MASTER THESIS Public Administration
International and European Governance
Is European rule of law salvageable?
Researching the efficiency factors of the European Union’s
rule of law instruments
Under the supervision of Dr. R. de Ruiter June 9, 2020
Andrea Simonca S2686082
Faculty of Governance and Global Affairs Leiden University
Table of contents
1 Introduction 5
1.1 Concise overview of the existing literature 9
1.2 The relevance of this research 10
1.3 Outline of the thesis 12
2 Literature review and foundation for theory-building 13
2.1 The concept of the rule of law 13
2.1.1 General conceptualization of the rule of law 13
2.1.2 The rule of law, Article 2 TEU, and the current status quo 15
2.1.3 European Union conceptualization of the rule of law 16
2.2 The European Union’s instruments to tackle rule of law backsliding 19
2.2.1 Article 7 20
2.2.1.1 Overview 20
2.2.1.2 Evolution 21
2.2.1.3 Criticism 22
2.2.2 Commission infringement proceedings 25
2.2.2.1 Overview 25
2.2.2.2 Criticism 25
2.2.3 Rule of Law Framework 27
2.2.3.1 Overview 27
2.2.3.2 Criticism 29
2.2.4 Rule of Law Dialogue 31
2.2.4.1 Overview 31
2.2.4.2 Criticism 32
2.2.5 Other instruments 33
3 Research Design and Methodology 40
3.1 Research Type and Design 40
3.2 Case selection, Data collection, and Operationalization 41
3.2.1 Case selection 41
3.2.2 Method of data collection 45
3.2.3 Operationalization of variables 48
3.3 Method of data analysis 53
3.3.1 Content Analysis 53
3.3.2 Process-tracing 54
3.4 Reliability and Validity of the Research 56
4 Research Analysis 59
4.1 Hungary 59
4.1.1 Historical background and current status of governance 59
4.1.2 Party in power 60
4.1.3 Dawn of rule of law backsliding 62
4.1.4 EU taking initiative and group affiliation in the European Parliament 65
4.1.5 Abundance of rule of law instruments 70
4.2 Poland 73
4.2.1 Historical background and current status of governance 73
4.2.2 Party in power 75
4.2.3 Dawn of rule of law backsliding 76
4.2.4 EU taking initiative and group affiliation in the European Parliament 78
4.2.5 Abundance of rule of law instruments 81
4.3 Discussion 86
4.3.1 General aspects of democracy 87
4.3.1.1 Historical background 87
4.3.2 Judicial quality 89
4.3.2.1 Procedural thresholds 89
4.3.2.2 Interference in national competences 90
4.3.2.3 Dialogic approach 91
4.3.2.4 Unclear conceptualization 92
4.3.3 Application of instruments 93
4.3.3.1 Coordination between EU institutions 93
4.3.3.2 Procrastination of EU institutions 94
4.3.3.3 Commission’s coherence 98
1 Introduction
In the last decade, the European Union has been severely tested by a plurality of crises, causing an involution of the structural principles which it has been built on, jeopardising the stability of democracy. Schimmelfennig (2018) argues that this decade will be referred to as a “decade of crises” (p. 969). In 2009, at the time when the Lisbon Treaty had been signed, and it seemed that the EU finally achieved some level of institutional consolidation after the failure to ratify the Constitutional Treaty, the first of a number of crises had hit the Union with the deterioration of the Greek balance-of-payments, signalling the outset of the Eurozone crisis. At the very moment when the financial crisis of the Eurozone had faded, the migration flows across the Mediterranean triggered a new crisis of the Schengen regime in 2015, the humanitarian refugee crisis (Schimmelfennig, 2018, p. 969). The refugee crisis had been succeeded by the referendum on Brexit, which resulted in the decision of Great Britain to leave the Union, questioning the effectiveness, legitimacy, endurance, and integrity of the Community (Armstrong, 2017). These crises consist of a multitude of social, political, economic, and historical elements when considering both domestic and international accounts and developments. They also connote public decision-making situations that might either lead to a deepening of integration between the parties involved, however, as current events (rising support for Eurosceptic and far-right political parties) indicate, they are more likely to present a threat – putting the EU at risk of a gradual and slow disintegration (Schimmelfennig, 2018, p. 969).
These crises have considerable importance, however, this thesis will focus on a related but different topic. Contemporary crises and the arguably flawed approach decision makers take to respond tends to favour the rise of populist parties and anti-democratic movements since they’ve provided numerous opportunities for leaders to blame the elite class for being responsible for the way the crisis affected the society at large (see Algan, Guriev, Papaioannou & Passari, 2017). These crises are characterised by the presence of charismatic personalities, who, with their subversive policies, are questioning the fundamental values and principles on which the Union was founded (Surel, 2011). Alarmingly, the number of Member States that have breached the EU’s fundamental values set out in Article 2 TEU is increasing. In Poland, the ruling Law and Justice Party (PiS) has brought the entire judicial system under its control, completely tearing down Polish judicial independence (Zoll & Wortham, 2019). Similarly in Hungary since the electoral landslide of Fidesz in 2010, the governing party has placed significant constraints on the powers of judiciary by adopting a new constitution and amending it several times (Gáva, 2014). Romania and Bulgaria have also presented symptoms of rule of law backsliding due to their overnight judicial reforms and flourishing corruption (Spendzharova &
Vachudova, 2012). During the financial crisis, it emerged that Greece has a weak rule of law, too, due to institutional deficiencies (Featherstone, 2016).
The European Union has been aware of potential rule of law and democratic backsliding for a long time, and as such has created several instruments to counter Member States presenting symptoms of backsliding. However, as the aforementioned rule of law status quo shows, backsliding is still significantly present in Member States. Since the EU’s rule of law instruments’ efficiency is highly questionable, this thesis will examine the following question:
What are the factors that explain the degree of efficiency in existing EU instruments in preventing rule of law backsliding within member states of the EU?
These events show an increasing tendency of national authorities seeking systematic undermining of EU values such as the rule of law. Therefore, the EU institutions’, particularly the Commission’s concern about the “threats to the legal and democratic fabric” (as cited in Kochenov & Pech, 2015, p. 515) of some Member States, has been legitimate. Not only the European Commission had expressed its worries about the rule of law backsliding, but also several national authorities have voiced their concerns about this phenomenon (Kochenov & Pech, 2015, p. 515). The outline of challenges faced by the Commission, Council, and Parliament was not always clear. Even though they were familiar with the inherent rule of law insufficiencies of some Members such as Bulgaria or Romania; still, the fact that some Member States deliberately chose to turn away from law (first by Viktor Orbán in Hungary, and later by Poland’s Kaczyński) caught EU institutions unprepared (Kochenov, Magen & Pech, 2016, pp. 1048-1049). Governments in Hungary and Poland have been trying to restrict judicial freedom and disrupt checks-and-balances by limiting the powers of their respective constitutional courts since 2010. These governments’ targeted breaches of checks and balances, of respect for legislation, on judicial review, and judicial independence have been part of a bigger agenda of democratic backsliding where these Member States have been deprived of a series of fundamental European values varying from the rule of law to human rights protection. The ultimate goal of such governments was the creation of – which Viktor Orbán took great pride in – an “illiberal nation-state” (as cited in Magen, 2016, p. 1057). Romania had also repeatedly challenged the rule of law, as it had been employing similar practices seen in Hungary and Poland – since in 2012 several constitutional court rulings were rejected by its then-prime minister, Victor Ponta (Magen, 2016, p. 1057).
