actors (individuals) subject to a handful of strict conditions: the level of analysis must be explicitly defined, the transfer of trust from the individual level to the organizational level must be clearly theorized, and the international organization must not be anthropomorphized, among others. Footnote 80 At the same time, social scientists focusing on management and organizational studiesFootnote 81 endorsed the adoption of a multilevel perspective on trust rather than emphasizing the distinction between interorganizational and interpersonal trust. The primary reason for that is that “the isolation of trust at a single level of analysis, ignoring processes and factors from other levels creates non-trivial gaps in our understanding of trust” and impedes our ability to study the relationship between interpersonal and interorganizational trust.Footnote 82 Finally, it must be borne in mind that organizational structures may affect individuals’ trust and, reciprocally, individuals’ trust may impact organizational structures.Footnote 83 In light of these findings, the boundaries between interpersonal, interorganizational, and interstate trust are far from being set in stone.
The proposed approach considers the EU’s specificities as an international organization, as Brugger, Hasenclever, and Kasten recommend.Footnote 84 In the EU legal order, trust must be viewed as a multilevel phenomenon for the present analysis since individuals (EU citizens), states (EU Member States), and organizations (EU institutions) are all bonded by Union values. As previously mentioned, trust in the EU is predicated on shared values, whereas distrust in the EU results from a conflict of values. Since the Union is “founded” on said values (Article 2 TEU), this fundamental ideological agenda permeates every level of the entire structure of the Union, without exception. Indeed, traces of that notion are clearly evident in the Treaty on European Union that regulates the EU’s relationships on all three levels. Article 2 TEU states EU values are “common to the Member States”(emphasis added), and Article 13 TEU guarantees that “[t]he Union shall have an institutional framework which shall aim to promote its values …”(emphasis added) notably listing the CJEU among other Union institutions. Further, Article 1 TEU speaks of “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen” (emphasis added), which confirms the impression that any integrationist policy within the Union, including the protection of its values based on Article 7 TEU, is ultimately intended to benefit EU citizens. Unlike other international organizations that only operate on an intergovernmental level, the Union has a unique supranational setup that ensures a direct and close relationship with the nationals of its Member States through EU citizenship. Thus, the CJEU’s interpretation of the procedural requirements of Article 7(2) TEU has a holistic effect on the trusting relationships in the entire Union, so it would be unreasonable and inaccurate to focus solely on one level of its structure taken in isolation.
It could also be argued that it is methodologically imprecise to automatically assume that a Member State and its citizens will necessarily be aligned in their trusting positions in response to a Union’s action or decision. However, it must be stressed that the proposed approach focuses solely on the prerequisites for a scenario where distrust is generated. In such a case, it is difficult to imagine that any Member State (whether law-abiding or backsliding) and its nationals would react with anything other than distrust towards the Union when they compare themselves to other EU Member States (and their respective citizens) that received (perceived) preferential treatment from the Union. Of course, an argument could be made that, should the EU sanction a backsliding Member State, the citizens of that Member State, who are committed to EU values, would rejoice and increase their trust in the Union because they disapprove of the way their national government treats EU values in its policies and the Union has finally taken action to sanction such objectionable conduct. However, if one accepts that the only known legal solutions by which this outcome could be achieved violate some of the general principles of EU law (as is the case with Kochenov’s proposed solutions, which are demonstrated below), this would mean that these citizens endorse an approach that undermines the very values the Union is supposed to embody and protect. After all, the true spirit of EU values demands that the Union itself be held to the standard of Article 2 TEU values. If so, such a development would raise concerns about applying the logic of “militant democracy” to the interpretation of Article 7 TEU, which Tom Theuns has articulated well already.Footnote 85 However, regardless of the position an EU citizen takes on this issue, the point on the predicted result of the CJEU’s interpretation of the procedural requirements of Article 7(2) TEU still stands: further distrust will ensue between EU citizens who find themselves on opposite sides of this debate. It seems that the fault lines of fragmentation, as the product of clashing visions for how the Union should tackle the rule of law crisis, run deep, affecting interpersonal relationships between EU citizens.
