Enforcing the Rule of Law in the EU: What can be done about Hungary and Poland?, par Michel Waelbroeck et Peter Oliver

Hungarian Prime Minister Viktor Orbán, who has been in power since 2010, never ceases to proclaim the merits of “illiberal democracy” (i.e. Putin-style “democracy”) and fulminate about the supposed arrogance of “Brussels”, which seeks to impose liberal democracy.  The current Polish government, which has been in power only since October 2015 but has caught up remarkably quickly with its counterpart in Budapest in adopting highly autocratic restrictions on the independence of the judiciary and the media, is of the same mind.

Had such regimes been in place in those two countries at the time, they would have been ineligible for membership of the EU, since the Copenhagen Criteria of 1993 stipulate that candidate States respect “democracy, the rule of law [and] human rights”. Today, Article 2 TEU requires Member States to respect the same values on which, it declares, the EU is based.

What is more, the principle of mutual recognition to which the Court of Justice attaches considerable importance  breaks down where Member States fail to meet the requisite standards.  As the Court noted most recently in Aranyosi  and President Lenaerts acknowledged , these standards include respect for fundamental rights

Another feature of “illiberal democracies” is of course that they tend to be riddled with corruption.  Hungary is a case in point.  Apart from the inherent evil of corruption, it is bound to have a deleterious effect on the EU budget.

So what can be done to bring these two regimes into line with their obligations under Article 2?  The answer is by no means obvious, especially as the vogue for “illiberal democracy” is rapidly gaining ground not only in the “new” Member States, but also in others such as  Austria (which will hold the Presidency of the Council in the second half of this year),  although so far only in Hungary and Poland are the breaches of the principles of democracy, the rule of law and human rights systemic in nature.

In an article which has just appeared in the Cahiers de droit européen, we have set out the facts and our thinking on this highly complex and delicate issue at some length (see the selective bibliography below).  In this short post, all we can do is to highlight two promising recent developments.  In our second post, we shall consider a number of suggestions for future action.

Let us begin with the Commission’s decision for the first time ever to commence one of the procedures enshrined in Article 7 TEU against a Member State, namely Poland.  In the course of 2016 and 2017, the Commission issued no less than three recommendations to the Polish government in relation to its repeated interference with the independence of the judiciary, on the basis of its “New EU Framework to strengthen the rule of law” . Faced with Poland’s intransigence and following a resolution of the European Parliament to that effect, the Commission finally took the unprecedented step of commencing action pursuant to Article 7(1) TEU on 20 December 2017, in the form of a proposal to the Council to issue a recommendation to Poland for remedial action.

One can only hope that the appointment of a more urbane new Prime Minister last month and the replacement of some of the more hard-line elements of the previous Cabinet are not a mere tactical ploy but indicate a change of course.  Regrettably, though, the new Government has taken no steps to date to reverse the measures contested by the Commission.  Unless it begins to do so by mid-February (just over a month after the new Cabinet was appointed), the Council should not flinch from taking the next steps in the procedure initiated by the Commission.

Article 7(1) does not empower the Council to take binding measures.  Moreover, for a recommendation based on it to be adopted, the Council merely has to find that “there is a clear risk of a serious breach … of the values referred to in Article 2”. In reality, it has been obvious for quite some time that Poland has committed and is continuing to commit “serious and persistent breaches” within the meaning of Article 7(2).

Unfortunately, in the near future the prospect of the European Council imposing any sanctions pursuant to Article 7(2) appears to be extremely slim, since that would require unanimity and Mr Orbán has made it abundantly clear that he will block such a move. Admittedly, some leading experts maintain that Hungary’s veto could be side-stepped if the Commission extended the Article 7(2) proceedings to include Hungary (see Kochenov and Pech, and Pech and Lane Scheppele in the bibliography below). In such a case both Hungary and Poland would be barred from voting.  In our article, we support that reading of Article 7(2). However, since the likelihood of Hungary facing any such proceedings in the foreseeable future is regrettably very limited, this theory is of little practical importance at present.

What is more controversial is the fact that no procedure has even been engaged against Hungary either under the Commission’s “New Framework” or under Article 7.  That is despite the fact that the “serious and persistent breach” by the Fidesz government of the values enshrined in Article 2 began five years earlier than in Poland and is much broader in scope, since it is not confined to the media and the judiciary but extends to every walk of life such as religion , academia (also here)  and protectionism in several sectors including gambling, tobacco  and the retail trade .

Two factors appear to explain the double standards shown by the Council and the Commission as well as a minority of MEPs.

