IN-DEPTH ANALYSIS ON “POTENTIAL AND PROTECTINGCHALLENGES FUNDAMENTAL OF VALUESEVOTING IN THE IN EUROPEAN THE UNION THROUGH THE RULE OFEUROPEAN LAW UNION” Articles 2 and 7 TEU from a legal, historical and comparative angle Author: Dr. Günter Wilms This work has been published by the European University Institute, Robert Schuman Centre for Advanced Studies. © European University Institute 2017 Content and individual chapters © Günter Wilms 2017 doi:10.2870/083300 ISBN:978-92-9084-458-7 This text may be downloaded only for personal research purposes. Any additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the year and the publisher Views expressed in this publication reflect the opinion of individual authors and not those of the European University Institute. Artwork: Allegory of the Good Government, Lorenzetti Ambrogio (b. ca. 1290, Siena, d. 1348, Siena) Palazzo Pubblico, Siena. PROTECTING FUNDAMENTAL VALUES IN THE EUROPEAN UNION THROUGH THE RULE OF LAW ARTICLES 2 AND 7 TEU FROM A LEGAL, HISTORICAL AND COMPARATIVE ANGLE Author: Dr. GÜNTER WILMS TABLE OF CONTENTS Foreword 1 First Part: Basic Issues Concerning the 2 Protection of the Fundamental Values in the European Union I. Introduction 3 II. The Rule of Law in the European Union: Basic 4 Concepts Endnotes 7 Second Part: Rules on values, homogeneity 11 and their enforcement in other multi-layer systems I. Introduction 12 II. Homogeneity Clauses in (quasi-)Federal States 12 III. Homogeneity clauses and their enforcement in 25 international organisations IV. Conclusions 35 Endnotes 36 Third Part: The Rule of Law and its Protection 56 by the European Union I. The Rule of Law under Article 2 TEU 57 II. Enforcement of The Rule of Law in the European 58 Union by means of Article 7 TEU III. Analysis of the Commission’s practice with 68 regard to protecting the Rule of Law IV. Can the ECJ play a more active Role in the 81 Protection of the Rule of Law de lege lata? V. Conclusions 82 Endnotes 83 Bibliography 104 FOREWORD The present study is the result of my research during a of Article 2 TEU would have been fulfilled and the fellowship at the European University Institute (EUI) necessary majorities for Article 7 TEU could have been in the academic year 2015/2016 (N.B.: the manuscript obtained (“false negative”). The present study gives was closed on 1 June 2016. More recent developments examples for all three scenarios and illustrates their are only briefly referred to in the footnotes). The idea consequences. Due to the high probability of creating for the topic was born quite some time before and, as a “false positive” and its potentially far-reaching it often happens, the article grew bigger with time. It consequences, the decision to initiate an Article 7 TEU reflects more than three decades of studies in European procedure must be taken with the utmost prudence2. Law, first as a student, then as a researcher and teacher, The glass house argument used by some authors might followed by more than twenty years of practice in plead also in favor of a very careful approach3. applying Union law at the European Commission’s Without venturing into speculations what could be Legal Service. done de lege ferenda the present study is, in principle, The text in front of you combines the shortcomings of limited to the situation of the law as it stands. an analysis which is both, too long and too short. Too I am grateful to the European Commission, in long for an overview and too short for an exhaustive particular the Director General of its Legal Service, discussion of all the issues raised by Fundamental Values Luís Romero Requena, for having granted me leave and the Rule of Law in a multi-layer system such as the for an academic year; to Brigid Laffan, the Director European Union. On a more positive note, it combines of the Robert Schuman Centre for Advanced Studies, practical experience with the implementation of Union for her interest in the topic and for the opportunity to law ‘on the ground’ with an academic approach. It organize a workshop on the ‘Rule of Law’ at the EUI intends to shed some light on the interpretation of the in March 2016; to the speakers (María José Martínez fundamental values mentioned in Article 2 TEU and Iglesias, Doyin Lawunmi, Jean-Baptiste Laignelot and the mechanisms for their enforcement, in particular Carlo Zadra) and participants in this workshop for Article 7 TEU. For this purpose I put them in a giving me numerous ideas for my research; to Deirdre historical and comparative context. From a practical Curtin and Bruno de Witte for inviting me to present perspective, it shows the dilemma the Commission the topic of my research in their seminar on ‘Current is facing before initiating a formal procedure under Issues of EU-law’ and to the