Rule of Law vs. Poland and Hungary – an Inconsistent Approach?

Abstract

The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.

Protection of Rule of Law While Protecting Rule of Law

“…7 and Art 50 TEU were introduced as a safeguard ultima ratio. Due to this optimistic optics, the TEU does not contain any provisions on expulsions of a Member State from the EU (Circolo, 2022) and backsliding of the level of alignment to the values of the EU, or more precisely deviating from them via systematic measures undermining democracy and rule of law (Anders and Priebus, 2021;Daminova, 2019;Gatta, 2019;Komanovics, 2022, p. 131;Martín Arribas, 2022).…”