RULE OF LAW AT STAKE

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____________________________

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THE INDISPENSABLE PROTECTION OF ARTICLE 2 TEU

ON THE EXAMPLE OF HUNGARY AND POLAND

____________________________

DORNA SAADATI (12439169)

1 JULY 2019

SUPERVISOR: DHR. MR. DR. A.C. VAN WAGENINGEN

SECOND SUPERVISOR: DHR. DR. P.W. ZUIDHOF

MA THESIS IN EUROPEAN STUDIES

GRADUATE SCHOOL FOR HUMANITIES

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A serious and persistent breach of the common values by a Member State would radically shake the very foundations of the European Union. Given the current economic, social and political situation in the Member States, the European Union is without doubt one of the places in the world where democracy and fundamental rights are best protected, thanks largely to the domestic judicial systems and in particular the Constitutional Courts.

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LIST OF ABBREVIATIONS

AG Advocate General

CEU Central European University

CJEU Court of Justice of the European Union

DG Directorate-General

EC European Commission

EEC European Economic Community

ECHR European Convention on Human Rights

ECJ European Court of Justice

ECtHR European Court of Human Rights

ENF Europe of Nations and Freedom

EP European Parliament

EPP European People’s Party

EPRS European Parliamentary Research Service

EQUINET European Network of Equality Bodies

EU European Union

FRA European Union Agency for Fundamental Rights

LIBE European Parliament's Committee on Civil Liberties, Justice and Home Affairs

MEP Member of the European Parliament

MFF Multiannual Financial Framework

NATO North Atlantic Treaty Organization

NGO Non-governmental Organization

OHCHR United Nations Human Rights Committee

TEC Treaty Establishing the European Community

TEU Treaty on European Union

TFEU Treaty on the functioning of the European Union

UDHR Universal Declaration of Human Rights

UN United Nations

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1. INTRODUCTION

‘United in Diversity’1_{; the motto of the European Union (EU) does not only apply to the} diversity of cultures and languages within the Union’s territory, but also to their different constitutions and judicial systems. However, all Member States share, in principle, a common foundation based on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights2_{. These are enshrined in Article 2 of the Treaty} on European Union (TEU), and thus in the Union’s constitutional framework, as well as in the Charter of Fundamental Rights of the EU. Alongside democracy and fundamental human rights, the rule of law is one of the three pillars of the Council of Europe and simultaneously the prerequisite for an EU membership3_{. By implementing Article 7 TEU as an enforcement} and sanction mechanism in the case of a serious and persistent breach by a Member State against the EU values4_{, this fundament got further strengthened. The strong commitment to} these intertwining principles is the result of longstanding political developments and legal decisions in the peacekeeping, post-war European project’s history5_{. Today, the European} Union aims to promote peace and the well-being of its citizens in an area of freedom, security and justice without internal frontiers6_{. The achievement and legal implementation of these} values are arguably the greatest success in the continuous European integration process. This academic paper aims to investigate the protection of the fundamental values referred to in Article 2 TEU. The way the rule of law, which is the backbone of any modern constitutional democracy, is implemented at national level plays a substantial role in the safeguard of these values7_{. Adverse developments in some Member States have threatened the rule of law and} consequently the protection of fundamental rights in the past years8_{. Particularly in Hungary}

1_{European Union Website, The EU motto.}

https://europa.eu/european-union/about-eu/symbols/motto_de.

2_{Article 2 TEU.}

3_{European Commission, Communication from the Commission to the European Parliament and the Council. A}

new Framework to strengthen the Rule of Law (COM/2014/0158 final), at 1.

4_{Article 7 TEU.}

5_{Takis S. Pappas, ‘Distinguishing liberal democracy’s challengers’ Journal of Democracy Vol. 27, No. 4 (2016): 23.} 6_{Article 3(1) and (2) TEU.}

7_{European Commission, A new Framework to strengthen the Rule of Law (COM/2014/0158 final), at 1.} 8_{Council of the European Union, Council conclusions on fundamental rights and rule of law and on the}

Commission 2012 Report on the Application of the Charter of Fundamental Rights of the European Union.

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and Poland, the changes in policies and laws introduced by national-conservative, right-wing governments have repeatedly been criticised internally and externally for allegedly breaching EU values. A large jurisprudence of the Court of Justice of the European Union (CJEU) seem to confirm these allegations. Despite reiterated concerns of human rights organizations, European authorities9_{and international media}10_{as well as the European Parliament}11_{, the} lack of respect for the rule of law and democratic values seems to increase within EU territory. The severe circumstances and growing call for efficient protection of European values led to the first ever activations of Article 7 TEU. However, the current procedures show the limited power of this article which has been referred to as ‘nuclear option’12_{. Regardless of the} practices under Article 7 TEU, the EU finds itself in a situation where populist parties13_are part of national governments in Europe at present. The ‘illiberal turn’ which the Hungarian Prime Minister Viktor Orbán openly promotes14_{, has been described as a serious threat to the} correct application of EU law at national level by scholars such as Professor Laurent Pech15_. The success of populism within EU territory is a warning for all of Europe16_{. The question arises} on whether the Union is able to effectively combat these developments and guarantee the application of its own Article 2 TEU values and to maintain an area of freedom where pluralism, non-discrimination, tolerance, justice and solidarity prevail17_{. Hence, this thesis} focuses on the indispensable protection of the Union’s very foundation. Following the historical background and definition of the rule of law, the concept of democracy and fundamental rights within the EU context will be discussed, in order to grasp their existential relevance. In the following, the mechanisms and origins of Article 7 TEU will be presented. The efficiency of the ‘nuclear’ article will then be analysed on grounds of the procedures

9_{Council of the European Union, Press Release. 3235}th_{Council Meeting, General Affairs. Luxembourg, 22 April} 2013.

10_{Why is Poland’s government worrying the EU?’ The Economist 12 January 2019.}

https://www.economist.com/the-economist-explains/2016/01/12/why-is-polands-government-worrying-the-eu

11_{Rui Tavares, Working Document 2 on the situation of Fundamental Rights: standards and practices in}

Hungary (pursuant to the EP resolution of 16 February 2012) - Fundamental principles and fundamental rights.

Committee on Civil Liberties, Justice and Home Affairs, 6 September 2012, 2.

