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Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality

Published online by Cambridge University Press:  01 December 2015

Dimitry Kochenov  and
Laurent Pech
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Keywords

Article 7 TEU
Type
Articles
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European Constitutional Law Review , Volume 11 , Issue 3 , December 2015 , pp. 512 - 540
Copyright
Copyright © The Authors 2015 

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Footnotes

*

Professor of EU Constitutional Law, Groningen; Visiting Professor and LAPA Fellow (2015-2016), Princeton University.

**

Jean Monnet Professor of EU Public Law, Middlesex University London.

References

1 ECJ 18 December 2014, Opinion 2/13, Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para. 168.

2 Traynor, I., ‘Hungary PM: bring back death penalty and build work camps for immigrants’, The Guardian, 29 April 2015Google Scholar.

3 Art. 2 TEU: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights …’

4 See e.g. J. M. Barroso, State of the Union 2012 Address, European Parliament, 12 September 2012, Speech/12/596.

5 European Commission Communication, A new EU Framework to strengthen the Rule of Law, COM(2014) 158 Final, 11 March 2014.

6 Ibid., p. 3.

7 One should note in passing that the Commission does not address the situation of the Union itself vis-à-vis the rule of law. This is not to say that all is well in the best of all possible worlds as far as the EU is concerned. For a ‘rule of law audit’ of its constitutional framework, see Pech, L., ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’, 6 EuConst (2010) p. 359Google Scholar. Some of the EU’s most important policies can also be sharply criticised on this ground. See e.g. Kilpatrick, C., ‘On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts’, 35(2) OJLS (2015) p. 325CrossRefGoogle Scholar. The EU’s own adherence to the rule of law will be one of the main themes covered by a forthcoming book edited by Closa, C. and Kochenov, D. (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2015)Google Scholar.

8 Answers to the European Parliament, Questionnaire to the Commissioner-Designate Frans Timmermans, Question 6: <ec.europa.eu/about/juncker-commission/docs/2014-ep-hearings-reply-timmermans_en.pdf>, visited on 21 October 2015.

9 Council of the EU, Press Release No. 16936/14, 3362nd Council meeting, General Affairs, Brussels, 16 December 2014, p. 20-21

10 For a critical overview, which usefully complements the present article, see ‘Editorial Comments: Safeguarding EU values in the Member States – Is something finally happening’, 52 CMLRev (2015) p. 619.

11 See most recently, Human Rights Watch, ‘Hungary: Little EU Action on Rights Concerns’, Press Release, 18 February 2015: <www.hrw.org/news/2015/02/18/hungary-little-eu-action-rights-concerns>, visited 1 November 2015; European Parliament Plenary – Commission statement on the situation in Hungary by First Vice-President Timmermans, Strasbourg, 19 May 2015, Press Release IP/15/5007.

12 Reding, V., ‘The EU and the Rule of Law – What next?’, Speech/13/677, 4 September 2013Google Scholar.

13 For further analysis, see respectively, Parker, O., ‘Roma and the Politics of EU Citizenship in France’, 50 JCMS (2012) p. 475Google Scholar; Casolari, F., ‘Respect for the Rule of Law in a Time of Economic and Financial Crisis: The Role of Regional International Organizations in the Hungarian Affaire’, XXIII Italian Yearbook of International Law (2013) p. 219Google Scholar; Perju, V., ‘The Romanian Double Executive and the 2012 Constitutional Crisis’, 13 I-CON (2015) p. 246Google Scholar.

14 See generally von Bogdandy, A. and Ioannidis, M., ‘Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done’, 51 CMLRev (2014) p. 59Google Scholar.

15 Toggenburg, G. N., ‘La crisi austriaca: delicate equilibrismi sospesi tra molte dimensioni’, Diritto pubblico comparato ed europeo (2001) p. 735Google Scholar; Lachmayer, K., ‘The Austrian Crisis’, in A. Jakab and D. Kochenov (eds.), The Enforcement of EU Law and Values: Ensuring Member State Compliance (Oxford University Press, forthcoming)Google Scholar.

