[en] Over the last fifteen years, the European Union has built up its regulatory response to the rule of law crisis. That framework seeks to address rule of law-related undesirable events depending on whether or not they have already occurred. As risk prevention has a limited role in the EU’s rule of law policy, undesirable events are mostly dealt with in the context of crisis management. Evaluation, reaction and conditionality mechanisms are all affected by issues relating to operability and legitimacy which reduce their overall performance. The resulting moderate efficiency of crisis management tools may still be improved by making use of the upgraded rule of law mechanisms in a systemic way.
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Bibliography
Case C-156/21 Hungary v European Parliament and Council [2022] EU:C:2022:97 paras 232-234
Case C-157/21 Poland v European Parliament and Council [2022] EU:C:2022:98 paras 264-266.
See also Koen Lenaerts, “Upholding the Rule of Law through Judicial Dialogue” (2019) 38/1 Yearbook of European Law 3.
Arts 2 and 49 TEU; Case C-156/21 para 124; Case C-157/21 para 142.
CJEU Opinion 2/13 [2014] EU:C:2014:2454 paras 166-168; Case C-64/16 Associação Sindical dos Juízes Portugueses [2018] EU:C:2018:117 para 30; Case C-824/18 A.B. and Others [2021] EU:C:2021:153 paras 108-109; Case C-896/19 Repubblika [2021] EU:C:2021:311 para 62; Case C-156/21 paras 125, 161; Case C-157/21 paras 143, 197
Nathan Cambien, “Mutual Recognition and Mutual Trust in the Internal Market” (2017) 2/1 European Papers 98-101.
Other common definitions of risk include “bads” in Ulrich Beck, Risk society: Towards a New Modernity (Theory, Culture & Society 1992)
Klaus Vieweg, “Risk and the regulatory State - various aspects regarding safety and security in the fields of technology and health” in Hans-W. Micklitz and Takis Tridimas and Nancy A. Patterson (eds), Risk and EU Law (Elgar 2015).
See e.g. European Parliament Resolution of 1 June 2023 on the breaches of the Rule of Law and fundamental rights in Hungary and frozen EU funds (2023/2691(RSP)); Alberto Alemanno, “Suspending Hungary’s EU presidency isn’t a sanction - it’s a precaution” (Politico, 7 June 2023) accessed 24 January 2024
Petra Bárd, “Can the Hungarian Council Presidency be Postponed - Legally?” (Verfassungsblog, 23 June 2023) accessed 24 January 2024.
European Parliament Resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)).
Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary [2022] OJ L 325/94.
See e.g. Zoltán Szente, “Challenging the Basic Values - Problems in the Rule of Law in Hungary and the Failure of the EU to Tackle Them” in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (Oxford 2017) 456-75
András L Pap, Democratic Decline in Hungary. Law and Society in an Illiberal Democracy (Routledge 2019) 19-23.
Barbara Moens, “Charles Michel to run for EU election, triggering top job scramble” (Politico, 7 January 2024) accessed 24 January 2024.
Barbara Moens and Nicolas Camut, “Charles Michel pulls out of EU election race” (Politico, 26 January 2024) accessed 31 January 2024.
The only relating reference is within the Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council [2016] OJ C 202/341.
European Parliament Resolution of 18 January 2024 on the situation in Hungary and frozen EU funds (2024/ 2512(RSP)) 8.
Art 1(2) TEU.
Although this is the first time that more than one MS is considered problematic, that one votes in favour of the other in the Council and vice versa, thus putting “unanimity minus one” out of order in contexts such as that of Art 7 TEU. The previous times concern Austria and Italy, see Ramona Coman, The Politics of the Rule of Law in the EU Polity. Actors, Tools and Challenges (Springer 2022) 75-91
Dermot Hodson, Circle of Stars. A History of the EU - and the People Who Made It (Yale University Press 2023) 67-85.
Armin von Bogdandy, “Towards a Tyranny of Values? Principles on Defending Checks and Balances in EU Member States” in Armin von Bogdandy et al. (eds), Defending Checks and Balances in EU Member States. Taking Stock of Europe’s Actions (Springer 2021) 73-105.
European Council, Conclusions of the Presidency, Copenhagen, 21-22 June 1993, 13.
Jean Paul Jacqué, Droit institutionnel de l’Union européenne (9th edition, Dalloz 2018) 13-17.
Draft Treaty establishing a Constitution for Europe [2003] OJ C 169 1-105.