12_{José Manuel Durão Barroso, European Commission. State of the Union 2012 Address, 12 September 2012.}

http://europa.eu/rapid/press-release_SPEECH-12-596_en.htm

13_{Pappas, ‘Distinguishing liberal democracy’s challengers’, 29.}

14_{Viktor Orbán, Speech at the 25}th Bálványos Summer Free University and Student Camp, July 26, 2014. 15_{Laurent Pech, Kim Lane, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ Cambridge Yearbook of}

European Legal Studies (2017), 2.

16_{Pappas, ‘Distinguishing liberal democracy’s challengers’, 35.} 17_{Article 2 TEU.}

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against Hungary and Poland. Subsequently, alternative actions for the protection and enforcement of Article 2 TEU will be assessed, which include recent jurisprudential developments by the CJEU and the conditioning of EU funds upon the respect of the rule of law. The research paper concludes with the results of the analysis.

1.2 RESEARCH QUESTION

I address this research topic with the following research question:

How does the EU safeguard its fundamental values referred to in Article 2 TEU and are the measures effective?

In order to seamlessly answer the main research question, it is crucial to understand the relevance of this issue by assessing the fundamental values of the European Union as laid down in Article 2 TEU. It is essential to understand their purport for individuals and for European integration as well as the historical background which led to their implementation into the founding Treaties. Thereby, it becomes tangible what is at stake, which then explains the indispensability of Article 2 TEU’s protection for the existence of the EU. Thus, the necessity and definition of the values enshrined in Article 2 TEU will be examined in the second chapter.

Hereafter, the analysis needs to immerse into the current safeguarding measures of the EU in order to protect and enforce Article 2 TEU, particularly into the default option Article 7 TEU. The mechanisms of this article have to be examined thoroughly in order to understand the potential far-reaching, legal consequences thereunder in case of a serious and persistent breach of the principle of the rule of law, democracy and respect for human rights by a Member State. It is important to comprehend the institutional competences and dependencies of this legislation which ultimately determine the value of it. Moreover, the severe infringements against the rule of law and consequently against a wide range of rights and freedoms in Hungary and Poland have to be addressed in this paper to further demonstrate the need for fast and effective EU measures. Accordingly, the present Article 7 TEU procedures against these two EU Member States have to be analysed for the purpose of

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its efficacy assessment. In this respect, the emergence and development of Article 7 TEU as well as the political approach thereto which have led to its status as ‘nuclear option’ are crucial to grasp the evolution of Europe’s political landscape in the past two decades. The developments and status quo of the political situation within EU territory are not least the reason why the Union might need other mechanisms now than at the time when Article 7 TEU was introduced. In this regard, the complementary procedures under the EU Rule of Law Framework must be evaluated as well; together with Article 7 TEU, the Framework constitutes the EU’s legal protection of its very foundation. Therefore, the mechanisms as well as the legal consequences under the default option Article 7 TEU and its complementary EU Rule of Law Framework will be discussed in the third chapter.

The reasons for their activation against Poland and Hungary as well as the effectiveness of the procedures will thereby be assessed as sub-questions. This thesis does not only aim to assess the factual effectiveness of existing rule of law enforcement mechanisms, but also to assay alternative actions in this regard, to examine whether these could achieve important effects to sanction and remedy rule of law and Article 2 TEU violations. These include jurisprudential developments by the CJEU and the proposal for a Regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States. For this reason, alternative measures provided by the EU in order to safeguard the values it is founded on as well as potential new mechanisms therefore will be investigated in chapter four.

1.3 METHODOLOGICAL FRAMEWORK

Legal research

The methodological framework is primarily based on legal research methods. Thus, the analysis of EU law, including the Treaties of the European Union and case law of the Court of Justice of the European Union is the core approach of this academic work. Furthermore, the national legislation of the involved Member States as well as relevant resolutions, decisions, communications, reports, press releases and other publications from European Union institutions and politicians will be thoroughly incorporated in order to assess the research topic. In this respect, particularly Commission Communications and parliamentary resolutions

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play a key role in the present analysis as they point out the effort and developing position of these two important institutions concerning the protection of Article 2 TEU. The legal approach is adequate as it regards the states as the creator and enforcer of law on a national level while the EU plays this role on a supranational level, having supremacy over the national legislation of the Member States. Both the state and the EU are inevitably concerned with law, legal institutions and legal procedures such as constitution, courts and elections, respectively. Hence, law is part of the political framework or rather, according to Thomas Hobbes, the centre of political life18_.

The sovereign may not be limited by law in the modern constitutional sense, but the law is that which makes the creation of the commonwealth possible, that which effectuates the sovereign’s actions, and that which gives meaning and stability to political life for all those who have contracted together to create the commonwealth.19 - Anthony F. Lang Jr. and Gabriella Slomp, 2015

The methodological framework is a combination of expository research and law reform research. The former, which is also known as ‘black-letter approach, encompasses conventional treaties, articles and statutes as well as interpreting cases while the latter brings in a socio-legal approach20_{. It can be said that the latter research method studies ‘law in} context’, as opposed to a solely ‘law in books’ approach, explaining the actual effects of law when translated into reality21_{. For the research purpose of this paper, the application of both} methods is valuable.

Interviews

In the wake of three research trips to Brussels, politicians, experts, non-governmental organizations (NGO) and various actors of the European Union were involved into this academic project in the form of interviews and informal exchanges of views. The visits took

18_{Anthony F. Lang Jr. & Gabriella Slomp, ‘Thomas Hobbes: theorist of the law’ Critical Review of International}

Social and Political Philosophy (Routledge, 2015), 2.

19_Ibid.

20_{Desmond Manderson, Richard Mohr, ‘From Oxymoron to Intersection: An Epidemiology of Legal Research’}

Law Text Culture, Vol. 6, Article 10 (University of Wollongong, 2002).

21_{Shazia Qureshi, ‘Research Methodology in Law and Its Application to Women’s Human Rights Law’ Journal of}

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place on 12 November 2018, from 30 January to 2 February 2019 and on 19 March 2019 and were followed by further communication via email and phone calls. An informal meeting with a member of the European Commission’s Directorate-General (DG) Justice and Consumers22 as well as a member of the European Parliament’s Policy Department of citizens’ rights and constitutional affairs gave insights into the rule of law situation in Hungary and Poland. This meeting was the first out of numerous exchanges with the think tank, which highly benefitted this research with their output and provided information. A meeting with a member of the Secretariat of the Civil Liberties Committee also took place in order to discuss parliamentary procedures and stages in the decision-making process. During the latter two stays in Brussels, one member of the European Parliament (MEP), two representatives from Amnesty International, legal experts of the European Parliamentary Research Service (EPRS)23_{and two} accredited assistants of a MEP were interviewed. The semi-structured interviews gave interviewees the possibility to talk freely about their expertise, experiences and hidden agenda related to the rule of law, democracy, human rights, legislative issues as well as national and supranational political strategies in this regard. In May 2019, a short bilateral exchange took place with MEP Judith Sargentini at the University of Amsterdam following a debate about autocratic states and the rule of law in the EU. The interviews, conversations and discussions were complementary to the legal research. Handwritten notes were taken during and the participants had the opportunity to receive consent forms.

