Müller, Jan-Werner

<intR>²Dok

Sa 15 Mrz2014The Commission gets the point – but not necessarily theinstruments verfassungsblog.de /the-commission-gets-the-point-but-not-necessarily-the-instruments/Jan-Werner Müller Sa 15 Mrz 2014This week the European Commission issued a Communication about a new framework for protecting the rule oflaw within EU Member States.[1]  Is this the long hoped for mechanism that allows the EU to deal with internalthreats to liberal democracy (the democratic deﬁcits within Member States, so to speak) eﬀectively?  The clear-cut answer is: yes and no.The Commission has evidently understood that attempts systematically to undermine rule of law principlesrequire a diﬀerent response than individual infringement proceedings.  Depending on the circumstances, astructured process of naming and shaming which is now available to the Commission might work.  But if itdoesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms areenvisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new frameworkformalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de factoapproach in recent years.This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing lawand with available institutions such as the Fundamental Rights Agency.  It may well deter some governments. But for illiberal national politicians determined to go head to head with the Commission, there is in the end stillonly Article 7 TEU – and that remains as diﬃcult to put into eﬀect as before.The Commission’s initiative comes against the background of threats to liberal democracy in Hungary andRomania since about 2010 – and an acute sense among many observers (and also among political actors) thatthe Union has been ill-equipped to deal with a challenge one might call “constitutional capture.”  Constitutionalcapture is diﬀerent from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but itis also diﬀerent from individual rights violations, grave as the latter might be.  Constitutional capture aims atsystematically weakening checks and balances and, in the extreme case, making genuine changes in powerexceedingly diﬃcult. Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (acase of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantlytried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy,the President of Romania (this being a matter of attempting an informal constitutional capture).In both cases, the Commission got into a direct confrontation with the respective national governments. Whilethe EU arguably helped to avoid the worst, the experience seemed to point to a signiﬁcant weakness of theCommission as a guardian of the treaties: it could take governments to court for individual infringements of EUlaw, but it proved incapable of addressing systematic attempts to undermine the rule of law.  In some cases, itcould not “read” certain laws for what they were, but had to reinterpret them in an EU framework such that theirreal political meaning was oﬃcially missed.  When Orbán’s government eﬀectively decapitated the Hungarianjudiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination.Brussels won its case, but the judges were never re-instated; the political situation remained more or less asOrbán’s government wanted it.The Commission now explicitly makes the point that there can be systematic threats to the rule of law withinMember States and that Article 2 TEU gives the Commission, as the guardian of the treaties, the mandate tointervene.  The Commission also in plain words reiterates the basic legal and normative argument that is crucialto counter the claim that such an intervention somehow constitutes an illegitimate meddling in internal aﬀairs: theEU relies on the mutual trust of the Member States in each others’ legal systems; if a kind of “horizontal Solange”were to replace this trust, the EU as we know it would be at an end. Hence the Commission is spot-on instressing that “the conﬁdence of all EU citizens and national authorities in the legal systems of all other Member1/5States is vital for the functioning of the whole EU.”So far, so good.  But what is the concrete content of the new framework?  The Commission envisages a“structured exchange” with a Member State that appears to be undermining the rule of law. This would start withan assessment of the situation in a particular country, which could result in a “rule of law opinion” expressing theconcerns of the Commission vis-à-vis the national government in question.  If the government fails to respondappropriately, Brussels will issue a “rule of law recommendation;” if the state still fails to comply, “theCommission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU” (whichallows, at the limit, the suspension of a country’s voting rights in the European Council, imposing a kind ofnormative quarantine on a Member State).Three aspects are notable here: ﬁrst, the Commission gives itself leeway to draw on whatever sources itchooses for its assessment: the Venice Commission, the Fundamental Rights Agency, but also other, as yetunnamed sources.  This gives it a fair amount of power to come up with a comprehensive judgment – asopposed to mechanically working through checklists, as has too often been the case in accession processes, orentirely relying on one institution which the national government under suspicion might try to capture.Second, the Commission emphasizes the “duty of sincere cooperation” as set out in Article 4(3) TEU. Thisclearly reﬂects lessons learnt from the Orbán government’s rush to go ahead with the fourth amendment to thenew Hungarian “Fundamental Law,” when the Commission had asked it to take a pause and talk. A governmentacting in bad faith or deﬁance is presumably now more likely to be faced with a “recommendation” and,ultimately, an attempt to get the European Council to vote for Article 7.Third, the Commission seems to hope for the eﬀects of a kind of naming and shaming.  The fact of anassessment and a rule of law opinion will be publicly known, but the content won’t be; in the next step ofescalation, the recommendation as such would be made public.  