Nevertheless, it could be methodologically problematic to speak of trust in terms of imputing intentions to institutions or statesFootnote 86 (like individuals) because of the inherently impersonal nature of institutions.Footnote 87 Indeed, Russell Hardin warned against applying his theory of trust as encapsulated interest to theorize a citizen’s trust in government, save for situations where such an approach is supported by proper justification and interpretation.Footnote 88 However, Hardin allows for the possibility that distrust Footnote 89 towards a government could be theorized this way, “Trust and distrust of government and its agents may therefore be asymmetric. We may have knowledge and theory to distrust when it would be hard to have knowledge and theory to trust.”Footnote 90
At this point, one must consider the difference between institutional trust and institutional distrust. For the purposes of this distinction, it is important to note that when it comes to institutional distrust, it is possible to attribute motivations and beliefs to institutions (not just to their leaders):
[T]he question of distrust in an institution boils down to one’s belief in the unfairness of the institution – and to the ancillary belief that the unfairness works against one’s interests. When an institution faces a crisis of trust, which is at the same time a crisis of legitimacy, this means that segments of the populace in need of recourse to the institution in question suspect it of operating in an unfair manner, a manner that goes against their interests.Footnote 91
From the point of view of a backsliding Member State, a Union that is prepared to impose sanctions against it by extending the exclusion from voting under Article 7(2) TEU by interpreting EU law in a manner of questionable legitimacy and coherence will be perceived as an institution wielding power unfairly and arbitrarily. If this were to happen, the backsliding Member State (and its nationals) would surely distrust the Union more than before. Conversely, if the Union allows non-compliance with the rule of law and EU values by backsliding Member States to continue, law-abiding Member States will feel that a grave injustice has been committed against them (and their nationals) in that the opportunism of the backsliding Member States has been left unsanctioned. Further, the Union will show itself incapable of fulfilling the promise of Article 2 TEU – an essential condition under which the law-abiding Member States (and their nationals) have originally agreed to enter the Union and accept the application for EU membership of the now-backsliding Member States (Article 49 TEU).
Having addressed the main theoretical and methodological vulnerabilities of the proposed understanding of trust, let us now suppose that the CJEU, disregarding the considerations detailed above, finds that the effet utile of Article 7 TEU allows for the activation of Article 7(2) TEU against more than one Member State simultaneously. The following shows that an argument could be made that the wording of Article 7(2) TEU, in conjunction with Article 354 TFEU, speaks against such an approach. However, even if the CJEU were to interpret the provisions otherwise, the existing legal solutions proposed by Dimitry KochenovFootnote 92 are inadequate since they contravene general principles of EU law. In other words, each of them will cause further distrust and fragmentation if implemented by the CJEU.
D. The Wording of Article 7 TEU and Article 354 TFEU
Let us begin the analysis with a close reading of the relevant provisions. After addressing Article 7(1) and (2) TEU to “a Member State,” the EU legislator repeatedly and consistently refers to “the Member State in question” in each paragraph of Article 7 TEUFootnote 93 and twice more in Article 354 TFEU. A literal reading of the provisions seems to dictate that only one Member State – “the Member State in question” – is to be excluded from voting in the determination under Article 7(2) TEU.
At this stage, one might wonder if there could be room for ambiguity in the provisions thus formulated. Let us consider the expression “a Member State.” The jurisprudence of US courtsFootnote 94 shows that the indefinite article a/an could be interpreted as either “a single item” or “one or more items” as a matter of ambiguity, where a list of components is introduced by the transitional phrase “comprising.” However, the provision at hand is not constructed or used in that way. Moreover, the provisions refer to “the Member State in question.” The fixed phrase “the [noun] in question” is generally “used to indicate the specific thing that is being discussed or referred to.” Footnote 95 Based on its usage in the TFEU, the fixed phrase “the [noun] in question” allows for both singular and plural forms of a (countable or uncountable) noun, Footnote 96 but the EU legislator opted for a singular form of a countable noun (that is, “the Member State”). This reinforces the impression that “the Member State in question” refers to a single Member State, thus resolving the ambiguity. Therefore, it is fair to say that any claim based on this particular example of ambiguity will be tenuous at best (the possibility that ambiguity might be established by some other useful linguistic rule notwithstanding).
