The CJEU and the rule of law in Poland: Note on the Polish Supreme Court preliminary ruling request of 2 August 2018

Alicja Sikora, Chair EU Law, Jagiellonian University

As Eugene Ionesco put it, you can only predict things after they have happened (Rhinoceros, 1959).

On Thursday the Polish Supreme Court submitted to the European Court of Justice a preliminary ruling request under Article 267 TFEU. While doing so it also suspended the application of a Polish law forcing the early retirement of Supreme Court justices who are above 65 years old, including the President of the Supreme Court whose mandate is guaranteed by the Polish Constitution. This is a challenge to the Polish government’s changes to the judiciary, on the grounds that it violates the rule of law.

There were many preliminary ruling requests in the course of the history of EU law from van Gend den Loos, Costa/Enel, Nold, Francovich, Defrenne, Akerberg Fransson, Melloni, Pringle, Gauweiler and many others which shaped a ‘constitutional order of States’. Judicial dialogue established under Article 267 TFEU has been a cornerstone for the development of the EU legal order.

Thursday’s request might, however, not constitute just a major doctrinal novelty. The Polish Supreme Court stepped into the path of active claim for rule of law, which is not only a common principle to Member States, but also expression of the axiology on which EU is founded as expressed in Article 2 TEU. Polish judges seek advice which will in a way sans precedent engage the Court of Justice in the legal and political battle for independent justice in Poland. It is a symbolic proof of how much Europe is needed and how crucial and fragile the enforcement of common values turns to be.

The Court of Justice has already prepared the foundations of such action in recent cases such as C-64/16, Associação Sindical dos Juízes Portugueses (on the independence of Portuguese judges in the context of austerity, discussed here) and C‑216/18 PPU, LM (on the recognition of Polish European Arrest Warrants in light of rule of law concerns), where Article 19 TEU (which sets out the basics of the CJEU’s role) was linked to the protection of the rule of law. Consequently, it is, according to the Court, for the national courts and tribunals and the Court of Justice to ensure the full application of EU law in all Member States and judicial protection of the rights of individuals under that law. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts.

In the present case, the Polish Supreme Court referred to the Court of Justice five questions which relate mostly to the interpretation of the principle of judicial independence in the light of EU primary law (Articles 2, 4(3), 19 (1) TEU as well as Article 47 of the Charter of Fundamental Rights). Other questions focus on the interpretation of Directive 2000/78, which includes the principle of non-discrimination based on age. The referring judges also applied for the application of the expedited treatment of the case under Article 105 of the Rules of Procedure of the Court of Justice.

Unsurprisingly, it is the suspension of the application of the national law which caused fierce criticism of the highest Polish authorities. Yet, Polish Court acted in perfect conformity with the classic case-law of the Court concerning interim measures (Factortame, Zukerfabrick, Atlanta) whereby national courts suspend application of a national measure which represents a risk of breach of EU law, pending the decision of the CJEU clarifying whether there is a conflict between national law and EU law (or, in some cases, on whether an EU law being challenged in the national courts is invalid).

The underlying question is whether the CJEU is willing to address the rule of law dispute in Poland directly, via use of the preliminary ruling procedure, or leave the issue to the EU’s political authorities, which are considering warning or sanctioning Poland under the process set out in Article 7 TEU. The Polish Supreme Court is potentially opening a new chapter in the enforcement of EU law and values.

Barnard & Peers: chapter 6, chapter 9

Photo credit: France 24

“Dear Colleague, Are You Independent Enough?” The Fate of the Principle of Mutual Trust in Case of Systemic Deficiencies in a Member State’s System of Justice

By Cecilia Rizcallah*

*Research Fellow at the Belgian National Fund For Scientific Research (F.R.S.-FNRS). The author wishes to thank Pr. S. Van Drooghenbroeck. The usual disclaimer applies.

Advocate General Tanchev delivered, a few days ago, his opinion in the case C-216/18 PPU concerning a set of European Arrest Warrants (EAWs) issued against LM, suspected of drug trafficking, by the Polish Authorities. The case concerns a reference for a preliminary ruling made by the Irish High Court, which questions the European Court of Justice (ECJ) on the obligation to execute a EAW when the “conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law”.

Context of the case

This case emerges in the context of the “rule of law crisis”, resulting from recent reforms threatening EU’s founding values in some Member states including, among others, Poland. The Venice Commission together with other organisations have indeed observed the existence of serious breaches of the rule of law, notably due to the reform of its judiciary which highly undermines its independency. Ensuing this crisis and the lack of improvement of the situation in Poland, the Commission issued, in December 2017, a reasoned proposal in accordance with Article 7(1) TEU proposing to the Council to assert the existence of a clear risk of a serious breach of the rule of law in Poland.

No concrete action has yet been taken pursuant to this opinion, notably because of the heavy conditions laid down in Article 7 and the lack of other proper tools to react to such events. Brussels has thus until now been unable to offer a collective and efficient response to this crisis and the first consequences on EU integration begin to pop up.  The ECJ in that respect ruled two weeks ago that Poland had breached the Railway Safety Directive (Directive 2001/14/EC) because of the lack of independency of its investigating body of railway undertakings and infrastructures. It is now the turn of the mechanism of the EAW to face the difficulties triggered by the rule of law crisis in one of the Member States.

As a reminder, the European Arrest Warrant mechanism, enshrined in the Council Framework Decision of 13 June 2002 (hereafter the Framework decision), relies upon the principle of mutual trust, which presumes the respect by all the Member States of EU founding values listed in Article 2 TEU, including the rule of law and human rights. This presumption justifies the quasi-automaticity of the execution of EAWs, and prevents in principle the control of the respect of fundamental rights by the executing Member State. The executing national authority has to “trust” the admissibility of EAWs issued by its peers.

According to the settled case-law of the ECJ, the grounds for non-execution of a EAW are exhaustively listed in the Framework Decision and must be restrictively construed because of the principle of mutual trust. Yet, fundamental rights are not explicitly included among the grounds for refusal in the Framework decision. Relying upon the principle of mutual trust and for the sake of the EAW mechanism’s effectiveness, the ECJ has long been reluctant to allow national courts to control the respect of fundamental rights when requested to execute a EAW.

A first breach was nevertheless opened by the Aranyosi and Căldăraru judgment (discussed here), where the ECJ considered that, in very exceptional circumstances, the execution of a EAW may be postponed when the individual would face a real risk of inhuman or degrading treatment in the issuing Member State in case of surrender because of the detention conditions in this country. It developed a two-step approach to determine the existence of such risk: first, the executing authority must be “in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State” (§89)  and, “whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” (§92).

According to the Court, the requested authority must, to that end, “request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State” pursuant to Article 15(2) of the Framework Decision (§95).

The question in C-216/18 PPU

The question posed in Case C-216/18 was whether the rule of law crisis and the systemic deficiencies in the Polish judicial system could justify the refusal of execution of a EAW issued by this Member State. More precisely, the Irish judge asked the ECJ whether the Aranyosi and Căldăraru double test leading to the suspension of EAWs’ execution should apply in case of systemic breach of the rule of law.  This case thus appears to be an occasion to the ECJ to provide some of the missing pieces in the puzzle of tolerated limitations to the principle of mutual trust.

Unlike the Aranyosi and Căldăraru case, the question raised in the case C-216/18 concerns structural deficiencies in a Member State’s system of justice and risk of breaches of a non-absolute right, the right to a fair trial (Article 47 of the Charter). Sensitive issues are moreover at stake, in relation to the controversial reforms adopted in Poland. Political reactions have not been slow in coming.

