Master of Arts Thesis

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Master of Arts Thesis

Euroculture

Rijksuniversiteit Groningen

Université de Strasbourg

August 2017

The European Commission’s role as ‘guardian of the

Treaties’ in Resolving Rule of Law Conflicts in EU Member

States: A Matter of Legitimacy

The cases of Romania, Hungary and Poland

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2 MA Programme Euroculture

Declaration

I, Ellen Bosma, hereby declare that this thesis, entitled “The European Commission’s role as ‘guardian of the Treaties’ in Resolving Rule of Law Conflicts in EU Member States: A matter of Legitimacy”, submitted as partial requirement for the MA Programme Euroculture, is my own original work and expressed in my own words. Any use made within this text of works of other authors in any form (e.g. ideas, figures, texts, tables, etc.) are properly acknowledged in the text as well as in the bibliography.

I hereby also acknowledge that I was informed about the regulations pertaining to the assessment of the MA thesis Euroculture and about the general completion rules for the Master of Arts Programme Euroculture.

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Table of contents

1. Introduction………...………....5

1.1 Relevance of the topic………...………..5

1.2 Research focus………...………..6

1.3 Structure and methodology………..……….8

2. The concept of the rule of law in the EU Treaties……….……..10

2.1. Article 7 TEU……….……..10

2.2 Article 258 TFEU………..12

2.3 The rule of law in the Treaties: a definition?...13

3. Actors involved on a European level……….…15

3.1 The European Commission………..15

3.2 The European Council……….….17

3.3 The European Parliament……….…...18

3.4 Other actors………...19

4. The cases of Romania, Hungary and Poland………....21

4.1 Romania………...21

4.2 Hungary……….…23

4.3 Poland………...26

5. Legitimacy in the context of the EU………..31

6. The European Commission as a legitimate actor? A ‘principal agent’ perspective….34 6.1 The European Union through the lens of the ‘principal agent’ theory………34

6.2 The European Commission’s ‘guardian of the Treaties’ role in the protection of the rule of law from a ‘principal agent’ perspective……….…….35

6.3 The European Commission and the question of legitimacy……….…….38

7. The European Commission’s discourse in rule of law affairs: strategies of legitimization ……….…….42

7.1 Legitimization through voices of expertise/ authorization……….…...43

7.1.1 Romania……….………….43

7.1.2 Hungary……….………….45

7.1.3 Poland……….……….47

7.2 Legitimization through rationality/ theoretical rationalization……….………...48

7.2.1 Romania……….……….48

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7.2.3 Poland……….49

7.3 Legitimization through emotions………50

7.3.1 Romania………..51

7.3.2 Hungary………..51

7.3.3 Poland……….53

7.4 Legitimization through a hypothetical future………54

7.4.1 Hungary………..55

7.4.2 Poland………..55

7.5 Legitimization through altruism/ moral evaluation……….56

7.5.1 Romania………..56

7.5.2 Hungary………..57

7.5.3 Poland……….58

7.6 General analysis………....58

7.6.1 The Commission’s application of legitimization strategies………59

7.6.2 The Commission’s preferred legitimization strategies in the cases of Romania, Hungary and Poland………..60

7.6.3 Testing the hypothesis………...61

8. The Commission as a legitimate actor in rule of law affairs? The cases of Romania, Hungary and Poland………. 63

8.1 Discussion of the European Commission’s legitimacy in its interactions with Romania, Hungary and Poland……….63

8.2 The Rule of Law Framework: room for improvement……….67

Conclusion………...68

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1. Introduction

During recent times, the European Union has been faced with multiple far-reaching crises. Europe’s economies have been severely damaged, the continent is facing a massive refugee crisis and Europe also has to deal with the uncertainty that Brexit has brought along. Besides these conflicts, however, there is another fundamental issue that the EU currently has to deal with. During recent years, various Member States have demonstrated to systematically violate one of the fundamental principles of the EU: the rule of law. In certain Member States, governments have come to power which have undermined the rule of law by introducing legal measures that contravene the EU’s foundational values1. This phenomenon has been called “unconstitutional constitutionalism” or a “constitutional coup d’état”2, which means that governments use their democratic majority to push through reforms which go against fundamental European values through “perfectly legal means”3. Moreover, on several occasions it could even be doubted whether certain measures introduced by these governments could be considered to be completely legal and in line with the country’s constitution. Whether constitutional or not, such cases reveal that in certain Member States, there is a lack of “qualities that characterize consolidated liberal democracies4_{”. In these situations, democratic institutions} are formally present, but in practice these can potentially merely become a façade for illiberal, authoritarian regimes.

1.1 Relevance of the topic

According to Magen, the rule of law in the context of the EU “can be understood to provide the normative glue that holds the entire political and legal edifice together.5” Therefore, “the functioning of the Union as a legal and political system relies upon the veracity of the working assumption that all Member States are broadly in compliance with the principles listed in Article 2 TEU.6” For that reason, the establishment of an illiberal democracy in one Member State can have broad implications for the EU since the government of such a country co-decides in the

1_{Which are laid out in Article 2 TEU, as will be explained below}

2_{Carlos Closa , Dimitry Kochenov and J.H.H.Weiler. “Reinforcing Rule of Law Oversight in the European}

Union”. Robert Schuman Centre for Advanced Studies, European University Institute Working Paper (2014) no. 25: 4

3_Ibid.

4_{Magen, Amichai. “Crack in the Foundations: Understanding the Great Rule of Law Debate in the EU”. Journal}

of Common Market Studies (2016) vol. 53, no. 5: 1055

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European Council and the Council of Ministers and as such “indirectly participates in governing the lives of all the citizens of Europe”7. In this regard, the ‘all-affected principle’ applies: due to the fact that there is a high level of mutual interdependency between the Member States of the EU, one Member State’s disrespect for the rule of law can potentially affect the Union as a whole8. Therefore, “every European citizen has an interest in not being faced with an illiberal Member State in the EU9”. Since the well-functioning of the EU relies heavily on mutual trust and cooperation between Member States, such rule of law crises thus pose a serious threat to the European Union. Hillion upholds that as a result of a Member State’s violation of these values, the legitimacy of EU decision-making can become compromised and this can “possibly impede the lawfulness of subsequent EU decisions”10. Moreover, not only do rule of law conflicts pose a problem to the proper functioning of the EU, such conflicts can also potentially affect the EU’s external credibility as a global promotor of democratic values. As Kochenov and Pech observe, “[…] the legitimacy and credibility of the EU are both undermined when it ceases to be able to guarantee internal compliance with the values it has sought to uphold and promote in its external relations”11. For these reasons, it is of fundamental importance for the EU to be able to ensure compliance with rule of law standards in its Member States.