colleagues at the Robert Article 7 TEU. It is the Council/the European Council Schuman Centre for fruitful discussions on an earlier taking the final decision regarding the existence of a outline. clear risk of a serious breach/existence of a serious and persistent breach. The majority thresholds for The opinions expressed in this study are the ones of both decisions are very high (4/5 or even unanimity). the author and do not necessarily reflect positions of When faced with the question whether to commence the European Commission or the European University a procedure under Article 7 TEU the Commission has Institute. to take into consideration the three possible outcomes of such a procedure: a) the Council/European Council will find a violation of Article 2 TEU (Commission ‘gets it right’); b) the Commission’s initiative under Article 7 TEU will not find the necessary majority in the Council/European Council, in other words the Commission would be overdoing it (“false positive”1) and c) the Commission does not initiate an Article 7 TEU procedure although the conditions for a violation PROTECTING FUNDAMENTAL VALUES IN THE EUROPEAN UNION THROUGH THE RULE OF LAW 1 Articles 2 and 7 TEU from a legal, historical and comparative angle FIRST PART: BASIC ISSUES CONCERNING THE PROTECTION OF THE FUNDAMENTAL VALUES IN THE EUROPEAN UNION I. INTRODUCTION ‘Rule of Law Framework’ in March 2014 (‘Pre-Article 7 TEU Procedure’). This Pre-Article 7 TEU Procedure Issues of respect for the European Union’s fundamental was criticised as being illegally adopted ‘ultra vires’14. values, in particular the Rule of Law, and their When the Commission deployed the Pre-Article 7 enforcement, have been at the centre of political and TEU Procedure for the first time in January 2016 with legal interest for some years now. Developments in regard to the constitutional situation in Poland15, its several Member States, mainly in Hungary (from approach was not unanimously welcomed16. 2010 on) and later in Poland (from end of 2015 on), The present article cannot claim to provide a have given rise to intense discussions as to their comprehensive overview of all issues on the Rule of compatibility with the fundamental values of the Law raised in recent years. In the course of this research European Union enshrined in Article 2 TEU. Those it has become obvious, though, that the understanding fundamental values include foremost the respect of the underlying issues concerning the Rule of Law 4 for human rights , democracy and the Rule of Law. and its protection in the European Union could Indeed, in its second sentence Article 2 TEU states benefit from a historical, comparative17 and inter- that these “values are common to the Member States disciplinary analysis. By placing specific problems in a in a society in which pluralism, non-discrimination, wider context it aspires to present a clearer view of the tolerance, justice, solidarity and equality between issues at stake and of the risks involved due to a certain women and men prevail.” Article 7 TEU then provides disconnection to the lived experience18. Historical for an enforcement mechanism in case of violations and comparative experiences with the protection of of those values. This provision is, however, highly the Rule of Law at national and at international level complex. Thus, doubts concerning the efficiency of the can help to understand the structure and objective of ‘Enforcement Mechanism’ provided for by Article 7 Articles 2 and 7 TEU and, hence, can be useful for their TEU have been repeatedly voiced. Publications on the interpretation. subject abound5. Additionally, the article approaches the subject more The European Union’s institutions reacted quite broadly while at the same time more narrowly than diversely to the threats for the Rule of Law. Whereas previous research. More broadly, because it will place the European Parliament called very early on for action the protection of the Rule of Law at the level of the 6 regarding the ‘value crisis’ , the Council took much European Union in a historical and comparative longer and suggested entering into an annual dialogue context using not only legal but also political science 7 which addresses the Rule of Law . The Commission, research. Narrower because it will not attempt to 8 for its part, adopted a differentiated approach . With provide for an all-encompassing analysis of all the regard to the problems raised in Hungary, it tackled minute elements of the Rule of Law but limit itself the different threats to fundamental values (e.g.: to just the core elements. This approach seems to be independence of judges, media laws, independence of justified for the following reasons: first, since there is the data protection commissioner) separately.