Other considerations

In addition to the analysis of legislative texts and conducted interviews, essential opinions, public debates and speeches of politicians and relevant actors across Europe, academic papers as well as European and international media will be taken into consideration. Official social media accounts of involved politicians will be observed as they are increasingly used to disseminate views directly and with a higher reach by political actors. Furthermore, voting behaviour in the Parliament relating to the situation of fundamental rights in Poland and Hungary will be analysed via ‘Vote Watch Europe’24_.

22_{European Commission Website, Justice and Consumers:}

https://ec.europa.eu/info/departments/justice-and-consumers_en.

23_{European Parliament Website, European Parliamentary Research Service (EPRS):}

https://www.europarl.europa.eu/at-your-service/en/stay-informed/research-and-analysis.

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2. THE VALUES OF THE EUROPEAN UNION

The values of the European Union are the fundamental basis for a European modus vivendi common to the Member States. They promote European integration while ensuring the legitimacy of the Union as founded on democratic values25_{. The importance of legal values in} legal systems is not only well accepted, it is even increasing in contemporary law compared to the past. On a national level, these values and principles are usually incorporated into the constitutional charter of a state; this process is significantly different in the EU legal order26_. The European Union law, former European Community law, is an ex novo creation27_{. It is not} only a supranational legal system, but also a juridical system disconnected from a de jure history that has its own unique concepts. However, an interrelation of the European Union law with the traditions of the Member States, both in juridical and political matters, was unalienable in order to achieve a sustainable common ground28_{. The past six decades have} brought about numerous legal and constitutional developments of which the most recent one is the Treaty of Lisbon. Since its implementation on 1 December 2009, the Lisbon Treaty sets the constitutional basis of the EU by dint of the consolidated versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), although without specifically using the term ‘constitution’. The Treaties mark a new stage in the process of creating an ‘ever closer Union’29_{, not least because of their far-reaching} references to and implementation of the fundamental values the Union is founded on. Article 3 TEU puts emphasis on the promotion of, inter alia, the values enshrined in Article 2 TEU, peace as well as the well-being of the EU citizens by offering an area of freedom, security and justice. While contributing to these values, the Union shall respect its rich culture and diversity as well as safeguard and enhance Europe’s cultural heritage30_{. These are only a few} examples out of a remarkable number of Treaty provisions referring to the values of today’s European Union. Some argue that there is no single form of government, no single model of

25_{Eva-Maria Poptcheva, Understanding the EU Rule of Law mechanisms. European Parliament Research Service}

(EPRS), 2016, 2.

26_{Maria Luisa Fernandez Esteban, The Rule of Law in the European Constitution (The Hague, Boston: Kluwer Law}

International, 1999), 38.

27_{Luis María Díez-Picazo, in The Rule of Law in the European Constitution (The Hague, Boston: Kluwer Law}

International, 1999), xiii.

28_Ibid.

29_{Article 1 TEU.} 30_{Article 3 TEU.}

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liberal democracy common to all Member States that can be used to decide whether they fall under a common standard. Hence, greater respect for the plurality of political values in the EU is essential31_.

2.1. HISTORY OF FUNDAMENTAL RIGHTS IN THE EU TREATIES

The constitutional framework of the European Union holds a wide array of human rights provisions. Particularly Article 6 TEU emphasizes the recognition of the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union as equally valuable as the Treaties, thus giving it binding effect32_{. Furthermore, the Treaty on the} Functioning of the European Union provides human rights regulations like Article 19 TFEU, which sets a clear legal basis against any kind of discrimination33_{. This significant status of} human rights within EU law is a relatively recent development in the 62-year long history of the Union, which commenced as the European Economic Community (EEC). In order to understand the purpose, structure and effects of the concerned Treaty provisions, engaging with the history of human rights at national and international level from a legal perspective can be favourable34_{. When the EEC and European Atomic Energy Community Treaties were} drafted in 1957, the European Convention on Human Rights (ECHR) was not adopted as part of the Treaties35_{. Thus, they lacked a human rights charter}36_{. As the name suggests, the} Community mainly focused on economic issues such as the creation of a common market. Consequently, their legal framework was lacking references to human rights which slowly started changing in 1969. After relevant discussions about the EU law’s supremacy as well as the recognition of fundamental human rights as part of the general principles of the EU legal order, the European Court of Justice (ECJ) started to change its approach. For the first time, in 1969, the ECJ affirmed the recognition of general principles of EU law in the Stauder case, including the protection of fundamental human rights37_{. This case issued a violation against}

31_{Bruno De Witte, Gabriel N. Toggenburg, ‘Human Rights and Membership of the European Union’ in S Peers, A}

Ward The EU Charter of Fundamental Rights (Oxford, 2004), 15.

32_{Article 6 TEU.} 33_{Article 19 TFEU.}

34_{Günter Wilms, Protecting fundamental values in the European Union through the rule of law: Articles 2 and 7}

TEU from a legal, historical and comparative angle (European University Institute, 2017), 1.

35_{Paul Craig, Gráinne de Búrca. EU Law: Text, Cases, and Materials. Fifth edition (New York: Oxford University}

Press, 2011), 362.

36_{Anne van Wageningen, The Power of Law; Legal Integration in the EU, lecture on 13 November 2018, slide 14.} 37_{Case 29/69 Stauder v City of Ulm [1969] ECR 419.}

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the fundamental right to human dignity due to the domestic implementation of an EU provision in Stuttgart, Germany. In the following years, the ECJ elaborated this new approach in the Internationale Handelsgesellschaft case and the Nold v Commission case. The former not only dealt with the substantial challenge of EU law supremacy within the German legal order but at the same time guaranteed the protection of fundamental rights as an integral part of the general principles of Community law protected by the Court of Justice38_. Concurrently, the ECJ stressed that legal cultures and traditions of the Member States strongly influence these general principles of EU law. In 1974 the Court identified two primary sources, namely international human rights agreements as well as common national constitutional traditions in the course of the Nold v Commission case39_{. In the latter case,} which related to the right to a livelihood of the EU’s regulation of the market in coal, the Court stated:

As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures.