1.2 Research focus

While noting that there have been various more examples of Member States introducing measures which contravene the rule of law, this research will focus on the cases of Romania, Hungary and Poland. These three specific cases are chosen because quite recently – between 2012 and the present – similar events occurred in all these three countries. In all three cases, the most important development was that the government introduced legal measures which allowed them to gain a certain level of control over the judiciary of the country, which put in danger the fundamental separation of powers between the legislative, executive and judicial branch. These

7_{Magen, Amichai. “Crack in the Foundations: Understanding the Great Rule of Law Debate in the EU”. Journal}

8_{Carlos Closa , Dimitry Kochenov and J.H.H.Weiler. “Reinforcing Rule of Law Oversight in the European}

Union”. Robert Schuman Centre for Advanced Studies, European University Institute Working Paper (2014) no. 25: 5

9_{Jan-Werner Müller,. “Should the EU Protect Democracy and the Rule of Law inside Member States?”}

European Law Journal (2015) vol. 21, no. 2: 146

10_{Christophe Hillion, “Overseeing the Rule of Law in the European Union: Legal Mandate and Means”. European}

Policy Analysis (2016) Swedish Institute for European Policy Studies: 2

11_{Dimitry Kochenov, and Laurent Pech. “Upholding the Rule of Law in the EU: On the Commission’s}

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similar developments in Romania, Hungary and Poland create a basis for comparison in this research.

Furthermore, this research will focus specifically on the European Commission’s role in addressing these conflicts, since this institution is tasked to act as the “guardian of the Treaties”12. In this role, the Commission has a mandate to ensure respect for the EU’s fundamental values such as the rule of law and see to it that Member States fulfill their Treaty obligations. As such, the Commission thus has a fundamental role to play in dealing with democratic backsliding in EU Member States.

As Batory argues, it is of great importance that the Commission is able to perform its role as guardian of the Treaties, because otherwise “the EU’s entire legal order might degenerate”13. However, despite the Commission’s legal mandate, the institution’s role in resolving rule of law conflicts is not always generally accepted. As will be elaborated below, most notably the European Council and various Member States have not recognized or openly questioned the Commission’s authority in the field of monitoring Member States’ compliance with the rule of law, which complicates the Commission’s ability to truly live up to its responsibilities under the Treaties. In this context, the overarching question that will be addressed in this research reads as follows:

To what extent has the European Commission been able to fulfill its role as guardian of the Treaties in addressing the rule of law conflicts in Romania, Hungary and Poland?

This question will be addressed in connection with the concept of ‘legitimacy’. As this research will demonstrate, the (non-)recognition of the Commission’s role as guardian of the Treaties is interconnected with the question of legitimacy. For the Commission to be able to truly fulfill its responsibilities as guardian of the Treaties, it is considerably important that the institution is generally accepted a legitimate ‘player’ in the field of the rule of law14. When the Commission is not accepted as a legitimate actor, it can become particularly difficult for this institution to ensure compliance with the rule of law, as the cases studies will demonstrate.

12_{Neill Nugent and Mark Rhinard. “Is the European Commission Really In Decline?” Journal of Common}

Market Studies (2016) vol. 54, no.5: 1200

13_{Gerda Falkner. “The JCMS Annual Review Lecture: Is the European Union Losing its Credibility?” Journal of}

Common Market Studies (2013) vol 51, S1; 13, cited in: Batory, Agnes. “Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU”. Public Administration (2016) vol. 94, no. 3: 696

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1.3 Structure and methodology

This research will start with a discussion of the concept of the rule of law in the context of the EU Treaties and of the actors which are involved in this field. This will be followed by a descriptive analysis of the developments regarding the rule of law in Romania, Hungary and Poland and how the Commission has addressed these cases. An analysis will then be made of the concept of legitimacy in the context of the EU.

Subsequently, when analyzing the Commission’s ‘guardian of the Treaties’ role in resolving rule of law conflicts in Member States, it is important to take into account the interinstitutional dynamics of the EU. The Commission is overseen by various actors, with diverging expectations of the Commission’s involvement in dealing with non-compliant Member States. Through the theory of ‘principal – agent’, which upholds that relations between various actors can be viewed as resulting from a contract in which the principal has delegated certain tasks to an agent, the Commission’s role within the EU in remedying rule of law conflicts will be assessed15.

Next, this research will build upon the notions of Ellinas and Suleiman, who uphold that an international bureaucracy needs to possess three fundamental qualities in order to be able to obtain legitimacy: legal authority, technical expertise and functional uniqueness16_{. It} will be assessed whether the Commission disposes of these three qualities, how this fits with its ‘guardian of the Treaties’ role, and whether this in fact contributes to increasing its legitimacy in rule of law affairs.

Subsequently, under circumstances of questioned legitimacy, it becomes important for the Commission to properly justify the actions it undertakes. Therefore, an extensive part of this research will focus on analyzing the Commission’s efforts to legitimize its rule of law actions in the cases of Romania, Hungary and Poland. For this purpose, a discourse study of the Commission’s legitimization strategies regarding its involvement in those rule of law conflicts will be made, based on the theory of Reyes17 and Van Leeuwen18, in order to determine how the Commission attempts to present itself as a legitimate actor in this field. The literature on this topic examines language as a tool to legitimize powers and looks at the linguistic way in

15_{Hussein Kassim, and Anand Menon. “The Principal-Agent Approach and the Study of the European Union:}

Promise Unfulfilled?” Journal of European Public Policy (2003), vol. 10, no. 1

16_{Antonis A. Ellinas and Ezra N. Suleiman. “The European Commission and Bureaucratic Autonomy: Europe’s}

Custodians”. (2013) Cambridge University Press

17_{Antonio Reyes. “Strategies of Legitimization in Political Discourse: From Words to Actions”. Discourse and}

Society (2011) Vol. 22 No. 6

18_{Van Leeuwen, Theo. “Legitimation in Discourse and Communication”. Discourse and Communication (2007)}

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which legitimization is constructed in discourse19_{. All official communication from the} Commission between 2012 and the present regarding the rule of law in Romania, Hungary and Poland will be examined for this purpose, in the form of speeches, statements, press releases and interviews with officials. Special attention will be given to communication from both the Commission’s Presidents, José Manuel Barroso and subsequently Jean Claude Juncker, and the Commission’s Vice-Presidents, Viviane Reding and her successor Frans Timmermans, since they are the key Commission representatives involved in dealing with rule of law conflicts. In this study, it will be tested whether the Commission uses strategies which underline the three essential qualities of legal authority, technical expertise and functional uniqueness in order to increase its legitimacy. Herein, special attention will be given the Commission’s role as guardian of the Treaties. Finally, the overall legitimacy of the Commission’s approach to the rule of law conflicts in Romania, Hungary, and Poland will be discussed and it will then be verified to what extent the Commission has been able to fulfill its role as guardian of the Treaties in resolving the conflicts in these three countries.