Clearly, the Commission itself has drawn theconclusion that its very public conﬂicts with the Hungarian and Romanian governments helped to prevent theworst.Will the next Orbán think twice, then?  That’s not obvious. A government intent on constitutional capture knowsthat it is on a confrontation course with the EU – and, if anything, will try to mobilize public opinion againstBrussels even preemptively (and not care much about the views of other governments in the EU). Shamingmight sometimes work – but it is less likely to do so in the absence of credible penalties. And in this respect notmuch has changed: no new sanctions are envisaged, and the hurdles for Article 7 ultimately remain as high asbefore.  To be sure, the Commission might be making a bet that creating a public record of rule of law abuses –certiﬁed by everyone from the Venice Commission to prestigious judicial networks in the EU – and thus pushingthe European Council on the basis of a “reasoned proposal’ (as the Treaty puts it), would actually shame theEuropean Council into getting serious about Article 7.[2]  Still, because everything will come down to Article 7 inthe end, it would be a mistake to sit back and relax, in the knowledge that, across the Union, the rule of law willnow be safeguarded by the Commission. Further thinking and further action are needed.So let me suggest two further thoughts right away. First, if the Commission really were to become moreconsciously politicized – appearing as a quasi-government with a recognizably partisan agenda – for the sake ofincreasing the Union’s “democratic legitimacy”, then the whole conﬁdent self-presentation of the Commission as“objective” (something stressed a great deal in the Communication) would become much less credible. A SchulzCommission might go head to head with an Orbán government, but Orbán’s habitual argument that all criticismof his government is just a matter of the European Left going after a successful conservative revolutionary mightlook a touch more credible in the eyes of observers.Second, it might be unclear who makes the assessments, crafts the opinions, and issues the recommendations.Rival proposals – such as my colleague Kim Lane Scheppele’s idea of systematic infringement proceedings orthe creation of a Copenhagen Commission – suggest highly visible (and, ideally, prestigious) actors with aproven capacity for comprehensive legal and political judgment as ultimately making the calls. To be sure, theECJ and a Copenhagen Commission would also be open to charges of partisanship or excessive politicalsubjectivity, but much less so.  Furthermore, such rival proposals suggest not just intermediate mechanisms2/5(intermediate, that is, between soft power, i.e. persuasion, and Article 7), but intermediate penalties.  Any of this,it seems though, will have to be for the next Commission, and, ultimately, the next treaty.[1] I am grateful to Gábor Halmai, Dan Kelemen, and Kim Lane Scheppele for comments on a draft of this post.[2] Thanks to Kim Lane Scheppele for this thought.This week the European Commission issued a Communication about a new framework for protecting the rule oflaw within EU Member States.[1]  Is this the long hoped for mechanism that allows the EU to deal with internalthreats to liberal democracy (the democratic deﬁcits within Member States, so to speak) eﬀectively?  The clear-cut answer is: yes and no.The Commission has evidently understood that attempts systematically to undermine rule of law principlesrequire a diﬀerent response than individual infringement proceedings.  Depending on the circumstances, astructured process of naming and shaming which is now available to the Commission might work.  But if itdoesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms areenvisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new frameworkformalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de factoapproach in recent years.This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing lawand with available institutions such as the Fundamental Rights Agency.  It may well deter some governments. But for illiberal national politicians determined to go head to head with the Commission, there is in the end stillonly Article 7 TEU – and that remains as diﬃcult to put into eﬀect as before.The Commission’s initiative comes against the background of threats to liberal democracy in Hungary andRomania since about 2010 – and an acute sense among many observers (and also among political actors) thatthe Union has been ill-equipped to deal with a challenge one might call “constitutional capture.”  Constitutionalcapture is diﬀerent from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but itis also diﬀerent from individual rights violations, grave as the latter might be.  Constitutional capture aims atsystematically weakening checks and balances and, in the extreme case, making genuine changes in powerexceedingly diﬃcult. Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (acase of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantlytried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy,the President of Romania (this being a matter of attempting an informal constitutional capture).In both cases, the Commission got into a direct confrontation with the respective national governments. Whilethe EU arguably helped to avoid the worst, the experience seemed to point to a signiﬁcant weakness of theCommission as a guardian of the treaties: it could take governments to court for individual infringements of EUlaw, but it proved incapable of addressing systematic attempts to undermine the rule of law.  In some cases, itcould not “read” certain laws for what they were, but had to reinterpret them in an EU framework such that theirreal political meaning was oﬃcially missed.  When Orbán’s government eﬀectively decapitated the Hungarianjudiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination.Brussels won its case, but the judges were never re-instated; the political situation remained more or less asOrbán’s government wanted it.The Commission now explicitly makes the point that there can be systematic threats to the rule of law withinMember States and that Article 2 TEU gives the Commission, as the guardian of the treaties, the mandate tointervene.  