Oliver Garner interviews Professor Dimitry Kochenov on the prospects for Member State to Member State infringement actions to enforce the Rule of Law in the EU.
Professor Dimitry Kochenov is a Visiting Fellow of Compas at the School of Anthropology, University of Oxford, Professor of EU Constitutional Law at the University of Groningen, and incoming Lead Researcher of the Rule of Law workgroup at the CEU Democracy Institute. Along with Petra Bard he is co-head of section for the Rule of Law at RevDem.
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On 10 February 2021, an Amsterdam Court refused to execute a European Arrest Warrant due to fears that the Polish national would not receive a fair trial in his home country. This judicial action followed public discussion in the Netherlands on Member State political action to enforce the Rule of Law. The Dutch House of Representatives (the Tweede Kamer), passed a resolution at the end of 2020 compelling the Dutch Government to bring Poland before the CJEU due to its interference with judicial independence. The Dutch Government has considered taking action, but it has indicated that such action would be a last resort after supranational oversight.
Dimitry Kochenov wrote on the prospects of ‘biting intergovernmentalism’ 5 years ago – the question is why did it take so long for the Member States to take action?
As Kochenov states, first there should be a distinction made between Article 258 and Article 259 of TEU. Article 258 is the standard infringement procedure for the Commission to make sure that the Member States comply with EU law, that the principle of mutual trust functions well, and that there is respect for the fundamental values of the Union. However, from the perspective of EU values protection, the Commission has been rather shy and reluctant to make Article 2 TEU justiciable via Article 258.
The skeptical approach towards the justiciability of Article 2 TEU gives the impression, especially in North-Western Europe, that the Commision is underperforming in its tasks as the guardian of the treaties. In this context, Article 259 could help by replicating what Article 258 is designed for, with the difference that now the Member States themselves would be activators of the rule of law enforcement mechanism. Member States which tend to initiate an infringement procedure against another Member States have to approach the Commission first. Only if the Commission finds the claim legitimate and worthy of taking action may the case go to the CJEU, which in the past did not happen as often.
“Article 259 makes sense only when the Commission fails, which is why this was not a popular mechanism so far”, claims Kochenov. The history of Article 259 shows that this infringement procedure has had a rather strange, highly politicized nature, giving the impression that the Member States’ claims were made in abuse of EU law (for example, see Hungary v. Slovakia).
However, there is a chance now to “rehabilitate” Article 259 and put it to good use in the context of the Commission’s failure to enforce the rule of law as an EU value. The recent important case-law of the CJEU on the Article 19, which was earlier perceived as non-justiciable like Article 2 TEU, shows that change in the perception of EU values is possible, when there is willingness for it. For this reason, the Dutch developments are of fundamental importance. “The task of making Article 259 TEU an efficient tool for rule of law enforcement is not only legal, but also psychological”, Kochenov argues. The resolution of the Dutch Parliament is not about Poland as such; instead, it represents a request of the Dutch people to the Dutch government to make sure that the European Union functions well and as designed. Besides the Dutch Parliament, a court in Amsterdam also recently reacted to the worrisome evidence on the harassment of judges in Poland, by refusing to extradite a Polish man on the grounds of the Polish government’s systematic violation of the rule of law and the right to a fair trial as one of its constitutive elements.
On the other hand, the Commission’s seemingly mild reaction to the detrimental developments in certain Member States is compensated by the cases it wins before the CJEU. But “winning cases is not what we need”, Kochenov argues, “as we need to save the Union from the impostors which harm it, so Article 259 is not a luxury, it’s a necessity”.
Besides the positive outcomes which Article 259 may carve out, Garner wondered whether there could be a negative side to rehabilitating this procedure, as it may undermine the mutual trust and solidarity among Member States and perhaps perpetuate the East vs West narrative.
Additionally, could this idea of an intergovernmental ‘coalition of the willing” mean that ultimately it is the Member States who will always be in the driving seat when it comes to taking action regarding EU constitutionalism?
“Solidarity is already undermined, which has been proven at least by the lack of mutual trust among the EU national courts”, Kochenov responds.
This idea of intergovernmentalism emerged as capitals across the EU reluctantly step in and play not only their national but also the EU’s role due to the dysfunctional approach that the Commission has taken in the enforcement of the rule of law.
Could this idea of national political actors taking such actions and embracing their European roles serve to politicize transnational issues in the domestic sphere?
Politicizing the Rule of Law?
“Will EU citizens see these initiatives as legitimate actions which prevent the misuse of EU taxpayers’ money in funding corruption, or will they rather see the Dutch developments as an intervention in the national affairs of another sovereign state?”, Garner asked.