19_{Antonio Reyes. “Strategies of Legitimization in Political Discourse: From Words to Actions”. Discourse and}

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2. The concept of the rule of law in the EU Treaties

When taking a closer look at the EU Treaties, it becomes clear that the rule of law is considered to be essential for the well-functioning of the Union. To begin with, Article 2 TEU states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights […]”.20 In addition to this, Article 3 TEU expresses that it is the Union’s aim to promote these values and Article 13 TEU subsequently specifies that this is also the duty of the institutional framework of the Union21. Values should thus not only be respected, but also actively promoted. This promotion exercise should not only be done within the EU: following Article 21 TEU, the Union’s external action should likewise be guided by the values which have inspired its own creation22. Furthermore, Article 49 makes clear that respect for the rule of law is one of the preconditions for Union membership23.

2.1 Article 7 TEU

In addition to this, Article 7 TEU deals specifically with breaches to the values laid down in Article 2 TEU. In the context of this research, this Article is of special importance as a potential measure to address non-compliant Member States. Article 7 TEU was introduced in the Amsterdam Treaty of 1999 and creates the possibility of determining whether a serious and persistent breach to the values of Article 2 exists, which could then possibly be followed by sanctions24_{. Article 7 TEU was subsequently further elaborated by giving it a preventive} dimension under the Nice Treaty of 2001, where it was introduced that the EU could also determine a clear risk of a serious breach of the values25_{. This was partly done in order to ensure} that, with the prospect of several former communist countries gaining EU membership in the near future, a certain ‘safety measure’ was in place in case democratic transformations turned out not to be irreversible26. According to the Commission, the introduction of this preventative measure in Article 7 “confers new powers on the Commission in its monitoring of fundamental rights in the Union and in the identification of potential risks [adding that it] intends to exercise

20_{European Union. “Consolidated version of the Treaty on European Union”. Official Journal of the European}

Union (2008) C 115/17. Emphasis added.

21_Ibid.

22_{Amichai Magen. “Crack in the Foundations: Understanding the Great Rule of Law Debate in the EU”. Journal}

23_Ibid.

24_{Agnes Batory,. “Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU”.}

Public Administration (2016) vol. 94, no. 3: 687

25_{Christophe Hillion. “Overseeing the Rule of Law in the European Union: Legal Mandate and Means”. European}

Policy Analysis (2016) Swedish Institute for European Policy Studies: 10

26_{Agnes Batory. “Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU”.}

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its new right in full and a clear awareness of its responsibility’ ”27_{. As the first paragraph of} Article 7 states:

On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.28

This paragraph thus applies in case a serious breach of the values laid down in Article 2 has not taken place yet, but when there are important indications that such a breach is likely to occur. It can therefore be seen as an early warning system, sending an important signal to a Member State that certain issues in the country need to be addressed.

The second paragraph subsequently reads as follows:

The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.29

This paragraph thus applies when there is no longer only a clear risk of a breach, but when it has become apparent that a Member State is persistently breaching the values of Article 2. Again, it is the Council that has the ultimate authority in determining whether such a breach exists. Moreover, all Member States have to agree unanimously in taking this decision. Once it has been determined under paragraph 2 that such a persistent breach exists, there is a possibility of invoking paragraph 3. Under this paragraph, “[…] the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the

27_{European Commission. “Communication from the Commission to the Council and the European Parliament}

on Article 7 of the Treaty of the European Union. Respect for and promotion of the values on which the Union is based” (2003): 3, cited in: Hillion, Christophe. “Overseeing the Rule of Law in the European Union: Legal Mandate and Means”. European Policy Analysis (2016) Swedish Institute for European Policy Studies: 10

Union (2008) C 115/19.

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application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council”30. This Article thus provides the Council with the possibility of imposing sanctions on the Member State in question, such as revoking its voting rights.

It is important to note that the scope of Article 7 is not strictly confined to areas covered by EU law; under Article 7, the EU is authorized “to intervene with the purpose of protecting the rule of law also in areas where Member States act autonomously”31. Nevertheless, although on several occasions there has been sufficient ground to invoke Article 7, this has never actually been done. The Article is still considered to be a measure of last resort and the thresholds for invoking it are considerably high32. Article 7 TEU has also commonly been designated as the “nuclear option”, a name which might further discourage its use.33 Nevertheless, at the time of writing, the European Commission has made clear to consider invoking the Article against Poland, as will be explained in chapter 4.

2.2 Article 258 TFEU

Another legal measure that might be of relevance is Article 258 TFEU. This Article deals with infringements and states:

If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”34

As can be seen in this article, the Commission has discretionary powers in the area of infringements which are recognized by the European Court of Justice. In case the Member State

Union (2008) C 115/19

31_{European Commission. “Communication from the Commission to the European Parliament and the Council:}

A new EU Framework to strengthen the Rule of Law” (2014)

32_{Ulrich Sedelmeier. “Political Safeguards against Democratic Backsliding in the EU: the Limits of Material}

Sanctions and the Scope of Social Pressure” Journal of European Public Policy (2017) vol. 24, no. 3: 339

33_{Dimitry Kochenov and Alexander Pech. “Upholding the Rule of Law in the EU: On the Commission’s}

‘Pre-Article 7 Procedure’ as a Timid Step in the Right Direction” Fondation Robert Schuman Policy Paper, European Issues No. 356 (2012): 1065

34_{European Union. “Consolidated version of the Treaty on the Functioning of the European Union.” Official}

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in question does not abide by an eventual Court’s judgement, this could “lead to the payment of a lump sum and/or a penalty payment”35. It must be noted that this procedure addresses breaches to specific Treaty provisions and, although this measure can be effective as such, this Article is therefore not designed to deal with cases concerning structural negligence of Treaty obligations.36As such, Article 7 TEU is still considered to be the main measure to deal with structural non-compliance of obligations under Article 2.