Even if an ambiguous argument were to stand, it would still be hard to justify an extension of the exclusion from voting under Article 354 TFEU on this basis. An interpretation of Article 354 TFEU changes the procedural requirements in relation to Article 7(2) TEU, a determination that leads to the imposition of sanctions under Article 7(3) TEU. This approach would lead to a violation of the general principles of EU law, which postulate that sanctions or penalties must be worded as clearly as possible to avoid ambiguity. Footnote 97 It follows that any potential ambiguity is likely to be interpreted in favor of the offending party, the backsliding Member State(s), thus prohibiting an extended exclusion from voting.
Furthermore, the drafting choices made elsewhere in the TEU and the TFEU suggest various options in the EU legislator’s vocabulary to emphasize the plurality of parties concerned explicitly. The formulation “one or more” [noun in plural] appears time and again throughout the TFEU, most frequently in collocation with “Member States,” “third countries,” or “third States.” Footnote 98 A similar pattern of usage is observable in the TEU. Footnote 99 Thus, there is an alternative to the wording used in Article 354 TFEU, which indicates the plurality of the parties concerned and is commonly used in the EU Treaties. Had the EU legislator intended to extend the exclusion from voting under Article 345 TFEU to more than one Member State, they would have had a variety of linguistic options at their disposal to do so.
Notably, one of the instances (“one or more Member States”) is found in the ordinary revision procedure under Article 48(5) TEU, which regulates the amendment of EU Treaties. This finding reinforces the impression that the EU legislator’s choice of wording in Article 354 TFEU is no accident but is a deliberate choice available for drafting provisions of the utmost importance for shaping the constitutional makeup of the EU, which includes the values listed in Article 2 TEU. In other words, the EU legislator opted for the formulation “the Member State in question” in Article 345 TFEU, even though the alternative (“one or more Member States”) was a legitimate possibility in a comparable context. The contrast between the two options highlights the idea that the expression “the Member State in question” indicates a single Member State.
Let us now try a different strategy in interpreting the wording of Article 7(2) TEU and Article 354 TFEU, namely a comparison with a TFEU provision describing a legal mechanism similar to Article 7 TEU – Article 121(4) TFEU. There is sufficient common ground between the two to justify such a comparison since they both aim to protect the fundamental tenets of the Union – the Eurozone (Article 121(4) TFEU) and EU values (Article 7 TEU). Indeed, these mechanisms share a number of similarities, Footnote 100 but there are some notable differences. Footnote 101 However, it is the similar way in which the provisions are structured in linguistic terms that is of particular interest here.
For voting to activate Article 121(4) TFEU, the member of the Council representing “the Member State concerned” is excluded. The fixed phrase “the Member State concerned” is sufficiently close to “the Member State in question” Footnote 102 to justify comparing these provisions. Furthermore, the procedural requirement regarding voting for Article 121(4) TFEU refers to “a qualified majority of the other members of the Council” as the relevant voting threshold. The use of the determiner “the other” implies that the provision is referring to the rest of the Council, meaning no other member of the Council is excluded from the voting under Article 121(4) TFEU but the offending Member State (“the Member State concerned”). Footnote 103 Based on all the similarities between Article 7 TEU, in conjunction with Article 354 TFEU and Article 121(4) TFEU, it is safe to conclude that Article 354 TFEU is likely to be interpreted as applying to only one Member State at a time, without the possibility of extending the exclusion from voting to any other Member State currently undergoing scrutiny under the same provision.
Ultimately, a detailed analysis of the wording of Article 354 TFEU suggests that exclusion from voting for the purposes of Article 7(2) TEU cannot be extended to more than one Member State at a time; that is, “the Member State in question.” Nevertheless, the conclusions drawn based on this evidence could be overridden by the general purpose and context of the provision, which could result in the CJEU authorizing an extension of the exclusion from voting for the purposes of Article 7(2) TEU in principle. Now, let us consider the two legal solutions proposed by Dimitry Kochenov, which the CJEU will likely adopt to achieve this goal.
