By Johannes Tropper, Austrian Ambassador to the European Student Think Tank.
The political developments and the far-reaching reforms targeting the Constitutional Tribunal and Public Service Broadcasters in Poland have led to concerns about the Polish government’s commitment to the rule of law. Has the new government under the leadership of the ‘Law and Justice’ Party violated EU law? If so, how can the EU react to that? Are there any legal means available to prevent states from acting contrary to pivotal rights and obligations?
Pundits raised the possibility of activating Article 7 of the Treaty on the European Union (TEU), which has been labelled by as ‘the nuclear option’ since it essentially grants the EU as a whole the means to withdraw membership rights when a severe violation of common values occurs. However, after a special debate on 13 January 2016 the European Commission announced that a preliminary assessment under the Rule of Law Framework will be initiated.
Apart from those two procedures, specific infringement procedures under the Treaty on the Functioning of the European Union (TFEU) might come to your mind when talking about violations of EU law by member states. Article 258 TFEU is the core provision of these infringement procedures. It gives the Commission the option to initiate an infringement action against any Member State, which has failed to comply with its EU obligations, and may bring the matter before the Court of Justice (CJEU). The provision on the infringement procedure only applies insofar individual provisions of EU law are not implemented. The legal remedies of the infringement procedures are not available in cases where the more political approach of Article 7 TEU is to be applied. In the treaties, the CJEU has been explicitly side-lined with regards to Article 7. Ultimately, no infringement action is possible in areas not directly governed by EU law. The nomination of judges of constitutional courts, for instance, does not fall under the realm of EU law.
Article 7 TEU is much broader, as it generally grants other EU Member States and EU institutions the legal possibility to take action whenever a Member State acts in contravention of the values of Article 2 TEU such as freedom, democracy and rule of law. The procedure may be applied regardless of whether the action occurs within the field of EU law or merely in the area of national competence. While the scope is much more comprehensive, the mechanism of invoking Article 7 is more complex. Unlike the judicially-governed infringement procedures, Article 7 TEU procedures have never been tested in practice.
Reserved for extreme situations, Article 7 has two ambits. Paragraph one refers to the so called ‘preventive and monitoring mechanism’ that can be applied to ‘determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2’. It is merely a legal warning shot by other members of the Union accompanied by recommendations. The paragraphs two and three comprise the so-called ‘sanctioning mechanism’, which allows member states to ‘determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2’. As a consequence, the Council may ‘decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.’
In order to launch the ‘preventive and monitoring mechanism’ either a proposal by one third of the Member States of the European Union, by the European Parliament or by the European Commission is required. The European Parliaments is obliged to take any decision related to Article 7 by a doubly-qualified vote: a two-thirds majority of the votes cast, which also needs to represent the majority of its component members (50% + 1 MEP). Following this proposal and a response by the Member State under scrutiny, a majority of four-fifths of the Council’s members can determine that there is a clear risk of a serious breach of the common values, but only after having obtained the consent of the European Parliament.
In order to invoke the ‘sanctioning mechanism’ a similar procedure applies. It differs insofar as it is comprised of two phases – determination and sanctions – and it excludes the option of a proposal by the European Parliament. Furthermore, the European Council – not the Council (of the European Union) – has to decide unanimously whether a serious and persistent breach of the common values exists, after obtaining consent of the European Parliament. Following this determination, membership rights including voting rights in the Council may be temporarily withdrawn. Any suspension can only be agreed by means of qualified majority voting by the Council (!). This qualified majority is in principal defined as consisting of at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States.
Despite the fact that the scope of nowadays’ Article 7 TEU has been extended over time in order to address concerns related to potential and actual violations of fundamental values (exclusively) within the framework of the treaties, the threshold for activating any kind of Article 7 procedure remains relatively high. Whereas there is some leeway to invoke Article 7 (1) in the case of Poland, Article 7 (2) and (3) seems unfeasible since unanimity would require Hungary to share the same concerns about the Polish government’s actions. Never has a country been scrutinized under Article 7 since the remedy has mostly been regarded as politically untenable and counterproductive.
