Tuesday 29 October 2019

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 2: The Application of Ordinary EU law

Professor Steve Peers, University of Essex

Should the EU sanction its Member States for systematic breaches of human rights and the rule of law – and if the answer is yes, how should it do so?

This is the second of three blog posts discussing this issue. The first post examined the formal process set up to sanction Member States to this end: Article 7 TEU. As I discussed there, this process – which could lead to suspension of some aspects of EU membership for a Member State – is highly political, with a very limited role for the EU courts, and is very difficult to apply. However, in the last year or so, ‘ordinary’ EU law has been used to challenge Member States for such breaches instead. This blog post is an overview and discussion of how this alternative process works. A third blog post will discuss the broader constitutional dynamics and historical context of sanctioning Member States.

The EU court process

Before looking more at the details of how ordinary EU law is being used to address general concerns about human rights and the rule of law, it’s necessary to summarise the key features of the relevant parts of the CJEU’s jurisdiction.

First, the infringement procedure allows the Commission (or a Member State) to take a Member State to the CJEU to argue that it is infringing EU law as such. The Court’s ruling in such a case is binding on the Member State concerned, but does not strike down a national law as such. If requested, the Court can order interim measures against a Member State while such a case is pending.
Secondly, the ‘preliminary ruling’ process (Article 267 TFEU) provides that any national court can ask the CJEU about the interpretation of EU law, if necessary to decide a case pending before it. These latter cases often concern an individual arguing that a Member State has not applied EU law correctly. The CJEU’s answers to the questions are binding on the national court, which resumes its proceedings after the CJEU’s judgment and decides on what remedy to apply – which could involve disapplying national law. 

Compared to Article 7, these are not just different processes (judicial, rather than essentially political) with a different remedy, but have in principle a much narrower subject-matter: the application of EU law as such, not the values of the European Union (as discussed in the first blog post). It’s literally the difference between building a bypass without doing an environmental impact assessment, and locking up the leader of the opposition. (Of course it’s always possible, as an homage to Douglas Adams, that an unauthorised bypass construction turns out to be an ironically clunky foreshadowing of more drastic developments to come).

Having said that, as I noted in the first blog post, there are times when an issue falls within the scope of both ordinary EU law and general human rights breaches. First of all, in some cases there are very specific links between the Article 7 process and ordinary EU law issues. Secondly, there are cases concerning the general protection of human rights and the rule of law where the Article 7 process and the ordinary EU law process can and do run in parallel, as the CJEU implicitly confirmed in June in its first ruling on Polish judicial independence (discussed further here). (See also the Advocate-General’s opinion in a further pending case against Poland, para 73). I’ll examine these two categories of cases in parallel.

Specific links: Asylum and the European Arrest Warrant

The two areas where specific links already exist between the Article 7 process and ‘ordinary’ EU law are asylum and the European Arrest Warrant.


As regards asylum, the explicit link is not with EU asylum legislation, which concerns asylum applications by non-EU citizens – although systematic human rights breaches can have an impact there (see below), but to the protocol to the EU Treaties, which in principle rules out asylum claims by EU citizens.  

According to this protocol, since human rights are well-protected in the EU, ‘Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. Therefore, asylum applications by EU citizens ought to be rejected automatically in other Member States except where: (a) a Member State derogates from the ECHR on an emergency basis pursuant to Article 15 ECHR; (b) ‘if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national’; (c) ‘if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national’; or (d) if a Member State decides to consider an asylum application unilaterally in an individual case, subject to certain limits.

Of these four cases, the second and third explicitly link to the Article 7 process. In short, asylum applications by EU citizens are admissible either if a ‘yellow card’ sanction process is pending, or if the EU institutions have issued either a yellow card or a red card to a Member State. As discussed in the first blog post in this series, while no yellow cards or red cards have ever been issued, a yellow card process is pending against both Poland and Hungary. It follows that Polish and Hungarian citizens can already apply for asylum in other Member States – a surprisingly underappreciated point.
One reason that this possibility has been overlooked is because of the parallel existence of free movement of persons. There’s no Iron Curtain across the EU, far from it: Poles and Hungarians who are annoyed with their governments can simply move to another Member State if they meet the fairly liberal criteria to move under free movement law, and doubtless some disgruntled Polish and Hungarian citizens have moved within the EU (or to non-EU countries, on the basis of those countries’ immigration laws) for such reasons.  

