An Article 19 Mechanism to save the rule of law in the EU

The EU is "founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities."

(Article 2, Treaty on European Union)

• How to defend the rule of law in the EU
• How would an article 19 mechanism work?
• Unambiguous and non-political
• Media reactions and further reading

Dear friends,

What happens when the government of one of the EU's 27 member states undermines the rule of law, subjects all courts to the control of the Minister of Justice and controls all judges though disciplinary measures; and then rejects judgements by the EU's highest court, the Court of Justice of the EU (CJEU) to correct this?

As the European Union is not an Empire, it cannot – fortunately – enforce its rules by force. At the same time, the EU is unable to expel a member state, whatever happens.

However, once one, or more, member state governments take an a la carte approach to the rule of law, why should others abide by the rules? In this way the bond that ties members together dissolves: the belief that all members of the EU are fully committed to the values of the Treaty.

This belief is of existential importance. It needs to be defended and the EU has a vital self-interest in doing so. Recently ESI put forward a proposal how to achieve this: an Article 19 mechanism, backing the Court of Justice of the European Union:

ESI discussion paper: An Article 19 Mechanism –
The need for a robust defence of EU rule of law (23 July 2020)

How to defend the rule of law in the EU

"1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law."

Article 19, Treaty on European Union

"The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law."

Court of Justice of the European Union

The July European Council accepted that the EU should make future solidarity conditional on respect for the rule of law. This is progress. The challenge now is to find a mechanism that EU leaders will be prepared to adopt, and once adopted, will be prepared to use.

The core of this proposal is simple: Implementing all Court of Justice of the EU (CJEU) judgements related to the rule of law – where the CJEU finds a state to be in violation of the obligation to "ensure effective legal protection" – should be an unambiguous precondition for receiving funding.

Such a reform would be complementary to ongoing efforts by the European Parliament, which ESI supports, to build on a Commission proposal from 2018, whereby the European Commission should be able to reduce transfers in case of  a "generalised deficiency in the rule of law" [… risks affecting … the financial interests of the union]" unless a qualified majority in the Council rejects this. It could, even, be included in the draft regulation currently on the table.

How would it work? The two main questions for any rule of law protection system are: What should be sanctionable? And: How is sanctionable behaviour to be identified? The goal of a strong mechanism is a clear definition of sanctionable behaviour and an objective measure of when the threshold for the imposition of sanctions has been reached. The ideal regime is one that does not need to be used.

For any rule of law protection regime to be dissuasive in advance, it must satisfy some basic criteria:

• It must be clear what kind of behaviour will trigger sanctions.
• The occurrence of sanctionable behaviour must be indisputable, ideally consisting of an objective triggering event.
• The seriousness of the sanctionable behaviour (the triggering event) must be obvious.

These criteria ensure that states know what to avoid and, likewise, what they must punish. In the end, a sanctions mechanism is only useful if the prospect of its being used is credible. This was never the case with the Article 7 procedure.

The 27 agreed in the end. Now they need to move fast to find credible means.

How would an article 19 mechanism work?

How might these principles be applied to an EU rule of law protection mechanism? Tying EU funding to the implementation of CJEU rulings relating to the rule of law would satisfy these criteria. This would provide an objective trigger, consisting of a confirmed and serious breach of EU law, followed by a strong reaction. Member states would know what to avoid – refusing to implement CJEU judgments.

Which CJEU rulings would trigger such a strong reaction? Given the concern about the rule of law as a precondition for the protection of all other rights there is a simple option: to make EU funding sanctions imposable in the event of the failure to implement a CJEU judgment finding a violation of Article 19 of the Treaty of the EU.

Article 19 requires Member States to "provide remedies sufficient to ensure effective legal protection in the fields covered by Union law." This is the cornerstone of the EU's legal order. It is also the Article that requires member states to ensure that their judicial systems effectively apply EU law. As the CJEU has noted

"Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court of Justice."

This is the Article on which the CJEU bases the requirement that national judiciaries be independent:

"… every Member State must, under the second subparagraph of Article 19(1) TEU, ensure that the bodies which, as 'courts or tribunals' within the meaning of EU law, come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection … The requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection".

There have been two such rulings finding a violation of Article 19: the two infringement proceedings relating to Poland's judicial reforms concluded to date, triggered by the most serious challenge to the rule of law in a member state in the history of the EU. These two rulings were complied with. Further infringement proceedings which go to the very core of the Polish government's remodelling of the judiciary are pending.  

Such a system would be complementary to, not replace, the need for other mechanisms. But it is a mechanism which the European Parliament and the Council should be able to agree on now. Crucially, it is also a mechanism the Council would be willing to use in the future.

There are advantages to a more expansive rule of law mechanism covering a wider range of offending behaviour. The more expansive the mechanism, however, the more hostage to political fortune its use becomes. This is why it is essential to ensure the strongest possible protection of the most important matter: the effective application of EU law by independent national judiciaries. So long as this is in place, the EU's legal order is preserved, and serious violations of other core values can be corrected. 

Unambiguous and non-political

It is crucial to have a rule of law protection mechanism that unambiguously and concretely protects national judiciaries and the effective application of EU law at the national level. A sanction system triggered by the non-implementation of CJEU judgments relating to Article 19 would satisfy all the key criteria for an effective mechanism: the threshold for sanctions would be clear, non-politically determined, linked to established violations of EU law and situated at the point at which the integrity of the EU and the interests of other members are unambiguously threatened.

Should a member state refuse to implement a judgement by the CJEU related to access to effective legal remedies the argument to suspend disbursements of EU funds until this situation is remedied would be overwhelming. And if this is a credible sanction it would hopefully never have to be used.

Such a mechanism would reaffirm the obvious: that the EU is a Union based on the rule of law, in which the highest court, the Court of Justice of the European Union (CJEU) has the legitimacy and responsibility to protect the Union's core values as expressed in its treaties. There should never be any doubt that when that court finds that a member state violates the requirement to guarantee the effective application of EU law and refuses to correct this, then sanctions will follow.

Reactions to this proposal in the past two weeks have been encouraging. However, timing is of the essence. The EU needs to find a consensus before a member state challenges the CJEU directly and refuses to implement an Article 19 judgement, leading to a constitutional crisis unlike any in decades. The sooner the EU acts, the better for every member state and citizens committed to its survival.

Best wishes,