2.3 The rule of law in the Treaties: a definition?

As demonstrated in the previous sections, the Treaties make clear that the rule of law is one of the foundational values of the EU and as such can be considered to be of fundamental importance to the EU. Nevertheless, although the concept is referred to in multiple Treaty Articles, there is no specific provision in the Treaties defining what this, or any other of the Article 2 values, precisely means. This is not only the case in the EU: Magen adds that “similarly, the rule of law is mentioned in the preambles, but never defined, in the statute of the CoE (Council of Europe), the ECHR (European Convention on Human Rights) and the UN (United Nations) Universal Declaration of Human Rights”37_{. Despite the fact that there is no} consensus on what ‘rule of law’ exactly means, Tamanaha observes that “there appears to be widespread agreement […] that the “rule of law” is good for everyone. As such, whoever defines and speaks for the rule of law commands potent moral as well as legal authority”38_. The fact that the values laid out in Article 2 TEU such as the rule of law are not further defined in the Treaties creates a sense of vagueness around their meaning and enables a wide range of interpretations of these concepts. As a result, it can become considerably difficult for the EU to enforce these specific values. Hillion therefore suggests that in order for the EU to be able to properly assess Member States’ respect for these values, it will be necessary to elaborate “a clarification of [their] substance, for instance in the form of operative standards.39” Since adherence to the values of Article 2 TEU is of fundamental importance in the accession process

35_{Christophe Hillion,. “Overseeing the Rule of Law in the European Union: Legal Mandate and Means”.}

European Policy Analysis (2016) Swedish Institute for European Policy Studies: 9

A new EU Framework to strengthen the Rule of Law” (2014): 5.

37_{Amichai. Magen, “Crack in the Foundations: Understanding the Great Rule of Law Debate in the EU”.}

Journal of Common Market Studies (2016) vol. 53, no. 5: 1053

38_{Brian Tamanaha. “On the Rule of Law: History, Politics, Theory” Cambridge: Cambridge}_{University Press}

(2004): 1, cited in: Magen, Amichai. “Crack in the Foundations: Understanding the Great Rule of Law Debate in the EU”. Journal of Common Market Studies (2016) vol. 53, no. 5: 1053

39_{Christophe Hillion. “Overseeing the Rule of Law in the European Union: Legal Mandate and Means”.}

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of new Member States, Hillion suggests that the benchmarks of this process “could equally be used as yardsticks for ascertaining states’ continuing observance of Article 2 TEU within the EU”40. In addition to this, Article 7 TEU likewise suffers from a lack of clear definition. There is no clear specification of what a “clear risk of a serious breach” or a “serious and persistent breach” to the values of Article 2 TEU means. This makes it difficult to determine whether such (a risk of ) a breach exists and leaves room for wide interpretation41. Elaborating clear criteria on this matter could enable the actors involved in this procedure to better decide when the Article should be triggered and subsequently potentially better justify its application.

40_{Christophe Hillion. “Overseeing the Rule of Law in the European Union: Legal Mandate and Means”.}

41_{Femke Gremmelprez,. “Enforcing Compliance of the Rule of Law by the Member States of the EU:}

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3. Actors involved on a European level

After assessing the concept of the rule of law in the EU Treaties, this chapter will focus on the relevant actors that are involved in this field. As stated above, the primary focus of this research will be on the Commission, but next to this institution it is also important to have a closer look at other actors that are involved in the field of the rule of law. While some actors encourage the Commission to increase its actions in the field of the rule of law, other actors are less supportive of more involvement of the Commission, as will be demonstrated below. Additionally, there are actors with special knowledge in the field of the rule of law which provide the Commission with essential information and support the Commission’s actions.

3.1 The European Commission

As the European Commission “has an institutional mandate to act in the interest of European integration”42 and is tasked to act as the guardian of the Treaties43, the institution has a fundamental role to play in ensuring respect for the values referred to in Article 2 TEU. Furthermore, under the EU’s enlargement policy, the Commission plays an important role in the accession process of new Member States, for which reason the rule of law is now put “at the centre of the Commission’s activities”44_{. As Coman explains, “by guiding domestic reforms} […], the European Commission acquired expertise and knowledge in a series of policy fields that were formerly outside the area of competence of the EU”45_.

Around 2012, the Commission became increasingly aware of the structural nature of rule of law conflicts in certain Member States and the lack of EU tools to effectively address such conflicts. In his State of the Union speech of 2012, Commission President Barroso said that developments in certain Member States “revealed limits of our institutional arrangements” and therefore proposed that “we need a better developed set of instruments– not just the alternative between the "soft power" of political persuasion and the "nuclear option" of article 7 of the Treaty”46. As a result, the Commission introduced a Framework to Strengthen the Rule of Law in 201447, under which the institution’s role in rule of law affairs increased

42_{Antonis A. Ellinas, and Ezra Suleiman. “Supranationalism in a Transnational Bureaucracy: The Case of the}

European Commission”. Journal of Common Market Studies (2011) Vol. 49 No 5: 935

Public Administration (2016) Vol. 94 No.3: 685

44_{Ramona Coman. “Strengthening the Rule of Law at the Supranational Level: The Rise and Consolidation of a}

European Network”. Journal of Contemporary European Studies (2016), vol. 24, no. 1: 176

45_Ibid.

46_{José Manuel Durão Barroso. “State of the Union Address 2012”, 12 September 2012.}

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considerably. This framework is designed “to address and resolve a situation where there is a systemic threat to the rule of law.”48 According to the Commission’s Communication, this “new EU Framework to strengthen the Rule of Law […] is needed in addition to infringement procedures and Article 7 TEU mechanisms. The Framework will be complementary to all the existing mechanisms already in place at the level of the Council of Europe to protect the rule of law.”49 This new framework is thus merely designed to complement existing mechanisms and to fill a certain gap. The new framework consists of a three-stage stage process: making an assessment of the situation in the Member State, sending a Rule of Law Recommendation urging the Member State to redress the situation, and monitoring the follow-up on that Recommendation. Although these Recommendations are not binding, they can still have “some legal effect and can therefore become the subject of proceedings in the CJEU”50. In case the Member State does not satisfactorily follow up on the Recommendation, the Commission can consider activating one of the measures of Article 7 TEU. Compared to the provisions laid down in Article 7 TEU, the Commission substantially augmented its role in resolving rule of law conflicts under this new framework, considering that under Article 7 only the Council can make final decisions and send recommendations to a Member State.