16 See e.g. M. Avbelj, ‘Failed Democracy: The Slovenian Patria Case – (Non)Law in Context’ (originally published in Slovenian), available at: <papers.ssrn.com/sol3/papers.cfm?abstract_id=2462613>, visited 19 October 2015; Bugarič, B., ‘A Crisis of Constitutional Democracy in post-Communist Europe: “Lands in-between” Democracy and Authoritarianism’, 12 I-CON (2015) p. 219Google Scholar.

17 J. M. Barroso, State of the Union address 2013, European Parliament, 11 September 2013, Speech/13/684.

18 Müller, J.-W., Safeguarding Democracy inside the EU. Brussels and the Future of the Liberal Order (Transatlantic Academy Paper Series 2013)Google Scholar.

19 See final report of the Future of Europe Group (‘Westerwelle report’), 17 September 2012, para. II(d).

20 For a comprehensive study, see Hillion, C., ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’, in Closa and Kochenov 2015, supra n. 7Google Scholar.

21 Barroso, supra n. 17.

22 Ibid.

23 For a general ‘official’ introduction, see European Commission Communication, Article 7 of the Treaty on European Union. Respect for and promotion of the values on which the Union is founded, COM(2003) 606 final, 15 October 2003. For a more critical study, see Sadurski, W., ‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement, and Jörg Haider’, 16 CJEL (2010) p. 385Google Scholar.

24 See ECJ 2 April 2004, Case T-337/03, Bertelli Gálvez v Commission [2004] ECR II-1041, para. 15, where the ECJ held that the EU Treaties – the entry into force of the Lisbon Treaty does not invalidate this conclusion – did not give it jurisdiction to determine whether the EU institutions have acted lawfully to ensure the respect by the member states of the principles laid down under what is now Article 2 TEU or to adjudicate on the lawfulness of acts adopted on the basis of what is now Article 7 TEU, save in relation to questions concerning the procedural stipulations contained in that article, which the Court may address only at the request of the member state concerned.

25 ECtHR 24 July 2014, Case No. 28761/11, Al Nashiri v Poland.

26 It must, however, be noted that Vice-President Timmermans recently indicated that any reintroduction of the death penalty by any member state, an idea mooted by the Hungarian Prime Minister Orbán, would ‘lead to the application of Article 7 TEU’. See Commission statement on the situation in Hungary, Strasbourg, 19 May 2015, Press Release IP/15/5007.

27 For further analysis, see Vachudova, M. A. and Spendzharova, A., ‘The EU’s Cooperation and Verification Mechanism: Fighting Corruption in Bulgaria and Romania after EU Accession’, SIEPS European Policy Analysis (2012) p, 1Google Scholar; Pech, L., ‘The Rule of Law as a Guiding Principle of EU’s External Action’, CLEER Working Paper (2012/3)Google Scholar.

28 For some sobering thoughts on the effectiveness of this mechanism, see Wennerås, P, ‘Sanctions against Member States under Article 260 TFEU: Alive, but not kicking?’, 49 CMLRev (2012) p. 145Google Scholar; Jack, B., ‘Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgments?’, 19 ELJ (2013) p. 420Google Scholar.

29 In Reding’s self-congratulatory language, supra n. 12, section 2: ‘[M]easured against the background of the role and duty the Commission has been given so far by the Treaties, I consider that the Commission has been rather successful in dealing with these often very difficult and complex cases’.

30 See European Commission, ‘European Commission assesses recent development in France, discusses overall situation of the Roma and EU law on free movement of EU citizens’, Press Release IP/10/1207, 29 September 2010.

31 See French Law No. 2011-672 on Immigration, Integration and Nationality enacted on June 17, 2011 and the analysis of it by Human Rights Watch, France’s Compliance with the European Free Movement Directive and the Removal of Ethnic Roma EU Citizens, 28 September 2011, available at: <www.hrw.org/news/2011/09/28/france-s-compliance-european-free-movement-directive-and-removal-ethnic-roma-eu-citi>, visited 19 October 2015.