The EU institutions have proven to be inefficient in tutoring their Member States that have shown deviant conduct (Closa & Kochenov, 2016, pp. 1-2). However, the EU acknowledges its failures
in resolving some fundamental constitutional problems – for instance, Member States’ non-compliance with Article 2 values such as democracy, the rule of law, respect for human rights (Closa & Kochenov, 2016, p. 1). The EU institutions’ failure to reconcile their Member States with European values is especially important if we consider that in a case when even one of the fundamental values of the EU is no longer upheld, the entire operation and the single market of the Union is placed at high risk. The question: how should the Union handle those defying the fundamental values of the Community? is then rightfully raised (Pech & Scheppele, 2017, p. 3). Despite the seemingly non-urgent face of the value crisis – as compared to the other European crises –, this crisis has the most considerable repercussions for the European Community: without shared principles and values, there are few incentives for the EU to persist. With deviant national governments becoming even more dedicated to creating oppressive authoritarian regimes, the EU must take action (Pech & Scheppele, 2017, p. 8). However, even though there is plenty of room left by the acquis for legislating such deviations, little has been done to increasingly non-compliant states, while the legal-political instruments for resolving such diversions remain unused or inefficiently used (Closa & Kochenov, 2016, p. 3).
These legal-political instruments are tools created by the EU to safeguard EU fundamental values. They are designed to be employed in Member States where one of the values were threatened, to restore respect for these. Member States must uphold commitments to core principles and values both in theory and practice, however, recent developments in the EU show that Member States are increasingly resorting to illiberal acts (Closa & Kochenov, 2016, p. 3). As of today, the principal instruments created by the EU are the following: the preventive and sanctioning mechanisms of Article 7 TEU, the infringement proceedings based on Article 258 TFEU, the Rule of Law Framework, and the Annual Rule of Law Dialogue. Besides, other tools have played supportive roles so far: the European Semester, the EU Justice Scoreboard, the Cooperation and Verification Mechanism, the Structural Reform Support Service, and EU fundings (European Commission, 2019n). Although the EU has many tools at its disposal to reverse and halt these trends, apart from a few exceptions, the literature came to the view that “little can be done” (Closa & Kochenov, 2016, p. 3).
Despite the increase of literature on the rule of law backsliding and the instruments available for addressing such state of affairs, little is known about why these existing tools are of varying efficiency in the different Member States. As for the academic relevance, although there is an increasing volume of academic literature on democratic backsliding, especially for countries with more extreme leaders like Hungary, these academic writings are focused on the general process of democratic backsliding (Bermeo, 2016; Gandhi, 2019; Levitsky & Ziblatt, 2019; Mechkova, Lührmann & Lindberg, 2017; Waldner & Lust, 2018) rather than on the actions taken by the authorities to counter the democratic erosion. However, from a practical, societal relevance standpoint,
understanding these actions is crucial to uncover since they might help adjust the existing mechanisms or create new, more suitable ones to ensure that all states of the Union respect and operate respecting the rule of law.
For answering the research question, the researcher will employ an inductive explanatory research design. An inductive approach is suitable for this research since neither the instruments’ actual efficiency, nor the possible factors explaining their efficiency is known before delving into the case studies; therefore, the researcher wants to arrive at certain expectations after conducting the empirical inquiry. The literature review’s scope therefore is not to create certain expectations that would be later tested in the analysis, but rather to provide the researcher with theoretical sensitivity, providing the necessary insight into the phenomenon and assisting the selection of the most appropriate cases for answering the research question. At the same time, the literature review is useful in enabling the researcher to discover specific themes and patterns in the employment of the rule of law instruments, which ultimately allowed her to identify nine possible factors influencing the instruments’ efficiency. Moreover, the researcher declares in the literature review that she adopts the goodness of fit Europeanization theory of Risse, Cowles and Caporaso (2001), also focusing on the degree to which EU policies are fitting with Member States’ domestic institutional settings.
In this research the independent variable (X) is a set of 9 possible factors, the dependent variable (Y) is the degree of efficiency, and the research is most curious about the causal mechanism that exists between the two. Initially, the researcher did not know either whether the nine factors are also present in practice (and not just theoretically, based on the literature review), nor the outcome, i.e. the efficiency of the instruments. Therefore, after considering all options, she decided that critical case sampling is the most appropriate case selection method for this research, as the EU employs its instruments only in critical cases. Therefore, the impact of factors identified through literature review on the instruments’ efficiency can also only be examined in critical cases. Moreover, critical cases can also be easily identified, – based on the criterion that for a case to be critical, it must be an EU Member State where constitutional capture occurred – without knowing the factors or the outcome. Based on this criterion, two critical cases were selected – Hungary and Poland – with both Member States showing ample evidence of constitutional capture.
Data collection relies heavily on official EU and national publications, records, and policy documents on one hand, and media coverage, on the other. These, supplemented by reports of (I)NGOs, policy institutes, research institutions, and transcripts of speeches, provide various reliable sources on which the analysis is based. The method chosen for this research is process-tracing, facilitated by the documentary evidence / content analysis. The process-tracing model of Beach and
Pedersen (2013) is used to uncover the causality between independent and dependent variables. They argue that the causal mechanism linking the causes with the outcome consists of more parts, each signifying an entity carrying out an action. Moreover, they claim that by studying these parts subsequently following each other (process-tracing), the researcher may decipher the causality between cause and effect, ultimately allowing the researcher to solve her puzzle. In this particular research, the causal mechanism consists of two, continuously altering parts: national governments (entity 1) committing a breach of EU value (action 1) followed by EU institutions’ (entity 2) response to action 1 by deploying (or by not deploying) its instruments (action 2), followed by another action 1 by entity 1, succeeded by action 2 by entity 2 et cetera. These altering parts are studied through collected available data, allowing the researcher to respond to the research question.
In the remaining part of the introduction, the researcher presents the diverse strands of the existing literature on the rule of law in the European Union and the academic and societal relevance of the present research. Finally, the research outline is briefed to provide the reader with an overview of the thesis.