The relevance of the possibility to make asylum claims would only apply in limited circumstances: where the person concerned moved beforehand (see a CJEU judgment from last year on a Croatian citizen with refugee status, discussed here); where the citizen does not qualify under free movement law because of lack of a job or support; where a transitional restriction on free movement after accession to the EU applies; or where the EU citizen is resisting a European Arrest Warrant (which was indeed the reason why the asylum protocol was originally added to the Treaties in the 1990s in the first place: to override asylum claims which were being made in order to defeat extradition requests).   

In the event of a crisis involving many thousands of EU citizens fleeing a Member State (cf Hungary 1956), the Protocol would come into its own, as many of those concerned would lack jobs or support. Odd as it might sound, EU asylum law would not apply to such a case, since it only applies to non-EU citizens; there would perhaps be some ad hoc arrangements quickly agreed to determine responsibility and eligibility, possibly applying EU asylum law by analogy.

European Arrest Warrant

So far, the CJEU has not been asked about the asylum protocol. However, it has been asked many times about the European Arrest Warrant (EAW) and human rights. Some of these cases concern detention conditions (see the line of cases discussed here), or independent prosecutors (see discussion here), but one judgment, the LM ruling of 2018 (discussed here), specifically addresses the application of the EAW where there are broader concerns about the rule of law in the State issuing warrants (in this case, Poland).  

According to the CJEU in that case, the preamble to the EAW law, which states that this law can only be suspended if an Article 7 ‘red card’ is issued, meant that the courts had to defer to the absence of a decision by the EU’s political institutions, and could not suspend the law as a whole by themselves. However, the courts could still consider whether there was a breach of the rule of law in individual cases, taking account of the arguments about a systemic problem with the rule of law in the issuing State which had been put before the EU institutions in a pending ‘yellow card’ proceeding (which was already underway against Poland).

Systematic human rights problems and ordinary EU law

The most important group of cases on this point relate to the independence of the judiciary, and consist largely (but not entirely) of cases concerning Poland. In its June judgment on the first of these cases, an infringement action concerning early retirement ages for the Supreme Court (discussed here), the Court of Justice confirmed that the requirement of respect for judicial independence is inherent in Article 19 TEU, which describes the EU judicial system, including the role of national courts. In doing so it clarified its earlier judgment on the Portuguese courts (discussed here), in which concern about judicial independence arose in the context of salary cuts which were the consequence of austerity linked to EU law.

Crucially, in this first judgment about Poland, the Court confirmed that no specific link to a particular EU law is necessary in order to argue that a Member State has infringed the principle of judicial independence. In effect, Article 19 TEU is a free-standing rule of EU law: arguments about judicial independence are inherently linked to specific EU laws, because EU law depends upon an independent national judiciary for its enforcement. However, the Court did not clarify whether Article 19 TEU only applies where there is a systematic problem with judicial independence (as the Advocate-General’s opinion argued), or could also be invoked in disputes about a specific incident.

A second infringement case against Poland, concerning early retirement ages for the ordinary courts, is also pending. An Advocate-General’s opinion in this case argues that the Commission’s claims are mostly well-founded, along similar lines to the first judgment (update: the Court’s judgment in this case, ruling against Poland, was released on November 5). A third batch of cases, referred from the national courts, concerns judicial disciplinary proceedings. In this case, an Advocate-General’s opinion argues that the case is linked to specific EU law, rather than Article 19 TEU as a free-standing rule, but that in any event Poland is again breaching EU law. The remedy is for the national courts to disapply the offending national law if necessary (judgment is due November 19). A fourth batch of cases might be inadmissible, in the opinion of an Advocate-General. A third infringement case, with a request for expedited proceedings, was brought in October. Furthermore, a number of other cases referred from Polish courts are pending, as summarised here.

A number of cases concerning specific EU law points have been brought against Hungary. In particular, the Commission has brought infringement actions concerning: the independence of the central bank (withdrawn), age limits for judicial retirement (successful; linked to age discrimination law, not Article 19 TEU as such), independence of the data protection authority (successful; discussed here); the removal of the Central European University (pending; an Advocate-General’s opinion is due in November); NGO funding (pending); systematic problems with the asylum system (pending); and withdrawal of food from irregular migrants (at the ‘reasoned opinion’ stage). These cases don’t explicitly raise systemic arguments about Hungarian protection of the rule of law – but their sheer volume, and the broader political context, notably as regards the independence of regulators, reflects some of the broader concerns that led the European Parliament to trigger the Article 7 process against Hungary.  