E. The Existing Legal Solutions
The legal solutions proposed by Dimitry KochenovFootnote 104 – “requiring the application of Article 7(2) TEU to several backsliding [Member States] already subject to Article 7(1) TEU procedure simultaneously” (Simultaneous consideration) and “the default exclusion from the vote in the context of Article 7 TEU of any state subjected to Article 7(1) TEU in the context of any proceedings arising under Article 7 TEU without necessarily making the consideration of the value situation in several [Member States] simultaneous” (Default exclusion) – appear, at first glance, to offer two acceptable options that would enable the CJEU to authorize the extension from the exclusion from voting beyond the “Member State in question” for determination under Article 7(2) TEU. However, upon closer scrutiny, it will be shown that both of these solutions contravene some of the general principles of EU law, which means that the legitimacy of the CJEU’s decision-making will be severely undermined should the Court adopt either of these approaches. Since the result will be further distrust and fragmentation in the Union, such an unacceptable outcome must be avoided.
I. Simultaneous Consideration
In the Simultaneous Consideration scenario, the scope of the exclusion applicable to “the Member State in question” is voting, not only in respect of their own determination but also in respect of the determination of any other Member State, which is subjected to scrutiny under Article 7(2) TEU simultaneously. For this solution to work, Article 354 TFEU must authorize an extension of the exclusion not only to the present determination of the breach potentially committed by “the Member State in question” but also to its voting rights with regard to any other parallel determinations under Article 7(2) TEU happening at the same time to a fellow backsliding Member State.
The problem is that such an interpretation would violate the principle of legal certainty and equality between Member States enshrined in Article 4(2) TEU: “The Union shall respect the equality of Member States before the Treaties …” The principle of equality between the members of a political and legal entity is integral to the constitutional makeup of federal states and that of international organizations governed by public international law. Footnote 105 The equality between EU Member States is a cornerstone of integration and supplements the prohibition against discrimination on grounds of nationality under Article 18 TFEU. Footnote 106 Furthermore, the equality principle enshrined in Article 4(2) TEU is integral to the primacy of EU law since it guarantees the uniform application of EU law in every Member State. Footnote 107 The drafting history of Article 4(2) TEU demonstrates that, above all, the provision was designed to guarantee the smaller Member State’s ability to protect their interests in the context of the unanimity requirement as part of the voting procedure in the Council. Footnote 108 However, it must be noted that the Treaty seems to impose no strict obligation to ensure equality; it directs the Union constitutional organs to apply EU law in a non-discriminatory manner. Footnote 109
The Simultaneous Consideration solution also offends the principle of equal treatment and non-discrimination in EU law, which states that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. Footnote 110 Indeed, “the Member State in question” would be treated less favorably than a Member State subjected to a determination under Article 7(2) TEU alone (that is, at a time other than the time another backsliding Member State undergoes the determination process).
The difference between these comparable situations is significant since “the Member State in question” would suffer a double deprivation of voting rights – once as a Member State for whom votes are cast and then again as a Member State that is entitled to cast a vote for a fellow backsliding Member State. On top of that, its chances of prevailing in a unanimous vote are crucially reduced in comparison to the Member State undergoing scrutiny alone, since its most likely potential ally – the other backsliding Member State – will be excluded from voting under Article 7 TEU, which was the whole point of implementing this solution in the first place. Indeed, the cumulative effect of these limitations on the backsliding Member State’s rights is significant, which means it will be exceedingly difficult for the Court to justify such unequal treatment.
II. Default Exclusion
In the Default Exclusion scenario, “the Member State in question” is automatically deprived of the right to vote in respect of another Member State’s potential breach under Article 7(2) TEU. This interpretation is challenging to defend since the motivation behind the exclusion is a specific predicted outcome of a Member State exercising its right to vote under Article 7 TEU. A backsliding Member State would be excluded from voting to prevent them from voting for another backsliding Member State. Although admittedly slim, the possibility still exists that this backsliding Member State might vote differently, so its voting rights must be respected.
