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Introduction
The European Union (“EU”) prides itself on being based on the rule of law – it is therefore not surprising that the rule of law is enshrined in Article 2 of the Treaty on the European Union (“TEU”). The rule of law itself encompasses underlying constitutional principles such as legal certainty, prohibition on arbitrary state powers and the existence of independent and impartial courts. Respect for the rule of law is generally considered a precondition for EU membership as provided by Article 49 TEU. However, recent developments in countries such as Poland have threatened the very foundations of these founding principles. In order to prevent systemic threats to these founding principles the EU has provided for an enforcement mechanism under Article 7 of the Treaty on the Functioning of the European Union (“TFEU”). The procedure involves both preventative and sanctioning mechanisms – however it has frequently been questioned whether Article 7 is sufficient to ensure compliance with the rule of law. This paper will examine the scope of Article 7 and the EU’s response to the current Polish constitutional crisis.
Background to the Polish Constitutional Crisis
In early 2016, the newly elected Polish government introduced a number of constitutional reforms that gravely undermine the rule of law. These reforms primarily effect the relationship between the Poland’s ruling Law and Justice party (PiS) and the constitutional courts. The new legislation lowers the supreme court retirement age to 65, which in effect means that 37% of the judges would be terminated – thus allowing the PiS to fill the vacuum with political appointees. Furthermore, a second law was introduced which essentially splits the supreme court into two separate chambers. Whereby one chamber is tasked with addressing cases which challenge the stability of the Polish legal order and while the second chamber is tasked with reviewing proceedings against the supreme court judges and is primarily composed of political appointees. Finally, there is a new law in place which alters the appointment regime for the National Council for the Judiciary – which is the body primarily responsible for ensuring independence of the judiciary. The law itself allows for the premature termination of all judges and that new appointments are to be made solely by the legislature and require no judicial endorsement. The vast politicization of the judiciary has internationally criticized for being contrary to the principles of the rule of law. More directly however, the European Commission has noted that these reforms are an intrinsic threat to the democracy in Poland which is contrary to the founding principles of the EU.
Given that the Commission has directly noted the potential conflict between the Polish reforms and the general principles of the EU – it is questioned whether this is brought within the framework of the Article 7 enforcement proceedings. Further to this, to what extent are the EU institutions truly able to intervene into systemic threats to the rule of law within the EU.
Gravity of the Breach and Enforcement Proceedings
While the principles of rule of law are contained within Article 2 of the TEU, it is Article 7 TEU that provides an enforcement mechanism against these systemic threats to the rule of law. The threshold for measure under Article 7 is relatively high, and in order for any measures to be taken under Article 7 TEU the Council must determine that there is a clear risk of a serious breach of Article 2. While further punitive measures under Article 7 must stem from unanimity within the Council and are only applicable if Poland’s breach is classed as serious and persistent. Unfortunately, the EU treaties themselves provide little guidance as to what constitutes a clear and serious breach of Article 2. As a result, it may be difficult to receive consensus amongst the Council regarding the status of Poland’s breach – particularly with regards to additional punitive measures. Which in practice means there are a number of procedural hurdles preventing the Council from finding Poland’s breach persistent and serious.
While the Treaties themselves provide little guidance on the interpretation of threats to Article 2, the Commission has relied on writing from academic scholar to substantiate what potentially constitutes a grave threat. For example, there are three primary characteristics indicative of a grave breach. The first characteristic is known as unconstitutional constitutionalism – whereby political power is abused in perfectly legal means. For example, utilizing the legislature to pass unconstitutional and anti-democratic legislation through perfectly acceptable means. The other two characteristics involve the dismantlement of the democratic state and systemic corruption. Through the vast politicization of the judiciary, it appears that all these characteristics are present within the Polish situation. Furthermore, general international condemnation of the situation in Poland appears to establish consensus of the fact that there is a breach.
However, it nevertheless appears that while Article 7 generally provides the council with the tools to prevent states from exhibiting authoritarian tendencies – the present formulation of Article 7 renders it ineffective in practice. The main limiting factor in the current situation is the fact that punitive measures under Article 7 must be subject to unanimity. Where, Hungary has vowed to veto any measures that are to be taken against Poland. As result, punitive measures such as sanctions are unavailable.
This ineffectiveness of Article 7 is perhaps further evidenced by a parallel situation in Hungary, whereby despite international condemnation and grave attacks on the independence of its judiciary – Hungry continues to benefit from billions of Euros in EU investments and little punitive action has been taken to prevent these undemocratic principles.
A way forward?
The Council’s inactivity with regards to Article 2 sends a worrying message to EU Member States regarding the overall significance of the rule of law. Whereby grave threats to the rule of law may go largely overlooked. Perhaps this is because the EU is worried about a potential backfire of stringent enforcement of Article 2. There is still a very fine line between surrendering to general EU principles and preserving national sovereignty. The decision to invoke punitive measures under Article 7 is a very serious one – and one which will gravely impinge the national sovereignty of a Member States, and as a result these procedural hurdles are necessary. As a result it is likely that the EU institutions will need to rely on more diplomatic measures to try an resolve threats to the rule of law. Unfortunately, this means that when diplomacy fails – Member States may simply refuse to cooperate with these foundational principles of the EU.
In order to address the current shortcomings of Article 2 and Article 7 a number of solutions have been proposed. The first proposal in this regards suggests that it may be necessary to couple Article 2 with additional EU treaty provisions such as Article 4 (3). Article 4(3) TEU promotes the principle of sincere cooperation amongst Member States. As a result, the substance of Article 2 would be rendered a more collective duty. Whereby Member States are generally required to help promote the rule of law and general EU principles. This a more passive and long term approach to promoting the rule of law. Rather than a direct enforcement strategy.
At the same time, while it is necessary to ensure there is long term promotion of the rule of law – there must still be some level of enforcement if Member States do infringe upon these principles. It is therefore proposed that Article 2 TEU may need to be employed in combination with Article 258 TFEU – whereby article 258 TFEU provides a more concrete enforcement procedure. This could be furthermore complemented by including a fining mechanism as outlined under Article 260 TFEU. Unfortunately, these changes would likely require amendment to the Treaties – which would require Member State consensus and could subsequently be opposed by Member States such as Hungary and Poland.Furthermore, considering the fact that the amendment procedure is often long and complex, it may be necessary to consider more ad hoc alternatives to the current Polish constitutional crisis.
Conclusion
The current constitutional crisis in Poland has been brought onto the international agenda for its grave threats to the rule of law. While there has been general condemnation from both the EU institutions and the Member States themselves, the reality is there current EU legal framework appears to be ill equipped to manage threats to the rule of law. The current enforcement strategy of Article 7 rests heavily on unanimity – and in such highly political situations it is often difficult to receive this unanimity. As a result, the current framework appears to be ill equipped to manage genuine threats to the rule of law within the EU. Nevertheless, the Polish constitutional crisis does offer the EU the opportunity to reevaluate the current functioning of Article 7 and perhaps choose to adopt a more ad hoc enforcement procedure. Unfortunately, it will remain to be seen whether the EU opts to implement substantive changes to Article 7 or Article 2 via treaty amendments. For the time being, the solution to the Polish constitutional crisis rests on effective diplomacy.
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