Furthermore, the Commission makes an effort to address the lack of definition of the concept of the rule of law under the Treaties, as discussed in chapter 2, by proposing a definition in its Communication on the new framework. According to the Commission, the rule of law encompasses the principles of “legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; 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”51. The Commission states that this definition is based on case law from the EU Court of Justice and the European Court of Human Rights, as well as on documents from the Council of Europe and its Venice Commission52. According to the Commission, the new framework “is based on Commission competences as provided for by existing Treaties”53, since it builds upon the provisions of Article 7 TEU. As Kochenov and Pech explain, “Article 7(1) TEU already and necessarily

A new EU Framework to strengthen the Rule of Law” (2014): 3

49_{Ibid, 6.}

50_{Peter Oliver and Justine Stefanelli. “Strengthening the Rule of Law in the EU: The Council’s Inaction”.}

Journal of Common Market Studies (2016), vol. 54, no. 5: 1076

A new EU Framework to strengthen the Rule of Law” (2014): 4

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17 implicitly empowers the Commission to investigate any potential risk of a serious breach of the

EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis”54. However, there are others who oppose this interpretation, as will be demonstrated below.

3.2 The European Council

In response to the Commission’s establishment of the new Rule of Law Framework and several Member States’ unease with this development, the Council requested its legal service in 2014 to issue an Opinion on the legality of the matter55. The legal service’s Opinion subsequently claimed that the new Rule of Law Framework goes “beyond the powers currently allocated to the Commission under the Treaties”56. According to the Opinion:

There is no legal basis in the treaties empowering the institutions to create a new supervision mechanism of the respect of the rule of law by the Member States, additional to what is laid down in Article 7 TEU, neither to amend, modify or supplement the procedure laid down in this Article. Were the Council to act along such lines, it would run the risk of being found to have abused its powers by deciding without a legal basis.57

Additionally, the Council decided that same year to establish its own annual Dialogue “to promote and safeguard the rule of law”58. This Rule of Law Dialogue is designed to be an informal discussion ‘among peers’ on thematic subjects related to the rule of law59. The Dialogue, organized by the Presidency of the Council and taking place in the General Affairs Council, is “of purely intergovernmental nature” and “there is no formal role envisaged for the European Commission or the European Parliament in the session”60_{. Since the Council also} makes no reference to the Commission’s Communication on the new rule of law framework,

54_{Dimitry Kochenov and Laurent Pech. “Upholding the Rule of Law in the EU: On the Commission’s}

‘Pre-Article 7 Procedure” as a Timid Step in the Right Direction. Robert Schuman Centre for Advanced Studies, European University Institute Working Paper (2015) no. 24: 11

56_{Dimitry Kochenov, and Laurent Pech. “Better Late than Never? On the Commission’s Rule of Law}

Framework and its First Activation”. Journal of Common Market Studies (2016) Vol. 54 No.5: 1066

57_{Council of the European Union. “Commission's Communication on a new EU Framework to strengthen the}

Rule of Law: compatibility with the Treaties” Opinion of the Legal Service (2014) Doc. 10296/14 EU

Swedish Institute for European Policy Studies: European Policy Analysis (2016): 1

59_{Petra Bárd, Sergio Carrera, Elspeth Guild and Dimitry Kochenov. “An EU Mechanism on Democracy, the}

Rule of Law and Fundamental Rights” Centre for European Policy Studies (2016) Papers in Liberty and Security no. 9: 14

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Hillion argues that this annual Dialogue is “not based on, and not meant to be a follow-up to the Commission’s initiative, suggesting instead that, for the Member States, the Commission does not have the power to take it”61. Based on these developments, Kochenov and Pech argue that “the Council of the EU has proved more interested in discussing the limits of the Commission’s powers rather than addressing potential or actual systemic breaches of EU values amongst its members”62.

At the same time, it must be noted that certain members of the Council had actually encouraged the Commission to establish a new mechanism to address rule of law issues. Oliver and Stefanelli observe that the new framework responded to the “letter sent to Commission President Barroso by the Foreign Ministers of Denmark, Finland, Germany and the Netherlands, stressing their belief that ‘a new and more effective mechanism to safeguard fundamental values in Member States is needed’ ”63.

3.3 The European Parliament

In addition to these foreign ministers, the European Parliament has frequently urged the Commission to step up its efforts and take further action against Member States violating the rule of law. In June 2013, the European Parliament adopted a report on “the situation of fundamental rights: standards and practices in Hungary”64_{which acknowledged the structural} nature of the issue in this country and indicated that the EU needed a new tool to address such violations of the rule of law65. Subsequently, in October 2016 the European Parliament adopted a resolution on “the establishment of an EU mechanism on democracy, the rule of law and fundamental rights”66, in which the Parliament encouraged the Commission to set up a new mechanism to annually assess the rule of law conditions of all of the Member States in order to detect potential rule of law conflicts at an earlier stage67. The Parliament aimed for this

62_{Dimitry Kochenov, and Laurent Pech. “Better Late than Never? On the Commission’s Rule of Law}

Framework and its First Activation”. Journal of Common Market Studies (2016) Vol. 54 No.5: 1072

64_{European Parliament. “Report on the situation of fundamental rights: standards and practices in Hungary”,}

2 July 2013

Journal of Common Market Studies (2016), vol. 54, no. 5:1086

66_{European Parliament. “Resolution of 25 October 2016 with recommendations to the Commission on the}

establishment of an EU mechanism on democracy, the rule of law and fundamental rights” (2015) 2254(INL)

67_{Petra Bárd, Sergio Carrera, Elspeth Guild and Dimitry Kochenov. “An EU Mechanism on Democracy, the}

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mechanism to be less crisis-driven than the Commission’s current rule of law framework and to provide more equal treatment of Member States68. In addition to this, the Parliament has encouraged the Commission to initiate the existing rule of law mechanism in various instances, both against Hungary and Poland, and the Parliament has also hinted at invoking Article 7 TEU on several critical occasions.69

However, since various national parties governing the countries where rule of law conflicts have taken place are members of several political groups in the European Parliament, there were times where it proved to be difficult for the Parliament to condemn the actions of such a government. This has been most apparent in the case of Hungary, considering that the governing Fidesz party is affiliated with the largest political group in the Parliament, the European People’s Party. Since Fidesz came to power in Hungary in 2010, which will be explained in more detail in chapter 4, the EPP has persistently shown to be reluctant to criticize Prime Minister Viktor Orbán’s reforms70. Similarly, former Romanian Prime Minister Victor Ponta’s Social Democratic Party is affiliated with the second-largest parliamentary group; the Progressive Alliance of Socialists and Democrats, who “defended […] Ponta from criticism when he challenged the rule of law in his own country in 2012”71. In contrast, the Polish governing Law and Justice party is affiliated with the European Conservatives and Reformists Group, which is considered to be a “relatively marginal parliamentary group in the European Parliament”72_{. According to Kochenov and Pech, with regard to addressing the rule of law} conflict in Poland, “support within the Parliament for more drastic action can therefore be more easily secured whereas the two-largest groups in the Parliament […] had voiced their opposition to any meaningful action against Hungary and Romania”73_{. It must be noted, however, that the} EPP started to take a more critical stance towards Fidesz after the most recent move from Orbán to introduce a law on higher education targeted at the Central European University74, which will likewise be explained in chapter 4.