As regards Romania, a series of recent cases sent to the CJEU query whether the post-accession process of checking Romanian compliance with its obligations related to civil and criminal judicial cooperation has some legal effect, in order to address concerns about the rule of law in that country.

Moving away from specific countries, issues arise regarding EU funding. Should Member States with a questionable record in protecting the rule of law be hit in the pocketbook? That’s what the Commission suggested in a proposal relating to the next multi-annual EU budget, which would sanction Member States financially if a systemic deficiency in the rule of law ‘affects or risks affecting the principles of sound financial management or the protection of the financial interests of the Union’.

The EU Council legal service has concerns about the EU’s legal power to adopt this proposal, which have been rebutted by Professors Kelemen, Lane Scheppel, and Pech. The legal service’s view is that the proposal would breach the exclusivity of the Article 7 process. In my view, while I have legal doubts about the notion that the EU has general power to sanction Member States financially for breaches of the rule of law outside that process, this proposal is more tightly drawn than that: it only applies where there is a link between the rule of law deficiencies and the EU’s financial interests. To put it bluntly, it’s possible that corrupt officials or politicians might be shielded by biased judges. In that light, and taking account of the subsequent CJEU judgment finding that a lack of judicial independence is intrinsically linked to the application of EU law, it should follow by analogy that the EU has the power to adopt this proposal. However, it remains to be seen whether it is de facto blocked as part of a broader quid pro quo when agreeing the EU’s next multi-annual budget.  


As I noted in the first blog post, the use of ‘ordinary’ EU law means to address rule of law concerns, instead of the Article 7 process, could be a means of addressing those concerns by conventional means, given that some perceive Article 7 as a kind of ‘nuclear button’. Certainly it has its advantages compared to the Article 7 process, as it avoids the obvious reluctance of Member States to condemn each other in that context. Its use as a route to ensure the rule of law is strengthened by the CJEU’s willingness to assert jurisdiction over concerns about judicial independence more broadly. However, outside specific links with EU law and the issue of judicial independence, it might prove hard to use the ordinary EU legal system to deal with a number of concerns about the political system in a Member State besides those issues.

There’s also a risk that once national courts are ‘packed’, it’s too late to expect them to send questions to the Court of Justice. The Commission can still bring infringement actions, but these have less direct impact on the national legal process. And the Commission could in turn be ‘captured’ by those deferential to governments. At present, there are robust challenges to Member States as regards the rule of law via both national courts and the Commission – but it took awhile for the Commission to get going, and its willingness to be active in this field cannot be taken for granted.

If both national courts and the Commission are ‘captured’, there might still be some pressure from the courts of other Member States. But, for instance, placing indirect pressure via EAW cases has its limits: the CJEU has ruled out a general suspension of the EAW system except where Article 7 has been invoked, and anyway 'we won’t send you these fugitives' may not be too much of a threat; the issuing Member State might just think 'Fine, you’re welcome to them'. It might be legally difficult (for instance, due to lack of jurisdiction) or expensive for the requested State to try the fugitives instead, and in any event if the issuing State has problems with the rule of law, how could one trust a sentence handed down there, or evidence supplied by its legal system for the purpose of a trial in the requested State instead?  

So addressing the rule of law by conventional means has its strengths, but also its limits. And either Article 7 or the use of ordinary EU law raises more fundamental questions about the nature of the EU and its relations with Member States – to which I will return in the final blog post in this series.

Barnard & Peers: chapter 9
Photo credit: Steve Peers


  1. But doesn't this kind of show up a problem that the voters get left behind? OK, we can (indeed should) have a debate about blindly following a vote. I assume that will be covered in the third part of this series. However here you talk about, 'the broader political context,' as though it is somehow incidental. It is really another example of constitutional deficit that has caused the EU real problems.

    It is certainly true that leaders that join the EU know the deal. There is perhaps an argument to be had about this in the context of accession - particularly after the CVM debacle.

    But what is the come back here for the voter at large? I assume it is leave the EU but as we have seen that is essentially a theoretical exercise. Particularly for the EZ countries.

    None of this perhaps is the fault of legal scholars, at least to the extent that all of this is indeed in treaties. However it would seem somehow remiss not to at least ask whether voters quite understood what was being signed up to. The implications of that are rather more than theoretical.

    1. The system which States/their voters signed up to included the potential of other Member States reacting if they had objections about the rule of law in that Member State. Actions have potential consequences. The development of EU policy on asylum or extradition was signed up to by States, and sometimes it was already in train when countries signed up to it.

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