In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those States.

Similarly, international treaties for the protection of human rights on which Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of community law.

The submissions of the applicants must be examined in the light of these principles.40

These cases were first steps towards the inclusion of human rights in the formal institutional framework of the European Community, but the most significant changes occurred in the 1990s. One out of several constitutional landmark decisions of the European Court of Justice is Opinion 1/91. The ECJ stated that the EEC Treaty, albeit concluded in the form of an

38_{Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel [1970]}

ECR 1125 [4].

39_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 366.} 40_{Case 4/73 Nold v Commission [1974] ECR 491, at 13.}

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international agreement, forms the constitutional charter of a Community based on the rule of law41_{. According to the ECJ, the constitutional character of the founding Treaties derives} from the remarkable values which underlie them42_{. Ever since the adoption of the Treaty of} Maastricht in 1992, there is a clear reference to the ECHR via Article 6 TEU. The EU further imposed a ‘political conditionality’ on candidate Member States based on human rights and integrated the latter into a range of its internal and external policies43_{. As a result, the ECHR} did not only bind the Union itself, but also applicant countries as well as existent Member States acting within the scope of EU law44_{. With the Amsterdam Treaty coming into force in} 1999, the EU took a further step in promoting the protection of human rights within the Union’s legal order. As an example, the EU widened the prohibition of discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation45_{. Article 49 TEU specified the respect for the values of the EU as an application} condition for EU membership46_{. Furthermore, Article 7 TEU was established as a sanction} mechanism against Member States that seriously and persistently infringe human rights. Even more recently, the EU Charter of Fundamental Rights, which was proclaimed in 2000, achieved its binding legal status only in 2009 by the Treaty of Lisbon coming into effect47_{. The} Lisbon Treaty strengthened the status and role of human rights and replaced the previous, less extensive ‘principles’ by the EU ‘values’48_{. These are now anchored in Article 2 TEU.}

41_{Opinion 1/91 [1991] ECR I-6079.}

42_{Esteban, The Rule of Law in the European Constitution, 38.} 43_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 362-363.}

44_{Armin von Bogdandy, Pál Sonnevend, Constitutional Crisis in the European Constitutional Area: Theory, Law}

and Politics in Hungary and Romania (Oxford, United Kingdom ; Portland, Oregon: Hart Publishing, 2015), 243.

45_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 855.} 46_{Article 49 TEU.}

47_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 362.} 48_{Poptcheva, Understanding the EU Rule of Law mechanisms, 2.}

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2.2 ARTICLE 2 TEU

Article 2 TEU

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.

These values listed in Article 2 TEU constitute the foundation of the Union. The wording makes clear that these overarching principles of political morality underlie the purpose and character of the politico-legal system of the Union as a whole. This further means, that the Treaty confirms and requires the Member States’ national constitutional regimes to be based on identical fundamental values and principles49_{. This approach has been expressed in a} number of ECJ rulings and opinions. In 2008, Advocate General (AG) Poiares Maduro stated: Article 6 TEU (now Article 2 TEU50_{) expresses the respect due to national constitutional} values. It also indicates how best to prevent any real conflict with them, in particular by anchoring the constitutional foundations of the European Union in the constitutional principles common to the Member States. Through this provision the Member States are reassured that the law of the European Union will not threaten the fundamental values of their constitutions. At the same time, however, they have transferred to the Court of Justice the task of protecting those values within the scope of Community law. In that connection, the Conseil d’État is correct in assuming that the fundamental values of its constitution and those of the Community legal order are identical.51

While each of these principles is a fundamental value on its own, together they achieve other fundamental values which ultimately equal to the common good. Democracy, rule of law and

49_{Laurent Pech, ‘A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional}

Principle of EU Law (European Constitutional Law Review 6: 359-396, 2010), 362.

50_{Explanatory note added.}

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fundamental rights, the three key elements of this Article, are widely interdependent52,53 _and therefore can only fully function together. This intertwining further means that the existence of ‘healthy’, liberal democracies and strong rule of law is essential and indispensable for the enhancement and maintenance of European and global human rights movement54_{. These} values are listed in the Copenhagen Criteria since its establishment in the 1993 Copenhagen European Council. Amongst other conditions, this document lays down democracy, rule of law, human rights as well as respect for and protection of minorities as basic prerequisite for countries aiming to become a member of the EU55_{. A nation state in which decisions are made} without protecting fundamental freedoms, human rights or the access to independent courts in order to enforce these in cases of infringement, cannot effectively uphold or guarantee human rights for its citizens. Hence, such a nation state cannot be part of the European Union. The Committee on Civil Liberties, Justice and Home Affairs (LIBE) defined European common values as a shared understanding of democracy, fundamental legal principles and fundamental rights upon which the European integration process is founded. The core elements of this common understanding are international agreements, EU Treaties, as well as relevant case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union56_{. By disrespecting these values, thus losing its foundation, the} European Union would consequently lose its integrity, legitimacy and livelihood.

2.2.1 THE RULE OF LAW

One of the fundamental elements of law in the modern state is the rule of law. As regards the EU, the compliance with this principle is a prior and formal condition for Union membership57_. Its notion derives from the common law concept of the rule of law as well as the continental

52_{Wilms, Protecting fundamental values in the European Union through the rule of law: Articles 2 and 7 TEU}

from a legal, historical and comparative angle, 4.

53_{Pech, A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional Principle}

of EU Law, 368.

54_{Arne Muis, Lars van Troost (eds.) Will human rights survive illiberal democracy? Amnesty International}

Netherlands, March 2018, 7.

55_{EUR-Lex, Accession Criteria (Copenhagen Criteria)}

https://eur-lex.europa.eu/summary/glossary/accession_criteria_copenhague.html

56_{Rui Tavares, Working Document 2 on the situation of Fundamental Rights: standards and practices in Hungary}

(pursuant to the EP resolution of 16 February 2012) - Fundamental principles and fundamental rights, 2.