The Advocate General’s opinion

A few days ago, the Advocate General Tanchev issued its opinion which, in a nutshell, pleads for the adoption of the Aranyosi and Căldăraru double test in the case at hand. The Advocate General started its reasoning by differentiating the assessment that should, according to him, be applied in the present case and the one that should be carried out by the Council under Article 7(1) TEU. Indeed, “the referring court asks the Court of Justice whether, in order for it to be required to postpone the execution of a European arrest warrant, it is sufficient for it to find that ‘conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself [of that Member State] is no longer operating under the rule of law” (§39).

The Court is therefore, according to the Advocate General, not asked about the consequences of breach of the value constituted by the rule of law, but about consequences of breach of the right to a fair trial. By this statement, the Advocate General offers an appealing way-out allowing the ECJ not to generally pronounce itself generally on the current sensitive political issue of the rule of law crisis in Poland. This finding moreover seems in compliance with the will of the treaties, Article 269 TFEU excluding the competence of the ECJ to rule on the legality of the acts adopted under Article 7 TEU, except for procedural concerns.

In the opinion of the Advocate General, different consequences must moreover be triggered from the activation of Article 7 and from the Aranyosi and Căldăraru judgement. On the one hand, the finding, in a specific case, of the existence of a real risk of breach of the prohibition of inhuman or degrading treatment obliges the executing judicial authority to postpone the execution of the EAW at issue. On the other hand, the suspension of the whole EAW system in respect of a Member State may only occur if the Council so decides, pursuant Article 7 (3) TEU, on the basis of the existence of a breach, and not of a mere risk of breach, of EU founding values (recital 10 of the Framework decision).

After these preliminary observations, the Advocate General continued its reasoning by  sketching out the way the Aranyosi and Căldăraru test should be applied in the case at hand. First, he addressed the question of the possibility to postpone the execution of a EAW for protecting non-absolute rights. According to him, the fact that only limitations on the principle of mutual trust have hitherto been accepted in the light of Article 4 of the Charter does not precludes a similar conclusion when other rights, such as the right to a fair trial, are at stake (§58). Nevertheless, given the importance of the principle of mutual trust, “it is not sufficient that there is a real risk of breach of the second paragraph of Article 47 of the Charter in the issuing Member State” (emphasis added, the Advocate General interestingly did not use the word “restriction” but “breach”).

The postponing of an EAW may only occur when there exists a “real risk of breach not of the right to a fair trial but of the essence of that right” (§76) amounting to “a flagrant denial of justice” (§80). Having regard to the independence of the judiciary, the Advocate General underlined that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial” (§93). Assessing the existence of such risk, the executing judicial authority must “rely on information which is objective, reliable, specific and properly updated on the conditions prevailing in the issuing Member State, and which demonstrates that there are deficiencies affecting the Polish system of justice” (§95), such as the Venice Commission’s reports or the Commission’s reasoned opinion.

Yet, in the Advocate General’s opinion, such finding is however not sufficient for deciding the postponing of a EAW. The executing judicial authority must, moreover, ascertain that “in the case in point”, the individual concerned will be exposed to that risk (§104), by examining the particular circumstances relating either to that person or to the offence (113). It should notably be ascertained whether the individual is a “political opponent or whether he is a member of a social or ethnic group that is discriminated against” and/or if “the offence for which the individual concerned is being prosecuted is political in nature or whether the powers that be have made public declarations concerning that offence or its punishment” (§113). The burden of proof shall lie on the individual concerned (§115). In the assessment of the individual risks faced by the requested person, the executing judge must moreover request, from the issuing judicial authority, all necessary supplementary information on the basis of Article 15(2) of the Framework Decision “concerning, first, legislation adopted after the Commission’s reasoned proposal and the opinions of the Venice Commission and, second, the particular features relating to the individual concerned and to the nature of the offence that would be liable to expose him to the real risk of flagrant denial of justice identified” (§128).  Eventually and “in the light of the information obtained” the executing judicial authority must execute the warrant if it considers that the person subject to the EAW does not run a real risk of suffering a flagrant denial of justice in the issuing Member State or, on the contrary, postpone its execution if such risk exist (§§130 – 131).

Comments

In spite of current events attesting the serious endangerment of EU founding values in several Member States, the Advocate General’s opinion sounds like a plea for the safeguard at any price of a – yet no longer existing –  trust between Member States. It calls for a few comments. 

First, the Advocate General pleads for distinguishing the examination of the existence of a rule of law crisis which systematically threatens the independence of the Polish judiciary and the assessment of the respect of the right to a fair trial in Poland. It is true that both procedures differ from their nature, one being political the other judicial as well from their object, one concerning the serious and persistent breach of the EU’s founding values and the other the right to a fair trial. Nevertheless, the risks in terms of Human rights in the case at hand precisely result from the systemic violation of the value of the rule of law. The alleged risks do not consist in a punctual breach of the right to a fair trial in relation to the specific case at hand, but in structural deficiencies in the Polish judicial system presenting risks for the fairness of its trials. If both assessments differ in their nature, their object must, in our view, not be addressed in isolation. According to the Advocate General, both procedures do also trigger different consequences. It is only if the Council observes the breach – and not the mere existence of a risk of breach – of EU founding values that the EAW mechanism could possibly be suspended. This finding suggests low likelihood that the EAW procedure would ever be suspended given the inefficiency of the Article 7 procedure, attested by recent events, as well as the poor probability to reach the required unanimity at the Council.  

Secondly, the systemic character of the judicial system’s deficiencies does not suffice in the view of the Advocate General to justify the non-execution of Polish EAWs.  Relying upon the ruling in Aranyosi and Căldăraru, he considers that a refusal to surrender an individual may only occur when (i) there exists a risk of breach of the right to a fair trial’s essential content amounting to a flagrant denial of justice and (ii) the requested person individually faces the risk to be subject to this breach.  In relation to the first condition, the Advocate General thus clearly gives priority to the principle of mutual trust over the protection of fundamental rights, since not any breach of these rights could compromise in his view the execution of a EAW. This finding contrasts with the ECJ’s ruling in Tupikas, where it held that “the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned” (emphasis added), as well as the Framework Decision’s preamble, which underlines that it respects fundamental freedoms.

The Advocate General refers to the ECtHR case law about extradition procedures in order to reach this conclusion. The ECtHR indeed several times relied upon the “flagrant denial of justice” concept in order to determine the responsibility of a Contracting Party which indirectly enabled or gave effect to the breach of important components of fundamental freedoms by third parties (see, for instance, ECtHR 26 June 1992, Drozd and Janousek v. France and Spain, § 110,). Nevertheless, it is worth nothing that the case-law on this issue is not consistent, as shown by the judgment in Pellegrini v Italy where the fact that the judgment was rendered by a third party – the Vatican –  justified, according to this to the ECHR, a full control of the respect of Article 6 by the executing Italian judge.

