Tuesday, 2 July 2019

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 1: The Legal Framework




Professor Steve Peers, University of Essex

I’ve taught EU law and human rights for over twenty years now, and the issue of sanctions against Member States for human rights breaches used to be the easy bit. Why? Because the procedure to enforce such sanctions (set out in Article 7 TEU) had never been used – and there was no apparent prospect that it ever would be. So there was no need to discuss it in any detail. A more theoretical sort of academic might have spent time counting the angels on the head of this constitutional pin, but I was anxious to move on to the real world issues of arrest warrants and asylum seekers.

Everything has since changed. Like Article 50 – which similarly raises fundamental issues about the EU’s relationship with its Member States – Article 7 was apparently dashed off in previous Treaty amendment talks without much thought to its detailed application in practice, perhaps because its authors thought it would never be used. Yet here we are, with both Articles now a live political and legal issue: the Ragnarok of EU law.

There are two recent parallel major developments. First of all, the Article 7 process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). Secondly, there are case law developments raising general questions about Member States’ observance of human rights and the rule of law outside the very specific (and very political) Article 7 process. In this context, last week the CJEU delivered its first judgment that a Member State is infringing judicial independence by means of reforms to its judicial system (see discussion here).

The prospect of the EU sanctioning its Member States for breaches of human rights and the rule of law raises a number of fundamental legal and political issues – and is best understood in a broader historical context. In light of the recent developments (and ongoing disputes), this is an opportune moment to provide an overview and analysis of this issue.

I’ll do this in a series of three blog posts, addressing in turn:

a)      the legal framework for sanctions under Article 7
b)      the overlap of the sanctions rules with other aspects of EU law
c)       the historical context and broader constitutional dynamics.

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

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. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warning if there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. Triggering the process (as the EP did for Hungary, and the Commission did for Poland), does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. Indeed, the Council is still considering the proposals to issue a ‘yellow card’ against both Poland and Hungary, having held several of the hearings referred to in Article 7(1). If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a risk to EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it  if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent breach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Notice that the Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (I discuss them further in the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process has been complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process. Does the EU really want Michel Barnier’s main task to be crowd control?

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the next blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment. Yes it would, but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa. This was confirmed implicitly in last week’s judgment on Poland and the rule of law, given that the issues in that judgment also formed a part of the Commission’s Article 7 case against Poland. In fact, the Advocate-General’s opinion addressed the overlap explicitly (paras 48-50), arguing that ‘[t]here are firm grounds for finding that Article 7 TEU and Article 258 TFEU are separate procedures and may be invoked at the same time’.  As noted already, this alternative option of using ordinary EU law to restrain Member States’ breaches of human rights or the rule of law is discussed in the next blog post in this series.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementation of sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held. (Update, Sep 1 2019: the Council's internal rules on Article 7 hearings have now been published). Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, some issues about its scope may be addressed in the near future, because Hungary has brought a legal challenge to the European Parliament’s decision merely to trigger Article 7. This case might be inadmissible, because usually it is not possible to challenge the start of an EU legal procedure, but only a legal act once adopted, which may explain why Article 269 TFEU makes no reference to challenging acts of the European Parliament at all (or indeed, to challenging acts of the Commission or the Member States). The substance of the Hungarian government’s argument is that the European Parliament wrongly ignored abstentions when counting votes cast to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU recently turned 20 years old. It was conceived as a political process par excellence, and it remains supremely political at childhood’s end, even as the first attempts to trigger it are made. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 
make you feel proud, 
protect your house, 
give you a job, 
clean up the neighbourhood, 
remind you of how great you once were, 
clear out the venal and the corrupt, 
remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights – and the willingness of the CJEU to rule on the judicial independence of national courts in general – means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary system for the enforcement of EU law as such, to which we will turn in the second post in this series. As for the broader tension when concerns about the rule of law and human rights stem from a democratic outcome, this will be assessed as part of the broader discussion in the third post.  

Barnard & Peers: chapter 9
Photo credit: euobserver

1 comment:

  1. 'and there was no apparent prospect that it ever would be'

    With the greatest of respect, that really needs a bit of a challenge. I was a postgraduate European Studies student in the mid-1990s and I certainly felt the need to, 'count[ing] the angels on the head of this constitutional pin.' The idea that the EU was somehow fixed forever seemed to me to be little more than an article of neofunctionalist faith. At the time I was genuinely taken aback by just how thin the literature on questions about how the EU might deal with 'disintegration' (for want of a better term) was.

    There was absolutely nothing unforeseeable about these current events and there was nothing unforeseeable about the internal and external challenges the EU now faces. Back in the 1990s I thought up any number of scenarios that were far from theoretical but which would have seriously challenged the EU order. This was never merely theoretical whismy.

    Whilst academics and institutions didn't seem to take these sorts of issues seriously, at least in the 1990s, they really should have. The constitutional deficit in the EU is very much at the heart of many of the problems we now see and none of what we see now was ever beyond the bounds of possibility - however much some wished otherwise.

    In the UK the problem I think was compounded by the foolhardy denial by successive governments that the EU was/is a political project. However I suspect that UK governments were hardly alone in glossing over the political dimension. That notwithstanding I don't think academics and institutions get off the hook quite so easily - they might not have felt the need to think about 'disintegration.' They should have.

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