Kochenov claimed that this might unfortunately have negative implications for the Union, rather than the other Member States. One of the hallmark principles of the European Union is the prohibition of self-help among Member States, which was emphasized from the very beginning and is what has made the European Union a successful project up to today. However, if the state of play in Hungary and Poland stays as it is, a form of self-help becomes indispensable. Thus, in this context, national governments taking the wheel together with the Commission does not represent politicization of EU affairs, but instead it is an opening.
As John Morijn stated in a recent RECONNECT webinar on systemic infringement actions, it’s an opening because suddenly there is the sense of co-responsibility in the national capitals whatever the reason, to work together with the European Union in protecting its values. This new idea which could be brought under Article 259 is a totally different type of intergovernmentalism than the standard one, which is “in an almost pejorative sense, the case when Member States’ representatives come together in the Council and block anything that can actually bring change.” The initiatives of the Dutch government and possibly other Member States represents a joint effort to preserve the values of Article 2 as the essence of the European Union itself.
The end of Article 7 TEU?
In the aforementioned RECONNECT webinar and related scholarship (most notably, in the piece jointly written by Kim Lane Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz for the Yearbook of European Law), systematic infringement actions under Articles 258-260 have been proposed as the possible tools for militant democracy in preserving the EU values. If such actions took place, Garner asked, would that mean that the Commission admits that Article 7 TEU has essentially failed as a sanctioning mechanism?
“There is agreement in the scholarship, which the Commission also stressed on several occasions, that the Article 7 procedure is not designed in a ‘winner takes all’ manner”, Kochenov states.
Although the Article 7 and Article 258-260 procedures are very different in nature, we should not shy away from using all of them together in order to protect Article 2 values. In fact, all of the CJEU’s cases on Article 19 in regard to Poland were decided in the light of the open Article 7 procedure. Article 7, as designed, “had to be a failure”, Kochenov argues, but that does not mean that it can’t serve its purpose when combined with other instruments available under EU law. It is no surprise that the Article 7 procedure cannot perform miracles in Poland and Hungary, but the aforementioned action of the Amsterdam Court actually can. If every national judge is now able to scrutinize what is happening on the ground in other countries, this opens a Pandora box of possibilities for changing how the Union functions. Opening that Pandora box could mean a very different Union than the one we see today, where the national governments would play a much more significant role.
Assessing the EU’s Rule of Law record
Other than exploring the trajectory of rule of law adherence in the Member States, it is equally important to reflect upon the European Union and its own rule of law record. In a 2016 edited volume Reinforcing Rule of Law Oversight in the European Union, Kochenov criticized the EU for not adhering to the rule of law ideals that it espoused to the Member States. If the EU itself were subject to rule of law monitoring, what conclusions could be drawn? As Garner argues, a “Schmittian turn to executive decisionism has been visible already during the Von der Leyen Commission, for example in the debacle on triggering the exceptions to the Northern Ireland Protocol without even consultations with the Irish government, let alone the other institutions.”
In response to the question of the EU’s adherence to the rule of law, Kochenov gave one example as perhaps “the most unfortunate and worrisome among many” and that is dismissing the CJEU Advocate General elected by the UK before the end of her mandate as determined by primary law, simply “in order to be friendly to the Member States of the European Union”. There is a reasonable suspicion, Kochenov argues, that the current bench of the CJEU itself is not legally composed, but no one wants to speak about it. The only academic paper which discusses it has been written by Kochenov himself, together with Graham Butler. This incident “should have never happened and it goes against every guarantee of judicial independence, judicial tenure and the rule of law”. This happened at the same time that the Court was helping Polish judges to maintain legality through its Article 19 case-law. “If the CJEU does not have structural independence from the national Member States, it’s not a court”, Kochenov argues. What would save face for the Member States and the Court of Justice, as Kochenov and Butler claim, would be either the incoming Advocate General leaving the court or that all the members of the Court, as provided by primary law, could come together and decide that this person is not a legally sitting member. Unfortunately, we haven’t seen either of those options happening, which shows another side of the rule of law fight.
“To me there is no difference between the so-called Greek Advocate General who is illegally occupying the place on the Court of Justice and the President of the fake Constitutional Tribunal in Poland. We are all imperfect in the end”, Kochenov states.
Reforms to address the crisis
Lastly, when asked what one reform to the Treaties would be propose to address the crisis of EU values, Kochenov provides “two extremes.”
First, we should not rely so much on the law.
“We cannot blame the Poles who voted for the PiS government, but we should try to change the public perception and explain to people why the rule of law and judicial independence are sacred principles in our legal systems”.
Kochenov states that
“We can have ten thousand new Article 7s, but if people still vote for the lack of judicial independence and separation of powers, then some other approaches are needed”.
The other approach, although unimaginable in the EU context, is the use of force. As the EU will never use force to implement its law, we should accept that the law cannot have all the solutions to the problems of society.
“The law very often represents the pain and the troubles that society is facing, so we need to approach it as such”, Kochenov concludes.
Summary by Teodora Miljojkovic.