Moreover, this test was only used in regard to extradition procedures with third States, based on the reasoning that “the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (ECtHR 7 July 1989, Soering v. United Kingdom, § 86). Yet, the case at hand concerns the cooperation between two Member States of the Council of Europe and moreover, of the European Union. Moreover, one should wonder why violations (not mere restrictions) of Article 47 of the Charter must, for the sake of the principle of mutual trust, be accepted in the EU while this principle is precisely founded on the presumption of compliance, by all Member States, with fundamental rights as enshrined in the Charter. The ECtHR seems nevertheless to consent to the principle of mutual trust in its Avotins judgement (discussed here), at least as long as Member States are “empowered to conduct a review commensurated with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient” (ECtHR 23 May 2016, Avotins v. Latvia, §114). This case did not concern the EAW mechanism but the mutual recognition in civil proceedings, where guarantees contained in Article 6 apply less stringently than to criminal proceedings.  

As far as the second condition is concerned, the Advocate General requires the maintenance of an individual assessment consisting in first, the examination of the nature of the alleged offence and the individual’s profile and, secondly, in an exchange of information between the issuing the executing authority. He moreover considers that the burden of the proof of the risk lies on the requested individual. This is maybe the most critical part of the opinion.  First, regarding  the object of this assessment. The executing judge would indeed be required to postpone the execution of a EAW, according to the Advocate General, “only where it finds not only that there is a real risk of flagrant denial of justice on account of deficiencies affecting the system of justice of the issuing Member State but also that the individual concerned will be exposed to that risk”.

It must in that regard consider notably the nature of the alleged offence as well as the profile of the person subject to the EAW, and especially, whether he is a political opponent or whether he is a member of a social or ethnic group that is discriminated against in the issuing country (§113). Yet, the possibility to refuse to surrender persons convicted for political offences has been especially removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – when replaced by the Framework decision (see discussion here). Furthermore, requesting the individual to demonstrate the lack of independence of the tribunal in his or her specific case seems to disregard the traditional case law of the ECHR, according to which serious doubts that an individual will not benefit from a fair trial by an independent and impartial tribunal may lead to a violation of Article 6 of the ECHR (ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §78).

In this way, the mere existence of mechanisms enabling the executive branch of a State to influence court proceedings, even if they have not been effectively used in the case at hand, suffice, in the view of the ECtHR, to find a breach of the right to a fair trial (ECtHR, 19 April 1994, Van De Hurk v. The Netherlands, §50 and ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §§ 77 and 80). The approach proposed by the Advocate General also contravenes the “doctrine of appearance” (ECtHR, 17 January 1970, Delcourt v Belgium, §31 and Kress v France, 7 June 2001, §81), usually adopted by the ECtHR, which attaches great importance to “appearances and to the increased sensitivity of the public to the fair administration of justice” (ECtHR, 30 October 1991, Borgers v. Belgium, §24).

Indeed, according to this doctrine, “justice must not only be done, it must also seem to be done”, and “importance should be given to the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused” (ECtHR, 9 June 1998 Incal v. Turkey, §71). Speculations about the effective independent character of a tribunal in a specific case should thus not be needed when important deficiencies in the rule of law such as those at issue exist.  The inadequacy of such test is furthermore strengthened by the way the requested judge should determine the existence of a risk of breach of the right to a fair trial. The opinion indeed proposes to require from the executing authority, before deciding upon the execution of the EAW, “to ask the necessary information to that end to the issuing judge”. One may indeed wonder how a judge - whose independence is challenged – would provide reliable information on…his or her own independence!

New playground, new rules of the game?

The principle of mutual trust constitutes an important tool of EU integration, used both in the internal market and in the Area of freedom, security and justice. In relation to the EAW system, it enables effective and smooth criminal cooperation between Member States without the merging of their national criminal systems of justice nor uniformisation of their national criminal law. Nevertheless, this principle was developed on the presumption that only democratic systems, respecting EU’s founding values including fundamental rights were involved. The importance of the respect of the rule of law was in that sense recently recalled by the ECJ in its case law Associação Sindical dos Juízes Portugueses (ECJ, 27 February 2018, discussed here). One must however note the lack of discipline of some Member States to comply with this value, despite numerous diplomatic attempts to stop the crisis. Should we nevertheless maintain the obligation for Member States to trust in each other’s system of justice notwithstanding these events?

The principle of mutual trust, of fundamental importance to EU law, relies upon the presumption that Member States share and respect a set of common values (ECJ, 18 December 2014 Opinion 2/13, §168). Firmly upholding this principle while its foundations are undermined seems problematic. Once the playground has changed, shall the initial rules of the game be kept? Besides being as such problematic for the State concerned by the crisis, imposing mutual trust to other States entails an important risk of contagion in all the European Union since national judgments are mutually recognised. In addition, one should bear in mind the rights at stake, which include the right of judicial protection rightly referred to as “the right to have right”.  This right furthermore amounts to, according to the ECJ, the essence of the rule of law (ECJ, 27 February 2018, Associação Sindical dos Juízes Portugueses, §36).

Admittedly, the current “rule of law crisis” constitutes first and foremost a political issue that has to be dealt with by political bodies such as the Council as provided by Article 7 TEU. Nonetheless, the ECJ must ensure the respect of EU law and, in particular, of the Charter of Fundamental Rights which is part of primary law. When construing the Framework Decision, the Court shall therefore – at least theoretically – ensure the respect of EU Fundamental Rights and in particular of the right to an effective judicial protection. In our view, the principle of mutual trust, being it a fundamental principle, shall not justify restrictions to fundamental rights that do not respect the conditions laid down in Article 52 of the Charter which not only requires the respect of the essential content of fundamental rights, but, also, a more general proportionality assessment.

Barnard & Peers: chapter 9

JHA4 : chapter II :3

Photo credit : Human Rights Watch

Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses

Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

1. Introduction

The ECJ’s judgment in the case of Associação Sindical dos Juízes Portugueses (Case C-64/16) is noteworthy for two reasons. First, it is arguably the most important judgment since Les Verts  as regards the principle of the rule of law in the EU legal system. Secondly, it comes close to being the EU equivalent of the US Supreme Court case of Gitlow as regards the principle of effective judicial protection (Gitlow led to the progressive application of the US federal Bill of Rights to all state norms even when the states act within their own sphere of competence: see AG Sharpston here for a brief account).

With respect to the rule of law, in a couple of inspired and inspiring paragraphs, the Court offers a neat digest of the essential functions and features of this fundamental value in the EU’s legal framework. One of the most innovative and welcome aspects of this judgment is its conclusion on a combined reading of Article 2 TEU (values on which EU is based and common to its Member States), Article 4(3) TEU (principle of sincere cooperation) and Article 19(1) TEU (principle of effective judicial protection of individuals’ rights under EU law):

The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law … It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection. … In order for that protection to be ensured, maintaining [a national] court or tribunal’s independence is essential.

The Court’s ruling in Case C-64/16 may be understood as the Court’s answer to the worrying process of ‘rule of law backsliding’ first witnessed in Hungary and now being seen in Poland. This judgment essentially establishes a general obligation for Member States to guarantee and respect the independence of their national courts and tribunals. What is particularly noteworthy is that the Court has done this solely based on Article 19(1) TEU read in light of Article 2 and Article 4(3) TEU. This reasoning should hopefully lead the Polish government to stop repeating the ludicrous claim that it can introduce whatever judicial ‘reforms’ it sees fit as the organisation of national judiciaries falls outside EU competence. (In any event, the Irish courts have just decided to ask the ECJ whether European Arrest Warrants issued by Poland must be executed, in light of rule of law concerns; see also this review of the recent ECJ case law on EAWs and human rights).

