Professor Steve Peers, University of Essex
Can the EU penalize its member states for consistently violating human rights and the rule of law? And if so, how?
This article, the second in a three-part series, explores this question. The first installment analyzed the official mechanism designed for this purpose: Article 7 TEU. As previously discussed, this process, which could result in the suspension of certain EU membership rights for a member state, is highly political, offers limited involvement from EU courts, and is challenging to implement. However, recent years have seen ‘regular’ EU law being utilized as an alternative means to address such violations by member states. This article provides an overview and analysis of this alternative approach. The final installment will examine the broader constitutional implications and historical background of penalizing member states.
The EU Court Process
Before delving into the specifics of how standard EU law is being employed to address concerns about human rights and the rule of law, it’s essential to summarize the key aspects of the relevant areas within the Court of Justice of the European Union’s (CJEU) jurisdiction.
Firstly, the infringement procedure empowers the Commission (or a member state) to bring a case against another member state before the CJEU, alleging a violation of EU law. The Court’s judgment in such instances is binding on the member state in question but doesn’t automatically invalidate national law. Upon request, the Court can impose interim measures on a member state while the case is ongoing.
Secondly, the ‘preliminary ruling’ process (Article 267 TFEU) allows any national court to seek clarification from the CJEU regarding the interpretation of EU law when necessary to resolve a case before it. These cases frequently involve an individual asserting that a member state hasn’t correctly applied EU law. The CJEU’s answers to these questions are binding on the national court, which then resumes its proceedings based on the CJEU’s judgment and determines the appropriate remedy – potentially including the disapplication of national law.
In contrast to Article 7, these processes are not only different in nature (judicial rather than predominantly political) and outcome but also, in principle, have a much narrower scope: the application of EU law itself, not the fundamental values of the European Union (as explored in the first article). It’s akin to the distinction between building a bypass without conducting an environmental impact assessment and detaining the opposition leader. (Of course, there’s always a possibility, reminiscent of Douglas Adams’ works, that an unauthorized bypass construction might foreshadow more significant events to come.)
That said, as mentioned in the first article, there are instances where an issue falls under the purview of both ordinary EU law and general human rights violations. Firstly, specific connections exist between the Article 7 process and standard EU law matters in some cases. Secondly, there are situations involving the general safeguarding of human rights and the rule of law where the Article 7 process and the regular EU law process can and do operate concurrently, as the CJEU implicitly acknowledged in its June ruling on Polish judicial independence. (See also the Advocate-General’s opinion in another pending case against Poland, para 73). Let’s examine these two categories of cases alongside each other.
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.
Asylum
In the context of asylum, the explicit link is not with EU asylum legislation, which pertains to asylum applications by non-EU citizens – although systematic human rights violations can impact this area (see below). Instead, it’s with the protocol to the EU Treaties, which, in theory, rules out asylum claims by EU citizens.
According to this protocol, given the robust protection of human rights within 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.’ Consequently, asylum applications from EU citizens should be automatically rejected by other member states unless: (a) a member state temporarily suspends its obligations under the European Convention on Human Rights (ECHR) due to an emergency, as per 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 chooses to consider an asylum application unilaterally in specific cases, subject to certain limitations.
Of these four scenarios, the second and third explicitly connect to the Article 7 process. In essence, asylum applications by EU citizens are admissible if a ‘yellow card’ sanction process is in progress or if the EU institutions have issued either a yellow card or a red card to a member state. As discussed in the first article of this series, while no yellow or red cards have been issued, a yellow card process is currently underway against both Poland and Hungary. This means that Polish and Hungarian citizens are already eligible to seek asylum in other member states – a point that seems surprisingly overlooked.
One reason for this oversight might be the existing freedom of movement for people within the EU. There are no insurmountable barriers within the EU: Polish and Hungarian citizens dissatisfied with their governments can relocate to another member state if they fulfill the relatively flexible criteria for movement under free movement laws. Undoubtedly, some disgruntled Polish and Hungarian citizens have moved within the EU (or to non-EU countries based on their respective immigration laws) for such reasons.
