At a time when the EU strives to defend the universal value of the rule of law globally, it is being undermined from within. Member States such as Hungary and Poland, have mounted consistent challenges to the rule of law through continued democratic backsliding. This Just the Facts looks at the tools the EU has to defend the rule of law.
What is the Rule of Law in the EU?
In its 2020 Rule of Law Report, the European Commission outlined that the rule of law is where “all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts.”
Article 2 of the Treaty on European Union (TEU) states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”. However, democratic backsliding has taken place within the EU over the last decade.
How does the EU protect the Rule of Law?
Since 2014, the EU has expanded its ‘toolbox’ of instruments that can be used when Member States breach the rule of law: the Rule of Law Framework, Article 7 TEU, infringement procedures, and the Conditionality Mechanism.
- The Rule of Law Framework
Established in 2014, this instrument facilitates structured dialogue with a Member State if there are “clear indications of a systemic threat to the rule of law”. Following an assessment by the European Commission, it produces a recommendation if it has found that there is “objective evidence of a systemic threat and that the authorities of that Member State are not taking appropriate action to redress it”.
However, if the Commission is unsatisfied in its recommendations, it can activate Article 7 TEU. The following graphic explains the processes of the Rule of Law Framework (Source: European Commission)
January 2016 was the first time the Commission initiated an assessment under the Framework. It related to Poland, particularly two laws on the power of the constitutional court and on the management of state TV and radio broadcasters. However, in December 2017, after assessments the Commission found “new concerns […] with regard to the rule of law in Poland”, whereby it activated Article 7(1).
- Article 7 TEU
Article 7 TEU allows for “a procedure in the event of a breach of Article 2” which “can lead to sanctions” against a Member State. It has two parts, the ‘preventive mechanism’ under Article 7(1), which aims to determine a clear risk of a violation of Article 2 TEU, and the ‘sanctions mechanism’ under Article 7(2 – 3), that seeks to determine the existence of “a serious and persistent breach of values in Article 2 TEU”. Both Article 7(1) and 7(2 – 3) are independent of one another.
Article 7(2) outlines the process by which the Commission, the European Parliament or one third of Member States can propose that a breach of the rule of law has taken place. It is then for the European Council to determine the existence of a serious and persistent breach by a unanimous decision, minus the relevant Member States. This can result in the suspension of voting rights.
The following graphic further explains the processes of Article 7(1) and (2 – 3) (Source: European Commission).
Article 7(1) was activated in relation to Poland in 2017 (see above) and also in relation to Hungary in 2018, following European Parliament “concerns about freedom of expression, academic freedom, the rights of minorities and refugees and other issues”. Both actions remain open and have yet to be concluded by the Council. Article 7(2) has never been used.
- Infringement procedure
This instrument can be launched by the Commission against a Member State if they break or fail to apply EU law generally. However, it is regularly used to enforce the rule of law. It involves a lengthy process of engagement and evaluation by the Commission with a Member State, with the final stage involving the Commission referring the Member State to the Court of Justice of the EU (CJEU). Its rulings are binding and often involve financial penalties.
The following text outlines the stages of an infringement procedure (Source: European Commission)
Recently, in relation to the Polish judiciary, the Commission considered that a disciplinary chamber of Poland’s supreme court infringed EU law. It launched infringement proceedings against Poland at the CJEU, and in July 2021 the Court ordered Poland to suspend the chamber. In October 2021, the CJEU issued a daily fine of €1m on Poland until it complied with the July judgement.
- Conditionality Mechanism
The conditionality mechanism, entered into force on 1 January 2021, making it possible to protect EU funding from breaches of the rule of law in a Member State that “seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way.”
By linking EU funds to respecting the rule of law, the Commission can freeze EU payments, terminate legal commitments, seek early repayment of loans, or prohibit the Member State from entering new financial agreements.
The following chart outlines the stages of the conditionality mechanism (Source: European Movement Ireland).
The conditionality mechanism has not been formerly triggered by the European Commission. However, it has yet to release funding to Hungary and Poland from the €806.9b NextGenerationEU Covid-19 recovery plan, amid concerns around the rule of law.
The rule of law is increasingly dominating the EU’s agenda and has been a focal point of recent European Council meetings. The serious issues that persist in some Member States have led to calls for a more robust defence of the rule of law by the European institutions.