Before examining how this judgment may prove to be a potentially decisive shot across the Polish bows as first noted here by Michal Ovádek (section 4), the facts and outcome of this case will be briefly presented (section 2). This post will also seek to tackle the most challenging ‘technical’ issue raised by this case: when can one challenge a national measure under Article 19(1) TEU, now considered a self-standing provision? It will be submitted that the Court’s approach, which is centred on the notion of ‘fields covered by EU law’ and merely requires the existence of a virtual link between relevant national measures and EU law, is ground-breaking yet compelling (section 3).

2. Facts and outcome

In 2014, the Portuguese legislature introduced a temporary reduction in the remuneration paid to the persons working in the Portuguese public administration, including judges. The Associação Sindical dos Juízes Portugueses (ASJP), acting on behalf of members of the Tribunal de Contas (Court of Auditors), decided to challenge the salary-reduction measures on the main ground that that they would infringe ‘the principle of judicial independence’ enshrined, not only in the Portuguese Constitution, but also in EU law, in the second subparagraph of Article 19(1) TEU (‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’) and Article 47 of the EU Charter of Fundamental Rights (Right to an effective remedy and to a fair trial). This issue was then subsequently referred by the Portuguese Supreme Administrative Court to the ECJ for a preliminary ruling.

What is particularly noteworthy is that the ECJ focused exclusively on Article 19(1) TEU, which the Court described as giving ‘concrete expression to the value of the rule of law stated in Article 2 TEU’ having previously recalled that mutual trust between national courts ‘is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded’. On the basis of a combined and powerful reading of Articles 2, 4(3) and 19(1) TEU, the Court underlines, more than ever before, the duties of national courts under the EU Treaties and in particular, their duty to ensure ‘that in the interpretation and application of the Treaties the law is observed’ while repeatedly observing that in order for the EU legal system to operate efficiently and for individuals to continue to benefit from the principle of the effective judicial protection of their EU rights, it is essential that national courts remain independent.

Whilst the outcome of the case itself is not surprising, it is the Court’s approach which is particularly noteworthy. Before concluding that the ‘salary-reduction measures at issue in the main proceedings cannot be considered to impair the independence of the members of the Tribunal de Contas’, the Court referred to a number of criteria which must guide national courts should they have to review measures which are alleged to infringe judicial independence: Are the measures specific to judges? Are the measures justified by an overriding reason of public interest? Can they be considered to weaken their independence?

In the present case and on the basis of these criteria, the Court convincingly concluded that ‘the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude general salary-reduction measures, such as those at issue in the main proceedings, linked to requirements to eliminate an excessive budget deficit and to an EU financial assistance programme, from being applied to the members of the Tribunal de Contas’.

3. Scope of Application of the EU Principle of Judicial Independence

The principle that national courts must be independent is not new in EU Law (see for instance Article 47 of the EU Charter of Fundamental Rights ‘CFR’ hereinafter). What makes the Court’ ruling in this case particularly significant is the way the Court exclusively relies on Article 19(1) TEU having emphasised early on in its judgment that this provision may be relied upon in national situations irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) CFR.

This is a welcome but nonetheless ground-breaking interpretation. In a nutshell, this interpretation of Article 19(1) TEU gives the principle of effective judicial protection a much wider scope of application that it would have on the basis of Article 47 CFR which is subject to Article 51(1) CFR. Article 19(1) TEU (added to the EU Treaties via the Lisbon Treaty) may therefore be ‘triggered’ in a much broader set of national situations than Article 47 CFR and in areas where there is very little to no EU acquis.

It may be worth briefly recalling at this stage that EU Law cannot be relied upon in every national legal procedure. For instance, in ‘purely internal situations’, where no links with EU law can be established, the ECJ lacks jurisdiction. The scope of application of the EU Charter is similarly limited by its Article 51(1). While the ECJ did adopt a broad interpretation of the notion of ‘implementation’ of EU law by Member States, the Court has also established that where ‘a legal situation does not come within the scope of European Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction’ (C-617/10, para 22).

The issue of whether the salary reductions of the Portuguese judges constitutes a purely internal situation is therefore key. As there is no EU rule governing the remuneration of national judges, one may have concluded that the ECJ lacked jurisdiction in this case. The temporary reduction in the amount of public sector remuneration was however based on mandatory requirements imposed on the Portuguese Government by the EU to reduce the Portuguese State’s excessive budget deficit in 2011 in order to receive financial assistance. To that extent and as in the case of Florescu (EU Charter applies to national measures adopted to meet the conditions attached to the financial assistance granted by the EU to a Member State), one could have retorted that the salary-reduction measures had to trigger the application of EU Law.

Had the Court gone down that route, Article 47 CFR would have been available to review the compatibility of these measures with EU law, including the principle of judicial independence. Yet, the Court chose another route without much explanation, or even no explanation at all, whereas the Article 47 CFR may also have been applied in the present case. The fact that the Court relied exclusively on Article 19(1) TEU to protect judicial independence at Member State level may be understood as an implicit answer to the increasing and sustained attacks on national courts by ruling parties in countries such as Poland (see section 4). By exclusively relying on Article 19(1), the Court has enabled natural and legal persons to challenge a broader set of national measures. Indeed, the notion of ‘fields covered by Union law’ mentioned in Article 19(1) is broadly interpreted by the Court and should now be understood as being wider than the notion of ‘implementation’ laid down in Article 51(1) CFR.

The Court has gone therefore beyond the limited functional necessity of national remedies sufficient to ensure the application of EU law and now requires that Member States guarantee and respect the fundamental requirements of justice as defined by EU law and the ECJ itself, failing which they can be sued directly on the basis of Article 19(1) TEU. To give an example, Member States must ensure that national courts can exercise their ‘judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever’. Any national measures which infringes this standard may now be found incompatible with the principle of judicial independence on the sole basis of Article 19(1).

What is yet to be determined is how much broader is the scope of Article 19(1) TEU in comparison to the scope of Article 47 CFR. In other words, how should the notion of fields covered by EU Law be understood compared to the notion of situations covered by EU Law (Fransson)?

At the very least, the present ruling now makes it possible for national litigants to rely on the principle of judicial independence in situations where the Charter may not be applicable by relying on Article 19 TEU. This new approach means for example that in cases such as Torralbo Marcos the ECJ would now probably accept jurisdiction to review whether national measures are compatible with the principle of effective judicial protection.

We would further argue that the Court’s present ruling must be understood as making Article 19(1) TEU a relevant standard for reviewing national measures irrespective of whether the situation is connected or not with EU law. Article 19(1) TEU may from now on be relied upon to challenge any national measure which may undermine the independence of any national court which may hear ‘questions concerning the application or interpretation of EU law’ (para. 40). The key ‘test’ is therefore whether the relevant national court has jurisdiction (or not) over potential questions of EU law. If this understanding is correct, the Court’s approach may be viewed as ground-breaking as most if not all national courts are, at least theoretically, in this situation.

In establishing a general obligation for Member States to guarantee and protect judicial independence on the basis of a combined reading of Articles 2, 4(3) and 19(1) TEU, irrespective of whether the situation falls within the scope of EU law, the Court’s ruling is reminiscent of the 1925 US judgment of Gitlow v New York, in which the Supreme Court held that the Fourteenth Amendment to the US Constitution had extended the reach of certain limitations on federal government authority set forth in the First Amendment to the governments of the individual states. In the present case, one may argue that the ECJ has essentially made the EU principle of effective judicial protection (including the principle of judicial independence) a federal standard of review which may be relied upon before national courts in virtually any situation where national measures target national judges who may hear actions based on EU law.