As a result, the European Commission has gradually developed the Rule of Law Framework, which was adopted on 11 March 2014. It has been designed to address systemic threats to the rule of law in any of the EU’s Member States. The Rule of Law Framework is a purely political tool, not a legal one despite the implication of the terminology. It merely provides political guidelines and a structure to initiate a dialogue between a Member State and the European Commission concerning potential violations of the rule of law. The Framework aims at offering an alternative to Article 7, while still addressing the issue in a structured form. The legal foundation has been extracted from the treaties since ‘Article 7(1) TEU already and necessarily implicitly empowers the Commission (…) to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis’. The Framework, also referred to as a ‘pre-Article 7 procedure’, is an early warning mechanism in order to prevent the emergence of a situation where a clear risk of a serious breach might be identified. The procedure consists of three stages: assessment, recommendation and a follow-up to the recommendation. Should the assessment lead to the conclusion that a systematic threat to the rule of law indeed exists, a dialogue will be initiated by transmitting a ‘rule of law opinion’ to the country. If the matter is not resolved by the country, a recommendation will be issued. The commission will monitor the follow-up to the recommendation. In case of non-implementation within a set time limit, the Article 7 remains as a last resort.
The Rule of Law Framework draws on existing case law by the European Court of Justice and the European Court of Human Rights as well as the expertise of other institutions to define what the term rule of law actually implies. The definition includes pivotal elements such as equality before the law and independent judicial review. While this new framework provides some guidelines and explanations, it does not include legally binding recommendations or sanctions. This system merely adds a soft-law element without serious legal consequences or even an automatic initiation of Article 7 in case of non-compliance. The dilemma is evident ‘where the ruling élite has made a conscious choice not to comply with EU values (…). If such a conscious choice has been made, socialisation in the framework of a new pre-Article 7 TEU procedure is unlikely to bring about any meaningful change and an end to systemic breaches of EU values in the relevant Member State.’
In sum, Article 7 (1) permits a Member States, the Commission or the EP to launch an investigation when one of the institutions assumes that a Member State does not uphold the common values. If both the Council and the EP manage to pass the threshold of necessary votes, they can establish that there exists a real danger of a future violation of the common values. Article 7 (2) also gives Member States or the Commission the right to start an inquiry and if the European Council and the EP agree, they European Council may establish that a serious and persistent breach of the values already exists. Following this determination, Article 7 (3) gives the Council the power to suspend membership rights of the respective Member State.
The Rule of Law Framework, on the other hand, merely provides the guidelines for a structured dialogue between the Commission and the Member State, which is presumed to constitute a threat to the rule of law. It is a political tool of the European Commission, not explicitly incorporated in the treaties. The current structured dialogue between the European Commission and Poland under the new Framework will be its litmus test. Whether it will have any substantial input on the political landscape remains to be seen. The EU Commission plans to reconvene in March to conclude the assessment of the Polish government’s policies under the Framework.
 Article 2 Consolidated version of the Treaty on the European Union (TEU), OJC 326, 26.10.2012, p.17
 Article 258 Consolidated version of the Treaty on the Functioning of the European Union (TFEU), OJC 326, 26.10.2012, p.160
 Article 269 TFEU, OCJ 326, 26.10.2012, p. 164:
“The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.
Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.”
 Article 7 Consolidated version of the Treaty on the European Union (TEU), OJC 326, 26.10.2012, p. 19
 Article 7 TEU, OJC 326, 26.10.2012, p. 19–20
 Article 7 TEU, OJC 326, 26.10.2012, p. 19
 Article 354 Consolidated version of the Treaty on the Functioning of the European Union (TFEU), OJC 326, 26.10.2012, p.197
 The country in question may not participate in the vote (cf. Article 354 TFEU)
 Article 238(3)(b) TFEU, OJC 326, 26.10.2012, p.154
 W Sadurski, ‘Adding a Bite to a Bark: A Story of Article 7, the EU Enlargement and Jörg Haider’ (2010) 16 CJEL 385
 D Kochenov and L Pech, ‘Upholding the Rule of Law in the EU: On the Commission’s ‘Pre-Article 7 Procedure’ as a Timid Step in the Right Direction’ (2015) 24 RSCAS-Working Paper 1, 11
 D Kochenov and L Pech, ibid. 12