On awkward membership: dealing with awkwardness: some positive signals

In Poland, Commission’s recommendations under the Rule of Law Framework could not prevent the ‘capture’ of the Constitutional Tribunal and the adoption of the controversial reforms of the judiciary. More generally, EU’s intervention could not prevent the consolidation of power in the hands of Fidsez and PiS.

While these critical observations are certainly warranted, it should not be forgotten that cases of values’ awkwardness puts the EU in an awkward position too. A systematic analysis of the EU constitutional framework reveals that the instruments the EU has at its disposal, and more generally the mandate of EU institutions, have important limitations. The EU does not have powers comparable to those of central authorities in federal states, an example of which may be Article 155 of the Spanish Constitution, a procedure of federal coercion that served as the basis for the dissolution of the Catalan Parliament in the aftermath of the independence referendum. A comparable mechanism simply does not exist in the EU. Even the much discussed Article 7 TEU, often defined as a ‘nuclear option’, ultimately does not allow for directintervention on the ground: its hardest arm only provides for sanctions, and not for federal enforcement. Moreover, judicial enforcement through the infringement procedure of Article 258 TFEU is limited to issues falling within the scope of EU law. Very often, the most controversial aspects of recent Hungarian and Polish reforms, including for example the organization of the constitutional court’s system, fall however outside of it. More structurally, the relation between EU institutions and national governments is of a different nature than those between central and local authorities in federal states.

Acknowledging the limitations of the EU’s mandate calls for reassessing our expectations on EU’s intervention. In plain and simple words, the EU alone will not be able to resolve the Hungarian and Polish crises. Much will depend on other factors, including first and foremost domestic ones, as well as on political pressure outside the EU’s formal channels. Yet the EU does have an important role to play, in particular when it comes to tackling the negative externalities produced by values’ awkwardness on EU integration. In this respect, EU institutions can, and should, make better use of the mechanisms at its disposal. It is in this respect that there are some timid, positive signals at the EU level.  

In Hungary, the EU has promptly reacted the some of the most controversial pieces of legislation adopted in 2017, including the widely criticized ‘CEU law’ and measures targeting NGOs. The Commission initiated infringement actions that are less narrowly constructed than earlier ones, thanks to the reliance on the Charter of Fundamental Rights as a ground for the alleged infringement. In case the Court of Justice would find a breach of EU law at the end of those proceedings, and in contrast with the earlier decisions after the adoption of the constitution, symbolic changes to national legislation would not be sufficient to ensure compliance with the Court ruling. Moreover, the EP will soon formally decide on the initiation of the Article 7 procedure.

As for Poland, the activation of Article 7 is a crucial step. Most importantly, it will force the Member States and the Council, until very recently almost completely absent from the debate, to take and motivate a position at the European level. Moreover, the Commission has finally combined the legal and political mechanisms it has at its disposal, by starting also an infringement action on the law on ordinary courts. Other positive signals come from courts, at both national and EU level. In an apparently minor case concerning Portuguese judges’ salaries, the CJEU found that protecting judicial independence is an obligation under EU law, on the basis of Article 19 TEU. This may give support to the Commission’s infringement action against Poland on the law on ordinary courts, and eventually be a ground for further actions against both countries. Moreover, it will soon have the opportunity to intervene in the Polish debate, deciding on a preliminary reference from the Irish High Court asking whether mutual trust schemes should be suspended in case of systemic threats to the rule of law.

Few days after Viktor Orban’s third consecutive electoral victory, any optimist assessment of the EU’s results in dealing with awkward members might seem naïve. And there is little doubt that the actions described above will not be able alone to rescue democracy and the rule of law in Hungary and Poland. Yet Political pressure through Article 7 and the Rule of Law Framework can at least prevent a further deterioration of the situation. Legal action under the infringement procedure can give adequate responses to the adoption of controversial pieces of legislation falling within the scope of EU law. Considering the limitations of the EU mandate and mechanisms, and the previous failures of EU’s intervention, this is perhaps all we can ask from the EU at this stage.