4. A decisive shot across the Polish bows?

The ECJ, by making Article 19(1) a stand-alone provision, has drastically increased the number of situations where litigants (for instance, a trade union representing judges) may challenge national measures which undermine judicial independence. In doing so, the Court has answered the appeal from some scholars to ‘operationalise’ Article 2 TEU by connecting it to other provisions of the TEU such as Article 4(3) and Article 19(1) TEU. In 2016, building up on the scholarship of Professor Scheppele, Professor Kochenov and one of the present authors argued for instance for the combined use of these Treaty provisions so to enable the review of national breaches of the rule of law happening beyond the areas covered by the EU’s acquis:

[T] here is however no legal obstacle preventing the Commission from using the infringement procedure to simultaneously investigate a set of diffuse and/or cumulative breaches of EU values in conjunction with EU principles such as the duty of loyalty, which is enshrined in Article 4(3) TEU … or the requirement that Member States ‘shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ (Article 19(1) TFEU). Article 258 TFEU does indeed speak of the necessity to ensure that the Member States fulfil any ‘obligation under the Treaties’. This also means that there is no legal hurdle preventing the Commission from bundling numerous apparently minor violations to demonstrate a pattern which itself could amount to a breach of Article 2 TEU.

By establishing, on the basis of Articles 2, 4(3) and 19(1) TEU, that Member States must ensure that their national courts meet ‘the requirements essential to effective judicial protection’, the Court has taken a most welcome stance on the existential threat which Hungary and Poland’s descent into authoritarianism poses for the EU’s interdependent and interconnected legal system. A number of statements may be understood as subliminal warnings to would-be autocrats in these two countries but also elsewhere:

‘The guarantee of independence, which is inherent in the task of adjudication … is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice … but also at the level of the Member States as regards national courts’;

‘The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever …’;

‘Like the protection against removal from office of the members of the body concerned … the receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence’.

Even more significant are the standards used by the Court when reviewing the disputed measures. For the Court, the salary-reduction measures do not infringe the EU principle of judicial independence because they were a limited and temporary reduction of remuneration to help lower ‘the Portuguese State’s excessive budget deficit’ and applied to various categories of public sector employees. The disputed measures could not therefore ‘be perceived as being specifically adopted (our emphasis) in respect of the members’ of the Portuguese Court of Auditors. This suggests, a contrario, that national measures which are (i) not justified by overriding reasons of public interest; (ii) are permanent and general in nature; and (iii) specifically target the judiciary or specific courts (e.g. a Supreme Court) could be considered by the ECJ ‘to impair the independence’ of relevant courts and their members and as such be held incompatible with the second subparagraph of Article 19(1) TEU.

What should Polish, Hungarian or Romanian judges (to mention but a few of the countries where ruling parties have sought to capture the judiciary) faced with national measures which de facto undermine their authority and independence be prepared to do in practice? As would-be autocrats tend to methodically follow a Rule-of-Law dismantlement blueprint, a Rule-of-Law resistance blueprint may be in order, such as the tentative and brief one below:

(a) National judges should aim (via trade unions preferably to avoid retaliatory measures) to systematically challenge the compatibility of any national measure which affects their independence via new rules amending their status, terms of office, etc., on the basis of Article 19(1) TEU as interpreted in Case C-64/16;

(b) To systematically request from national courts that they refer questions to the Court of Justice to enable it to rule on whether the national measures at issue in each case can be consider the impair the independence of the members of the relevant national court(s);

(c) ‘Friends of the rule of law’ should also aim to lodge complaints with the European Commission to ask it to investigate infringements of Article 19(1) TEU;

(d) With respect to countries where the national judiciary may already be captured in whole or in part by the ruling party, which may result in requests for preliminary rulings being systematically denied even at the level of courts of last resort and/or national judgments offering interpretations of EU law in bad faith, the Commission should systematically initiate infringement actions (Case C-154/08 is noteworthy in this respect).

EU institutions and key actors must wake up to the existential dangers raised by increasing rule of law backsliding within the EU. Following this welcome development in Luxembourg, it is to be hoped that the Commission will stop hesitating about whether to rely on Article 19(1) TEU in its infringement actions (see this post by Professor Taborowski for a critique of the Commission’s moving and excessively cautious legal position in the context of the pending infringement case against the Polish law on the organisation of ordinary courts). One may only hope also that the Commission will aim to think more strategically about rule of law backsliding. It was disappointing in this respect to see the Commission raising the inadmissibility of the request for a preliminary ruling in the present case or failing to initially think of requesting from the Court the imposition of a penalty payment in the Białowieża Forest infringement case when the Polish government so defiantly refused to comply with a previous order of the Court.

The time for dialogue has past. The time for action (and sanction) is now.

Photo credit : IPI

Barnard & Peers : chapter 9, chapter 10

The European Commission’s Activation of Article 7: Better Late than Never?

Dimitry Kochenov, Professor of EU Constitutional Law at the University of Groningen; Laurent Pech, Professor of European Law at Middlesex University London; and Kim Lane Scheppele, Professor of Sociology and International Affairs at Princeton University

‘The European Union is first and foremost a Union of values and of the rule of law. The conquest of these values is the result of our history. They are the hard core of the Union's identity and enable every citizen to identify with it. The Commission is convinced that in this Union of values it will not be necessary to apply penalties pursuant to Article 7 of the Union Treaty’ European Commission, 15 October 2003

1. What has just happened?

On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland by (i) issuing a fourth Rule of Law Recommendation, which complements three previous Recommendations, adopted on 27 July 2016, 21 December 2016 and 27 July 2017; (ii) submitting a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland under Article 7(1) TEU and (iii) referring the Polish Law on the Ordinary Courts Organisation to the Court of Justice of the EU under Article 258 TFEU and in the context of which the Commission is raising for the first time (to the best of our knowledge) a violation of Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights by Poland to the extent that the Minister of Justice has been given a discretionary power to prolong the mandate of judges which have reached retirement age (a similar combination was raised in the first stage of an infringement action against Hungary in December 2015 with regard to immigration issues but this language was dropped by the time it got to the Court of Justice).

Should the Polish authorities finally decide to implement the Commission’s recommendations within three months, the Commission has indicated its readiness to ‘reconsider’ its Article 7(1) proposal (para 50 of the Commission’s fourth rule of law recommendation).

The intensity and repeated nature of Poland’s ruling party attacks on the most basic tenets of the rule of law are unprecedentedly aggressive and in obvious breach of the Polish Constitution, which in our view warrants the Commission’s action (this is not to say that Article 7(1) should not also be activated against Hungary as two of the present authors previously argued in this 2016 article). Indeed, as rightly noted by the Commission, the Polish authorities have adopted over a period of two years no less ‘than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary’. It was time therefore for the Commission to defend the independence of Member State judiciaries and the rule of law (as nicely put by Maximilian Steinbeis, ‘Polish courts are our courts’, that is, ‘if the legal system in a Member State is broken, the legal system in the whole of the EU is broken’).

The media have so far only almost exclusively focused on the first ever invocation of what is often described as the EU’s ‘nuclear option’, which, however, as correctly pointed out by Frans Timmermans in his press conference announcing the Commission’s actions, is a misnomer (as we previously argued here). To put it briefly, Article 7 TEU provides for two main mechanisms: a preventive one in case of a ‘clear risk of a serious breach’ of the values common to the EU and its Member States and a sanctioning one where ‘a serious and persistent breach’ of the same values has materialised (for more detailed commentaries on the mechanics of Article 7 see here and here).