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approaches of the German ‘Rechtsstaat’ and the French ‘Ètat de droit’58_{. As will be seen later} in this chapter, judgements of the European Court of Justice in cases related to rule of law predominantly reflect national experiences; Germany’s in particular59_{. Article 2 TEU refers to} the rule of law as a value, whereas the EU Charter of Fundamental Rights still identifies it as a principle in the Preamble60_{. Since there is no formal Treaty definition of the rule of law, its} interpretation is left to scholars, particularly to judges. However, the Union’s concept is not necessarily vague61_{. Several epochal judgements of the Court, even well before the} above-mentioned Opinion 1/91, have developed and strengthened the significance of this principle over decades. 23 April 1986 marks the day when the ECJ expressed the constitutional character of the EC Treaty and the fundamental role of the rule of law in a landmark judgement62_{. In this case, where the former French ecological Green party ‘Les Verts’} challenged a decision on political party funding of the European Parliament, the ECJ stated:

It must first be emphasized in this regard that the European Economic Community is a Community based on the Rule of Law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.63

Ever since the Court continued with this narrative, consistently referring to the 1957 established EC Treaty as the constitutional document of a supranational polity based on the rule of law64_{. In this regard, the primacy of Community law was consistently outlined as} primordial requirement of the legal order of a community based on the rule of law 65_{. The} mostly positive responses to this approach were not least resulting from the general mindset towards rule of law after the end of the Cold War as well as the common assumption of a

58_{Esteban, The Rule of Law in the European Constitution, 66.}

of EU Law, 373.

60_{European Union Charter of Fundamental Rights, Preamble.}

of EU Law, 369.

62_{Case 294/83 Les Verts v Parliament [1986] ECR 1339.} 63_{Case 294/83 Les Verts v Parliament [1986] ECR 1339, [23].}

64_{Pech, ‘A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional}

Principle of EU Law, 359.

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‘government by laws, not of men’66_{being desirable}67_{. Alongside democracy and human rights,} the rule of law became dominant in political and legal discourse and eventually found its way into the Union’s founding Treaties by multiple references in the Maastricht Treaty in 199268_. Through further small amendments in the successive Treaties as well as the principle itself being a shared political ideal in Europe largely reflected in national constitutions, rule of law became a fundamental value of today’s European Union69_{. The German} ‘Rechtsgemeinschaft’, the French ‘communauté de droit’ and the Union’s ‘community based on rule of law‘ share the same basic idea: the exercise of public power must be subject to the law70_{. Hence, arbitrariness in the use of power shall be avoided. According to the ECJ, the} notion ‘community based on rule of law’ can initially be described as both legalistic and procedural due to its close connection to traditional and interrelated principles of legality, judicial protection and review. These are inherent characteristics of all modern, democratic legal systems. Therefore, its concept first provides the ground for juridical review and further implicates the existence of comprehensive and complementary judicial review processes. Concurrently, this enables the judiciary to ensure compliance with the principle of legality and the principle of judicial protection; the two key dogma of any genuine legal system. While the former amounts to the requirement that measures of public authorities are in conformity with the legal system’s hierarchy of norms, the latter particularly protects any person whose rights or interests guaranteed by law are violated by these public authorities an effective legal remedy before a competent court. Additionally, when analysing ECJ case law after the turn of the millennium, a clear linkage to the general principle of fundamental rights protection becomes very clear71_{. The UPA case in 2002}72_{and the joined case Yassin Abdullah Kadi and} Al Barakaat International Foundation v Council of the European Union and Commission of the European Communitiesin 200873_{show judgement examples where the Court emphasized the}

66_{Justice Marshall, Marbury v. Madison, The Supreme Court of the United States, 1803.} 67_{Opinion of AG Poiares Maduro in Case-127/07 Arcelor [2008] ECR I-9895, para. 16.}

69_{Ibid, 362.} 70_{Ibid, 364.}

72_{Case C-50/00 P UPA [2002] ECR I-6677}

73_{Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v}

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vital importance of institutions acting in compliance with the Treaty and with the general principles of law which inevitably includes fundamental rights. The Court further stressed the importance of protecting the rights of individuals deriving from the Community legal order74_. Hence, the Union’s notion of rule of law is best understood as a multifaced principle with formal and substantive elements which demands judicial remedies for the protection of both procedural and substantive rights. For a better understanding of these terms and their relation with national legal systems, it is important to recall that the access to competent courts or the principle of non-retroactivity, which are procedural and formal components, aim to ensure substantive values like human dignity. This is not only a trait on the EU level, but in liberal and democratic European polities and societies in general75_{. In other words,} citizens of the European Union are entitled to effective judicial protection of their rights deriving from the TEU and TFEU, including the Charter of Fundamental Rights. Every interpretation and application of formal integral parts of the rule of law must be conducted through ‘fundamental rights lenses’76_{. The independent judges of the ECJ, guided by the rule} of law and acting in compliance with the Treaties, protect the individual against unlawful or arbitrary actions of public power. As shortly noted earlier, European national legal approaches are woven into the Union’s legal system, specifically concerning fundamental rights and the interdependence with the rule of law. It is further remarkable how the rule of law developed itself to a constitutional principle; a crucial, indispensable element of the European Union.

2.2.2 DEMOCRACY

The principle of democracy is an essential element of post-war Europe in order to establish and maintain an area of peace and freedom. However, there is no single definition of democracy and no single model of democracy accurate to all democratic states77_{. Although} the EU Treaties do not lay down a clear definition of the notion democracy, its core can be grasped through history, practice, objectives and its interrelation with the principle of rule of

74_{Case C-50/00 P UPA [2002] ECR I-6677, paras. 38-39.}

75_{Pech,’ A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional}

76_{Ibid, 373.}

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law and the respect for human rights. The European project initially aimed for democratic representation, European integration and political liberalism. By spreading the idea and practice of pluralist parliamentary democracy to nation after nation across Europe, by establishing an ‘ever closer’ union of European people and states with multicultural and multi-ethnic backgrounds as well as by the constant promotion and improvement of political liberalism the EU eventually formed its democratic base. Considering the political landscape in many parts of Europe after the end of World War II, this was not an easy task; the idea of a united Europe with democratic values had to oust authoritarian regimes in Portugal, Greece and Spain in the 1970s as well as communist dictatorships in Central and Eastern Europe in the 1980s. Today, the EU’s concept of democracy consists of parliamentarism, integration and liberalism78_{and the adherence to European values. Therefore, the European Union and} consequently its Member States are, in principle, liberal democracies. The understanding of the Union’s liberal democracy is not only characterized by free and fair elections, but also by the separation of powers, the rule of law as well as the freedom of speech, assembly, religion and property, hence constitutional liberalism79_{. In this regard, it is important to distinguish} between constitutional liberalism and democracy80_{; not all democracies are automatically} liberal. As political scientist Philippe C. Schmitter stated in his essay about ‘post-liberal’ democracy:

For Liberalism, whether as a conception of political order or as a doctrine about economic policy, may have coincided in some countries with the rise of democracy, but it has never been immutably or unambiguously linked to its practice […]81

Allegedly democratic systems that lack liberal constitutionalism may be classified as authoritarian. These are characterised by the restriction of fundamental liberties such as the freedom of speech and freedom of expression as well as undemocratic, unfree elections82_. However, the respect for those values are, as part of Article 2 TEU, an integral part of the

78_{Pappas, ‘Distinguishing liberal democracy’s challengers’, 22-23.}

79_{Fareed Zakaria, ‘The Rise of Illiberal Democracy’ in: Foreign Affairs Vol. 76, No. 6 (1997), 22-23.} 80_{Pappas, ‘Distinguishing liberal democracy’s challengers’, 23.}

81_{Philippe C. Schmitter, ‘Post-liberal’ Democracy: A sketch of the possible future? European University Institute,}

February 2018, 3.

https://www.eui.eu/Documents/DepartmentsCentres/SPS/Profiles/Schmitter/2018/Post-liberal-Democracy.draft.pdf

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European Union. The achievement and maintenance of a democratic Union that upholds constitutional liberalism and subsequently fundamental human rights relies on the predominance of liberal democracies across its Member States.

2.2.3 FUNDAMENTAL RIGHTS

Fundamental rights correlate with minimum juridical standards ensuring that a person is treated with dignity83_{. Equality, freedom, the right to be free of discrimination, the right to} get access to justice and the right to life are some of these rights. The European Union is founded on these values and ultimately commits to the promotion and protection of them by the Charter of Fundamental Rights of the European Union. This charter consists of 54 articles that strengthen the rights and freedoms of EU citizens. It comprises inter alia the freedom of assembly and of association84_{, the right to asylum}85_{, the integration of persons with} disabilities86_{, environmental protection}87_{, right to an effective remedy and to a fair trial}88_and the prohibition of abuse of rights89_{. Although the EU Charter of Fundamental Rights is not} incorporated in the EU Treaties, the direct reference in Article 6 TEU grants it the same legal status as the Treaties since the Lisbon Treaty entered into force in 2009. Thus, it is now binding for the Union, including its institutions and bodies in all their activities. Alongside the Charter, Article 6 TEU also refers to the ECHR and general principles of Union law evolving from national constitutional traditions as sources for EU human rights law90_{. The increasing} EU ‘human rights and democratization’ policy was not only indicated by these Treaty provisions, but also by the establishment of monitoring bodies in this field. The establishment of the European Court of Human Rights in 1959 was a big symbolic step in the European integration process91_{. Amongst a great number of institutions and measures, the EU} Monitoring Centre for Racism and Xenophobia and the EU Network of Independent Experts on Fundamental Rights were founded in 1997 and 2002, respectively. In 2007, the European

83_{European Union Fundamental Rights Agency (FRA), About fundamental rights.}

https://fra.europa.eu/en/about-fundamental-rights.

84_{Charter of Fundamental Rights of the European Union, Article 12.} 85_{Charter of Fundamental Rights of the European Union, Article 18.} 86_{Charter of Fundamental Rights of the European Union, Article 26.} 87_{Charter of Fundamental Rights of the European Union, Article 37.} 88_{Charter of Fundamental Rights of the European Union, Article 47.} 89_{Charter of Fundamental Rights of the European Union, Article 54.} 90_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 362.}

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Union Agency for Fundamental Rights (FRA) was established in order to oversee and protect fundamental rights. This institution was founded as an independent body that primarily collects information, formulates opinions, publishes reports and promotes good practice examples. However, notions about the extension of FRA’s competencies by the integration of monitoring powers for purposes of Article 7 TEU have been refused by the Member States92_. Additionally, ‘Equality bodies’ have been established with a mandate under EU law to provide independent advisory services and support to victims of discrimination on a national level. The European Network of Equality Bodies (EQUINET) promotes equal treatment and aims to improve legal protection against discrimination. These national equality institutions have necessary legal powers to assist victims in enforcing claims93_{. The fundamental rights} monitored and promoted inter alia by these institutions, are crucial elements of the Union’s foundation as enshrined in Article 2 TEU.

92_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 390.} 93_{EQUINET: http://equineteurope.org/.}

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3. THE ‘NUCLEAR’ ARTICLE 7 TEU

In the past years, the protection of the Union’s fundamental values has increasingly been at the centre of political and legal interest.94_{As mentioned above, these values are elemental} to the Union and common to the Member States. However, European history has shown difficulties in ensuring that national constitutional identities of some Member States continuously respect the EU values, hence they enjoy a two-fold protection at present. First, they are part of the Copenhagen Criteria since 1993 which became rapidly known as political accession criteria95_{. This means, by application, that a nation state can only join the Union if} it shares and guards those values. Second, following the accession, Member States must observe, respect and promote these values96_{. But what if a nation state that is already a} member of the EU disrespects human dignity, infringes human rights or breaches against rule of law? How do the other Member States and the Union as a whole react? The intense political discourse on this issue is the result of troubling developments in some Member States that raised insecurities about the future of the EU. Particularly in Hungary and Poland, systematic changes in laws and policies, affecting the judiciary and other structures of the State, have been described as breaches against the rule of law threatening democracy and human rights. Hence, the fundament of the EU and consequently the European Union project as a whole is put at risk. Whilst Article 2 TEU functions as conditional framework for candidate countries as well as a constitutional framework for existing Member States, Article 7 TEU provides an enforcement mechanism for Member States seriously and persistently violating against Article 2 TEU97_{. Well-known scholars and politicians have referred to Article 7 TEU as the} ‘nuclear option’ in the past98_{, supposedly attributing it an enormous power and efficacy}99_{, as} well as a negative and destructive effect. Other scholars have criticised this approach, which ‘dramatized’ the activation of this mechanism available to EU institutions to counter Article 2 TEU violations so to justify lack of political and institutional courage. Due to the persistent

94_{Wilms, Protecting fundamental values in the European Union through the rule of law: Articles 2 and 7 TEU}

from a legal, historical and comparative angle, 3.