32 ECJ 6 November 2012, Case C-286/12, Commission v Hungary (the radical lowering of the retirement age for Hungarian judges constitutes unjustified discrimination on grounds of age). More recently, Hungary was found to have violated EU law by prematurely bringing to an end the term served by its Data Protection Supervisor: ECJ 8 April 2014, Case C-288/12, Commission v Hungary.

33 For some recent studies, see von Bogdandy, A. and Sonnevend, P. (eds.), Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania (Hart 2015)Google Scholar Chapters 5 and 6.

34 For the argument that the EU is not necessarily powerless against democratic backsliding in Romania provided that the right constellation of conditions for both social and material pressure exists, see Sedelmeier, U., ‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after Accession’, 52 JCMS (2014) p. 105Google Scholar.

35 ‘We are parting ways with western European dogmas, making ourselves independent from them … We have to abandon liberal methods and principles of organising a society. The new state that we are building is an illiberal state, a non-liberal state,’ cited in I. Traynor, ‘Budapest autumn: hollowing out democracy on the edge of Europe’, The Guardian, 29 October 2014.

36 See Scheppele, K. L., ‘The Unconstitutional Constitution’, New York Times, 2 January 2012Google Scholar. For an article looking beyond Hungary, see Müller, J.-W., ‘Eastern Europe Goes South. Disappearing Democracy in the EU’s Newest Members’, Foreign Affairs, March-April 2014Google Scholar.

37 See Arts. 3(1) and 13 TEU as far as the EU is concerned and Arts. 4(3) and 7 TEU as far as the member states are concerned. For the argument that the EU values entail more obligations and guidance for the exercise of EU powers post Lisbon Treaty, see Larik, J., ‘From Speciality to a Constitutional Sense of Purpose: On the Changing Role of the Objectives of the EU’, 62 ICLQ (2014) p. 935CrossRefGoogle Scholar.

38 For extensive references, see Pech, L., ‘The Rule of Law as a Constitutional Principle of the European Union’, Jean Monnet Working Paper No. 04/09Google Scholar.

39 As is well known, four grounds for annulment of EU measures are set out in Art. 263 TFEU: lack of competence; infringement of an essential procedural requirement; infringement of the Treaties or of any rule of law relating to their application; or misuse of powers. The rule of law as such cannot be said to constitute a rule of law. However, in the recent case, ECJ 5 May 2015, Case C-146/13, Spain v European Parliament and Council, the applicant asked the ECJ to annul EU Regulation 1257/2012 ‘on the ground that it disregards the values of the rule of law set out in Article 2 TEU’ (para. 24). The Court was able to reject this claim without addressing its merits but one must note that in any event the applicant was not asking the Court to directly apply the general value of the rule of law as an annulment ground but rather to review the legality of the contested regulation in the light of the more narrowly defined and legally binding principle of effective judicial protection, a long-established general principle of EU law which is now also enshrined in Art. 47 of the EU Charter of Fundamental Rights.

40 Only a handful of retired judges were restored in office, none to acquire the administrative position within the court structure previously held, and most were simply offered financial compensation. See Scheppele, K. L., ‘Making Infringement Procedures More Effective’, EUTopia Law, 29 April 2014Google Scholar, available at: <www.eutopialaw.com>, visited 19 October 2015.

41 Müller, supra n. 18.

42 Closa, C. et al., ‘Reinforcing Rule of Law Oversight in the European Union’, EUI Working Papers RSCAS 2014/25Google Scholar.

43 According to the ECJ, 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. That premiss implies and justifies the existence of mutual trust between the member states that those values will be recognised and, therefore, that the law of the EU that implements them will be respected’, ECJ 18 December 2014, Opinion 2/13, Accession to the ECHR (II), para. 168.