The Commission merely initiated the preventive mechanism on Wednesday when one could however reasonably argue that we are already way beyond the stage of a ‘clear risk’ and entered ‘serious and persistent breach’ territory following the capture of the Polish Constitutional Tribunal in obvious breach both of the Polish Constitution and the Commission’s first and second rule of law recommendations (see Pech and Scheppele, January 2017). Before however offering further details on the situation in Poland, however, it may be worth offering a brief overview of Article 7’s genesis.

2. Genesis of Article 7

On 9 May 1950, the venerable Schuman Declaration invited all the free European states to join the unification project, implying respect for the rule of law, a democratic system of government, and a market economy. The initial versions of the Treaties presumed compliance of the Member States with these principles, now reflected in Article 2 TEU. The enforcement of compliance was nevertheless strictly confined to the scope of the law of the EU via what are now Articles 258 and 259 TFEU, later reinforced by Article 260 TFEU, thus leaving compliance with the EU’s foundational values almost exclusively to the care of the constitutional systems of the Member States. The first shift towards a more active role to be played by the EU in this respect happened in 1978 when the Commission contemplated a proposal for a possible sanctions mechanism against the backdrop of the then upcoming Greek accession.

A few years later, the European Parliament draft EU Treaty from 1984 contained such a mechanism for the first time. Later on, the EU began systematically including ‘human rights clauses’ in all association and cooperation (‘Europe-’) agreements with the Central and Eastern European states and incorporated these into the fabric of the pre-accession political conditionality in the areas of democracy, the rule of law and human rights.

In anticipation of the forthcoming accession of numerous countries to the EU, the Treaty of Amsterdam included the first version of Article 7 which only provided then for possible sanctions in a situation of ‘serious and persistent breach’. With the Nice Treaty, Article 7 TEU was revised to further enable the EU to adopt preventive sanctions in the situation where there is ‘a clear risk of a serious breach’ of the EU values by a Member State. This change was made to enable the EU to step in in a situation similar to the one in Austria following the formation of a governmental coalition involving Jorg Haider's far-right Freedom Party. Before the Nice amendment, EU’s involvement with Austria took the form of a series of illegal ad hoc ‘bilateral sanctions’ imposed on Austria by 14 other Member States acting, strictly speaking, outside of the framework of EU law.

These diplomatic sanctions were ended when the report issued by a “wise men” committee, which was set up to investigate the political and human rights situation in Austria, concluded that Austria’s record and commitment to common European values, including the rights of minorities, refugees and immigrants, was at the time of the report satisfactory: the illegal sanctions triggered by the election result would thus clearly not be justified under the amended Article 7 either. One might note in this respect how times have changed when the Freedom Party's inclusion in a coalition government in Austria last week passed almost totally unremarked this time. It is wise however for the EU not to overreact to election results, but to instead react to actual breaches of the values common the EU and its Member States.

In the light of this episode and other factors explored in this blog post published in January 2015, the European Commission thought it useful to adopt a pre-Article 7 procedure in 2014 to address systemic threats to the rule of law in any of the EU’s 28 Member States in response to the EU-28 governments’ express request in 2013 that the Commission should ‘take forward the debate in line with the Treaties on the possible need for and shape of a collaborative and systematic method to tackle’ rule of law backsliding (this is why it beggars belief that some EU national governments are now complaining that the Commission is finally taking this existential issue seriously).

The new pre-Article 7 procedure was activated for the very first time in January 2016 following the non-respect by Polish authorities of crucially important rulings of the Polish Constitutional Court and the adoption of new rules with respect to Public Service Broadcasters. As we predicted in this January 2015 post, any soft dialogue with authorities bent on undermining if not completely dismantling all checks and balances was bound to fail and this is indeed what has happened with respect to Poland. It was also bound to create more space within which the determined autocrats in the Polish governing party would have more time to consolidate their unchecked power in relative peace. Be that as it may, having at last accepted the totally fruitless nature of the so-called constructive dialogue with Polish authorities, the European Commission finally decided, ‘with a heavy heart’, to activate Article 7(1).

3. Is the Commission’s decision to initiate Article 7 justified?

First, we agree fully with Frans Timmermans when he said earlier this week that the ‘common pattern’ of all the legislative changes targeting the judiciary in Poland ‘is that the executive or legislative powers are now set up in such a way that the ruling majority can systematically, politically interfere with the composition, the powers, the administration and the functioning of these authorities, thereby rendering the independence of the judiciary completely moot.’ We also share the view recently expressed by Vera Jourova and according to which 'if one national system of judiciary is broken, the EU system is broken’.

A full account of the measures taken to remove checks and balances would take more space than we have here, so we can only but give a flavour of the so-called ‘reforms’ devised by Poland’s ruling party and which have been repetitively and publicly criticised (a point which the Polish government tends to conveniently forget). It is not just the European Commission that has repeatedly criticised the Polish reforms, but also the European Parliament, key bodies of the Council of Europe such as the Venice Commission, the United Nations Human RightsCommittee, the OSCE Office for Democratic Institutions and Human Rights as well as representatives of the judiciary across Europe, including the Network of Presidents of the Supreme Judicial Courts of the European Union and the European Network of Councils for the Judiciary. Numerous civil society organisations such as AmnestyInternational and Human Rights Watch have also expressed concerns and tens of thousands of Poles have taken to the street to protest the attacks on their own judiciary.

In light of yesterday’s visit to Poland by the British Prime Minister and her failure to publicly and unambiguously criticise the country’s ongoing descent into authoritarianism  (when asked about the Commission’s activation of Article 7(1) Theresa May said: ‘These constitutional issues are normally, and should be primarily a matter for the individual country concerned’), it is may also be worth recalling that a number of UK bodies have also expressed their strong concerns regarding the situation in Poland.

For instance, last July, the Bar Human Rights Committee of England and Wales called on ‘the Polish President, government and parliament to reject these draft laws and to withdraw and repeal all the measures which pose such a grave threat to judicial independence and the rule of law in Poland’. Previously, the body which represents independent judges in England and Wales issued a press release to make clear its concerns 'about the proposed situation in Poland and any impact on judicial independence'.

Last but not least, let us not forget the recent and significant intervention of the Court of Justice in the Białowieża Forest infringement case in the context of which the Court decided that Poland should be subject to a penalty payment of at least €100,000 per day should it be found to have violated the Court’s order. They did so because Polish authorities’ declared that they would ignore a previous order adopted by the Vice-President of the Court to that effect. This was another factor which led the European Parliament to adopt a resolution on 15 November 2017 in which the Parliament describes the current rule of law situation in Poland as representing ‘a clear risk of a serious breach of the values referred to in Article 2 of the TEU’ and in which the Parliament also rightly deplored ‘the Polish Government’s refusal to implement the order of the Court of Justice of the EU on logging in the Białowieża forest’.

The European Commission therefore is hardly alone in its criticism of the Polish ruling party’s repeated attacks on the rule of law notwithstanding the Polish government’s ridiculous claim repeated ad nauseam that these attacks are politically motivated.

Three examples may also suffice to demonstrate that what the Polish ruling party calls ‘reforms’ are nothing but a set of unconstitutional and autocratic changes which aim to completely subjugate the judiciary to the will of the ruling party under the guise of the ‘will of the people’, no matter how plainly incompatible these changes are with both the Polish Constitution and Poland’s international obligations.