See e.g. Dimitry Kochenov and Ronald Janse, “Admitting Ukraine to the EU: Article 49 TEU is the ‘Special Procedure’” (2022) EU Law Live accessed 15 June 2024.
On this evolution in detail see Laurent Pech, “The Rule of Law” in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edition, Oxford University Press 2021) 307-38.
On the creation of an annual rule of law dialogue within the Council’s General Affairs configuration, see Council Press Release 16936/14 on 3362nd Council meeting (General Affairs), 16 December 2014, 20-21. The mechanism was later completed by a periodic peer review as well as a suggestion to proceed to further in-depth discussions over ROL issues within other Council configurations; see Council Presidency Conclusions 14173/19 on the evaluation of the annual rule of law dialogue, 19 November 2019, 14-15.
Adopted by Commission Communication “The EU Justice Scoreboard. A tool to promote effective justice and growth” COM(2013) 160 final.
Commission Communication “2023 EU Justice Scoreboard” COM(2023) 309 final 2. These findings are used as one of the main sources in the Commission’s annual rule of law reports and in the Council’s country-specific recommendations in the context of the European Semester; see Commission Communication “2023 Rule of Law Report. The rule of law situation in the European Union” COM(2023) 800 final 6, 36; COM(2023) 309 final 4-5.
Commission Communication “A new EU Framework to strengthen the Rule of Law” COM(2014) 158 final 4.1, 4.2.
Commission Communication “Strengthening the rule of law within the Union. A blueprint for action” COM(2019) 343 final 11, 13
see also Commission Communication “Further strengthening the Rule of Law within the Union. State of play and possible next steps” COM(2019) 163 final and COM(2023) 800 final. As an example for country chapters, see Commission Staff Working Document “2023 Rule of Law Report. Country Chapter on the rule of law situation in Hungary” SWD(2023) 817 final.
Article 7 TEU consists of a preventive arm that allows to determine “a clear risk of a serious breach by a Member State of the values referred to in Article 2 TEU” (para 1), and a sanctioning arm that allows to determine the existence of such a serious and persistent breach and, consequently, to suspend certain Treaty rights of the Member State in question without prejudice to its obligations under the Treaties which remain binding (paras 2 to 4).
Overall, measures can be imposed at four different stages: the Member State concerned has to comply with the Commission’s reasoned opinion even before any legal action; the Commission may ask the CJEU to pronounce interim measures during proceedings; once the Court’s judgment is pronounced, the Member State concerned is required to comply with it; otherwise, the CJEU may impose a lump sum or penalty payment on the Member State concerned. According to Kim Lane Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz, “EU Values are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union” (2020) 39/1 Yearbook of European Law 22-23: “Combined with accelerated proceedings and use of interim measures, the systemic infringement action could become a highly effective tool to prevent a Member State from further constitutional backsliding.”
See also Matteo Bonelli, “Infringement Actions 2.0: How to Protect EU Values before the Court of Justice” (2022) 18 European Constitutional Law Review 30-58
Matthias Schmidt and Piotr Bogdanowicz, “The Infringement Procedure in the Rule of Law Crisis: How to Make Effective Use of Article 258 TFEU” (2018) 55 Common Market Law Review 1061-1100
Jean Paul Jacqué, Droit institutionnel de l’Union européenne (9th edition, Dalloz 2018) 1174-177.
CJEU Opinion 2/13 para 176.
Case C-64/16 paras 32-36; Francesca Episcopo, “The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law before National Courts” in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edition, Oxford 2021) 300-302.
Jean Paul Jacqué, Droit institutionnel de l’Union européenne (9th edition, Dalloz 2018) 388.
Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [2020] OJ L 433I/1; Council Regulation (EU, Euratom) 2020/2093 of 17 December 2020 laying down the multiannual financial framework for the years 2021 to 2027 [2020] OJ L 433I/11; Council Regulation (EU) 2020/2094 of 14 December 2020 establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 crisis [2020] OJ L 433I/23. See also Louise Fromont and Arnaud Van Waeyenberge, “Trading rule of law for recovery? The new EU strategy in the post-Covid era” (2021) 27/1-3 European Law Journal 132-47.
According to the CJEU, “there is a clear relationship between [:::] the respect for the value of the rule of law and [:::] the efficient implementation of the Union budget, in accordance with the principles of sound financial management, and the protection of the financial interests of the Union” (Cases C-156/21 para 130 and C-157/21 para 148).
Art 6(1) of Regulation 2020/2092.
Art 5(1) of Regulation 2020/2092.
Art 4 of Regulation 2020/2092.
