Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism

If The Decline and Fall of the European Union is ever written, historians will conclude that the EU’s two key intergovernmental institutions – the European Council and the Council – should bear the greatest responsibility for the EU’s demise. As illiberal rot spread throughout the Union, eating away first at one government and then at another with centralizing autocrats destroying the rule of law in plain sight, history will show that both the European Council and the Council of Ministers failed to act and, in the end, deferred to national autonomy instead of defending the Union’s fundamental values. The EU is facing an existential crisis because Member governments refuse to recognize that the common values are the cornerstones of their common project. Democracy, human rights and the rule of law are more than simply normative aspirations; they are in fact central to the operation of the European Union. If the EU fails to defend its common values, the EU won’t merely fail as a normative project, it will cease to function. But the Council appears unable to act to defend the rule of law and democracy, while the European Council has been doing its best to look the other way.

Regrettably, we now need to add the Council’s Legal Service (hereinafter: CLS) to the list of key EU actors that seem intent on ignoring the existential threat to the Union posed by the spreading rule of law rot amongst EU member governments. In a (non-public) opinion on the proposed regulation of the Commission to create rule of law conditionality in the multi-annual financial framework (MFF) adopted on 25 October 2018 (and first reported here), the CLS indeed put forward multiple unpersuasive legal arguments to claim that the Commission’s proposal as it currently stands cannot be adopted. In particular, the CLS is of the view that the conditionality regime envisaged in the Commission’s proposal “cannot be regarded as independent or autonomous from the procedure laid down in Article 7 TEU.”

While the MFF may seem like a highly technical subject, budgets are the best indicators of what organizations value. The European Structural and Investment Funds (ESIFs) are the monetary transfers that redistribute funds across the Union in order to reduce disparities between regions and to promote economic and social cohesion. The Union’s established autocracy and its most clearly nascent one – Hungary and Poland – are, respectively, the largest per capita and the largest absolute recipients of ESIFs. As EU funds keep flowing to these two countries, Viktor Orbán and Jaroslav Kaczynski are not only emboldened, but also subsidized, as they undermine the basic moral and legal foundations of the EU through, for instance, their systemic attempts to annihilate judicial independence. This is why a number of key actors in the EU – for example, the European Parliament, the German government, and European Commissioner for Justice Vera Jourová – have been wondering aloud why the EU goes on paying for autocracies in the EU’s midst. Gradually the debate has centered on how to stop the flow of funds to Hungary and Poland – and eventually to any state that might head down that path – so that at least EU funds are not used to undermine EU values.

The Commission’s proposed regulation would allow it to suspend or redirect funds to a Member State on the grounds that it has a “generalised deficiency as regards the rule of law” (in the words of the draft regulation). According to the CLS, however, the Commission’s proposal needs a massive overhaul if it is to comply with the Treaties. The CLS helpfully and correctly noted that the Commission is not in principle barred from attaching conditionalities to the distribution of EU funds – and pointed out that indeed such conditionalities already exist in a number of different legal authorities established as EU secondary law. The CLS opinion also agreed that Article 322(1)(a) TFEU “is the correct legal basis for the establishment of a genuine conditionality regime of a general character.”

But the CLS also argued that the Commission’s proposal to make EU funds conditional on observing the rule of law was not compatible with the Treaties because withholding EU funds in this case would (allegedly) tread on the territory covered by Article 7 TEU. In the view of the CLS, Article 7 is the lex specialis for Article 2 TEU and no other legal authority can cover the same ground. The CLS also objected that, by failing to put Member States on more precise notice about just what would get a state into trouble under the proposed regulation and why those precise weaknesses in the rule of law violations would necessarily lead a state to mismanage EU funds or threaten the financial interests of the EU, the Commission did not use conditionality mechanisms appropriately.

The real purpose of the CLS opinion was clear: It aimed to establish that while the Commission was well within its power to prevent EU funds from being misspent, the Commission was powerless to prevent the basic values of the EU from being subverted. That task, instead, remained the sole preserve of the Council.

In the rest of this post, we will explore what the CLS said and why they got it so wrong.

1. Article 7 TEU as the Only Enforcement Mechanism for Article 2 TEU

According to the CLS, Article 7 TEU is the only mechanism available under the Treaties for enforcing the values of Article 2 TEU. Moreover, says the CLS, Article 7 is a complete and comprehensive procedure to which nothing can be added. Agreeing with an earlier opinion of the Commission that the invocation of Article 7 is not limited to the scope of EU law, the CLS used this fact to bolster its argument that no other sanctioning mechanism can be used to ensure Member States comply with Article 2. Because of the wide sweep of Article 7 and the potentially legally significant consequences for a Member State subjected to Article 7 sanctions, the CLS argued that the Commission may not use budget conditionality to circumvent the safeguards of multi-institutional and supermajority approval built into Article 7: “Secondary legislation may not amend, supplement or have the effect of circumventing the procedure envisaged in Article 7 TEU” (para. 13).

The CLS is mistaken about the nature of Article 7 in many ways. First, Article 7 cannot be considered a single procedure: it instead provides for two procedures to deal with two different factual situations (risk of a breach and a breach) and there is no obligation, for instance, to activate the preventive procedure laid down in Article 7(1) before triggering the sanctioning procedure laid down in Article 7(2) and (3).