1.1 Concise overview of the existing literature
Academic literature digs deep into the area of the rule of law since it is not considered just as a principle by which a national government functions, but as a universal value and principle by which all democratic societies are bound by, since the rule of law provides citizens protection from tyranny by ensuring that no man is above the law. The literature focuses to a great extent on the importance of the rule of law throughout different phases of history, on the significance of the rule of law for the modern society, and on the impacts of the rule of law backsliding crisis on the European democratic governments (Magen, 2016; Müller, 2015; Pech, 2010; Pech & Scheppele, 2017; Tamanaha, 2004; von Bogdandy & Ioannidis, 2014). Another influential strand of the literature reveals that the efficiency of the existing instruments used by the European Union to address the rule of law violations – Article 7 TEU, the Commission’s infringement proceedings, the Rule of Law Framework and the Rule of Law Dialogue – is highly questionable. Unless new or enhanced mechanisms are made available, individual breaches of the rule of law will continue to exist, while also the systematic undermining of the EU’s fundamental values will strive (Closa & Kochenov, 2016; Jakab & Kochenov, 2017; Kochenov & Pech, 2015; Oliver & Stefanelli, 2016; Pech, 2016; Sadurski, 2010; Scheppele, 2016; Sedelmeier, 2016; Toggenburg & Grimheden, 2016). For instance, Kochenov & Pech (2015) study separately the main instruments used by the EU to address deviant Member States and conclude that neither the older Article 7 TEU procedures nor the infringement proceedings of
Article 258 TFEU are adequate tools, nor the newer Rule of Law of the European Commission or the Rule of Law Dialogue of the Council are competent enough to bring change. Moreover, several academics present their views on the potential instruments that might reverse the erosion of the rule of law in the EU Member States (Closa & Kochenov, 2015; Kochenov, 2015; Müller, 2015; Pech, 2016; Pech & Scheppele, 2017; Sargentini & Dimitrovs, 2016; Scheppele, 2016; Sedelmeier, 2016; Toggenburg & Grimheden, 2016).
1.2 The relevance of this research
The research question of this thesis is highly relevant since the main goal of the European institutions is to guarantee that among the other values enshrined in Article 2 TEU, the rule of law is respected by all Member States of the Union, meaning that all national governments, parliaments, together with all members of the society are equal before the law and that law is supervised by an independent judiciary, regardless of which political party has the majority power in the respective state (European Commission, 2019n, para. 1). The societal relevance of this present research provides insights about the current practices and measures taken by the European institutions in addressing the deviations made by some Member States from core EU values. These instruments are essential, as they provide a potential explanation for the failure of these mechanisms to reverse the increasing presence of backsliding within Member States. Without effective instruments, public authorities might abuse their powers and might systematically disregard court rulings, and party-affiliated judges might replace independent judges. Additionally, human rights would not be properly safeguarded; people would not be equal before the law, while lawless violence would prevail. Finding a reason for why the current EU approach is fruitless might help prevent these undesirable occurrences.
In addition to the societal and practical relevance of the in-depth research on the effectiveness of EU instruments for tackling the rule of law backsliding, academic relevance also plays a significant role. In the existing academic literature, the focus so far has been on:
● explaining the significance of the rule of law for modern democracies (Magen, 2016; Müller, 2015; Pech, 2010; Pech & Scheppele, 2017; Tamanaha, 2004; von Bogdandy & Ioannidis, 2014),
● studying the recent democratic backsliding in individual Member States (Bánkuti, Halmai & Scheppele, 2012; Bermeo, 2016; Besselink, 2017; Jenne & Mudde, 2012; Kelemen & Blauberger, 2016; Magen, 2016; Niklewicz, 2017; Perju, 2015; Rupnik, 2012),
● the description of the existing tools for reversing such action (Besselink, 2017; Jack, 2013; Kochenov, 2015; Kochenov, 2017; Kochenov & Pech, 2016; Louwerse & Kassoti, 2019; Sadurski, 2010; Scheppele, 2016; Sedelmeier, 2016), and
● the way EU institutions have dealt with the new values crisis (Closa & Kochenov, 2016; Closa, Kochenov & Wiler, 2014; Jakab & Kochenov, 2017; Kelemen & Blauberger, 2016; Kochenov & Pech, 2015; Magen, 2016; Möllers & Schneider, 2018; Nugent & Rhinard, 2016; Oliver & Stefanelli, 2016; Pech & Scheppele, 2017).
The specific contribution of this research to the literature on the rule of law and the instruments that might consolidate its presence in the day-to-day practices of Member States lies in performing qualitative comparative research aiming to understand why the existing mechanisms have varying degrees of efficiency in countering rule of law backsliding.
This research therefore complements the current literature on the rule of law improvement of deviant Member States. Moreover, it contributes to the until now still an under-researched field of the EU rule of law instruments by providing a comparative analysis as a new approach, since research to the EU rule of law backsliding and the EU’s instruments designed to tackle this backsliding had mainly been carried through within-case analyses, focusing usually on individual Member States – Hungary, Romania, or Poland for instance (Ágh, 2013; Bozóki, 2011; Carp, 2014; Ciampi, 2018; Jakab & Sonnevend, 2013; Koncewicz, 2018; Mendelski, 2011; Niklewicz, 2017; Perju, 2015; Ristei, 2010) –, rather than studying the phenomenon from a broader perspective by comparing more Member States. The few existing comparisons between Hungary and Poland focus either on the similarity of the two countries in terms of their political background (Karolewski & Benedikter, 2016), or on trying to understand the domestic characteristics (identity politics, social and economic policies) that might explain their violations of the rule of law, having only a general view on the instruments (Rech, 2018). Moreover, even though some of the available literature on the EU rule of law instruments does mention both Hungary and Poland, the two countries are not compared in these publications, but are rather presented as distinct examples for supporting authors’ points regarding the instruments (Kochenov, 2017; Kochenov, Magen & Pech, 2016; Kochenov & Pech, 2016; Möllers & Schneider, 2018; Oliver & Stefanelli, 2016; Pech & Scheppele, 2017). Thus, the existing literature on rule of law backsliding and the EU instruments focuses mainly on analysing member states individually, comparing Member States’ rule of law situation based on their domestic, background features – and referring to the two countries rather generally as supporting arguments for an instrument’s performance – but never comparing the two.
Therefore, the added value of this research lies primarily in the in-depth representation of Hungarian and Polish cases with an ample focus on how the EU reacted and employed its rule of law instruments for Polish and Hungarian breaches of fundamental values, and secondly, the comparative aspect of the case studies, where Hungary and Poland are compared on various factors (nine factors derived through the literature review) and on different (domestic and EU) levels. Moreover, the time span covering the Polish and Hungarian situation (for Poland from May 2015 to April 2020; for Hungary from April 2010 to April 2020) also provides an additional value for the research, since no other publication embraces such a significant time period. Finally, this research provides an English alternative to Central European literature written in local languages. This could help broaden the horizon of aspiring researchers and policymakers when aiming to tackle rule of law backsliding.