44 Art. 67 TFEU.

45 For further analysis, see Closa, C., ‘Reinforcing EU Monitoring of the Rule of Law: Normative Arguments, Institutional Proposals, and Procedural Limitations’, in Closa and Kochenov, supraGoogle Scholar n. 7.

46 For a skeptical and recent account, see Kochenov, D., ‘Law Perspective: Praise Undeserved? The EU as a Democracy Promoter: A Sceptical Account’, in A. Wetzel and J. Orbie (eds.), The Substance of EU Democracy Promotion: Concepts and Cases (Palgrave Macmillan 2015) p. 27CrossRefGoogle Scholar.

47 Commission Communication, supra n. 5, p. 4.

48 Ibid., p. 7.

49 Report on the Rule of Law, Study No. 512/2009, CDL-AD(2011)003rev, Strasbourg, 4 April 2011, para. 35.

50 Commission Communication, supra n. 5, p. 4.

51 Ibid.

52 Ibid.

53 See generally Pech, supra n. 38.

54 Pech, L., ‘Promoting The Rule of Law Abroad: On the EU’s limited contribution to the shaping of an international understanding of the rule of law’ in D. Kochenov and F. Amtenbrink (eds.), The EU’s Shaping of the International Legal Order (Cambridge University Press 2013) p. 108CrossRefGoogle Scholar.

55 Commission Communication, supra n. 5, p. 7.

56 For an attempt to clarify what a ‘systemic deficiency’ in the rule of law may entail, see von Bogdandy and M. Ioannidis, supra n. 14, p. 65.

57 Commission Communication, supra n. 5, p. 7.

58 For instance, the ECHR concept of systemic or structural problem seems broader and different in nature than the concept of systemic threat. To take a single example, Greece’s asylum system may reveal a systemic problem but this does not make it a systemic threat in the absence of any deliberate attempt to undermine the rule of law and may more prosaically reflect a general state failure to properly manage its resources and enforce national and EU policies.

59 Barroso, supra n. 17. The new framework ‘should be based on the principle of equality between member states, activated only in situations where there is a serious, systemic risk to the rule of law, and triggered by pre-defined benchmarks’.

60 Ibid.

61 Reding, V., ‘A new Rule of Law initiative’, Press Conference, European Parliament, Strasbourg, 11 March 2014Google Scholar.

62 Commission Communication, supra n. 5, p. 9.

63 Council of the European Union, Opinion of the Legal Service 10296/14, 14 May 2014.

64 For further analysis and references, see Pech, supra n. 38.

65 Closa et al., supra n. 42, p. 30.

66 For a critique of this provision, see Groussot, X. et al., ‘The Reach of EU Fundamental Rights on Member State Action after Lisbon’ in de Vries et al. (eds.), The Protection of Fundamental Rights in the EU after Lisbon (Hart 2013) p. 97Google Scholar.

67 Reding, supra n. 12. On the controversial possibility of relying on the EU Charter in national disputes falling outside the scope of EU Law, see A. Jakab ‘Supremacy of the EU Charter in National Courts in Purely Domestic Cases’ in Jakab and Kochenov, supra n. 15.

68 ECJ 31 January 2008, Case C-380/05, Centro Europa [2008] ECR I-349, Opinion of AG Maduro.

69 von Bogdandy, A. et al., ‘Reverse Solange – Protecting the Essence of Fundamental Rights against EU Member States’, 49 CMLRev (2012) p. 489Google Scholar.

70 G. Buquicchio, President of the Venice Commission, Speech at the Assises de la justice, 21 November 2013. For a contribution by the Finnish representative at the Venice Commission on this topic, see Tuori, K., ‘From Copenhagen to Venice’, in Closa and Kochenov, supra n. 7Google Scholar.

71 Müller, J.-W., ‘Should the EU protect democracy and the rule of law inside Member States?’, 21(2) ELJ (2015) p. 141CrossRefGoogle Scholar.

