In the EU legal framework, the rule of law is explicitly mentioned as a value which is common to the EU and its Member States (see Article 2 TEU). To give a single example, in 2007, the UK House of Lords itself concluded that the rule of law “ remains a complex and in some respects uncertain concept” notwithstanding its inclusion in the British statute book in 2005. Question 1: Is the rule of law too vague a notion to be enforced by the EU against its Member States?ĭiscussing possible sanctions against Poland over its rule of law issues, the Bulgarian prime minister recently claimed that the rule of law is too “vague” to be measured before adding: “Every time you want to hurt someone’s feelings, you put ‘the rule of law’.” The argument that the rule of law is a vague, elusive or trivial concept is not new. To accomplish these purposes, we offer 10 Questions & Answers on the rule of law in the EU. So we also present critiques of what the EU institutions have done to date. But while we want to defend the move to trigger Article 7(1) TEU, we also believe that the EU institutions have not yet fully risen to the challenge. We present the arguments put forward by those who reject EU intervention and show why they fail. In this post and a number of forthcoming ones, we aim to give readers a straightforward overview of the problem of the rule of law in the EU. And yet even with this modest action in the face of continuing provocation, the Commission has been attacked for intruding on the protected competencies of national authorities. But EU institutions are slow they are still at the stage of documenting and certifying the risk that such breach might occur. Given the evidence that the Commission presents, one would surmise that we had already moved well beyond the “clear risk of a serious breach” into the breach itself. The Commission builds a powerful argument that the rule of law has already been undermined in Poland as the government fires judges and controls the new judicial appointments, after it has already reduced the Constitutional Tribunal to a rubber stamp for one-party rule.
The Commission makes its case for action only on the basis of those measures that have been taken already, not on hypothetical or proposed attacks that might materialise off in some imagined future. The tone of the Commission’s opinion is measured and factual, and yet it should cause alarm among all those interested in the future of Europe. As the Commission stated, “he common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.” As the Commission noted, Polish authorities also attacked the ordinary judiciary by adopting “reforms” which enable the ruling party to fire without cause all ordinary court presidents, dismiss almost 40 per cent of the current Supreme Court judges through the trick of changing the judicial retirement age (while giving the national President the unfettered discretion to retain those judges he liked) alter the composition of the National Council of the Judiciary so that the appointment of new judges would made by reliable government allies and permit all cases decided in the past 20 years to be reopened by any interested party and then re-decided by the courts that now contain the new government-approved judges. In urging the Council to find that there is a clear risk of a serious breach of the rule of law in Poland (there is no question of sanctions at this stage which may be only considered in the case of “the existence of a serious and persistent breach”), the Commission pointed to the fact that Poland packed its Constitutional Tribunal with judges whose election violated the Polish Constitution, restricted the operation of the Constitutional Tribunal in unconstitutional ways and refused to publish the decisions of the Constitutional Tribunal that found against the government on these matters.
The Commission sent a reasoned opinion to the Council laying out the case that Poland poses a serious threat to the rule of law, triggering a battle over whether the EU has the power to criticize the judicial “reforms” (as the Polish government calls them) of a Member State. If a ’serious breach’ persists for some time, the sanctioning mechanism of Article 7(2) TEU suspends certain rights of that country in the Council, including the voting rights. In December, the European Commission triggered the so-called Article 7(1) TEU procedure against Poland on the grounds that “ there is now a clear risk of a serious breach of the rule of law”.
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