1.3 Outline of the thesis
The thesis is organized as follows. Chapter 2 provides an overview of the academic literature on the recent rule of law backsliding in the European Union. Subchapter 2.1 will introduce the concept of the rule of law by looking at the general meaning of the concept, followed by studying the notion from an EU perspective. Subchapter 2.2 will provide an overview and analysis (criticism) of the existing EU policy instruments in place, which then help identify the conceptual lenses through which the case studies can be analyzed. From this literature, nine factors are derived, which can help explain the efficiency of the instruments – these will be presented in Subchapter 2.3. Chapter 3 explains why a qualitative comparative content analysis has been chosen as a research design. Moreover, Chapter 3 will also present the case selection, data collection and operationalization, the research methodology of content analysis and process-tracing, followed by a section on the reliability and validity of the research. Chapter 4 presents the analysis of the chosen cases by first looking at the case of Hungary and Poland based on the identified factors, followed by a discussion of the findings in light of the nine factors. Finally, Chapter 5 presents the conclusions and the research implications, showing how the research findings might contribute to further theoretical research or might influence future policy-making.
2 Literature review and foundation for theory-building
The literature review consists of three main parts. Firstly, the reader will be familiarized with the concept of the rule of law, the general and EU connotations that rule of law bears, and why these are of great importance for the proper functioning of the European Union. For a comprehensive picture about the current value, the rule of law, or moral crisis, it is essential to interpret the concept of rule of law accurately. To begin, the evolution of the general concept of the rule of law will be discussed based on the interpretations of different scholars. After that, the significance of the rule of law for the EU is briefly outlined. Finally, the European Union’s interpretation of the rule of law will be presented. These different interpretations are considerable, since these are what all instruments are based on, and this is what the EU institutions rely on when they find a rule of law backsliding.
Secondly, a comprehensive critical overview will be given to the reader about those EU instruments explicitly created by EU institutions to address the rule of law backsliding within the Member States. Understanding how these instruments actually work (overview) and studying the critical remarks (criticisms) they have received throughout the years allows the researcher to identify specific factors that might explain the effectiveness of these instruments.
The researcher uses the literature review of the first two parts to group certain academic publications together based on a common denominator. In the third part the researcher will use these groups to identify certain constant themes from which she can ultimately derive individual factors. The factors identified based on the existing literature, however, will not be used for theory-testing, but rather for theory-building purposes. This is because for creating expectations based on the literature review, the researcher should know the dependent and independent variables, which is unfeasible for this research (at the beginning of the study the researcher only knows that the factors are theoretically present, and they may not necessarily exist in practice also, since she is also unaware of the outcome of the research). Therefore, this entire chapter provides the starting point for the theory-building exercise of this research.
2.1 The concept of the rule of law
2.1.1 General conceptualization of the rule of law
The classical origins of the rule of law are considered to root in ancient Greece, where democracy and the rule of law were seen as synonymous concepts (Tamanaha, 2004, p. 7). Throughout history, authority has always been intrinsic to humankind, since people were always preoccupied with
who possesses the power in a social structure. The first person to comprehensively analyse rule of law in liberal democracies has been A.V. Dicey, in whose understanding the rule of law implies that men must not be subject to discretionary powers, must be equal before the law, and that their rights are best protected by the common law (Tamanaha, 2004, pp. 63-65). Likewise, Hayek had also argued that laws must be secured by the state with as little arbitrary intervention as possible, where the rule of law acts as a bastion against totalitarian tendencies of the government (Magen, 2016, p. 1052). English historian Paul Johnson argued that implementing the rule of law in the nation-states is among the most exceptional projects of the millennium (Tamanaha, 2004, p. 127).
Modern democracies are considered forms of governments where individuals rule themselves (political liberty), they are only limited by predetermined laws (legal liberty), individuals have autonomy, and their civil rights are secured (personal liberty), and where all these liberties are safeguarded government powers divided into separate legislative, executive, and judicial branches (institutional preservation of liberty) (Tamanaha, 2004, pp. 34-36). These four principles are generally specified in each government’s constitution, where “law is the skeleton that holds the liberal system upright” (Tamanaha, 2006, p. 36). Over the years, it became increasingly evident that rule of law – guided by reason, non-discretionary will, and objectiveness – supersedes the rule of man – guided by passion, arbitrary will, and subjectiveness (Tamanaha, 2004, p. 122).
According to von Bogdandy and Ioannidis (2014), the rule of law means different things in different contexts, not only because the term is ill-defined, but also because it has multiple meanings depending on the time period, location, and on the individual using it (p. 62). Undoubtedly, the rule of law is a concept bearing multiple meanings based on the context it is being studied in. When these contextual conceptualizations are used in other settings than the one for which the meaning had been originally designed for, there is a very high risk of conceptual stretching, where the concept would become an indefinite and elusive word (Sartori, 1970, pp. 1034-1035). This is already a potential problem, as “politicians, diplomats, jurists, economists, soldiers, journalists, bureaucrats and academics” all define the rule of law differently, always accommodating contemporary legal, political, social, and economic agendas (Magen, 2016, pp. 1051-1052). Therefore, multiple dichotomous conceptualizations have come into being – formal or substantive (Craig, 1997), negative or positive (Selznick, 1999), and rule-book or rights-based (Dworkin, 1985). Magen (2016) identifies that the rule of law has a dual nature, since it has a normative sense, but it is also sensitive to conceptual stretching (p. 1051). Yet, even with so many different understandings and possible categorizations, in all cases and under all circumstances, despite the significant persisting cleavages on the grounds of nationality, ethnicity, religion causing feelings of uncertainty, – as Tamanaha (2004) asserts – “there appears to be
widespread agreement, traversing all fault lines, on one point, and one point alone: that the ‘rule of law’ is good for everyone” (p. 1).
2.1.2 The rule of law, Article 2 TEU, and the current status quo
The European Union is a unique economic and political union between 27 European states. The predecessor of the EU had been a solely economic entity created right after the Second World War with the idea that economic interdependence between countries undermines any kinds of emerging conflicts between those involved. Naturally, throughout the years, the community began to unite its members also politically, and the EU as we know it is the result of decades of cooperation and increased integration of member states (European Union, n.d.-b). The two fundamental treaties that form the basis of the EU law are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These treaties represent binding agreements between the European Union and the Member States, establishing all goals, values, rules and regulations based on which the Union operates on (European Union, n.d.-a).