Introduced in response to the Covid crisis by Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility [2021] OJ L 57/17.
Introduced in its present form during the wake of the sovereign debt crisis by Council Regulation (EC) 1466/ 97 of 7 July 1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [1997] OJ L 209/1, as amended in 2011.
Louise Fromont and Arnaud Van Waeyenberge, “Trading rule of law for recovery? The new EU strategy in the post-Covid era” (2021) 27/1-3 European Law Journal 139.
Art 18(4) of Regulation 2021/241, especially (b) and (n) country-specific recommendations, (o) equality, (p) effective monitoring and implementation of the recovery and resilience plan, (q) consultations of civil society organisations and (r) corruption.
For the latest example, see Council Recommendation of 12 July 2022 on the 2022 National Reform Programme of Hungary and delivering a Council opinion on the 2022 Convergence Programme of Hungary [2022] OJ C 334/136. See also Laurent Pech, “The Rule of Law” in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edition, Oxford University Press 2021) 329-31.
Arts 17(3), 18(3), 18(4)(b) and 18(4)(n) of Regulation 2021/241. The similarity of the two is apparent: both were created in times of crises; in their respective ways, both aim to deepen economic integration (Art 2-bis(1) of Regulation 1466/97; Art 4 of Regulation 2021/241); both require the submission of programmes and plans by Member States. In the context of the European Semester, Member States of the eurozone submit stability programmes (Art 2-bis(c), 3-6 of Regulation 1466/97) and Member States outside the eurozone submit convergence programmes (Art 2-bis(c), 7-10 of Regulation 1466/97), in addition to national reform programmes (Art 2-bis(d) of Regulation 1466/97). To benefit from the Recovery and Resilience Facility, Member States submit a national recovery and resilience plan (Art 17(1), 18 of Regulation 2021/241).
In the context of the European Semester, country-specific recommendations are adopted by the Council on the basis of a Commission recommendation (Art 2-bis(3), 6(2), 10(2) of Regulation 1466/97), whereas national recovery and resilience plans are approved (or not) by a Council implementing decision based on a proposal by the Commission (Art 20 of Regulation 2021/241).
European Commission (COM); Council (CO); European Council (EUCO); Court of Justice (CJEU); Member States or national courts (MS); European Parliament (EP).
COM(2023) 309 final 2-4.
COM(2019) 343 final 11-12; COM(2023) 800 final footnote 10.
COM(2014) 158 final 4.2; Council Presidency Conclusions 14173/19 on the evaluation of the annual rule of law dialogue, 19 November 2019, 10-11.
Art 17(1) TEU.
European Parliament Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Art 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)).
Case C-286/12 European Commission v Hungary [2012] EU:C:2012:687 (early retirement of judges)
Case C-288/12 European Commission v Hungary [2014] EU:C:2014:237 (independence of the data protection authority)
Case C-78/18 European Commission v Hungary [2020] EU:C:2020:476 (funding of NGO’s from abroad)
Case C-66/18 European Commission v Hungary [2020] EU:C:2020:792 (academic freedom)
Case C-808/18 European Commission v Hungary [2020] EU:C:2020:1029 (amendment of the Asylum Act); Case C-821/19 European Commission v Hungary [2021] EU
C:2021:930 (criminalisation of organisations supporting asylum seekers); Case C-823/21 European Commission v Hungary [2023] EU:C:2023:504 (complexification of the asylum application procedure)
Case C-769/22 European Commission v Hungary [2023] OJ C 54/16 (rights of LGBTQIA+ persons, action brought on 19 December 2022).
The European Parliament brought an action for failure to act against the Commission on 29 October 2021 in order to ensure the implementation of Regulation 2020/2092 (Article 265 TFEU). The case was later removed from the register of the CJEU (Case C-657/21 European Parliament v European Commission [2022] C 368/20, Order of the President of the Court), as the Commission reacted a month later by sending a request for information addressed to Hungary, beginning the implementation of Regulation 2020/2092 (COM(2022) 485 final). No similar case has been reported concerning the other two conditionality mechanisms.
Articles 6(1), 6(6), 6(9), 6(10) of Regulation 2020/2092; Articles 10, 19, 20 of Regulation 2021/241.
For a more systemic analysis on the Commission’s failure to act, see e.g. R Daniel Kelemen and Tommaso Pavone, “Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union” (2023) 75/4 World Politics 779-825
Kim Lane Scheppele, “The Treaties without a Guardian: The European Commission and the Rule of Law” (2023) 29 Columbia Journal of European Law 93-183.
