Appunti - EU Constitutional Law

Reasons for Reluctance in Assessing State Behavior

One of the reasons for that is related to the fact that this mechanism is in the hands of States, and States are always reluctant in taking decisions when it comes to assessing the behaviour of other States, because they are afraid of the possible consequences. It could deteriorate the relationship between States and trigger a domino reaction or escalation of mutual assessment of the enforcement of fundamental values. This is also the case for ordinary breaches of EU law. In theory, also Member States may decide to bring another State before the ECJ, but this happens very rarely, only when there is a very important political issue among States. Otherwise, they prefer to stay away from that possibility and leave the dirty job to the Commission in order not to deteriorate the relationship with the other States.

There is also a narrative surrounding Art. 7 TEU — it is a “nuclear weapon”. This expression was used for the first time with reference to Art. 7 TEU in 2012.

by former President of the European Commission Barroso in his speech on the State of the Union in front of the plenary of the Parliament. At that time, all problems concerning the rule of law in Hungary were at an initial stage, as they trace back to 2011, when the new Hungarian constitutions was adopted. In his speech before the European Parliament, Barroso said that it was not advisable to trigger Art. 7 TEU, because it is a nuclear weapon. This narrative has been replicated during the time, and there is now the idea that triggering Art. 7 TEU would lead to unexpected consequences for the EU.

This is the reason why it is important to set aside this provision. However, this provision was provided for in order to deal with this kind of problems. We do not have other mechanisms in the Treaties that have been introduced for this kind of problems. If triggering Art. 7 TEU would lead to a nuclear war, what can be done without the tools available to try to convince Member States to fully respect the

values upon which the EU is based? This is the question. We will try to answer in the next class by considering the instruments that have been triggered by EU institutions and Member States in order to solve — in particular — the rule of law crisis. 45

The rule of law in Hungary and Poland

We have seen that the implementation of Art. 7 TEU is problematic due to the fact that it is difficult to have a decision taken by the Member States. This is the reason why the EU political institutions together with the ECJ have tried to find other possible solutions in the light of significant cases of breaches of EU fundamental values by some Member States. In particular, we are going to consider the reaction of the EU institutions to the breaches of the rule of law in Hungary and Poland — for two reasons:

1. At EU level, the respect of the rule of law is conceived as a super value, in the sense that by respecting the rule of law — the fact that all institutions, political actors,

and public organs are subject to the rule of law — we can implement also the respect of democracy, fundamental rights, equality and other values of the EU.

2) Since the 1980s, the European integration process has been conceived by the ECJ as a Community of law — today, a Union of law — where all the EU institutions and Member States are subject to the law in interpreting and implementing supranational law, meaning that it is possible to assess the legitimacy of the actions put in place by those actors in the light of EU law.

This is relevant to consider the strategies elaborated by the EU in order to face some major reforms in Hungary and Poland, which represent for sure a violation of the rule of law. Hungary and Poland have decided to establish a new form of democracy — the so-called illiberal democracy — by which the respect of the rule of law cannot be given for granted.

Let's start by making reference to the initial reaction of the ECJ to the reforms

Elaborated in Hungary after the entry into force of the new Hungarian constitution in 2011. Hungary is the first Member State of the EU which has changed its national constitution. As a consequence, several reforms were introduced: One of the most relevant reforms concerns the judiciary and consists in the definition of a new age limit for magistrates, meaning that Hungary decided to lower the age limit for magistrates in order to anticipate their retirement. It may seem a neutral reform, but this has produced a major turnover in the judiciary system of Hungary. In particular, the magistrates who were closer to the previous legal context and regime were set aside and replaced by new magistrates, who are closer to the Fidesz party. This reform actually represented a threat to the independence and autonomy of the judiciary, which in turn represents a major threat to the rule of law. It is clear that this reform could be considered a serious and persistent breach of the rule of law under EU law.

technical provision of EU law — not the rule of law.

The ECJ agreed that Hungary had violated the principle of non-discrimination on grounds of age by adopting such a piece of legislation. This was a first way to react to a major breach of the rule of law.

The Commission decided to consider the behaviour of Hungary as an ordinary violation of EU law in order to have the chance to bring the case before the ECJ. In theory, when there is a breach of an EU fundamental value, the procedure that should be followed is the one enshrined in Art. 7 TEU. Had the Commission said that there had been a breach of the rule of law, the ECJ could have answered that it was not competent and that Member States should have been involved. The idea was to consider the two forms of control as independent: Art. 7 TEU is for breaches of fundamental values, whereas the infringement procedure is for ordinary violations. The Commission changed the nature of the violation put in place by Hungary — not a question

of fundamental values, but a question of wrongful implementation of a directive. But can we really reduce a major problem such as a threat to the independence of the judiciary in a country to a wrongful implementation of a directive? It may not be the proper way of dealing with the problem. It creates the risk that the State in question persists in its general attitude towards the EU fundamental values, which is exactly what Hungary and Poland have been doing for a while. The ECJ condemned Hungary for the wrongful implementation of the directive, but in the meantime, other reforms — inconsistent with the rule of law — were introduced.

So, it is difficult to have a systematic response by not considering the situation from the point of view of the EU fundamental values. This is the reason why the Commission tried to identify other possible solutions. In 2014, the Commission introduced a mechanism for the enforcement of the rule of law — the rule of law framework —

unlawful interference in its internal affairs. So, the Commission adopted four rule of law recommendations without any result. While the Commission was trying to find a friendly solution, Poland was even able to complete its reforms to the judiciary, which are openly inconsistent with the rule of law. Therefore, also the rule of law framework was ineffective.

Another effort was put in place by the Council of the EU — again, a political institution — in 2014. The ministerial representatives of the Member States in the Council of the EU decided to launch an annual dialogue among themselves on the rule of law. The idea was to organise every year a special session of the Council of the EU devoted to the rule of law. The ratio was that we need to create a common culture and exchange our common views and best practices concerning the rule of law. It may be a good initiative, but again, it may not be very effective in the case of concrete problems concerning the judiciary —