Frans Timmermans was entirely correct to point out that the constitutionality of legislation in Poland is longer guaranteed following the successful but unconstitutional capture of the Polish Constitutional Tribunal via the unlawful appointment of ideologically compatible ‘judges’ and the rushed installation, specifically in violation of a request from the Commission, of a new president of the Polish Constitutional Court in December 2016 (for further analysis see the 2017 posts by Pech and Scheppele: Part I; Part II; Part III). The situation is now so out of control that crucial rulings of the Constitutional Court that were made before it was captured ‘have been removed from the register of the Tribunal which is accessible from its website’ while ‘other judgements which were not yet published at the time of the adoption of the Recommendation of 21 December 2016 have by contrast been published on 29 December 2016 in the Journal of Laws’ (see para 5 of Commission Recommendation 2017/1520 of 26 July 2017). We are here in Orwellian and unprecedented territory for a country belonging to the EU and space precludes any analysis of the also unprecedented use (again to the best of our knowledge) of criminal law provisions designed to protect State institutions by the unlawfully appointed President of the Polish Constitutional Tribunal to silence her critics (see analysis here).

Secondly, Polish authorities never shy away from describing their ongoing destruction of the Polish judiciary as being in line with European standards or, failing that, as a pure matter of national sovereignty: two ludicrous points as explained here in a study co-authored by Professors Pech and Platon.

Let’s take for instance the forthcoming ‘reform’ of the Supreme Court. It is nothing less than a total purge of its current membership which should take two to three years to be completed. As noted by the Commission, by lowering the retirement age and applying it to current Supreme Court judges, the Polish ruling aims to compulsory retire right away ‘almost 40% of the current Supreme Court judges’ with the additional discretionary power given to the President of the Republic ‘to prolong the mandate of Supreme Court judges’ with all new Supreme Court judges to be appointed ‘by the President on the recommendation of the newly composed National Council for the Judiciary, which will be largely dominated by political appointees’. One should note in passing that the Minister of Justice, on the basis of another set of provisions, has already gained the power ‘to appoint and dismiss all presidents of courts without concrete criteria, no obligation to state reasons and no judicial review’… This will prove no doubt useful at the time of the next parliamentary elections as the Supreme Court has jurisdiction over the validation of election results (the Polish ruling party has already begun the process of amending electoral rules with no doubt the aim to make sure it will not be in a position to lose them ever again, and a process which no doubt they will try to defend as another necessary ‘reform’…).

To make matters even worse, the new process of ‘extraordinary review’ of final judgments laid down in the Act on the Supreme Court, which the Venice Commission described as having a lot of similarities with the ‘old Soviet system’ and as jeopardising the ‘stability of the Polish legal order’ in its most recent Opinion on Poland. Indeed, again as noted by the Venice Commission, under this new process, ‘it it will be possible to reopen any case decided in the country in the past 20 years, on virtually any ground. Moreover, in the proposed system the new judgements, adopted after the re-opening, will also be susceptible to the extraordinary review. It means that no judgment in the Polish system will ever be “final” anymore’ (para 58). This is as breath-taking as it is unprecedented for a country belonging to the EU and in this respect we also share the Venice Commission’s finding that some aspects of the Polish judicial ‘reform’ targeting its Supreme Court ‘have a striking resemblance with the institutions which existed in the Soviet Union and its satellites’ (para 89).

Viewed in this light one may be forgiven for thinking that the European Commission should have moved right away to the sanctioning branch of Article 7 TEU by initiating Article 7(2) rather than Article 7(1). With its neo-Soviet approach to the division of powers, Poland is already closer to Belarus in the structure of its institutions than it is to any other European state. But, as the best is sometimes the enemy of the good, we can understand why the European Commission would prefer to proceed with the preventive arm of Article 7 first. Indeed, going straight to the European Council would mean having to secure a unanimous determination regarding ‘the existence of a serious and persistent breach’ in Poland before the eventual suspension of ‘certain of the rights deriving from the application’ of the EU Treaties to be agreed under a lighter procedure laid down in Article 7(3) TEU (qualified majority in the Council is then required). Importantly, the Commission faced no legal obligation to start with 7(1) TEU first, as Article 7(2) TEU – unanimous finding by the European Council of the existence o the breach of values can unquestionably serve as the entry point into the palette of what Article 7 TEU has to offer.

4. Will the triggering of Article 7(1) make a difference?

While we welcome the Commission’s decision to submit a reasoned proposal to the Council having rightly concluded that there is a ‘clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU’ (para 127 of the reasoned proposal), the triggering of this provision is overdue and, as one of us previously argued in October 2016, the right time to have done so was November 2016 before the all too predictable unconstitutional capture of the Polish Constitutional Tribunal which happened at the end of December 2016. The continuing and misplaced faith in ‘dialogue’ with a government so clearly following Orban's autocratic blueprint has meant that the Polish ruling party was able to undermine if not annihilate virtually all checks and balances one year before the Commission moved to act, fulfilling its duty as the guardian of the Treaties.

The Commission may also be criticised for not triggering much earlier on Article 7(1) against ‘both Poland and Hungary even apart from the instrumental reason that Article 7 TEU is foiled by two rogue states acting in concert if sanctions are attempted against them one at a time’. In this respect, sceptics may argue that the triggering of Article 7 is bound to fail as ultimately, ‘rogue countries’ may just protect one another should the Commission (or one third of the Member States) decide to activate the sanctioning mechanism laid down in this provision. While this is a minority view we share the argument first defended by one of the present authors that in a situation where ‘Article 7(1) is invoked against both Hungary and Poland at the same time, neither should be able to vote if Article 7(2) … is invoked against either one’. We believe this interpretation can be justified on the basis of the effet utile doctrine – a corollary to the teleological method of interpretation and which may be described as a ‘form of interpretation of treaties and other instruments derived from French administrative law which looks to the object and purpose of a treaty, as well as the context, to make the treaty more effective' (Encyclopaedic Dictionary of International Law).

The recent ruling of the Court of Justice in the Białowieża Forest infringement case may be said to further strengthen Professor Scheppele’s claim. Indeed, in the absence of any explicit reference to the eventual imposition of financial sanctions in the context of interim relief rulings under Article 279 TFEU (for further analysis see Professor Sarmiento’s post here), the Court, correctly in our view, by reference to Article 260 TFEU but also and significantly by reference to the effective application of EU Law in the name of the principle of the rule of law enshrined in Article 2 TEU, held that Article 279 TFEU confers on it the power to make provision for a penalty payment to prevent non-compliance:

The purpose of seeking to ensure that a Member State complies with interim measures adopted by the Court hearing an application for such measures by providing for the imposition of a periodic penalty payment in the event of non-compliance with those measures is to guarantee the effective application of EU law, such application being an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded.

Be that as it may, we also agree with Frans Timmermans when he said that ‘the facts leave [the Commission] no choice’ but to initiate Article 7. As two of the present authors previously wrote, it was more than time ‘to oblige national governments to face up to their own responsibilities to keep European values at the centre of the Treaties’. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed to 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof.