More decisively, the CLS is deeply mistaken in its insistence that Article 7 is the only way to enforce Article 2. Consider a helpful metaphor. If your city has a fire department to put out fires that might destroy not just your house, but also the houses of your neighbors (as Article 7 was designed not only to prevent damage to the offending Member State, but also to its neighbors in the EU), then does this mean that ONLY the fire department may be called when there is a fire? Certainly not. We might take the establishment of a fire department as a sign that it is so important to control fires that the state has a special responsibility in this regard, but this does not mean that other actors who detect the outbreak of a fire are prohibited from intervening to squelch the flames before they spread. The fire department is the last and most powerful resort, not the first and only one when it comes to preventing a spreading threat. Similarly with Article 7. If values violations can be stopped before they spread and destroy the neighborhood, then at a minimum the institutions charged with enforcing EU law should try to stop the conflagration before it is necessary to call on the Article 7 fire department. Article 7 is there when all else fails. But all else will fail if others don’t share the responsibility for putting out fires when they start.

In fact, the ECJ has already subscribed to the fire department model of Article 7. Having pledged to uphold the Article 2 values when they joined the Union, all Member States have obligations to do what they can to uphold these values – including putting adherence to values above and beyond following the black letter of secondary law. Moreover, it is not just Member States but their component institutions that share this obligation. It is hard to make sense of the ECJ’s judgments in Aranyosi and Celmer in any other light. In both cases, referring judges were told that they must avoid sending a person to another Member State if they believe that the person’s rights would be put at risk with the transfer. Values – including the protection of rights guaranteed in Article 2 – must come above compliance with the European Arrest Warrant. These ECJ decisions empower every single judge to uphold EU values by making exceptions to the general obligations of EU secondary law. Why should it be any different for the institutions of the Union which, after all, also have obligations to uphold the basic values of Article 2? Surely if any national judge can interpret EU law in light of EU values and set aside ordinary legal obligations to ensure the realization of those values, the Commission should – indeed must – be able to do so too.

In our view, all EU institutions must commit to and act upon preserving the values of the Union. For the CLS to insist that the Commission is violating the Treaties when it tries to protect EU values is the worst sort of legalism. (Unfortunately, this is not the first time this has happened: in 2014, the CLS argued that the Commission’s 2014 “pre-Article 7 procedure” would not be “compatible with the principle of conferral which governs the competences of the institutions of the Union.” This opinion has however been almost unanimously criticised for its weak reasoning by Professors Baratta; Bogdandy et al; Besselink; Hillion; Kochenov & Pech,Oliver and Stefanelli among others). To continue the fire department metaphor: if no one can legally do anything to fight fires because only the fire department has this power, the neighborhood will burn to the ground before the fire is contained. In our present context, the rule of law is seriously threatened in two Member States because the signature element of the rule of law is the independence of the judiciary, and the governments of Poland and Hungary have fired judges, packed courts with political loyalists, limited the jurisdiction of courts, and established disciplinary procedures for judges when those judges fight the government’s attempts to control them. It is hard to imagine a more comprehensive destruction of the rule of law and a bigger threat to the integrity of the EU, which relies on law above all else.

This suggests another reason why Article 7 cannot be the only mechanism for enforcing Article 2. Under Article 7(2), a unanimous agreement of all Member States save the one in question is necessary for sanctions to follow. But if there are two Member States in violation of EU’s basic values, does this mean that both states get a free pass – as if there is a bulk discount for norm violation? As one of us has argued, the principle of effet utile should allow the Article 7(2) voting procedure to exclude any Member State that has been sanctioned under Article 7(1) so that no fellow-traveler vetoes are permitted. But, of course, it would be far better if any Member State headed in that direction could be diverted back to the rule of law before the damage from its conduct spread to other states. If, as the CLS insists, Article 7 must be interpreted literally as the only authority to put out fires in the EU, then the fact that there are two fires burning at once means that no fire trucks will be dispatched at all. Article 7 has to be understood as one way to solve a serious problem in the EU, not the only way to address it.

It simply does not follow from the language of Article 7 that the other institutions of the EU cannot or should not work in concert to prevent rule of law violations from occurring in the first place or from spreading when they do. In fact, the CLS opinion almost admits as much. It notes that the Commission can, of course, bring infringement actions against Member States for violating EU law under Article 258 TFEU and that Member States can bring actions against each other under Article 259 TFEU as well. Both sorts of actions can be accompanied by serious sanctions for non-compliance with ECJ judgments under Article 260 TFEU. If some potential infringement might bear on the rule of law, does that mean that the Commission or another Member State is barred from bringing the infringement action because Article 7 is lex specialis for Article 2? The logic of the CLS opinion seems to suggest as much. But clearly that would be a preposterous result.

The CLS is moving in the opposite direction of other EU institutions, where real challenges to Article 2 value have been met with responses that make Article 2 more rather than less enforceable outside the framework of Article 7. While commentators had once generally taken as common wisdom that Article 2 values could not be enforced directly by the ECJ, the ECJ itself has already disabused commentators of that notion. In the Portuguese judges’ case decided in February 2018, the ECJ invoked Article 19(1) TEU together with Article 2 TEU to arrive at the logical conclusion that each Member State had a direct obligation under EU law to guarantee the independence of its national judiciary. As the ECJ said in that case: “Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals.”

The legitimate spread of Article 2 enforcement across the institutions of the EU did not stop with the ECJ’s invocation of it. Having previously eschewed referring to basic values in its infringement actions, the Commission promptly took the hint and brought an infringement action against Poland for violating Article 19(1) through its systemic attempt to annihilate the independence of the Polish judiciary – and when Polish authorities refused to halt the purge of Poland’s Supreme Court, the Commission returned to the ECJ to ask for interim measures to ensure that the independent Supreme Court judges could remain in their jobs until the matter was judicially settled. The ECJ agreed and