68_{However, in a}_response_{to an}_{open letter}_{that the author of this research co-wrote during her work at a civil}

society organization, the Commission demonstrated to be hesitant to adopt such a new mechanism and rather aims to make better use of the existing instruments in order to avoid duplication.

69_{Dimitry Kochenov and Laurent Pech. “Better Late than Never? On the Commission’s Rule of Law Framework}

and its First Activation”. Journal of Common Market Studies (2016) Vol. 54 No.5: 1067

70_{Ibid, 1066}

71_{Eszter Zalan. “Can Europe Stand Up to Its Own Strongmen?”. Foreign Policy, 10 March 2016}

72_{Dimitry Kochenov and Laurent Pech. “Better Late than Never? On the Commission’s Rule of Law Framework}

and its First Activation”. Journal of Common Market Studies (2016) Vol. 54 No.5: 1071

73_Ibid.

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3.4 Other actors

In its rule of law operations, the Commission consults and cooperates extensively with other actors. For its assessments, the Commission uses the information and expertise of “external sources, such as Opinions of the Council of Europe’s Venice Commission or of independent legal expert bodies”75. For example, the Commission’s readiness to initiate its new rule of law framework in the case of Poland, as will be explained in chapter 4, was reinforced by an Opinion of the Venice Commission which revealed similar concerns76. The fact that the Commission consults various expert bodies is also specifically outlined in the Communication on the new rule of law framework: “the EU Fundamental Rights Agency, the Venice Commission and other bodies as well as NGOs and think tanks are all explicitly mentioned”77. Furthermore, Coman observes that in addition to providing the Commission with expertise, such actors have also generally supported the Commission’s initiative for a new rule of law mechanism78.

75_{Ulrich Sedelmeier. “Political Safeguards against Democratic Backsliding in the EU: the Limits of Material}

Sanctions and the Scope of Social Pressure” Journal of European Public Policy (2017) vol. 24, no. 3: 346

76_{Femke Gremmelprez, “Enforcing Compliance of the Rule of Law by the Member States of the EU:}

Emphasizing the EU’s Failure?” Institute of European Law, Birmingham Law School Working Paper (2016): 13

77_{Kochenov, Dimitry and Laurent Pech. “Upholding the Rule of Law in the EU: On the Commission’s}

‘Pre-Article 7 Procedure” as a Timid Step in the Right Direction. Robert Schuman Centre for Advanced Studies, European University Institute Working Paper (2015) no. 24: 11

78_{Ramona Coman, “Strengthening the Rule of Law at the Supranational Level: The Rise and Consolidation of a}

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4. The cases of Romania, Hungary and Poland

In this chapter, the developments regarding the rule of law in each of the three countries will be explained. While recognizing that all three cases are of great complexity, it must be noted that this chapter is merely aimed to provide a background for the rest of this research. Therefore, the developments in these countries regarding the rule of law and the Commission’s assessment of these cases will broadly be explained. Providing the essential information for each of the three cases will then help to further contextualize this research.

4.1 Romania

With regard to Romania, there is a specific mechanism in place that is important to mention for the purpose of this analysis: the Commission’s Cooperation and Verification Mechanism79, which was established in 2006 as a pre-condition for both Romania and Bulgaria to gain EU membership in 2007. This mechanism is “expressly based on the rule of law concept”80 and is aimed to help resolve outstanding issues in those countries that still needed to be addressed, such as judicial reform and the fight against corruption. The Commission subsequently releases Progress Reports on a regular basis communicating its findings. Also important to underline is that in the case of Romania, the Commission’s Framework to Strengthen the Rule of Law was not yet in place.

In 2012, the Romanian government led by Prime Minister Victor Ponta from the Social Democratic Party rapidly undertook a series of actions which both the Constitutional Court of the country and the European Commission considered to be against the principles of the rule of law, as will be explained in this section.. Behind these actions was an ongoing campaign led by Ponta to impeach Romania’s President Traian Băsescu, affiliated with the Democratic Liberal Party, whom Ponta accused of overstepping his authority by interfering in government business and the judicial system.81

In July 2012, Ponta and his government coalition managed to win a majority in a parliamentary vote deciding to temporarily suspend the President.82 Earlier, Ponta had already issued an emergency ordinance stating that “opinions of the Constitutional Court are no longer

79_{European Commission. “Commission Decision C 6569” Official Journal of the European Union (2006) L 354} 80_{Radu Carp, “The Struggle for the Rule of Law in Romania as an EU Member State: The Role of the}

Cooperation and Verification Mechanism”. Utrecht Law Review (2014) Vol. 10, No.1: 6

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mandatory for parliamentary decisions”.83_{Through this ordinance – which the Constitutional} Court ruled to be unconstitutional – Ponta aimed to rule out that parliamentary votes could be challenged by the Court84. Subsequently, the Parliament swiftly decided to remove the chiefs of the Chambers of Deputies and the Senate from office, as well as the Ombudsman85. According to the Romanian constitution, in case of suspension of the President, either the Speaker of the Senate or the Speaker of the Chamber of Deputies would become ad interim President.86 The Parliament’s decision to remove those two chiefs from office created the opportunity for Ponta to appoint Crin Antonescu as ad interim President. Antonescu was the leader of the National Liberal Party, which together with Ponta’s Social Democratic Party formed the coalition of the Social Liberal Union.87 Furthermore, by removing the Ombudsman, Ponta would be ensured that his emergency decrees could no longer be challenged before Court. On July 6 2012, the day the Romanian Parliament decided to suspend President Băsescu, European Commission President José Manuel Barroso immediately contacted Victor Ponta, inviting him to Brussels to discuss his concerns regarding “actions that appear to reduce the effective powers of independent institutions like the Constitutional Court”88_{. A week later,} Ponta came to Brussels to meet not only Barroso, but also Parliament President Martin Schulz and Council President Herman van Rompuy89_{. On this occasion, Barroso handed Ponta a list} with recommendations on issues that according to the Commission needed to be addressed90_. Among other things, the Commission urged Ponta to repeal his emergency decrees, to respect and implement Constitutional Court rulings, to respect the independence of the judiciary and to transparently and objectively appoint an Ombudsman91. Additionally, the Commission released a critical report on 18 July 201292_{on Progress in Romania under the Cooperation and} Verification Mechanism. In this report, the Commission specifically addressed the ongoing worrying political situation in Romania, stating that the latest developments “called into