The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage. Even though Article 7(1) is merely a warning without any direct sanctions, the indirect effects of triggering Article 7(1) should not be underestimated. To name but a few possible knock-on effects (further analysis and references here), the activation of Article 7(1) coupled with the forthcoming total subjugation of the Polish courts to the whims and interests of the Polish ruling party may lead the Court of Justice to set aside the principle of mutual trust and/or stop recognising Polish courts as courts within the meaning of EU Law (the ongoing and arguably insufficiently noticed infringement procedure concerning the Polish Law on the Ordinary Courts will require the Court of Justice to address, for the first time as far as we know, the independence of the whole judiciary of a Member State). This could then leave the European Commission no choice but to suspend EU funding to Poland, an option which according to Israel Butler is in any event already available to the Commission (on this issue see also a recent report ‘Can EU funds promote the rule of law in Europe?’).

A functioning judicial system is not only necessary to maintain a constitutional government; it is also necessary to maintain a market economy. The impact on commercial arbitration involving Polish companies if not the financial markets may also in time be too significant to be comfortably ignored by Polish authorities. And while it was recently noted by Capital Economics that the experience of Hungary suggests that ‘recurrent run-ins’ with the EU ‘do not tend to have much impact on growth in the short-run’, ‘the potential impact on Poland’s growth prospects over the medium-term’ might eventually become significant for an economy which is not only highly dependent on EU funding but also FDI.

Looking beyond the law and economics of Article 7, it is difficult to predict how the politics of Article 7 may play out. We do not believe the Austrian precedent means that a nationalistic backlash is necessarily bound to materialise and undermine the Commission’s attempts to stop Poland’s descent into authoritarianism. In the case of Austria in 2000, a number of EU countries overreacted as diplomatic sanctions were adopted before any evidence of any systemic attempts to undermine principles such as the rule of law or respect for human rights. And while the freezing of bilateral relations may have led to a rise in nationalist sentiments in Austria, which was unsurprising considering that diplomatic sanctions were adopted before a breach of Article 2 values in the country could be documented, using the ‘Austrian precedent’ to justify inaction against both Poland and Hungary makes no (legal) sense. In these two countries, we have a sustained track record and ample evidence of actual, repeated and systemic rule of law violations in these two countries starting in 2011 in the case of Hungary and starting in 2015 in the case of Poland.

The Commission, as Guardian of the Treaties, should not, in any event, only seek to uphold the rule of law when facing an easy political constellation. All EU institutions but also national governments should carefully assess the long term cost of appeasement or inaction  and stop prioritising how autocratic or nativist forces may reach to prioritise instead the broader interests of EU citizens, whose rights and obligations can now unfortunately ‘be defined, in part, by ‘illiberalregimes’ via their participation to the EU’s decision making processes’.

The European Parliament did point out in December 2015 that Hungary was ‘a test for the EU to prove its capacity and political willingness to react to threats and breaches of its own founding values by a Member State’ and that ‘the inaction of the EU may have contributed to … the rule of law being undermined’ elsewhere in the EU. The Union’s passivity regarding Orban's ‘mafia state’ (in large part due to the leadership of the European People’s Party putting time and time again short term political considerations over the principles this party supposedly stands for) has no doubt emboldened Poland’s ruling party to not even bother playing to the gallery while they relentlessly destroy all rule of law institutions in plain sight and prepare the grounds for the de facto establishment of a one-party state.

To end however on an optimistic note, one may refer to the seemingly beneficial political knock-on effects of the Commission's decision to initiate Article 7(1) in Romania, a country where the rule of law situation has been seriously deteriorating these past few months despite the country having been subject to a special rule of law mechanism since 2007. With reference to the Commission's decision, the Romanian President has warned the country's ruling coalition that the country could be next if the ruling coalition pushes ahead with its controversial changes to Romania's legal system.

5. Next steps

The Commission’s Article 7(1) proposal was issued at the same time as the Commission’s fourth rule of law recommendation. This recommendation gives Poland three months to solve the problems identified in the Recommendation. This suggests that the Council will not seek to organise the hearing of Poland and obtain the consent of the European Parliament until at least the end of March 2018. There are no signs yet that the Polish government tends to engage in good faith and cooperate by that time. On this basis one could foresee the following schedule for playing out the next stages of the Article 7 process:

(i) The Council would organise a hearing following the procedure identified in of Article 7(1) TEU in April/May 2018;

(ii) Consent of the Parliament would then be sought in May/June 2018 (Article 354 TFEU provides that the European Parliament shall act by a two-thirds majority of votes cast, representing the majority of its component Members);

(iii) Assuming this consent is given the Council may then seek to adopt in June/July a decision by a four-fifths majority (22 of 27 Members of the Council will have to agree with Poland obviously precluded from taking part in this vote) in order to formally determine the existence of ‘a clear risk of a serious breach by the Republic of Poland of the rule of law’ (see Article 1 of the Commission’s reasoned proposal for a Council decision under Article 7(1) regarding the rule of law in Poland);

(iv) Assuming this decision is adopted (at this stage it remains unclear whether 22 of 27 Members of the Council stand ready to de facto censure the Polish ruling party), the Council would then most likely simultaneously address recommendations to Poland acting in accordance with the same voting procedure (the post-Lisbon text of Article 7(1) provides that the Council may address recommendations to Poland before making such a determination but the Commission’s reasoned proposal suggests that a single decision could be adopted by the Council to simultaneously determine the existence of a clear risk of a serious breach of the rule of law and adopt recommendations);

(v) Should Poland fail to comply with the Council’s recommendations within the foreseen three-month deadline post the adoption of the Council’s Article 7(1) decision, one would then expect this problem to be escalated to the European Council by the end of December 2018, but this would not be an automatic consequence of Poland’s failure to comply with any eventual Article 7(1) decision by the Council.

Interestingly, it is also expected that the European Parliament will organise a plenary vote on whether to initiate Article 7(1) proceedings against Hungary in September 2018, in which case by the time the European Council might have to unanimously determine the existence of a serious breach, we could have both Kaczynski's Poland and Orban's Hungary subject to Article 7 proceedings, in which case, if one agrees with our effet utile reading of Article 7, both should lose their right to vote to protect one another in this context. It would indeed be quite an absurd construction of Article 7 if its deterrent effect simply disappeared when one rogue member state was joined by a second.

Looking beyond Article 7 and as previously noted, we can only but deplore the EU’s failure to prevent and sanction rule of law backsliding from emerging first in Hungary before spreading to Poland. Faced with two member states that are violating European values, the most effective way to deal with the issue may be to cut off EU funding. We worry that this, too, is unlikely to happen in the absence of a ‘nuclear’ ruling by the Court of Justice, meaning a ruling leading to the suspension of the principle of mutual trust where Poland is concerned (further analysis here). The impact of bilateral diplomatic pressure if not the freezing of diplomatic relations would also most likely be effective but the need for the EU27 to remain united in the context of the Brexit negotiations means that this option is off the table.

Thinking longer-term, multi-speed Europe may well solve not only the uneven willingness of states to move toward closer cooperation, but may also provide the perfect opportunity to leave behind states that are unwilling to fully adhere to basic principles. If the EU proves unable to rein in autocrats any other way, the incorporation of conditionality techniques into policing each of the integration’s concentric circles likely to become a necessary element of the edifice. As the speed and vectors of integration evolve, Poland and the likes of Poland could find themselves outside the scope of meaningful activity – behind the door of the integration’s kitchen. With the growing pressure on the Union’s values from a number of countries, this may be the most realistic way forward to preserve the EU as a union of value in the long run, while also being sufficiently open towards the states hijacked by autocratic and plutocratic forces.

Barnard & Peers: chapter 9
Photo credit: DW