95_{De Witte, Toggenburg, Human Rights and Membership of the European Union, 62.} 96_{Poptcheva, Understanding the EU Rule of Law mechanisms, 2.}

97_{Craig, de Búrca. EU Law: Text, Cases, and Materials, 363.} 98_{Barroso, State of the Union 2012 Address.}

99_{Judith Sargentini, Can there be an autocratic EU member state? Debate and discussion at the University of}

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deterioration in Central and Eastern Europe, Article 7 TEU as the default enforcement mechanism has been initiated in 2017 for the first time in the history of the European Union.

3.1 MECHANISMS

Article 7 TEU applies when there is a clear risk of a serious, systematic and persistent breach of the values referred to in Article 2 TEU by a Member State, which goes beyond individual violations. According to the Commission, the severity of the breach can be based on the vulnerability of the social group or the spectrum of EU values affected100_.

The first paragraph of Article 7 TEU indicates a preventive mechanism that was only added in the Treaty of Nice. This procedure can be triggered by one third of the Member States, the EU Parliament as well as the EU Commission, calling the Council to determine that there is a clear risk of a serious breach of the EU values enshrined in Article 2 TEU by a Member State. The decision has to be adopted by a majority of four-fifth in the Council and after obtaining the consent of the EP, acting by a two-third majority of the votes cast, representing the majority of its members101_{. However, before making such a determination, the pre-emptive} mechanism stipulates that the concerned Member State can approach the Council, which may address recommendations in this regard as follows from the first paragraph.

The second paragraph of Article 7 TEU is the first of two parts of the sanction procedures thereunder. Following a proposal by one third of the Member States or by the EC to the European Council, the Member State in question will be invited to submit its observations to the Council. Subsequently, the European Council may determine the existence of a serious and persistent breach of the values enshrined in Article 2 TEU by that Member State. While this determination requires the consent of the EP by a two-third majority of the votes cast, representing the majority of its component members, the Article 7(2) TEU procedure, contrary to Article 7(1) TEU cannot be initiated by the parliament.

100 _{European Commission, Communication from the Commission to the Council and the European Parliament on}

Article 7 TEU. Respect for and promotion of the values on which the Union is based (COM/2003/606 final), 15

October 2003, 7.

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Article 7(3) TEU constitutes the second phase of the sanction procedures102_{. If the European} Council determines the existence of a serious and persistent breach of Article 2 TEU by a Member State on the basis of Article 7(2) TEU, the Council may decide to suspend certain of the rights of the concerned state deriving from its EU membership by a qualified majority. These suspension sanctions can include a Member State’s right to vote in the Council and the European Council. Hence, the Council enjoys wide discretionary power in this regard with minor limitations by means of the word ‘certain’ and that it must take into account the possible consequences of the determined measures103_{. In other words, the principle of} proportionality has to be considered104_{. Notwithstanding possible suspensions of rights, this} procedure aims to maintain a political dialogue between the EU and the violating Member State in order to solve the situation105_{. In this phase of the sanction procedure, the EP’s} consent is not required. It further has to be noted that neither the member of the European Council or of the Council representing the concerned Member State can take part in the vote nor shall the concerned Member State be factored in the required one third or four fifth majorities in paragraphs 1 and 2 of Article 7 TEU106_{. Article 35 TFEU further refers to Article} 238(3) TFEU regarding the definition of qualified majorities in the Council in cases where, under the Treaties, not all the members of the Council participate in voting. Pursuant to Article 238(3)(a) TFEU, a qualified majority shall be defined as at least 55% of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States in cases where not all members participate in voting107_{. Article} 238(3)(b) applies in cases where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy and where additionally not all members of the Council are permitted to vote under the Treaties. Here, the qualified majority shall be defined as at least 72% of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States108_{. Therefore, the adoption of the decision to suspend rights as regulated in} Article 7(3) TEU requires a qualified majority by 72% in the Council, comprising at least 65%

102_{Poptcheva, Understanding the EU Rule of Law mechanisms, 4.}

103_{De Witte, Toggenburg, Human Rights and Membership of the European Union, 72.} 104_{Poptcheva, Understanding the EU Rule of Law mechanisms, 4.}

105_{De Witte, Toggenburg, Human Rights and Membership of the European Union, 72.} 106_{Article 354 TFEU.}

107_{Article 238(3)(a) TFEU.} 108_{Article 238(3)(b) TFEU.}

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of the population of the Member States. However, if the Council aims to adopt such a decision on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, it can do so with the support of 55% of its members representing at least 65% of the population of the Member States.

The penultimate paragraph of the Treaty applies, when a sanctioned Member State has improved the situation of violation against the fundamental values of the Union that had led to the penalty under Article 7(3) TEU. Accordingly, the Council is supposed to ease or even revoke sanctions by a qualified majority and in correspondence with the rule of law as well as the principle of proportionality if there is a positive development in the involved Member State109_.

The CJEU has only small competencies related to Article 7 TEU as laid down in Article 269 TFEU. This indicates that the Article 7 procedure is a political one and not a judicial procedure. In fact, the CJEU can only review the procedural stipulations of Article 7 TEU and decide on the legality of an act adopted by the European Council or by the Council pursuant to the article on request of the Member State concerned110_{. The tendency to reinforce the control of} Member States in the Council in the wake of drafting the new Article 7 TEU mechanism was already apparent in the early Reflection Group. Not only the rule of unanimity in the Council and their competencies laid down in Article 7(2) and (3) TEU, but also the less prominent role of the parliament as well the suppression of any role of the CJEU were further signals thereto111_{. However, this last point was considered a wise decision by some scholars. In the} view of Bruno de Witte, the CJEU should not be drawn into the highly political and subjective exercise that falls under the scope of Article 7 TEU112_.

109 _{De Witte, Toggenburg, Human Rights and Membership of the European Union, 72.} 110 _{Article 269 TFEU.}

111_{Sadurski Wojciech, Adding a Bite to a Bark? A story of Article 7, the EU Enlargement, and Jörg Haider, Legal}

Studies Research Paper No 10/01, Sydney Law School, University of Sydney (January 2010), 10.