The Commission also in plain words reiterates the basic legal and normative argument that is crucialto counter the claim that such an intervention somehow constitutes an illegitimate meddling in internal aﬀairs: theEU relies on the mutual trust of the Member States in each others’ legal systems; if a kind of “horizontal Solange”were to replace this trust, the EU as we know it would be at an end. Hence the Commission is spot-on instressing that “the conﬁdence of all EU citizens and national authorities in the legal systems of all other MemberStates is vital for the functioning of the whole EU.”3/5So far, so good.  But what is the concrete content of the new framework?  The Commission envisages a“structured exchange” with a Member State that appears to be undermining the rule of law. This would start withan assessment of the situation in a particular country, which could result in a “rule of law opinion” expressing theconcerns of the Commission vis-à-vis the national government in question.  If the government fails to respondappropriately, Brussels will issue a “rule of law recommendation;” if the state still fails to comply, “theCommission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU” (whichallows, at the limit, the suspension of a country’s voting rights in the European Council, imposing a kind ofnormative quarantine on a Member State).Three aspects are notable here: ﬁrst, the Commission gives itself leeway to draw on whatever sources itchooses for its assessment: the Venice Commission, the Fundamental Rights Agency, but also other, as yetunnamed sources.  This gives it a fair amount of power to come up with a comprehensive judgment – asopposed to mechanically working through checklists, as has too often been the case in accession processes, orentirely relying on one institution which the national government under suspicion might try to capture.Second, the Commission emphasizes the “duty of sincere cooperation” as set out in Article 4(3) TEU. Thisclearly reﬂects lessons learnt from the Orbán government’s rush to go ahead with the fourth amendment to thenew Hungarian “Fundamental Law,” when the Commission had asked it to take a pause and talk. A governmentacting in bad faith or deﬁance is presumably now more likely to be faced with a “recommendation” and,ultimately, an attempt to get the European Council to vote for Article 7.Third, the Commission seems to hope for the eﬀects of a kind of naming and shaming.  The fact of anassessment and a rule of law opinion will be publicly known, but the content won’t be; in the next step ofescalation, the recommendation as such would be made public.  Clearly, the Commission itself has drawn theconclusion that its very public conﬂicts with the Hungarian and Romanian governments helped to prevent theworst.Will the next Orbán think twice, then?  That’s not obvious. A government intent on constitutional capture knowsthat it is on a confrontation course with the EU – and, if anything, will try to mobilize public opinion againstBrussels even preemptively (and not care much about the views of other governments in the EU). Shamingmight sometimes work – but it is less likely to do so in the absence of credible penalties. And in this respect notmuch has changed: no new sanctions are envisaged, and the hurdles for Article 7 ultimately remain as high asbefore.  To be sure, the Commission might be making a bet that creating a public record of rule of law abuses –certiﬁed by everyone from the Venice Commission to prestigious judicial networks in the EU – and thus pushingthe European Council on the basis of a “reasoned proposal’ (as the Treaty puts it), would actually shame theEuropean Council into getting serious about Article 7.[2]  Still, because everything will come down to Article 7 inthe end, it would be a mistake to sit back and relax, in the knowledge that, across the Union, the rule of law willnow be safeguarded by the Commission. Further thinking and further action are needed.So let me suggest two further thoughts right away. First, if the Commission really were to become moreconsciously politicized – appearing as a quasi-government with a recognizably partisan agenda – for the sake ofincreasing the Union’s “democratic legitimacy”, then the whole conﬁdent self-presentation of the Commission as“objective” (something stressed a great deal in the Communication) would become much less credible. A SchulzCommission might go head to head with an Orbán government, but Orbán’s habitual argument that all criticismof his government is just a matter of the European Left going after a successful conservative revolutionary mightlook a touch more credible in the eyes of observers.Second, it might be unclear who makes the assessments, crafts the opinions, and issues the recommendations.Rival proposals – such as my colleague Kim Lane Scheppele’s idea of systematic infringement proceedings orthe creation of a Copenhagen Commission – suggest highly visible (and, ideally, prestigious) actors with aproven capacity for comprehensive legal and political judgment as ultimately making the calls. To be sure, theECJ and a Copenhagen Commission would also be open to charges of partisanship or excessive politicalsubjectivity, but much less so.  Furthermore, such rival proposals suggest not just intermediate mechanisms(intermediate, that is, between soft power, i.e. persuasion, and Article 7), but intermediate penalties.  Any of this,it seems though, will have to be for the next Commission, and, ultimately, the next treaty.4/5[1] I am grateful to Gábor Halmai, Dan Kelemen, and Kim Lane Scheppele for comments on a draft of this post.[2] Thanks to Kim Lane Scheppele for this thought.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Müller, Jan-Werner: The Commission gets the point – but not necessarily theinstruments, VerfBlog, 2014/3/15, http://verfassungsblog.de/the-commission-gets-the-point-but-not-necessarily-the-instruments/.5/5

The Commission gets the point: but not necessarily the instruments

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The Commission gets the point: but not necessarily the instruments

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