The option of seeking asylum would only be relevant in limited situations: if the individual had previously moved (see the CJEU judgment from last year regarding a Croatian citizen with refugee status, discussed here); if the citizen doesn’t qualify under free movement law due to a lack of employment or financial support; if a transitional restriction on free movement after joining the EU applies; or if the EU citizen is contesting a European Arrest Warrant (which was, in fact, the original reason for adding the asylum protocol to the Treaties in the 1990s: to address asylum claims made to evade extradition requests).
In the event of a crisis involving a mass exodus of thousands of EU citizens from a particular member state (similar to Hungary in 1956), the Protocol would become crucial, as many wouldn’t have jobs or support. While it might seem strange, EU asylum law wouldn’t apply in such a situation since it only covers non-EU citizens. Instead, ad hoc arrangements might be quickly established to determine responsibility and eligibility, potentially drawing upon EU asylum law as a model.
European Arrest Warrant
The CJEU hasn’t yet been asked to rule on the asylum protocol. However, it has received numerous inquiries about the European Arrest Warrant (EAW) and human rights. Some of these cases relate to detention conditions (see the series of cases discussed here) or independent prosecutors (see discussion here). However, one particular judgment, the LM ruling of 2018 (discussed here), specifically addresses the application of the EAW when there are wider concerns regarding the rule of law in the state issuing the warrant (in this case, Poland).
According to the CJEU in this case, the preamble to the EAW law, which states that this law can only be suspended if an Article 7 ‘red card’ is issued, implies that courts must respect the lack of a decision from the EU’s political bodies and cannot independently suspend the law entirely. However, courts can still assess whether there has been a breach of the rule of law in individual cases, considering the arguments presented before the EU institutions regarding a systematic problem with the rule of law in the issuing state during a pending ‘yellow card’ proceeding (which was already underway against Poland).
Systemic Human Rights Issues and Standard EU Law
The most significant set of cases concerning this matter pertains to judicial independence and largely, but not exclusively, involves Poland. In its June ruling on the initial case, an infringement action related to early retirement ages for Supreme Court judges (discussed here), the Court of Justice affirmed that respecting judicial independence is inherent to Article 19 TEU, which outlines the EU judicial system, including the function of national courts. This clarified its earlier judgment regarding Portuguese courts (discussed here), where concerns about judicial independence arose in the context of salary reductions due to austerity measures linked to EU law.
Significantly, in this first judgment concerning Poland, the Court established that a direct link to a specific EU law isn’t necessary to argue that a member state has violated the principle of judicial independence. Essentially, Article 19 TEU functions as a standalone rule within EU law: Arguments regarding judicial independence are inherently linked to specific EU laws because EU law relies on an independent national judiciary for its enforcement. However, the Court didn’t clarify whether Article 19 TEU solely applies when there’s a systematic problem with judicial independence (as the Advocate-General’s opinion suggested) or if it could also be invoked in disputes concerning a particular incident.
A second infringement case against Poland regarding early retirement ages for ordinary court judges is also pending. An Advocate-General’s opinion in this case argues that the Commission’s claims are mostly valid, echoing the reasoning of the first judgment (update: the Court’s judgment in this case, ruling against Poland, was released on November 5). A third group of cases referred by national courts focuses on judicial disciplinary proceedings. An Advocate-General’s opinion in this instance suggests that the case is tied to specific EU law rather than Article 19 TEU as an independent rule, but that, regardless, Poland is still in breach of EU law. The remedy is for national courts to disregard the infringing national law if necessary (the judgment is expected on November 19). A fourth group of cases might be inadmissible, according to the opinion of an Advocate-General. A third infringement case requesting expedited proceedings was brought in October. Moreover, a number of other cases referred by Polish courts are pending, as summarized here.
