The Haider case: moving towards prevention
After the 1999 Austrian parliamentary elections, the decision of the center-right People’s Party to form a coalition with the far-right Freedom Party, led by Jorg Haider, shocked the European leaders. The other fourteen EU Member States immediately decided to react to the Austrian developments, but it was evident that Article 7 could not be used in that situation. The mere fact that the Freedom Party joined the ruling coalition could not be considered to fulfill the substantive threshold of a ‘serious and persistent breach’ of EU values, as the Austrian government had not yet adopted any concrete measure violating or even concretely threatening the values. Thus, the fourteen Member States opted for a series of diplomatic sanctions that were however adopted outside the EU legal framework. These sanctions were in any case revoked fairly soon, after the so-called ‘Wise Men committee’ informally put in charge of monitoring the situation found that there was no clear violation of EU values.
The Haider affair clearly proved the deficits of the Article 7 system as designed in Amsterdam: there was no procedure available at the EU level in order to react to cases that fell short of a ‘serious and persistent breach’ of the values, but that could still be considered problematic in a broader sense. Diplomatic sanctions outside the EU framework could not become long-term solutions. The Wise Men Report suggested a possible way forward: it argued for the introduction of ‘preventive and monitoring procedures’, which could allow the EU institutions to conduct a non-confrontational dialogue from an early stage. Meeting on the occasion of the next Inter-Governmental Conference in Nice, the Member States followed the report’s recommendation and agreed on the creation of what is now Article 7(1) TEU. The addition of the new provision, while signaling a shift towards prevention, did not water down the system; quite on the contrary, it actually strengthened and completed it, creating a new procedure for political dialogue within the Treaties’ framework.45 It was, in other words, a necessary addition to the sanctioning mechanism, which was moved to Article 7(2) and (3).
The Commission’s Rule of Law Framework: doubling down on prevention
Despite the introduction of the preventing arm of Article 7(1), the provision remained dormant in the following decade. It did not play any role whatsoever even in controversial cases such the UK’s invasion of Iraq, challenges to freedom of information and media pluralism under Berlusconi’s government in Italy, or the CIA renditions affair. The point is not that Article 7 should have been used in those cases, rather that it was not even part on the European debate on these topics. In the 2000s, the entire Article 7 system began to be associated with the ‘nuclear option’ label, a definition that is both unhelpful and mistaken. In fact, there is nothing nuclear in the preventive procedure of Article 7(1), and even Article 7(2) ultimately allows for a gradual approach, since the Council is not obliged to adopt sanctions after the determination of a serious and persistent breach of EU values.
When a new, and more severe, challenge came into the picture - the Hungarian constitutional crisis - there was unfortunately a general political unwillingness to use Article 7, to which the ‘nuclear option’ label certainly contributed. The Commission opted to react to the Hungarian developments with another mechanism, namely infringement procedures under Article 258 TFEU, following an ‘indirect’ approach. However, those infringement procedures only tackled the few aspects of the constitutional reforms that fell within the scope of EU law, and transformed the democratic and rule of law challenges in more technical issues. It is now evident that this approach did not produce adequate results.
Implicitly acknowledging the difficulties in tackling the Hungarian developments with the traditional enforcement toolkit, the Commission began to work on a new instrument. It argued that it was necessary to ‘fill the gap’ between Article 7 and infringement actions based on Article 258 TFEU. The outcome of the process was the ‘Rule of Law Framework’, presented in spring 2014, which sought ‘to resolve future threats to the rule of law in Member States before the conditions for activating the mechanisms foreseen in Article 7 TEU would be met’. The Framework was therefore conceived as an instrument of prevention, a mechanism that allows the Commission to conduct a political dialogue with the national government concerned on the basis of ‘Rule of Law Opinions’ and ‘Rule of Law Recommendations’. The substantive threshold for the activation of the Rule of Law Framework is that of ‘systemic threats to the rule of law’, and the Framework thus stops one step before the condition for the activation of Article 7(1), namely a ‘clear risk of a serious breach’ of the rule of law, is met. Regrettably, however, the Commission failed to clearly distinguish these two types of situations.