The EU's foundational values are shared by all Member States and are rooted in their constitutional traditions. These values are set out in Article 2 TEU, which reads as follows:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. (Consolidated Version of the Treaty on European Union, 2012, p. 17)
Some of these values – democracy, the rule of law, and human rights – had been severely tested by what has been regarded as a values crisis over the past few years (Pech & Scheppele, 2017, p. 8). Given that individual Member States increasingly break their commitments to these values and principles that were presumed to be guaranteed by EU membership, unquestionably the EU is facing a severe crisis. Out of these principles, the one most threatened, and which has been a cornerstone of EU integration, is the rule of law. Among the factors that create an environment in which some Member States present deviations from the fundamental EU values in securing the rule of law are intrinsic corruption, weak institutional capabilities, and resource constraints on the bureaucratic or judicial area (von Bogdandy & Ioannidis, 2014, p. 59; Scheppele, 2016, p. 105). In this rule of law crisis (Kochenov & Pech, 2015, p. 512), Member States have actually gained support on the national level for sharply criticising the EU while also casting doubt on the democratic changes of power in the
government, on the steadfast protection of human rights, and on the preservation of the rule of law (Scheppele, 2016, p. 105). While the Eurozone crisis received a swift response from the EU institutions, the moral crisis attracted less pronounced attention and has caught the EU off-guard (Scheppele, 2016, pp. 105-106). Nevertheless, while the EU certainly cannot stay idle in the face of these significant challenges, whether potential solutions are following the EU’s overall constitutional structure remains unknown (von Bogdandy & Ioannidis, 2014, p. 59).
2.1.3 European Union conceptualization of the rule of law
The first President of the European Commission, Walter Hallstein remarked in one of his speeches in 1962 that the European Community “is a community of law [Rechtsgemeinschaft] … because it serves to realize the idea of law” (as cited in Mańko, 2017, p. 2). Hallstein’s observation clearly expressed the significance of the EU possessing a legal identity – EU law should strive to be equally efficient as the national laws of the general EU Member State (von Bogdandy & Ioannidis, 2014, p. 63). The early ECJ case law promulgated the main principles of the rule of law: substantive principles (legality, legal certainty, confidence in the stability of a legal situation, proportionality) and procedural guarantees (right to be heard, the obligation of the authority to motivate its decision duly) (Mańko, 2017, p. 2). These principles have been codified in primary law in the Treaty on the European Union (TEU) and the Charter of Fundamental Rights (CFR) (Mańko, 2017, p. 3).
Markedly, in the Preamble of the TEU, signing Member States confirmed “their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law” (Consolidated Version of the Treaty on European Union, 2012, p. 15). Moreover, multiple TEU provisions include references to the concept of the rule of law – Article 2 TEU lists the rule of law among its fundamental values, Article 3(1) ensures that the Union promotes these values, while Article 21(1) TEU argues that in the international scene, the deeds of the Union must be led by its fundamental values, among which, by the rule of law (Consolidated Version of the Treaty on European Union, 2012, pp. 17, 28) . Moreover, specified by Article 21(2)(b), the Union aims to “consolidate and support democracy, the rule of law, human rights and the principles of international law” (Consolidated Version of the Treaty on European Union, 2012, p. 29). Furthermore, the TEU also refers to rule of law in Article 49, stating that every European state might become part of the EU as long as they support the fundamental values of the Union (Consolidated Version of the Treaty on European Union, 2012, p. 43). Correspondingly, Article 7 provides possible sanctions to those Member States that fail to respect the fundamental values of the Union (Consolidated Version of the Treaty on European Union, 2012, p. 19).
The rule of law has also been codified into the Charter of Fundamental Rights. Article 41 specifies EU citizens’ rights to proper administration, meaning that “every person has the right to have his or her affairs handled impartially, fairly” (Charter of Fundamental Rights of the European Union, 2012, p. 403). Article 47 provides the right to an effective remedy and a fair trial, whereas Article 49 outlines the principles of legality and proportionality (Charter of Fundamental Rights of the European Union, 2012, p. 405).
The rule of law is fundamental from the moment a state applies for EU membership: according to Article 49 TEU, commitment to the EU’s common fundamental values is a prerequisite for becoming a member of the Union (Consolidated Version of the Treaty on European Union, 2012, p. 43). In the screening process before joining the Union, each candidate state must submit themselves to a thorough examination of their current status of democracy and the rule of law. Upon admission, each state is presumed to comply with EU values, and as such, the European Commission ceases its massive previous efforts of promoting the rule of law and democracy (Closa & Kochenov, 2016, p. 3). The critical point is that since Chapters 23 and 24 of the negotiation chapters relating to the rule of law (European Commission, n.d.-c) are such vital parts of the accession negotiations (that – in theory – candidate countries either make or break), the Treaties never expected that compliance with Article 2 TEU values might considerably diminish after admittance to the EU took place. As such, the Treaties also lack instruments employable for expelling those member states deviating from the values listed by Article 2 (Scheppele, 2016, p. 106). The only instrument in the TEU somewhat addressing violations of fundamental values, providing a preventive and sanctioning mechanism for the deviant Member States is Article 7 TEU.
The previous part clearly illustrated that the European Union is a community based on the value of the rule of law. Nonetheless, it was never specified what is meant under this concept, as there are no definitions set out neither in the EU treaties nor in any EU legislation. The first time that an EU institution provided a public, tangible conceptualization was in 2014 by the European Commission in its Communication establishing the Rule of Law Framework (European Commission, 2014c). This definition recognized the rule of law as an increasingly predominant organizational model for modern democracies, ensuring that public authorities only act within specified bounds set by the law, in conformity with the other fundamental values such as democracy and the protection of human rights, while being subject to an impartial and independent judiciary (European Commission, 2014c, pp. 3-4). The Communication specifies that the exact meaning of the rule of law might differ from Member State to Member State according to their specific individual constitutional system (European Commission, 2014c, p. 4). The Commission describes rule of law as "a constitutional principle with both formal and substantive components", whose principles act as "the vehicle for ensuring compliance
with and respect for democracy and human rights" (European Commission, 2014c, p. 4). The Commission and the ECJ provide very similar, but slightly different lists of such principles. On the one hand, the Commission lists "legality, …; legal certainty, prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law" (European Commission, 2014c, p. 4). On the other hand, the Court argues that the principles of “legality, …; legal certainty, …; prohibition of arbitrariness of the executive powers, …; independent and effective judicial review including respect for fundamental rights …. equality before the law” are together forming the rule of law (European Commission, 2014b, pp. 1-2).
Magen (2016) identified two main problems with the conceptualization of the Commission (p. 1054). Firstly, it omits to mention certain aspects of the modern democratic understanding, as it does not make any reference to problems of corruption or access to justice (Magen, 2016, p. 1054). Secondly, it fails to make a clear distinction between the rule of law and other fundamental values of Article 2. This is unfortunate since Article 7 TEU refers to multiple values in its text: “a clear risk of a serious breach by a Member State of the values referred to in Article 2” (Magen, 2016, p. 1055).