112 _{Bruno de Witte, The Past and the Future Role of the European Court of Justice in the Protection of Human}

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3.1.1 THE EU RULE OF LAW FRAMEWORK

Developments towards the decline of rule of law in some Member States, particularly in 2012 (which will be discussed in chapter 3.3) have demonstrated that the existing political mechanisms under Article 7 TEU are not always appropriate for a quick and effective solution for these kinds of threats. The preventive mechanism of Article 7(1) TEU can only be activated in case of an initiative by the Commission, the EP or a group of Member States alleging a ‘clear risk of a serious breach’ of Article 2 TEU values, while the sanctioning mechanism of Article 7(2) TEU only applies in case of a ‘serious and persistent breach’ of the values referred to in Article 2 TEU by a Member State113_{. Hence, by the time the Treaty provision comes into effect,} the breaches against EU values are already at a significantly serious stage. Moreover, the thresholds for invoking both Article 7(1) TEU and Article 7(2) TEU were and still are very high, the latter is presumed to be nearly impossible to reach under any circumstances.114_{For a} warning system, Article 7 is therefore difficult to use115_{, thus feasible measures at an earlier} stage became urgently needed. In order to be able to prevent the emerging of a systematic threat to the rule of law in a Member State that could further develop into ‘a clear risk of a serious breach’, the Commission adopted a Communication on a new EU framework to strengthen the rule of law in 2014116_{. It was the response to several requests, particularly} from the EP as well as the Justice and Home Affairs Council117_{. The so-called ‘pre-Article 7} tool’ was introduced to address and resolve systematic, persistent threat to the rule of law prior to the Article 7 TEU procedure and consequently as a complementation of it. It aims to be a contribution to the objectives of the Council of Europe, including the Venice Commission118_{and to promote mutual trust and European Integration}119_{. The EU Rule of Law} Framework applies in situations where the authorities of an EU Member State are taking measures or are tolerating conditions which are likely to adversely affect the integrity and stability of the institutions and mechanisms established at national level to safeguard the rule of law. In other words, the Framework addresses the systematic threat to the rule of law,

113_{European Commission, COM/2014/0158 final, at 3.}

114_{Pech, Lane, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, 9.} 115_Ibid.

116_{European Commission, COM/2014/0158 final, at 4.} 117_{European Commission, COM/2014/0158 final, at 1.}

118_{The European Commission for Democracy through Law (Venice Commission):}

http://www.venice.coe.int/WebForms/pages/?p=01_Presentation

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including inter alia constitutional structures, separation of powers and independence of judiciary where national safeguard mechanisms seem to fail their purpose120_{. The} Commission stated:

Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission will initiate a structured exchange with that Member State. The process is based on the following principles:

- focusing on finding a solution through a dialogue with the Member State concerned;

- ensuring an objective and thorough assessment of the situation at stake;

- respecting the principle of equal treatment of Member States;

- indicating swift and concrete actions which could be taken to address the systemic threat and to avoid the use of Article 7 TEU mechanisms.121

The Framework is designed as a three-stage process; a Commission assessment, a Commission recommendation and a follow-up to the recommendation. The European Parliament and the Council will be kept regularly and closely informed on progress made in each of the stages. In the first phase, the situation of the Member State in question is examined by the EC in a preliminary assessment. In case of a systematic threat to the rule of law, the Commission initiates a structured dialogue with the Member State by sending a ‘rule of law opinion’ to which the state can respond. The state is expected to cooperate throughout the whole process122_{. The exchanged content is confidential in order to accelerate the} solution finding process, yet the Commission may seek external expert opinions such as from the bodies of the Council of Europe and the EU Fundamental Rights Agency. In fact, where appropriate, the Commission can ask for advice from members of judicial institutions in the Union such as the Network of the Presidents of the Supreme Judicial Courts of the European Union123_{or the Judicial Councils}124_{. If the situation in the concerned Member State does not}

120_{European Commission, COM/2014/0158 final, at 4.1.} 121_{European Commission, COM/2014/0158 final, at 4.2.} 122_{Article 4(3) TEU.}

123_{Network of the Presidents of the Supreme Judicial Courts of the European Union:}

http://www.networkpresidents.eu/.

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improve, the Commission, in a second stage, issues a ‘rule of law recommendation’ with clear reference to the identified problems, a fixed time limit for the state to solve them and specific indications on ways to resolve the situation. Based on the dialogue between the EC and the Member State, the recommendation will be made public by the Commission. The last step of this Framework is the monitoring of the follow-up to the Commission’s recommendation. This may include further exchanges with the involved Member State and investigations on the concerned state’s effort to resolve the situation as well as ascertaining if the adverse practices continue to occur125_{. If the inspected country does not end the situation of systematic threat} to the rule of law within the given time limit or the conditions deteriorates, stronger measures apply; hence, Article 7 TEU may be activated126_.

3.2 ORIGINS

The origins of Article 7 TEU lead back to the end of the 20th_{century, particularly to two events} in 1999127_{; the Austrian National Council elections on 3 October 1999 and the Treaty of} Amsterdam’s entry into force on 1 May 1999. The former incident was about to change the political sphere in the EU Member State significantly, at the expanse of EU values128_{. When} the Second Republic of Austria was proclaimed on 27 April 1945 after World War II, this central European country which has held the status of permanent neutrality since 1955, was governed by an almost continuingly Great Coalition between the Austrian Social Democratic Party (SPÖ) and the conservative Christian Democrats (Austrian Peoples Party, ÖVP). For twenty years after the Second World War, this grand coalition was a political success that re-established the Austrian state and ensured political stability and neutrality even during the Cold War period129_{. In the following two decades of ‘social partnership’, Austria was left in a} position where free market policies were hardly existent while there were also no regular changes of government and opposition leading to the two-party ‘oligarchy’ being in power for more than half a century. Moreover, the Declaration of Neutrality as part of the Austrian

125_{European Commission, COM/2014/0158 final, at 4.2.} 126_{European Commission, COM/2014/0158 final, at 4.1.}

127_{Wojciech, Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement, and Jörg Haider, 11.} 128_{Lothar Höbelt, Defiant Populist. Jörg Haider and the Politics of Austria (Indiana: Purdue University Press,}

2003), 181.

129_{Konrad Lachmayer, Questioning the Basic Values—Austria and Jörg Haider, in The Enforcement of EU Law}

RULE OF LAW AT STAKE - THE INDISPENSABLE PROTECTION OF ARTICLE 2 TEU ON THE EXAMPLE OF HUNGARY AND POLAND

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