83_{Ana-Maria Tolbaru, “EU Concern over Romanian Power Struggle”. EurActiv , 6 July 2012} 84_{Radu Carp. “The Struggle for the Rule of Law in Romania as an EU Member State: The Role of the}

85_{Ana-Maria Tolbaru, “EU Concern over Romanian Power Struggle”. EurActiv, 06 July 2012} 86_{Radu Carp. “The Struggle for the Rule of Law in Romania as an EU Member State: The Role of the}

87_{EurActiv. “Barroso steps forward as Romanian election arbiter”, 17 December 2012} 88_{Ana-Maria Tolbaru. “EU Concern over Romanian Power Struggle”. EurActiv , 6 July 2012}

89_{Nikolaj Nielsen. “Romania and Bulgaria continue to flout the rule of law”. EUObserver, 8 July 2012} 90_Ibid.

91_{European Commission. “Meeting between European Commission President, José Manuel Barroso, and}

Romanian Prime Minister, Victor Ponta”, 12 July 2012

92_{European Commission. “Report from the Commission to the European Parliament and the Council on}

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question the Government's commitment to respect the rule of law […]”93_{. The Commission} particularly doubted the sustainability and irreversibility of the reforms which Romania had undertaken over the past few years. The report then sets out a list of recommendations, elaborating on the list that Barroso had already handed to Ponta a few days earlier. The Commission also vowed to “monitor progress closely, with regular missions, as well as frequent dialogue with the Romanian authorities and with other Member States”94.

Subsequently, a referendum to decide whether Băsescu should be dismissed as President was held in Romania on 29 July 2012, but was then declared invalid by the Constitutional Court, arguing that the referendum failed to meet the required voter turnout of at least 50%.95 Băsescu was then reinstated as President and Ponta managed to largely comply with the Commission’s demands: the subsequent Progress Report confirmed that the Constitutional Court’s rulings were respected and the emergency ordinances repealed96. One year later, at the beginning of 2014, the Commission released another Progress Report in which the institution called it “noteworthy that the difficult circumstances of 2012 did not blunt the determination of many institutions and individuals in Romania to continue to consolidate progress”97_{. The Commission also referred to the positive influence that the} Cooperation and Verification Mechanism has had on the reform process in Romania, stating that it “[…]believes that the monitoring process of the CVM, the opportunities provided by EU funds and the constructive engagement of the Commission and many Member States continues to be a valuable support to reform in Romania”98_{. In the latest report, the Commission concludes} that there is “strong progress” and “growing irreversibility”99_{of the reforms in the country.} While highlighting that certain benchmarks still remain to be fulfilled, the Commission is positive that all objectives of the Cooperation and Verification Mechanism will eventually be met100. For now, the CVM thus remains in place.

Progress in Romania under the Cooperation and Verification Mechanism”. 18 July 2012: 3

94_{Ibid, 20}

95_{EurActiv “Romanian President cleared to return to office.” (28/08/2012)}

Progress in Romania under the Cooperation and Verification Mechanism”. 30 January 2013, 3

Progress in Romania under the Cooperation and Verification Mechanism”, 22 January 2014: 2

98_Ibid.

Progress in Romania under the Cooperation and Verification Mechanism”, 25 January 2017: 14

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4.2 Hungary

Since the conservative Fidesz party led by Victor Orbán came to power in Hungary following national elections in 2010, there have been numerous occasions for debate on the rule of law in the country. As will be explained in this section, throughout Orbán’s mandate up till the present, a series of government decisions were taken in various policy areas which have systematically undermined the principles of the rule of law. As stated before, this section will therefore provide a general overview with the most important developments.

The most fundamental development occurred in April 2011, when the Hungarian Parliament – in which the Fidesz party holds a two-thirds majority – adopted a new constitution which was expected to contravene fundamental EU values such as the rule of law101. Commission President Barroso and Prime Minister Orbán exchanged letters in which Barroso expressed his concerns and warned Orbán that the new constitution should comply with the EU treaties102. The Commission also warned Hungary that it could face legal action if EU treaties were found to be breached under the new constitution. The new constitution, which came into force on 1 January 2012, has had the effect of imposing restrictions on the media and limiting the powers of the judiciary and the independence of the central bank, whilst further cementing the position of the Fidesz party in Hungarian politics103_{. When the Commission’s assessment} of the constitution subsequently demonstrated that certain measures were not in accordance with EU Treaties and Hungary failed to satisfactorily address those concerns, the Commission launched three infringement procedures against the country.104_{These procedures were targeted} at laws on the data protection supervisor (aiming to replace the “Hungarian data protection commissioner, before his term expired, with a data protection authority”105), the central bank (allowing “the minister of finance to participate in Monetary Council meetings106”) and the retirement age for judges (leading to “the radical lowering of the compulsory retirement age of judges with immediate effect”107).108 Besides these procedures, the Commission also sent letters to the Hungarian government demanding clarifications on laws which could possibly jeopardize

101_{EurActiv. “New constitution cements Hungarian ruling party’s powers”. 11 April 2011} 102_{Jeremy Fleming, “Hungary could face bailout freeze, legal action.” EurActiv, 4 January 2012} 103_Ibid.

104_{European Commission. “European Commission launches accelerated infringement proceedings against}

Hungary over the independence of its central bank and data protection authorities as well as over measures affecting the judiciary” (2012)

Public Administration (2016) vol. 94, no.3: 692

106_Ibid. 107_Ibid.

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the independence of the judiciary and restrict media freedom. After Hungary sent formal replies back to the Commission, the Commission chose to halt the case regarding the central bank arguing that Hungary had given a satisfactory answer, but went ahead with the other two and sent reasoned opinions on those matters109. The Commission then gave Hungary one month to revise legislation that was not in line with EU law. Hungary did not comply within that timeframe and the cases were therefore referred to the European Court of Justice. The ECJ upheld the Commission’s assessment that the laws were incompatible with EU legislation.110 Hungary subsequently dealt creatively with the issue: the law on the retirement age for judges was amended, but judges fired under the original law could only be reinstated if their previous position had not yet been filled by someone else111. Furthermore, only judges not requesting reinstatement were eligible for financial compensation. Additionally, the data protection supervisor was not reinstated, but merely given compensation112.