Even without a fixed definition, European institutions undividedly share a thick, positive conceptualization of the rule of law, claiming that thin, formal, and negative notions of the rule of law are conflicting with Article 2 TEU. Moreover, EU institutions are confident that the rule of law must be combined with political morality, fundamental rights, and democracy (Magen, 2016, p. 1053). Tamanaha (2004) argues that the thick (formal) and substantive version of rule of law fits in his social welfare category, where rule of law incorporates democracy, individual rights, formal legality, social welfare rights and demands governments to protect and enhance the economic and social well-being of their citizens (pp. 112-113). In such systems, laws safeguard civil liberties and control those possessing public authority. Those that administer, enforce, implement and effectuate law in justice institutions (lawyers, judges, police) therefore must be just and highly qualified experts (Magen, 2016, p. 1053). Tamanaha's understanding of the rule of law also fits with the conceptualization provided by the Commission.
In the European Union, the rule of law – among other Article 2 TEU values – benefits from double protection: firstly, respecting them is a required criterion for joining the Union (Poptcheva, 2015, p. 2). Secondly, even after accession took place, Member States should continue to follow and promote those values. Nevertheless, this is somewhat contradictory to Article 4(2), which argues that Member States should share common fundamental values while keeping their national identities and political and constitutional organizational structure. The “constitutional individuality” of Member
States and hence the diverse culturality of the EU might be restricted by the common fundamental values (Poptcheva, 2015, p. 2).
At present, it is an accepted fact that the rule of law backsliding is a real problem that the Union has to face. Pech and Scheppele (2017) provide a comprehensive definition for this phenomenon, equalling the rule of law backsliding with a process in which public actors – directly elected by the citizens of a country – make conscious decisions, as a “constitutional capture”, through which they significantly weaken all check and balances (p. 10). Müller (2015) argues that a “constitutional capture” is utterly different from single violations or corruption of some Member States in that constitutional capture refers to cases where public servants deliberately weaken checks and balances, thus allowing political power to group in the hands of a few (p. 142). For the same reason, constitutional capture also makes it difficult for these public servants to be replaced, as they consolidate their power as much as possible in the course of their actions (Müller, 2015, p. 142). This, in turn, makes it possible for a leader or a party to consolidate political power successfully and – through this all-powerful one-party system with electoral authoritarianism – make it impossible for liberal democracy to thrive (Pech & Scheppele, 2017, pp. 10-11). As an illustration, in 2010, French authorities decided to forcibly repatriate people of Roma ethnicity to their Member State of origin (Nacu, 2012). In 2012, the Hungarian constitution had been changed and adopted by Fidesz, the ruling party, without any input from opposition parties (Bánkuti, Halmai & Scheppele, 2012). In 2012, when the impeachment referendum of president Băsescu had been scheduled, prime-minister Victor Ponta decided to change the referendum law one day before the vote (Gherghina & Miscoiu, 2013). In 2015, the ruling party in Poland had replaced judges and changed the decision-making power of the court in its favour (Jankovic, 2016). The EU institutions have undoubtedly tried to address deviant Member States; however, their attempts were often harshly criticised. The Commission and the Parliament have both been strongly attacked for their attempts to resume respect for EU values as some political leaders believed that the EU initiatives were interfering with national autonomy (concurrently holding the EU responsible for seeking further centralisation), while others have accused the European Union of not doing its job correctly and failing to safeguard its Article 2 values (Müller, 2013).
2.2 The European Union’s instruments to tackle rule of law backsliding
The previous section presented the reader with the concept of rule of law from both a general and an EU perspective, showing the importance of rule of law for the organization of modern society, and illustrating through a few examples what the phenomenon of rule of backsliding is. The EU institutions’ commitment and respect for the rule of law among its other fundamental values have also
been proven in the previous section. However, it was not yet shown how the EU tries to safeguard this precious value. Therefore this section has three main objectives: to provide an overview of the existing EU instruments for addressing rule of law backsliding within the Member States, to analyze the criticisms that these instruments received, and finally, to provide the foundation from which several factors will be identified that might explain the varying efficiency of these policy instruments. 2.2.1 Article 7
2.2.1.1 Overview
Article 7 of the Treaty on European Union provides two main mechanisms to address Member States deviating from the values set out in Article 2. Its preventive mechanism set out in Article 7(1) (an addition since the Treaty of Nice, see Evolution section) implies that the Council identifies a “clear risk of a serious breach” of core EU values (Consolidated Version of the Treaty on European Union, 2012, p. 19). This mechanism might be initiated either by the Commission, the Parliament, or one-third of the Member States in the Council. After the absolute majority of all members of the European Parliament give their consent and the hearing of the concerned Member State has taken place, the Council (by a majority of at least four-fifths of the Member States) can decide whether there is a legitimate and clear risk of a serious breach (Consolidated Version of the Treaty on European Union, 2012, p. 19).
Its other instrument is a sanctioning mechanism laid down in Article 7(2-3) of the Treaty on European Union, through which the Council identifies the “existence of a serious and persistent breach” of Article 2 values and imposes sentencing (Consolidated Version of the Treaty on European Union, 2012, p. 19). In its first procedure, Article 7(2), the European Council must decide unanimously – based on the proposal of the Commission or one-third of the Member States in the Council (after receiving the Parliament’s consent and after inviting the concerned Member State to submit its observation) that there has been a grave and ongoing violation of Article 2 values in one of the Member States (Consolidated Version of the Treaty on European Union, 2012, p. 19). In the second sanctioning procedure, Article 7(3), the Council may decide to suspend membership rights of the concerned country after a qualified majority voting (72% of Member States representing 65% of the EU’s population, should vote in favour) (Consolidated Version of the Treaty on European Union, 2012, pp. 19-20; Council of the European Union, n.d.). The suspension of membership rights means that the concerned Member State is deprived of its voting rights in the Council (Consolidated Version of the Treaty on European Union, 2012, p. 20). However, the two mechanisms are not officially connected to each other. The preventive instrument does not have to be enforced prior to the sanction. In contrast,
a sanction may be imposed on a Member State immediately – without having first to identify a clear risk – in case of a serious violation of one (or more) of the fundamental values (Kochenov & Pech, 2015, p. 516).
2.2.1.2 Evolution
To provide an instrument through which the EU could monitor and address potential Article 2 breaches of values such as the rule of law, Article 7 was first introduced into an EU Treaty in 1997 with the signing of the Amsterdam Treaty. This sanctions provision has been incorporated into the Amsterdam Treaty as a measure against possible breaches in prospective Central European states (Pech & Scheppele, 2017, pp. 4-5). In the early 2000s Jörg Haider, a member of the Austrian right-wing Freedom Party, after becoming head of the government, had opposed the accession of post-communist countries to the European Union, arguing that citizens of potential new Member States could pose a threat to the Austrian labour market (Sadurski, 2010, p. 398). At the turn of the century, initiating the sanctioning measures seemed too extreme, so the fourteen Member States resorted to a different method: they have severed all diplomatic relations with Austria. This decision was taken by the Member States unilaterally, without consulting the Parliament or the Council. The fourteen states agreed that the behaviour of Haider was in stark contrast both with the values of the European Union and with the long-established political norms that would be expected of a democracy (Sadurski, 2010, pp. 398-401). Although Austria’s punishment did not last long (mostly because it vetoed several decisions on the forthcoming accession), other members’ reactions have shown that any aspiring state not abiding by the same set of values will have to face the consequences (Sadurski, 2010, pp. 404-405). The Haider affair was an excellent example to show prospective Member States that they will not be allowed to operate counterfeit democracies (undermining EU values) or to support alliances with far-right parties. Sending such a message had been important especially given the rise of numerous radical leaders in Central and Eastern Europe at the time such as Ján Slota in Slovakia, Vladimir Žirinovskij in Russia, István Csurka in Hungary or Vadim Tudor in Romania (Sadurski, 2010, p. 399).