Furthermore, the legal basis for the default exclusion could only be the determination already made in respect of the backsliding Member States under Article 7(1) TEU – that is, there is a “clear risk of a serious breach” of the values in Article 2 TEU. However, the problem is that Article 7(1) TEU is a mere preventive mechanism. It was designed to invite dialogue and produce recommendations, not produce penalties of any kind in and of itself. Such an interpretation would also offend the principle of legal certainty and the presumption against retroactivity since the votes cast in relation to the determination under Article 7(1) were not cast in the full knowledge that the determination would bring about grave consequences for the Member State under scrutiny, of which the Treaty makes no such mention.
F. Conclusion
Ultimately, trust theory advises against excluding more than one backsliding Member State from voting under Article 354 TFEU in a hypothetical situation where Article 7(2) is activated against several Member States simultaneously, as this is bound to produce further distrust between them and the rest of the EU community. This result would be incompatible with a trust-based understanding of the effet utile of Article 7 TEU. Such an interpretation of Article 354 TFEU would also be problematic in legal terms since both proposed solutions would offend some of the key general principles of EU law, thus threatening to undermine the legitimacy and coherence of the CJEU’s decision-making.
While this study could be used as an example that “any approach requiring unanimity is bound to fail once one or more Member States have gone rogue,”Footnote 111 one must remain hopeful that the EU legal community could successfully counteract the EU rule of law crisis by placing its faith in alternative legal mechanisms. These could be the Conditionality Regulation (Regulation 2020/2092)Footnote 112 or infringement proceedings with regard to single or systemic violations.Footnote 113 The possibility of finding a more effective legal solution to prevent two or more backsliding Member States from blocking Article 7(2) TEU is still open. It certainly remains true that, as Kim Lane Scheppele and R. Daniel Kelemen observe, “EU leaders have a rich arsenal of tools at their disposal with which to defend democracy; the problem to date has been that they have lacked the political will to act.”Footnote 114 However, the present study demonstrates that, even where there is (or very likely that there will be) a political will to act, the available legal tools must be wielded with full respect for EU values and the legal principles upon which the EU legal order was founded. If the EU community of lawyers, politicians, and officials fail in this duty, the Union will be exposed to the dangers of even further distrust affecting trusting relationships on all levels – among EU Member States, between EU Member States and the Union, among the EU citizens, and between the EU citizens and the Union. The result will be severe fragmentation with far-reaching and unpredictable consequences. This outcome must be avoided at all costs, regardless of the preferred legal method employed to achieve this goal. Until then, where there is more than one bad apple, the Article 7 TEU mechanism must only be used to save the entire barrel one bad apple at a time.
Acknowledgments
I completed the research, writing, and revision process for this Article while working as a Postdoc at the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg im Breisgau, Germany. I would like to thank Prof Dr Ralf Poscher for his support and helpful advice and Prof Dr Armin von Bogdandy for his valuable and insightful comments. I am also grateful for the thought-provoking comments I received when presenting earlier versions of this Article at the “Geschichte-Methode-Dogmatik des Öffentlichen Rechts” conference, organized by the Department of Public Law of the Max Planck Institute for the Study of Crime, Security, and Law in Freiburg im Breisgau in November 2021, as well as at a Werkstattgespräch at the Max Planck Institute for the Study of Crime, Security and Law in April 2022. Furthermore, I am grateful to Prof. Dr. Christoph Burchard and the team of researchers of the Research Initiative “ConTrust: Trust in Conflict - Political Life under Conditions of Uncertainty” for the useful feedback I received when I presented an earlier version of this Article at the “Criminal Justice in light of Trust in/by Conflict” workshop at the Goethe University Frankfurt am Main in June 2022 in Germany. I am grateful for the useful and detailed comments by the anonymous reviewer at the German Law Journal, which helped me improve my work. I am also thankful to the editorial and proofreading team at German Law Journal for their professional assistance. Finally, I would like to thank the School of Law at the University of Nottingham, the United Kingdom, where I am currently employed as a Teaching Associate. All errors remain my own.
Competing Interests
None.
Declaration
My contribution is not under consideration elsewhere.
Funding Statement
No funding to declare. I conducted this research during my employment as a Postdoc at the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law, Freiburg im Breisgau, Germany, as part of my postdoctoral research project “Intelligence Information Sharing: The Relevance of Trust for the EU Rule of Law Crisis”.
Open access