In 2015, Prime Minister Orbán revealed to consider the possibility of reintroducing the death penalty in Hungary, arguing that the existing penalties for serious crimes were not severe enough.113_{By this time, Barroso was no longer President of the Commission; in November} 2014 Jean Claude Juncker had assumed the role of Commission President. Responding to Orbán’s statements, Juncker made clear that there was no discussion possible on this topic and that EU law clearly forbids such measures.114_{The Commission also hinted at a possible} suspension of certain rights in case Orbán went ahead with his plan. Orbán refrained from taking further action and assured EU officials that he intended to respect EU law115_.

Later that year, the Hungarian Parliament also passed legislation on how to handle the ongoing refugee crisis. These new laws and several amendments to already existing laws have allowed the army to be involved in dealing with refugees at Hungary’s borders and have raised the possibility of prosecuting and expelling irregular migrants.116. Furthermore, the Hungarian government was among a group of states which has refused to implement an EU decision on

109_{Georgi Gotev, “Commission tightens the noose for Orbán”. EurActv, 8 March 2012.}

110_{European Commission. “European Commission closes infringement procedure on forced retirement of}

Hungarian judges” (2013)

111_{Agnes Batory, “Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU”.}

Public Administration (2016) vol. 94, no.3: 693

112_Ibid.

113_{Deutsche Welle. “Hungary’s Orban ponders return of the death penalty”. 28 April 2015}

114_{Ian Traynor, “EU Chief warns Hungary over return of death penalty comments”. The Guardian, 30 April}

2015

115_{Marton Dunai and Adrian Croft. “Hungary’s Orban climbs down on dealth penalty amid EU uproar”. Reuters,}

30 April 2015

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migrant quota which requires each Member State to take in a minimum amount of refugees. On 2 October 2016, Orbán held a referendum on the EU migrant relocation plan, which was subsequently declared invalid as a result of low voter turnout117. The Hungarian leader then proceeded to propose amendments to the constitution in order to block the resettlement of migrants in his country. Juncker has severely criticized Orbán’s anti-immigrant policies and rhetoric and has urged Hungary to respect and implement the EU decision on migrant resettlement118. In December 2015, the Commission launched another infringement procedure against Hungary, this time targeting its newly adopted asylum legislation. However, under this procedure the Commission only sent two letters of formal notice – one in 2015 and another one in 2017 – without a clear explanation of why the Commission did not move onto the next step of sending a reasoned opinion119.

Recently, in the beginning of April 2017, a law regarding higher education was passed in Hungary, which is expected to affect foreign institutions and is assumed to specifically target the Central European University founded by George Soros, an American-Hungarian investor and philanthropist120_{. It is suggested that this university promotes ideas that are contrary to} Fidesz ideals121. Under this new law, the CEU – which is technically registered as being based in the US – fails to meet certain key requirements, which may ultimately lead to a shutdown of the university.122_{Following the adoption of this law, the Commission has again launched} infringement procedures against the country, without making reference to the possibility of imposing heavier measures such as initiating the Rule of Law Framework or invoking Article 7 TEU123.

4.3 Poland

Since the conservative right-wing Law and Justice (PiS) Party won a majority during parliamentary elections in October 2015, Poland has rapidly undergone a serious of profound constitutional changes. As this section will demonstrate, the new government introduced a series of measures which most importantly undermined the independence of the judiciary and

117_{EurActiv. “Juncker rages against the UK and Hungary”. 7 October 2016} 118_Ibid.

119_{European Commission. “Commission follows up on infringement procedure against Hungary concerning its}

asylum law”, 17 May 2017

120_{EurActiv. “Hungary passes bill targeting Soros university, sparking protests”, 5 April 2017} 121_Ibid.

122_{EurActiv. “Hungarian President signs law threatening Soros university”, 07 April 2017}

123_{European Commission. “Hungary: Commission takes second step in infringement procedure on Higher}

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restricted media freedom124_{. Furthermore, similarly to Hungary, the Polish government has} heavily opposed the EU’s measures to remedy the refugee crisis and has continuously refused to implement the EU migrant resettlement plan, for which reason the Commission recently initiated infringement proceedings.125

In Poland, it started when the new Parliament invalidated the appointment of five new judges for the fifteen-member Constitutional Court, without waiting for the Court’s decision on the matter. The Parliament then continued to quickly select five new judges, just before the Court could give its verdict on the case.126 Furthermore, new laws were introduced to change the decision-making process in the Court, which effectively slow down the work of the Court and might have a paralyzing effect on the institution127. The Polish government then continuously refused to implement and publish Court rulings on these matters. This left the rulings unrecognized, since they are only binding after publication. President Andrzej Duda, affiliated with PiS, subsequently refused to follow up on the Court decision which required him “to swear in lawfully appointed Constitutional Tribunal judges”128. As a result of these measures, “the Constitutional Tribunal is no longer composed in accordance with the Polish Constitution”129. Furthermore, the Parliament passed another law on state-run media, which gives the Treasury Minister the authority to replace public broadcast officials and appoint new ones. This new law effectively increases the government’s control over the media in Poland130_. Soon after the newly elected Polish government introduced this legislation reforming the constitutional court and increasing state control over the media, the Commission reacted by sending two letters to Poland’s Foreign and Justice Ministers131_{. In his letters, Vice-President} Frans Timmermans urged the government to refrain from implementing the laws until the proposed reforms were properly assessed and all questions about their impact answered. Furthermore, the letters asked Poland to explain “how the new law would take existing EU rules

124_{Laurens Cerulus, and Jan Cienski. “Report: Commission to probe Poland’s rule of law” POLITICO, 10}

January 2016

125_{European Commission. “Relocation: Commission launches infringement procedures against the Czech}

Republic, Hungary and Poland”, 14 June 2017

126_{Maciej. Kisilowski. “Poland’s ‘overnight court’ breaks all the rules”. POLITICO, 08 December 2015} 127_{Maciej Kisilowski. “Poland’s democracy is crumbling” POLITICO, 24 December 2015}

128_{Human Rights Watch. “EU: Polish Government Undermines Rule of Law”. 16 February 2017} 129_{Frans Timmermans, “College readout on grave concerns about the clear risks for independence of the}

judiciary in Poland”, 19 July 2017

130_{Bartunek, Robert-Jan and Agnieszka Barteczko. “EU executive voices concern over planned Polish media}

law” Reuters, 30 December 2015