As a result of the Haider affair, in the prospect of a major eastward enlargement, the Treaty of Nice had revised and supplemented Article 7 of the Amsterdam Treaty with a preventive instrument to maintain its internal stability and to prevent a Member State from violating a fundamental value, such as the rule of law (Sadurski, 2010, pp. 409-414). Naturally, the already Member States shared concerns over the prospective countries, only recently liberated from communist rule. Some of the concerns were, of course, justified, while others were based only on prejudice and indifference. The fact that a few years later, in 2007, the Lisbon Treaty took over Article 7 in its entirety without any
particular debate or discussion showed that the accession of the Eastern countries played a very significant role in the enactment of Article 7 – far greater than previously anticipated (Sadurski, 2010, p. 425).
2.2.1.3 Criticism
Many scholars have criticised Article 7, mainly because of its effectiveness, procedure, and undesirable side effects. Some have argued that the measures taken against sanctioned states only isolates them from other Member States (Müller, 2015; Scheppele, 2016), which may be the cause of institutions being hesitant to invoke it (von Bogdandy & Ioannidis, 2014). Thus, its effectiveness is as questionable (von Bogdandy & Ioannidis, 2014), as its logistics. Since its sanctioning mechanism requires a high procedural threshold (Kochenov & Pech, 2015; Kochenov & Pech, 2016; Pech & Scheppele, 2017) and regulates competences seemingly outside its scope (Pech & Scheppele, 2017; Sadurski, 2010), it is no wonder why the competence of the institutions is being challenged as well (Müller, 2015; Kochenov, 2017). One of its most significant shortcomings, however, seems to be that there is no clear distinction between what could only be considered a mere risk, and what is a severe breach (Sadurski, 2010, Kochenov, 2017). The arguments above, taken from scholars’ publications form the basis of this literature review.
Von Bogdandy & Ioannidis (2014), for instance, both argue that since the article has never been put into practice (at the time of their writing), institutions are hesitant and uncertain when to use it (p. 84). They also raise the question of whether such sanctions are sufficient enough to restore the rule of law in states home to the kind of breaches they were supposed to mend (von Bogdandy & Ioannidis, 2014, p. 84). Additionally, respecting the accession conditions is no guarantee against rule of law backsliding in the future, especially in countries joined during the 2004 accession of Eastern Europe. As Pech and Scheppele further argue, in cases of serious violations, the EU may intervene not only in areas where competences were conferred to, but also in other areas, usually subject to national competences (Pech & Scheppele, 2017, p. 5).
Their argument may have its roots in Müller’s 2015 article, where the scholar notes a significant and rather undesired side effect of the intervention. This “moral quarantine” as he refers to it, is not a real measure against said breaches (Müller, 2015, p. 144). In fact, it may even have the opposite effect, since it only isolates the sanctioned Member State from the rest of the Union. Such “normative isolationism” therefore should be avoided, since as long as a country is a member of the Union, it will concern the entire population (Müller, 2015, pp. 144-145). Müller notes that another drawback of Article 7 is the (sometimes valid) concern of Member States that a procedure might be launched against them (Müller, 2015, p. 147). The Article’s effectiveness is also questioned by the fact that in Hungary
(in 2010) when constitutional capture could undoubtedly be observed, the EU could not even agree that there was a risk serious enough to launch a sanction (Müller, 2015, p. 147).
Its main flaw, however, according to Kochenov and Pech (2016) is that the decision must be unanimous (p. 1065). This already high procedural threshold, in turn, has been made nearly impossible by the coalition of the two self-identified illiberal Member States (Hungary and Poland), who have committed themselves to veto decision-making regarding either’s sanctioning. Unless the EU holds both Member States accountable at the same time, the sanctioning process will certainly not move forward due to blocking (Kochenov & Pech, 2016, p. 1065).
In the 2012 State of the Union speech, Commission President Jose Manuel Barroso referred to Article 7 as the “nuclear option” (Barroso, 2012), however, this label had been seen as both “unhelpful” (it severely undermined the dissuasive nature of Article 7) and “misleading” (since there is nothing nuclear about assessing a risk of serious breach and adopting recommendations to address the situation) (Kochenov & Pech, 2016, p. 1065). Kochenov (2017) agrees that invoking the article may be compared to the logistics of a nuclear attack, yet this narrative ignores how the three procedures differ. It is also important to note that the so-called nuclear option refers to Article 7(3), which cannot even be initiated unless a serious breach occurs, and Article 7(2) has already been invoked. Article 7(1) therefore, could be considered an encouragement for having a dialogue to prevent said breaches. Furthermore, invoking Article 7(1) requires either the Commission, the European Parliament, or one-third of the Member States’ decision. In addition, achieving a four-fifths majority is not too far-fetched, especially since the Member State on trial is not allowed to vote (Kochenov, 2017, pp. 6-9). In conclusion, although there are similarities between a nuclear attack and invoking the article, the nuclear option narrative is greatly (and gratuitously) exaggerated, since its true nature lies more in its ability to warn and prevent instead of punishing mercilessly as a desperate act to restore balance (Kochenov, 2017, pp. 8-9).
Article 7 has also given the Council unprecedented powers over the sanctioned Member State, as shown by employing techniques such as the unanimous vote and the restrictions imposed on the Member State on trial, while the Parliament has a reduced role, and the Court of Justice has no role at all. When preparing Article 7, Member States were careful not to transfer acting competences to the Union in the field of human rights (Sadurski, 2010, p. 396). Nevertheless, the Commission has supported its view that Article 7 is not limited to matters governed by EU law, but can also be used in situations that generally fall within national competence (Sadurski, 2010, pp. 414-415). This is a particularly important remark since the values emphasised in Article 2 TEU generally fall within the specific competence of the Member States, and do not usually belong to the Union (Sadurski, 2010, p. 415). Article 7 thus removes the taboos on areas of national and EU competence and provides an
instrument by which the EU can act in an area which is not in its strict competence – hence Article 7 being horizontal and general in its nature (Sadurski, 2010, pp. 414-415).
