AFCO

Committee on Constitutional Affairs

Law is in the air: Justice systems of certain Member States face recent reforms that threaten fundamental European values such as democracy and the rule of law, leading to a deterioration in the relationship between the EU and those Member States. How should the EU tackle this crisis while protecting the values and rights of the EU and the citizens in relevant Member States?

Stella Imo (Chairperson, DE)

Introduction 

The EU was built on principles and common values every Member State is strongly bound to. One of those principles is the rule of law, based on Article 2 of the Treaty on European Union (TEU). Respecting the European rule of law means respecting democracy and should be the central value in every Member State. Currently, the rule of law in Europe is under threat. Autocratically-minded parties in Poland and Hungary have actively attacked the independence of the judiciary. They fail to comply with EU fundamental legal principles and ignore judgments of the European Court of Justice and thus neglect the principles and common values the EU is built upon.

Main Actors

Member States of the EU have their own judiciary systems. However, Member States, when exercising the competence to organise the judiciary in their country, are required to comply with their obligations deriving from EU law. This has not happened in Poland and Hungary when these countries have reformed their judiciary system. Poland’s highest court decided that some parts of the European law are even in direct conflict with the constitution of the country.

European Court of Justice (CJEU): the highest court of the European Union in matters of European Union law. Its role is to interpret EU law and ensure its correct implementation within the Member States. By entering the EU the Member States accepted the primacy of EU law and thus the final jurisdiction of the European Court of Justice — its judgments have to be respected by all. If a Member States violates European law, a case can be brought before the CJEU. If a country does not act in compliance with the order, the Court is also allowed to punish the country with fines. 

European Commission: ensures the respect of EU law and is responsible together with the European Council, the Member States and the Council of the European Union, for guaranteeing the fundamental values of the Union such as the rule of law. 

Podcast!

A podcast by Sinéad O’Reilly (Media Team Member), Stella Imo (Chairperson) and MEP Damian Boeselager.

Past: Actions Taken

  • The Rule of Law Framework: in 2014, the European Commission adopted this framework for addressing systemic threats to the rule of law. The European Commission first establishes a dialogue with the country concerned. It assesses the situation, proposes its opinion about it and recommends to the Member States the further steps to take. 
  • The Article 7 procedure: If there is no solution found within the rule of law framework, the European Commission can employ this mechanism as the last legal possibility to solve the crisis. It includes two different options: preventive measures such as issuing recommendations and giving a formal warning and sanctions. The last and most drastic measure is the suspension of the Member State’s voting rights in the Council. This “nuclear option” has never been used before
  • Infringements: the Commission is allowed to take an infringement procedure against a Member State that does not implement EU law correctly. This procedure consists of different steps, the last one is referring the matter to the CJEU. The CJEU can then order the accused Member States to reverse any actions which are not in line with the contractual obligations each Member State has. If the country still does not solve the issue, the Commission can propose financial penalties in front of the Court. 
  • ‘Rule-of-law’ mechanism: This mechanism was created by the EU in response to cases in which Member States break the rule-of-law. The new legal measure is supposed to enable the European Commission to cut EU funds for such countries. It came into force at the beginning of 2020 but currently needs to be reviewed by the CJEU due to a request from Hungary and Poland about its legality.
  • Withholding EU recovery money: In order to penalise Hungary and Poland, the Commission withholds the money from the EU recovery fund for the COVID-19 pandemic. 

Present: Existing Issues

The Principle of Subsidiarity within the EU: EU competences are employed under the principles of subsidiarity and proportionality. This means that the Union is only allowed to act within the scope of its powers. For the national structures of the constitutions, the EU has no power to intervene. Especially Poland relies on this principle of the EU: when the CJEU published an order for Poland to suspend a controversial disciplinary mechanism for judges, Poland argued that the EU does not have the power to regulate the justice system in a Member State, and did not comply with this order. Poland perceived this as undermining state sovereignty and overriding the country’s constitution. The country is also stating that the EU would undermine its treaties by going beyond its competences. As a consequence, the Court penalised Poland with a fine of one million euros per day for not following the previous order. But Poland refrains from accepting any sanctions as in their eyes, the CJEU does not even have the authority to do so.

Underlying problems in Poland and Hungary: It has been claimed that Poland and Hungary do not have an independent justice system anymore. Many have argued that in both countries, the governments were able to get the whole justice system under their control. In such situations, where a country reforms its constitution, it can come into conflict with European law. Here, the European Commission is at its limit when it comes to sanctions. Although Poland and Hungary have faced repercussions, this has resulted in little to no change. As a result, five European Parliament groups called on the President of the Commission in a joint letter to adopt even stronger measures. Different EU lawmakers, activists and the opposition in Budapest and Warsaw have blamed the Commission for not employing the ‘Rule of law’ mechanism. The European Parliament even submitted a lawsuit against the Commission. After the Commission triggered this mechanism in December 2017 for the first time, Poland and Hungary have questioned the legality of it at the CJEU which is now reviewing the process. The Commission is able to use the mechanism while the CJEU  makes a decision, but refrains from doing so as it has been asked so by the general secretariat of the Council. Triggering of the mechanism would result in an even bigger cut of the funds the countries receive from the EU. With Poland being the biggest recipient of the EU budget, followed by Hungary, this could have a big impact on the countries. 

The limits of legal measures: At the end of the procedure of the Article 7 TEU, the final and most drastic option is to sanction a country for violating EU law: for this, an unanimous decision is needed in the European Council. With Poland and Hungary both being the accused and having a relatively strong relationship, they would be able to save each other from the sanctions. 


Polexit: the whole conflict especially with Poland raised fears of a “Polexit” — a Polish EU exit. Although the government of Poland has neglected this option, the decision of the Polish constitutional government that elements of the EU law are not compatible with the Polish constitution touches the core idea of the EU common law. For some, due to that reason, the Polexit has already started. But it is not seen as Poland quitting the EU but rather as a downgrading of Poland to not being a full Member State anymore. A complete exit would not be a popular decision, as 87% of the Polish citizens want their country to remain in the EU.

Future: Challenges Ahead

Both Hungary and Poland have reformed their justice systems making the judiciary more independent. By doing so they both have disrespected the European rule of law and thus have violated a basic principle the EU is founded on. This has been strongly condemned by the institutions of the EU and other Member States. The European Commission has reacted with several measures, trying to make Poland and Hungary revoke the critical reforms. Yet, this was not successful, especially Poland keeps insisting on its national freedom to change their constitution. By not recognizing any of the sanctions and judgements of the CJEU the country confronts the Commission with unprecedented issues.

As existing measures do not stop Poland and Hungary from violating EU law, which more drastic measures should the EU develop? How could the European Commission introduce such measures in the form of laws and mechanisms taking into account that Poland and Hungary would veto them? 

Should the other Member States take action and bring cases against Poland to the CJEU through their national courts? As an example the Czech Republic took Poland before the CJEU over environmental damage and succeeded with Poland having to pay a high fine. Or would this rather lead to more animosity between the Member States? 

How can the EU work to prevent a recurral of the situation in Hungary and Poland? Where should the EU draw the line between actions of countries it tolerates and actions it takes measures against?

What is the role of public opinion in Poland and Hungary? Is the public opinion consulted enough in decision making?