Defusing an Atomic Bomb

The sigh of relief was audible throughout Europe. In Brussels and other European capitals, the victory of the opposition bloc in the Polish elections sparked hope that the imminent change in government would end the illiberal course of the past. Yet, one should be careful. Years of democratic backsliding have left lasting marks on Poland’s political and legal landscape. Undoing this constitutional havoc will be a Herculean task and is bound to raise many legal questions. Still,the newly elected government is clearly committed to leading Poland back onto the path of democracy and the rule of law. Accordingly, a change of course is likewise expected from the institutions of the European Union. For one thing, the number of cases on rule of law infringements reaching the Court of Justice of the European Union (CJEU) will most likely decrease in the near future. Moreover, we may also expect an end to the deadlock regarding the funds from the Recovery and Resilience Facility reserved for Poland. Despite these promising signs, one pertinent institutional issue remains to be resolved: the still pending procedure against Poland under Art 7 TEU.

The Constitutional Incompleteness of Deterrence

Art 7 TEU has often been depicted as a nuclear option, to be drawn to ensure the Member States’ commitment to the values of the Union (Art 2 TEU). However, like any good nuclear deterrent, Art 7 TEU was never really meant to be triggered. Accordingly, very little thought was devoted to the question of how the procedure would operate in practice. EU primary law only provides a general procedural framework, leaving important practical aspects open. Two blank spots are particularly glaring: First, primary law is silent on how the hearings should be conducted. Second, and more importantly, we do not know from the Treaty text how a (pending) procedure under Art 7 TEU should and could come to an end. Yet, with the expected – and hoped for – Polish rule of law-renaissance, the latter question will come to the fore rather sooner than later.

Institutionalized Inaction – Article 7 TEU as a Forever Sleeping Beauty?

As is well known, the Commission eventually decided to trigger Art 7 para 1 TEU in 2017. However, the supposed nuclear option has turned out to be a dud rather than the explosive device many thought it to be. The Council has remained, save for holding a limited number of hearings, largely inactive — very much to the dismay of the European Parliament. Now, a rather obvious and straightforward reaction to the wind of change in Poland could be to simply keep the proceedings under Art 7 para 1 TEU in their byzantine state of limbo – the Commission not asking the Council to proceed with any sort of hearing or decision-making and the Council following suit. This way, the nuclear option would turn into a forever sleeping beauty. However, this approach is problematic because Art 7 para 1 TEU, even as a sleeping beauty, is not as moribund as one would like it to be. It is important to recall that already the opening of the proceedings under Art 7 para 1 TEU produces certain legal effects. Most significantly in practice, the stated reasons of the proposal have particular weight in establishing whether or not the situation in a Member State amounts to a systemic rule of law deficit. Therefore, the existence of the stated reasons could undermine the presumption of mutual trust. The indicative attribution of a systemic deficit – even though it is only part and parcel of the broader assessment – is not simply cast aside by the fact that the process is dormant. Unlike infringement proceedings, which sometimes remain comfortably in the pre-litigation state for years or even decades, the procedure under Art 7 TEU cannot just enter into a state of hibernation. This seems all the more true when the facts on the ground have changed substantially. If the proceedings under Art 7 para 1 TEU are not ended, the mourned deficits seem to persist. Worryingly, this situation creates an environment of legal uncertainty (see also Opinion by AG Bobek, Case C-650/18, Hungary v Parliament, para 100).

A Controlled Detonation by the Council?

One way to provide legal certainty and formally close the proceedings would be for the Council to finally take action. If the Council were to vote on the Commission’s pending proposal but not reach the necessary majority of four-fifths, that would be the end of the matter. After all, the Council’s policy options under Art 7 para 1 TEU are limited to a binary choice: either, there is a clear risk of a serious breach of the EU’s values, or there is none.

Such an abrupt ending of the procedure may be legally feasible. Yet, given the mood music in Brussels and the broader implications for the ongoing rule of law-struggles in other Member States, there seems to be little inclination to go down this inconsequential route.