72 K. L. Scheppele, ‘What Can the European Commission Do When Member States Violate Basic Principles of the EUuropean Union? The Case for Systematic Infringement Actions’, contribution no. 45 at the Assises de la Justice 2013: <ec.europa.eu/justice/events/assises-justice-2013/contributions_en.htm>, visited 19 October 2015.

73 See the Report prepared by E. Hirsch Ballin et al. for the Adviesraad Internationale Vraagstukken (AIV), ‘The Rule of Law: Safeguard for European Citizens and Foundation for European Cooperation’, Report No. 87, 2014, 35. From the same author, see also ‘Mutual Trust: The Virtue of Reciprocity. Strengthening the Acceptance of the Rule of Law through Peer Review’, in Closa and Kochenov, supra n. 7.

74 For further analysis, see Closa et al., supra n. 42. See also Kochenov, D., ‘On Policing Article 2 TEU Compliance’, XXXIII Polish Yearbook of International Law (2014) p. 145Google Scholar.

75 Art. 1 TEU.

76 Toggenburg, G.N. and Grimheden, J., ‘The Rule of Law and the Role of Fundamental Rights: Seven Practical Pointers’, in Closa and Kochenov, supra n. 7Google Scholar.

77 The effectiveness of the Venice Commission’s working methods and its ability to identify and review countries’ adherence to miminum European constitutional standards may, however, be questioned. See de Visser, M., ‘A Critical Assessment of the Role of the Venice Commission in Processes of Domestic Legal Reform’, American Journal of Comparative Law (2015, forthcoming)CrossRefGoogle Scholar.

78 Council of the European Union, Opinion of the Legal Service 10296/14, 14 May 2014, para. 28. According to the principle of conferred powers, which is laid down in Art. 5(2) TEU, ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.’

79 Opinion of the Legal Service, ibid., para. 26.

80 Such a reading is fully in line with the Commission’s practice with respect to Art. 49 TEU, which governs accession to the EU. In this context, the Commission regularly adopts ‘monitoring’ reports in which EU candidate countries’ progress and alignment with the EU acquis, including compliance with EU values, are reviewed. See Kochenov, D., EU Enlargement and the Failure of Conditionality (Kluwer 2008)Google Scholar Chapter 2.

81 This argument is borrowed from L. Besselink, ‘The Bite, the Bark and the Howl: Article 7 TEU and the Rule of Law Initiatives’, in Jakab and Kochenov, supra n. 15.

82 COM(2003) 606 final, p. 7-8: Art. 7 TEU ‘places the institutions under an obligation to maintain constant surveillance’ and ‘requires practical operational measures to ensure thorough and effective monitoring of respect for and promotion of common values’.

83 See e.g. Council conclusions on fundamental rights and the rule of law, Justice and Home Affairs Council meeting, 6 and 7 June 2013, para. 9, where the Council called on the Commission among other things to make full use of existing mechanisms to better safeguard EU values.

84 See Art. 17(1) TEU: ‘The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties…’

85 Opinion 2/13, Accession to the ECHR (II), 18 December 2014, para. 168.

86 Müller, supra n. 71, p. 145.

87 This was one of the many sensible recommendations contained in a report published by the Bingham Centre for the Rule of Law, Safeguarding the Rule of Law, Democracy and Fundamental Rights: A Monitoring Model for the European Union, 15 November 2013.

88 Meijers Committee, Letter to Commissioner Reding: Note on the Commission Communication ‘A new EU Framework to strengthen the Rule of Law’, Ref. CM1406, 15 June 2014, available at: <www.statewatch.org/news/2014/jun/eu-meijers-cttee-letter-reding-rule-of-law.pdf>, visited 19 October 2015.

89 While this is relatively unknown, the possibility of European intervention in a situation of systemic threat to the democratic and liberal constitutional order of a member state is not an entirely new debate. Indeed, the European Political Community Treaty of 1953, which however never entered into force, provided for the rather extraordinary possibility of European intervention to maintain ‘constitutional order and democratic institutions’ within the territory of a member state. See G. de Búrca, ‘The Road Not Taken: The EU as a Global Human Rights Actor’, 105 AJIL (2011) 649.