According to Sadurski (2010), to distinguish between a potential and a real breach, the Commission argues that a potential risk consists of individual, isolated cases of human rights violations (p. 415). A real risk, however, comprises serious and more importantly, systematic cases of such violations (Sadurski, 2010, p. 415). Kochenov (2017) agrees that it is indeed crucial to differentiate between a threat and an actual breach: while the former may only result in the warnings of Article 7(1), a serious (and more importantly, systematic) breach could trigger Article 7(2) directly. By limiting the actions required to the severity of a threat, the Commission manages only to launch its highly complex procedures only when it is indispensable. A good example could be Silvio Berlusconi’s lacking media pluralism or Nicolas Sarközy’s treatment of the Romani. Both cases seriously violate Article 2, yet Article 7(2) has not been reached (Kochenov, 2017, p. 9-10).
No matter how serious a breach a Member State commits, the EU does not, at the moment, have any instrument for disposing of such a Member State. For the time being, the most severe punishment that the EU can impose on a country is disenfranchisement, depriving the Member State of the right to vote in the Council introduced in Article 7. Scheppele (2016) therefore argues that Article 7 is “more of a quarantine mechanism for healthy states” (p. 106), meaning that it isolates the other Member States from the sanctioned state, rather than improving the situation in the respective state (Scheppele, 2016, p. 106). Another major problem with Article 7 is that even though in theory it looks like a feasible instrument, in practice political party affiliations prevent states from criticising freely due to party loyalty (Scheppele, 2016, p. 106). Furthermore, procedural requirements make it impossible for the Council ever to impose sanctions and thus, the political nature of Article 7 lies in the fact that even if it could do so, and if it were in fact established that a breach had taken place, the Council would not be required, by law, to impose said sanctions (Kochenov & Pech, 2015, p. 516).
Article 7 has not yet been triggered at the time of their writing, on the one hand, because it was too difficult to reach the level at which it can be activated, and on the other hand, because political conditions were often such that politicians would go against themselves if they were activated. So far, the European Commission, with the exception of the Cooperation and Verification Mechanism, has relied on political pressure and the usual infringement procedure before the ECJ when it has had to defend EU values and when it has had to achieve change in a Member State in relation to a fundamental value (Kochenov & Pech, 2015, p. 517).
2.2.2 Commission infringement proceedings
2.2.2.1 Overview
The infringement proceedings laid down in Article 258 of the Treaty on the Functioning of the European Union (TFEU) state that the Commission has the option of commencing infringement proceedings under this Article whenever it considers that an EU Member State has willingly breached Union law. The infringement procedure starts when the Commission sends an opinion (formal letter) to the concerned Member State in which it offers the opportunity to the Member State to present its perspective on the particular breach. If the Commission does not get a reply from the Member State, or if the Member State fails to provide a satisfactory answer, the Commission might bring the case before the European Court of Justice, where the court might impose penalties on the concerned Member State (Consolidated Version of the Treaty on the Functioning of the European Union, 2012, p. 160). Article 258 is always used to address specific infringements, where the Member State concerned is considered by the EU to generally respect and comply with the law – according to the principle of sincere cooperation highlighted in Article 4(3). The situation may lead to grave consequences compared to the occasional, scattered violations since there might be cases when the infringements do not occur once, but continuously, systematically, when a Member State violates EU core values (such as the rule of law) or when it constantly undermines EU law in its own jurisdiction (Scheppele, 2016, p. 108).
2.2.2.2 Criticism
According to Scheppele (2016), the main shortcoming of this common infringement procedure is that even though its importance is unquestionable, its power is too limited to address ingrained structural problems. The most prominent example is the case of Hungary, where the Commission ordered an immediate analysis of the new Hungarian constitution, resulting in the launch of three separate infringement procedures. True to Article 258, the Commission sent out three formal letters to Hungary, which replied to the Commission within a month. One of the three cases was a change in the retirement age for judges, which meant that ten percent of the senior judges had to retire earlier, fundamentally changing the entire composition of the Hungarian courts (Scheppele, 2016, pp. 109-110). Therefore the ruling party became able to elect judges at its discretion to the vacancies, which, of course, jeopardized independence of the judiciary. In this case, the Commission initiated infringement proceedings on the basis of age discrimination. Although eventually the Commission won and Hungary reinstated some of the judges (while the Hungarian government compensated the others via a lump sum payment), in reality, the Commission failed to solve the real problem. The
Commission’s infringement procedure was successfully concluded legally, but nothing has changed in the Hungarian legal system (Scheppele, 2016, pp. 109-110). As Müller (2015) asserts, the “de facto decapitation” (p. 147) of the Hungarian judiciary (the lawsuit) had nothing to do with the problem of discrimination, as it was purely political (Müller, 2015, pp. 147-148).
The biggest problem with the infringement proceedings, according to Scheppele (2016), is that the Commission tends to interpret violations on a case-by-case basis, while it also tends to deal with more small cases rather than with fewer, but more far-reaching cases (p. 111). Moreover, despite the ECJ’s encouragement to try to find patterns of persistent, systemic breaches, the Commission is still too seldom considering this advice (Scheppele, 2016, p. 111). Scheppele (2016) offers three distinct cases on how to improve the infringement procedure tool further. First, she recommends a significant increase in the number of individual cases – however, the Court would still not be able to spot patents as there would be different judges for many different cases. Second, even if there were one Grand Chamber per Member State to hear specific complaints against that Member State that would still not be enough for the Court to recognize a pattern. Finally, in order to successfully address certain violations from the roots and to reinforce Member States’ respect for EU values again, Scheppele proposes an entirely new instrument – the systemic infringement procedure. This would mean that the Commission would initiate infringement proceedings when it notices that a Member State is not only in breach of one particular EU law, but is also systematically infringing EU fundamental values. The point of this would be to collect several cases to reinforce the existence of such a pattern. In the structural infringement procedure, the point would be to recognize patterns based on infringements that lasted for a sufficiently long duration of time and which had been of the utmost seriousness in EU constitutional terms (Scheppele, 2016, pp. 111-114). Returning to the previously discussed Hungarian rule of law case, where the qualification criteria were intentionally changed for the judges, a systemic infringement procedure could have been useful, as there was a clearly discernible pattern, as both the Venice Commission and the International Bar Association considered Hungary’s behaviour on the independence of the judiciary dangerous (International Bar Association’s Human Rights Institute, 2015; Scheppele, 2016, pp. 116-117; Venice Commission, 2012a).
Similarly, Pech & Scheppele (2017) also support the idea that the biggest shortcoming of the infringement proceedings is that they only deal with individual cases that fall within the scope of EU law (p. 13). This is why it can be challenging only to use infringement proceedings and still punish and correct the actions of illiberal governments (Pech & Scheppele, 2017, p. 13). As Kochenov & Pech (2015) note in a different article – under Article 260 TFEU – any Member State that does not comply with what the Court decides may be brought before the Court, with the Court now imposing additional financial sanctions on the infringing country (p. 517). In a narrower sense, the Commission may initiate