Several cases concerning specific EU law points have been brought against Hungary. Notably, the Commission has initiated infringement actions regarding: the independence of the central bank (later withdrawn); age limits for judicial retirement (successful; connected to age discrimination law, not Article 19 TEU in itself); independence of the data protection authority (successful; discussed here); the relocation of the Central European University (pending; an Advocate-General’s opinion is expected in November); NGO funding (pending); systematic issues with the asylum system (pending); and the denial of food to irregular migrants (currently at the ‘reasoned opinion’ stage). These cases don’t explicitly raise systemic arguments concerning Hungary’s protection of the rule of law, but their sheer number and the wider political landscape, particularly regarding the independence of regulatory bodies, reflect some of the broader concerns that prompted the European Parliament to initiate the Article 7 process against Hungary.
Regarding Romania, several recent cases submitted to the CJEU question whether the post-accession process of evaluating Romania’s compliance with its commitments concerning civil and criminal judicial cooperation carries legal weight in addressing concerns about the rule of law within the country.
Moving beyond specific countries, questions arise regarding EU funding. Should member states with a questionable track record in upholding the rule of law face financial consequences? This is what the Commission proposed in a proposal for the upcoming multi-annual EU budget. This proposal suggests imposing financial penalties on member states 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’s legal service has expressed concerns about the EU’s legal authority to implement this proposal, concerns that have been challenged by Professors Kelemen, Lane Scheppel, and Pech. The legal service believes the proposal would infringe upon the exclusive domain of the Article 7 process. While I have reservations about the notion that the EU has a general power to impose financial penalties on member states for rule of law violations outside the Article 7 framework, I believe this proposal is more narrowly focused: It applies only when a connection exists between rule of law shortcomings and the EU’s financial interests. To put it bluntly, it’s conceivable that corrupt officials or politicians might be shielded by biased judges. Considering this and the CJEU’s recent judgment establishing that a lack of judicial independence is inherently linked to the application of EU law, it logically follows that the EU has the power to adopt this proposal. However, it remains to be seen whether it will be effectively blocked as part of a broader compromise when the EU’s next multi-annual budget is negotiated.
Comments
As noted in the first article, using ‘ordinary’ EU law to address rule of law concerns, as opposed to the Article 7 process, could be a way to tackle these concerns through conventional means, given that some perceive Article 7 as a last resort. It certainly has advantages over the Article 7 process, as it avoids the evident reluctance among member states to censure one another in that context. Its effectiveness as a tool to ensure the rule of law is bolstered by the CJEU’s willingness to assert its jurisdiction over concerns about judicial independence more broadly. However, apart from specific links to EU law and the issue of judicial independence, it might be difficult to utilize the regular EU legal system to handle numerous concerns about a member state’s political system beyond those specific issues.
There’s also a risk that once national courts become compromised, it might be too late to expect them to refer questions to the Court of Justice. The Commission can still initiate infringement actions, but these have a less direct impact on national legal processes. Furthermore, the Commission itself could be influenced by those who are deferential to governments. Currently, robust challenges against member states regarding the rule of law are being pursued through both national courts and the Commission – but it took time for the Commission to become actively involved, and its willingness to be proactive in this area shouldn’t be taken for granted.
If both national courts and the Commission were to become compromised, there might still be some pressure exerted by courts in other member states. However, applying indirect pressure through EAW cases, for example, has limitations: The CJEU has ruled out a general suspension of the EAW system unless Article 7 is invoked, and a refusal to extradite fugitives might not be a very effective threat. The issuing member state might simply respond with indifference. It could be legally challenging (due to jurisdictional issues, for instance) or costly for the requested state to prosecute the fugitives themselves. Additionally, if the issuing state has rule of law issues, how could one trust a sentence handed down there or the evidence provided by its legal system for a trial in the requested state?
Therefore, addressing rule of law concerns through conventional legal avenues has both strengths and weaknesses. Both Article 7 and the use of ordinary EU law raise fundamental questions about the nature of the EU and its relationship with member states – matters that will be revisited in the final article of this series.
Barnard & Peers: chapter 9
Photo credit: Steve Peers