90 See n. 9 supra, p. 20-21.

91 See e.g. UK Government, Review of the Balance of Competences between the UK and the EU – EU Enlargement (December 2014), para. 2.116: ‘However the Government does not accept the need for a new EU rule of law framework applying to all Member States. There are already mechanisms in place to protect EU common values and a further EU mechanism would risk undermining the clear roles for the Council and the European Council in this area’.

92 Art. 5 TEU.

93 Art. 4(2) TEU.

94 Italian Presidency Note to the Council of the EU, Ensuring respect for the rule of law in the EU, Doc. 15206/14, Brussels, 14 November 2014, para. 12.

95 See V. Pop, ‘Hungary triggers rule of law “debates” in EU Council’, EUobserver, 20 November 2014, <//euobserver.com/political/126592>, visited 21 October 2015.

96 See n. 9 supra, p. 21.

97 European Parliament resolution of 16 December 2010 on the Annual Report on Human Rights in the World 2009 and the European Union’s policy on the matter (2010/2202(INI)), para. 157.

98 To paraphrase Roth, K., ‘A Facade of Action: The Misuse of Dialogue and Cooperation with Rights Abusers’, in Human Rights Watch, World Report 2011. Events of 2010 (Seven Stories Press 2011), p. 1Google Scholar.

99 To give one example, the Latvian Presidency (first half of 2015) has done absolutely nothing to address the issue of national breaches of EU values. Indeed, the Presidency was rightly condemned by the Alliance of Liberals and Democrats for Europe (ALDE) in the European Parliament for refusing to participate in the parliamentary debate on the situation on Hungary at the European Parliament last May. Speaking for the Council Presidency, Latvian State Secretary for European Affairs Zanda Kalniņa-Lukaševica did welcome the Parliament’s concern for the ‘preservation of democratic values’, but as the Council had not discussed the situation in Hungary, she argued not to be ‘in a position to comment’: European Parliament News, ‘Views on Hungary, fundamental rights and EU values’, Press Release 20150513IPR55481, 21 May 2015. One could be forgiven to think that Latvia’s questionable human rights record when it comes to ethnic discrimination may well explain their lack of urgency with respect to Hungary. On Latvia’s record regarding minority rights, see e.g. Kochenov, D. et al., ‘Do Professional Linguistic Requirements Discriminate?’, 10 European Yearbook of Minority Issues (2013) p. 137CrossRefGoogle Scholar.

100 European Parliament resolution of 12 December 2012 on the situation of fundamental rights in the European Union (2010-2011) (2011/2069(INI)), para. 20.

101 Ibid., para. 44.

102 European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012) (2013/2078(INI)), para. 8(o).

103 ALDE Initiative Outline, The EU Democratic Governance Pact. Upholding the Rule of Law and Fundamental Rights (13 January 2015). The full text of the proposed pact is available at: <www.alde.eu/documents/publications>, visited 19 October 2015.

104 ‘European Semester’ is the name given to the EU’s annual economic policy coordination process. Within this framework the Commission can adopt country-specific recommendations with the view of boosting growth and jobs.

105 F. Timmermans, ‘EU framework for democracy, rule of law and fundamental rights’, Speech to the European Parliament, Strasbourg, Speech/15/4402, 12 February 2015.

106 2015/2700(RSP), para. 11.

107 Full text available at <ec.europa.eu/commission/2014-2019/jourova/announcements/working-together-complete-european-area-justice-annual-conference-european-law-institute-vienna_en>, visited 7 October 2015.

108 The press release from ALDE issued on 7 October 2015 is available at <ceciliawikstrom.eu/en/hungarian-laws-to-hunt-down-refugees-are-a-reminder-of-europes-dark-past-alde-group-to-maintain-demand-for-7-1-procedure>, visited 7 October 2015.