A more creative but also more demanding path would be for the Council to establish that a clear risk of a serious breach of the EU’s values existed. With a little twist in the perspective – thereby obfuscating the binary decision-making structure – the Council could take a decision that, at the time of the Commission proposal and in light of the hearings thereafter, there was indeed a clear risk of a serious breach of EU values but that, as of now, it considers the matter settled. Undoubtedly, going this way would formally end the proceedings under Art 7 para 1 TEU, and even earn the Council some extra points for legal creativity. Nonetheless, it seems unlikely that the Council will pursue this avenue. First, the purpose of Art 7 para 1 TEU lies in prevention. Since the rule of law in Poland was already in decay when the Commission made its proposal, it was, in light of its wording, debatable from the very beginning whether Art 7 para 1 TEU was the right choice. Invoking Art 7 para 2 TEU might have been the more appropriate course of action. But to retroactively establish that there used to be a clear risk of breach of EU values would turn the preventive nature of Art 7 para 1 TEU on its head and most definitely go beyond what the Council may do on the basis of para 1. Second, and more relevant in practice, the Council would not only have to act by a four-fifths majority. It would also need the prior consent of the European Parliament, based on a two-thirds majority (Art 7 para 5 TEU, Art 354 TFEU). In light of the experience so far, it seems very unlikely that the Council and the European Parliament – with the former having done everything it could to thwart the position of the latter in the course of the proceedings – could establish a common understanding necessary for such a more creative detonation of Art 7 para 1 TEU.

The Act of Un-Triggering: All Eyes on the Commission

Lastly, one option remains to close the proceedings under Art 7 para 1 TEU. The initiator of the procedure – the Commission, in the case of Poland – could set an act to the contrary (actus contrarius) and withdraw its original proposal. Given the Council’s previous reluctance to take any significant action, it might not be too unhappy about a decision of the Commission to retract the initial proposal and end the proceedings under Art 7 para 1 TEU.

The critical issue in this – in our view – most likely scenario are the conditions and substantive requirements the Commission has to fulfil to perform such an actus contrarius.  In accordance with Art 293 para 2 TFEU, “the Commission may alter its proposal at any time during the procedures leading to the adoption of a Union act.” It may also withdraw its proposal altogether. Yet, the right to withdraw a proposal is relative, as a withdrawal must “be supported by cogent evidence or arguments” (CJEU, Case C-409/13, Council v Commission, para. 76).

And here, the Commission might easily find itself between a rock and a hard place.

On the one hand, it is hardly conceivable that a change of government itself suffices as “cogent evidence or arguments.” Since the opening of the proceedings was preceded by the formulation of objective criteria laid down in the so-called “rule of law mechanism”, the closing of the proceedings should likewise be based on an objective assessment of the situation and a respective set of criteria which back up the argument that Poland is returning to the rule of law.

On the other hand, the Commission must also consider that imposing all too strict conditions for the closure of the proceedings might prove counterproductive. As reshaping the constitutional landscape in Poland will be no mean featand inevitably take some time, it might prove frustrating for Poland to be confronted with all too harsh demands before the Commission decides to withdraw its initial proposal. Setting an all too high threshold might be politically detrimental.

Hence, when deciding upon the closing of the procedure under Art 7 para 1 TEU, the difficulty clearly lies in striking a balance between providing “cogent evidence and arguments” and taking due regard of the political realities on the ground. Following a clear strategy and avoiding the impression that the opening and closing of the procedure is subject to political bargaining is all the more critical, given that one other Member State monitors the Commission’s actions very closely.

Conclusion: The Complexity of Defusing

Although there is a strong urge to do everything to finally end Poland’s pariah status and bring it back into the fold, a Union based on the rule of law must not relent on its values.

On the whole, defusing the nuclear option might thus prove more complex than triggering it.