First, the Fidesz government has been more subtle.  For instance, it enjoyed the requisite two-thirds majority in Parliament to amend its constitution so as to empower it to reduce the independence of the judiciary and restrict fundamental rights.  However, this does not make the actions of the Hungarian administration any less reprehensible: the fact remains that it has committed countless breaches of both EU and international human rights law.

Second, Fidesz is a member of the European People’s Party, as are Presidents Juncker, Tajani and Tusk – as well as Mrs Merkel, Mr Rajoy and many other leaders.  In contrast, Poland’s inaptly named Law and Justice Party belongs to the European Conservatives and Reformists, a marginal Eurosceptic group currently dominated by the British Conservative Party.  Needless to say, this in no way justifies the extraordinary indulgence shown by the Council and the Commission; at least, the Parliament has adopted a resolution in which it announced its intention of taking some action.

 Now let us turn to the Court’s seminal order of November 2017 in the case of the primeval forest of Białowieża, which is home to the continent’s largest land mammal, the European bison.  At the outset, this case was a matter of environmental law alone and had no bearing on the rule of law.  But Poland’s obdurate refusal to respect the Court’s initial order of July changed that.

Taking the view that the Polish authorities’ authorisation of widespread logging in the forest ran counter to the EU’s Habitats and Wild Birds Directives, the Commission brought infringement proceedings and sought an order ex parte (i.e. without hearing the defendant) requiring Poland to stop this activity pending the delivery of an order afer adversary proceedings.   The Vice-President of the Court granted such an order.  Poland immediately announced that it would ignore it – and it continued the logging.  For a Member State to snub the Court in this way in interim proceedings is unprecedented.

Two further hearings followed. Poland was represented by its outspoken Minister for the Environment, who was subsequently removed from his post in the reshuffle earlier this month. The final hearing was held before the Grand Chamber under President Lenaerts.

The proceedings culminated in the Court’s second order to Poland to put an end to the logging with immediate effect, failing which it was required to pay a fine of €100,000 per day.  Never before has the Court issued an order imposing periodic penalties on a Member State in interim proceedings.   Nothing in the Treaties, the Statute of the Court or the Rules of Procedures expressly provides for such a possibility. The Court justified this step on the convincing basis that:

first, a periodic penalty payment cannot, in the circumstances of the present case, be seen as a punishment and, second, the Republic of Poland’s interpretation of the system of legal remedies under EU law in general, and of proceedings for interim measures in particular, would have the effect of considerably reducing the likelihood of those proceedings achieving their objective in the event of the Member State concerned failing to comply with the interim measures ordered against it.

Crucially, the Court went on to add:

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.”

As one commentator has pointed out, the Court has for the first time “shown its teeth in the Polish crisis”, pointing “very subtly” to the possibility of invoking Article 7 TEU.  There are other reasons why this ruling is most welcome – as we shall explain in our next post.

Michel Waelbroeck is emeritus Professor at the Université Libre de Bruxelles, honorary advocate, Emeritus member of the Institute of International Law

Peter Oliver is visiting Professor at the ULB, member of the Bars England and Wales (Monckton Chambers) and Brussels

 

 

 

 

(Highly) Selective Bibliography

  1. C. Closa and D. Kochenov (eds.) Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016)
  2. D. Kochenov, L. Pech and S. Platon « Ni panacée ni gadget : le ‘nouveau cadre de l’Union européenne pour renforcer l’État de droit’ » 2015 RTDEur. 689
  3. D. Kochenov, A. Magen and L. Pech « Introduction : the Great Rule of Law Debate in the EU, 54 Journal of Common Market Studies 1045
  4. A. Magen «Cracks in the Foundations : Understanding the Great Rule of Law Debate in the EU » 54 Journal of Common Market Studies 1050
  5. D. Kochenov and L. Pech, “Better Late than Never 54 ? On the European Commission’s Rule of Law Framework and its First Activation, 54 Journal of Common Market Studies 1062
  6. L. Pech and K. Lane Scheppele “Illiberalism within: Rule of Law Backsliding in the EU” 2017 Cambridge Yearbook of European Legal Studies https://www.cambridge.org/core/journals/cambridge-yearbook-of-european-legal-studies/article/illiberalism-within-rule-of-law-backsliding-in-the-eu/BCC592F6AA3CC1E0642F9B9F05371CB5
  7. A. von Bogdandy et P. Sonnevend (eds.) Constitutional Crisis in the European Constitutional Area – Theory, Law and Politics in Hungary and Romania (Hart Publishing, 2015)
  8. M. Waelbroeck and P. Oliver “La crise de l’Etat de droit dans l’Union européenne : que faire?” 2017 Cahiers de droit européen 299

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