The EU’s role in policing the rule of law: reflections on recent Polish experience

Professor Robert Grzeszczak, University of Warsaw, and Dr Stephen Terrett, University of Warsaw

The situation regarding the rule of law, and its protection within the EU, involves a number of paradoxes. These result partly from certain structural features of the EU itself and its laws, and partly due to the wider phenomenon of threats to democracy existing in certain EU Member States. Our article in the Northern Ireland Legal Quarterly discussed the structural problems of the rule of law itself and the manner in which it is manifested within EU law, especially the conceptual blurring of the rule of law doctrine, which results in politicised debate about the topic. The article highlights the evolution the EU has undergone, from an economic community into a Union based on human rights and common values. We also analyse situations and events that can be seen as precursors of contemporary events in Hungary and Poland and which pointed towards the existence of certain problems and paradoxes. The pivotal, and ultimately ineffective, construction of the EU’s mechanisms for protecting the rule of law are investigated and evaluated.

Although it was only when rule of law crises broke out in certain EU Member States that such paradoxes became self-evident, they nonetheless existed at an earlier time, albeit with a lesser intensity and not on such a large scale. Such ‘democratic backsliding’ is, just like constructing a democracy, a process by which state powers use legal, political and public-opinion tools. The process of dismantling the rule of law involves gradual changes to the constitutional system, eliminating the liberal and democratic features of the system and replacing them with authoritarian characteristics which result in fundamental and lasting changes to national constitutional arrangements.

The EU, having adopted the rule of law principle as one of its founding principles, created certain procedures aimed at ensuring that it is both guaranteed and protected. Such procedures can essentially be divided into two groups: firstly, mechanisms applied pre-accession to EU candidate countries; and, secondly, mechanisms applied to existing EU Member States. This itself is a paradox, as the first mechanism is rather effectively enforced, whereas the same cannot be said about the second mechanism. Although aspiring EU Member States are explicitly required to demonstrate the existence of functioning, democratic institutions and a free market economy, no possibility exists to further monitor compliance with these standards once a state is admitted to the Union. Once the state confirms its compliance with the Copenhagen criteria (which prescribe the conditions for accession), the Union – in procedural terms – has basically already exhausted its most powerful, direct and widest mechanism for evaluating the rule of law at a national level. The border line exists at the moment a state changes its status from an accession candidate to a full-blown Member State.

The list of instruments that the EU possesses to protect the rule of law in its Member States is not long. They include a so-called soft procedure, which is based on the new EU Framework to Strengthen the Rule of Law, and the so-called ‘nuclear option’ of Article 7 of the Treaty on the EU (TEU). Additionally, to a certain degree, it may be argued that subsidiary mechanisms may be used to protect the rule of law and guard against violations thereof by EU Member States, despite such mechanisms not having been created with this purpose in mind. The latter include proceedings brought against Member States which violate their Treaty obligations (under Article 258 of the Treaty on the Functioning of the European Union) and other ad hoc forms of internal discipline, such as making a Member State’s ability to receive payments from the EU budget conditional upon its compliance with the rule of law.

Our article demonstrates that the basic problem with such (soft and hard) mechanisms is that they duplicate both their procedures and assumptions. Given the unlikelihood that meaningful sanctions will be adopted under Article 7(3) TEU, the only mechanism for controlling Member States is for the EU to issue recommendations. Nevertheless, experience to date indicates that such recommendations are ineffective and ignored, with the consequence that the ineffective soft procedure also makes it most unlikely that the parties will be able to engage in the ‘constructive dialogue’ envisaged in Article 7 TEU. In fact, continuing such procedures may result in effects that are completely opposite to the desired ones, namely instead of restoring the rule of law they may result in an increasingly Euro-sceptic mood within the relevant Member State(s).

Our article concludes that it is fundamentally unlikely for Article 7 TEU or the New EU Framework for Strengthening the Rule of Law to provide a meaningful solution to the current rule of law crises in Poland and Hungary, or potential future crises in other EU Member States. This is especially true where rule of law crises simultaneously co-exist in multiple Member States. Both mechanisms are based on the unlikely assumption that the relevant Member State(s) will recognise the existence of its rule of law crisis and be willing to engage in a constructive dialogue, during which it cooperates in good faith with the EU’s institutions. Alternatively, such mechanisms assume that, if the first assumption proves untrue, it will be possible for the remaining EU Member States to reach a difficult consensus and impose appropriate measures against one of their own. Accordingly, by relying on the soft procedure to protect the rule of law, instead of creating an effective alternative to the so-called ‘nuclear option’ of Article 7 TEU, this merely delays the initiation of the Article 7 TEU procedure. It is unclear, however, whether relying directly and immediately on Article 7 TEU would in itself lead to any positive results.

The conclusions to be drawn from the problems encountered by the European Commission as it has engaged with Poland, and the general ineffectiveness of the EU’s mechanisms for protecting the rule of law, will certainly affect how the doctrine is applied and enforced in the future. Reform seems as necessary as it is inevitable. The open question is whether this will involve a change to the EU Treaties or a new document and a new procedure. Thus far, the first option seems the likeliest result.