As well as a political will to implement a mechanism which, again, does not seem very strong inside either the European Council or the Council.
The majorities required for deliberation vary between the two arms: for the determination and recommendation provided for in Article 7(1) TEU, the Council acts by a majority of 4/5 of its members (minimum 21/27 Member States), whereas Article 7(2) TEU requires unanimity within the European Council and only a qualified majority within the Council (minimum 15/27 Member States).
See also Art 15(1), (2) and (4) TEU.
See e.g. European Parliament Resolution of 8 July 2021 on breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of the legal changes adopted by the Hungarian Parliament (2021/2780(RSP)); European Parliament Resolution of 15 September 2022 on the proposal for a Council decision determining, pursuant to Art 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2018/0902R(NLE)); European Parliament Resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling (2022/2535(RSP)).
See e.g. Jean Paul Jacqué, Droit institutionnel de l’Union européenne (9th edition, Dalloz 2018) 133-146
Paul Craig, “Integration, democracy and legitimacy” in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edition, Oxford 2021) 31-45.
Art 10 TEU.
European Commission (COM); Council (CO); European Council (EUCO); Court of Justice (CJEU); Member States or national courts (MS); European Parliament (EP).
Art 7 TEU proceedings against Hungary have not progressed since 2018. For more detail, see Dimitry Kochenov, “Art 7: A Commentary on a Much Talked-About ‘Dead’ Provision” in Armin von Bogdandy et al (eds), Defending Checks and Balances in EU Member States (Springer 2021) 128-54.
Mostly because they are organised around indicators. For an early critique, see Petra Bárd, “A Bizottság 2020. évi jogállamisági jelentésének értékelése” 3-4 accessed 1 February 2024.
Beáta Bakó, “Hungary’s Latest Experiences with Article 2 TEU: The Need for ‘Informed’ EU Sanctions” in Armin von Bogdandy et al (eds), Defending Checks and Balances in EU Member States (Springer 2021) 53-57.
Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary [2022] OJ L 325/94. See also Council Recommendation of 12 July 2022 on the 2022 National Reform Programme of Hungary and delivering a Council opinion on the 2022 Convergence Programme of Hungary [2022] OJ C 334/136.
Commission, “Proposal for a Council Implementing Decision amending Implementing Decision (EU) (ST 15447/22 INIT; ST 15447/22 ADD 1) of 15 December 2022 on the approval of the assessment of the recovery and resilience plan for Hungary” COM(2023) 748 final; Council Implementing Decision of 5 December 2023 amending the Implementing Decision of 15 December 2022 on the approval of the assessment of the recovery and resilience plan for Hungary (15964/23).
Barbara Moens et al, “How Giorgia Meloni and French hospitality got Orbán to OK Ukraine aid” (Politico, 1 February 2024) accessed 1 February 2024
Nicolas Camut et al, “The EU’s Viktor Orbán problem: 9 times Hungarian leader has been a thorn in Brussels’ side” (Politico, 31 January 2024) accessed 1 February 2024.
On the difficulties associated with the application of Regulation 2020/2092 and the risks to the EU’s financial interests still to be prevented, see European Court of Auditors, “The rule of law in the EU. An improved framework to protect the EU’s financial interests, but risks remain,” Special report (2024) 71 p.
See Anita Kovacs, “L’impasse normative de l’Union européenne face aux violations systémiques de l’État de droit par la Hongrie” (2023) 2 Revue de la Faculté de droit de l’Université de Liège 314-31.
Art 2(2) of Council Decision 2009/937/EU of 1 December 2009 adopting the Council’s Rules of Procedure [2009] OJ L 325/35.
Art 352 TFEU allows the EU’s competences to be adjusted to its objectives if the following conditions are met: one of the Art 3 TEU objectives is concerned; the Treaties have not provided the necessary powers in a specific provision; necessity; and harmonisation cannot be excluded.
An entirely case-law-based category of exception to restrictions under Arts 34 and 35 TFEU, introduced in Joined Cases C-267/91 and C-268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard [1993] EU: C:1993:905.
European Parliament Resolution of 22 November 2023 on proposals of the European Parliament for the amendment of the Treaties (2022/2051(INL)) amendment 238.
See Case C-657/21.
See e.g. Dániel Hegedűs, ‘Az uniós értékek védelmének politikai-intézményi háttere. Avagy miért nem volt képes az Európai Unió érdemben fellépni a demokratikus normák leépülésével szemben Magyarországon’ (2020) 2-3 Fundamentum 15.
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