If adding the preventive arm of Article 7 truly strengthened the overall oversight system, it is more debatable whether the Rule of Law Framework was truly necessary. On the one hand, the Framework can be seen as a much-needed step to bolster monitoring before and beyond Article 7, as well as an important attempt to clarify the substantive standards for assessing national rule of law system. In this respect, it works alongside other monitoring mechanisms at the EU and the Council of Europe level, including the European Commission’s ‘Justice Scoreboard’. The latter was designed, approximately in the same period, in order to measure the functioning of the national judiciaries on the basis of a series of quantitative and qualitative criteria, and a further example of the shift from ‘sanctions’ to ‘prevention’.
On the other hand, the very decision to adopt an instrument such as the Rule of Law Framework could be considered a side effect of the confusing nuclear option label attached to Article 7 even by top Commission officials such as Presidents Barroso and Juncker. Additionally, the choice might have derived from a reading of the Hungarian crisis that has in the meantime proved to be mistaken: while the Commission tried to bolster dialogical and preventive instruments, authorities in Budapest did not truly engage in a genuine dialogue with EU institutions. Instead, they used strategies of symbolic and creative compliance in order to delay stronger EU reactions, until it became simply too late to restore the previous situation. Thus, with the Rule of Law Framework, the Commission doubled down on a strategy of preventing threats to EU values. It maintained the view already expressed in 2003 that in a ‘Union of values’, ‘it will not be necessary to apply penalties pursuant to Article 7 of the Union Treaty’.55 Dialogue and constructive engagement with the Member State concerned were meant to be adequate responses to rule of law challenges, complemented, if need be, by the occasional infringement action, rather than by sanctions under Article 7.
The Council Rule of Law Dialogue: a ‘culture’ of prevention?
Shortly after the presentation of the Commission’s Rule of Law Framework and af
Expressing doubts in this respect: D. Kochenov, L. Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’, (2016) European Constitutional Law Review 11, 512.
See in particular the Annex to the Rule of Law Framework.
A. Batory, ‘Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU’, (2016) Public Administration 94, 685.
See Pech and Scheppele, supra note 47.
- 55 European Commission, supra note 7, p. 12.
ter a negative opinion of the Council’s Legal Service on the compatibility of the Framework with the Treaties, the Council designed yet another instrument that was meant to contribute to rule of law protection throughout the Union. The ‘Rule of Law Dialogue’ of the Council has even less bite than the Commission Framework, though. Let alone imposing sanctions, it is not even meant to tackle specific crises, but to ‘promote a culture of respect’ for the rule of law: it boils down to an annual meeting of the General Affairs Council, in which the competent ministers hold a debate on a theme selected by the temporary Presidency. Arguably, it cannot be considered a true peer review exercise, as there are no horizontal analyses of possible problematic profiles in different Member States. The Dialogue is thus a much lighter instrument than Article 7 or the Rule of Law Framework. It strives to prevent threats or crises by fostering a culture of compliance, but is toothless if and when a crisis actually arises.
-  2 Journal of Common Market Studies 59. 3 ■”M. Ahtisaari, J.A. Frowein, M. Oreja, ‘Report on the Austrian Government’s Commitment 4 to the Common European Values, in particular concerning the Rights of Minorities, Refugees and Immigrants, and the Evolution of the Political Nature of the FPO’ (‘The Wise Men Report’), Paris, 8 September 2000. 5 For an overview, see Section 4.2.1 of this Chapter. 6 See also Sadurski, supra note 8, 397.
-  2 M. Dawson, E. Muir, ‘Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law’ (2013) German Law Journal 14, 1959. 3 For example, questions related to the independence of the judiciary became an age discrimination problem: see Case C-286/12 Commission v. Hungary, ECLI:EU:C:2012:687. 4 See for a critical assessment L. Pech, K.L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) Cambridge Yearbook of European Legal Studies 19, 3. 5 European Commission, Communication ‘A New EU Framework to Strengthen the Rule of Law’, Brussels, 19 March 2014, Doc. COM(2014) 158 final/2.
-  Council of the European Union, Opinion of the Legal Service ‘Commission’s Communication on a new EU Framework to strengthen the Rule of Law: compatibility with the Treaties’, Brussels, 27 May 2014, Doc. 10296/14 2 Including: fight to terrorism and the rule of law (2016), or ‘The Rule of Law in the Age of Digitalisation’ (2015). 3 For an analysis of the use of the Rule of Law Framework in the Polish case, see Pech and Scheppele, supra note 47.