The Rule of Law Report 2022 tracks key rule of law developments in all Member States. In response to these proposed measures, the European Commission lodged a complaint with the CJEU in July 2018 as part of the anti-infringement procedure. In his April 2019 Opinion to the Advocate General of the Court of Justice, it was found that legislation lowering the retirement age of Supreme Court judges violated the principles of irremovability of judges and independence of the judiciary. The Polish Government complied with this conclusion in accordance with the ECJ`s accelerated procedure. The CJEU confirmed this conclusion in its judgment of 24 June 2019. In a second case brought by the Commission, the CJEU ruled on 5. In November, a law lowering the mandatory retirement age for ordinary court judges – to 65 for men and 60 for women – was incompatible with EU law. We would like to support the (full) second reading of the regulation, as we are convinced that the violation of the principles of the rule of law `seriously affects or threatens` the EU budget in many respects. Consequently, the interpretation of a `sufficiently direct route` linking the infringement to the EU budget must necessarily be broad. After this understanding, we show how the exact amount of the appropriate monetary penalty (in the terminology of the “measure” regulation) can be determined. More specifically, we propose that the principle of proportionate financial measure enshrined in the new EU Rule of Law Mechanism be underpinned by an improved EU Justice Scoreboard, based on indices to strengthen the rule of law. The delicate issue of quantity determination could also be supported by quantitative data. This is important because the Commission will be under strong political pressure when acting under the new rule of law mechanism.
The possibility of relying on an improved rule of law management system, which provides clear data on rule of law violations in EU Member States based on independent expert opinion, would significantly strengthen the Commission`s position on accusations of politically motivated action. The network of National Rule of Law Contact Points, established in 2020 to support the establishment of the mechanism, continues to serve as a permanent channel of communication with Member States for the preparation of the report and the exchange of best practices. The proposed measures, set out in the Commission`s Rule of Law concept of 17 July, are based on European Parliament (EP) resolutions calling for a stronger EU position on the rule of law, recent CJEU rulings and the strong support of Ursula von der Leyen, as well as the two unsuccessful candidates for Commission presidency. Manfred Weber and Frans Timmermans. The full implementation of these measures should be an important area of work for the future Commission. `The principle of proportionality should apply when determining the measures to be taken, taking into account, in particular, the gravity of the situation, the time which has elapsed since the beginning of the conduct in question, the duration and repetition of the conduct, the intention and the degree of cooperation of the Member State concerned to put an end to breaches of the principles of the rule of law, and the impact on sound financial management of the Member State. the Union or the financial interests of the Union. Under this regulation, the Commission would be empowered to recommend to the Council to reduce EU funding in a “proportionate” manner on the basis of evidence of generalised deficiencies as regards the rule of law in a Member State. Such measures could include the suspension or reduction of appropriations under existing commitments or the prohibition of new commitments for certain categories of beneficiaries. The Regulation provides for procedures for the immediate lifting of measures if the Member State can prove that the non-compliance has been remedied.
In addition, Article 7 TEU provides for two mechanisms to uphold Union values in cases of systematic infringements and to sanction Member States. The preventive mechanism is provided for in Article 7(1) TEU and the penalty mechanism provided for in Article 7(2) TEU. However, these mechanisms require a high decision-making threshold in the Council (4/5 majority), the European Council (unanimity) and the European Parliament (2/3 majority) and depend heavily on the willingness of Member States to act. If there is only one state blocking the procedure in the European Council, it is ineffective. The Member States concerned could also appeal to the CJEU at any stage of the Article 7 procedure. The procedure could therefore take years, which does not make Article 7 TEU a particularly effective instrument for resolving conflicts within the EU. The new President of the Commission, Ursula von der Leyen, has included in the programmatic political guidelines of her presidency an explicit commitment to step up efforts to uphold the rule of law. She called for the establishment of an additional comprehensive European Rule of Law Mechanism, applicable in all Member States and providing a coherent approach to the Commission`s monitoring and reporting on each Member State. She cited recent CJEU rulings as a basis for affirming the Commission`s competence as guarantor of the rule of law.
It also endorsed the proposal to make the rule of law an integral part of the Multiannual Financial Framework 2021-2027. It remains to be seen whether the willingness to compromise, especially on the part of Member States such as Poland and Hungary, will actually increase with the new rule of law mechanism. The new toolbox will build on the main decisions of the CJEU in 2018 and 2019 and will take a strategic approach to addressing rule of law challenges by initiating infringement proceedings before the CJEU. In a 2018 case (related to a pay dispute between judges in Portugal), the CJEU ruled that member states are “obliged under Union law to ensure that their courts meet the requirements of effective judicial protection” and that “the independence of national courts is essential to ensure such judicial protection”. This judgment underpinned subsequent decisions on certain aspects of Polish judicial reform. In September 2021, the CJEU ordered Poland to pay €500,000 (about $500,000) in damages to the Czech Republic for the illegal exploitation of an open-pit lignite mine. After Poland refused to pay the fine, the European Commission announced that it would suspend payments from the EU budget to Poland. In addition, as mentioned above, due to this refusal and other violations of the rule of law, he sent informal letters to Poland and Hungary threatening to activate the new mechanism for the first time in 2021.
In October 2021, Poland and Hungary both filed a lawsuit to annul the new rule of law mechanism, claiming that the rule of law mechanism was incompatible with their laws and calling on the EU to respect the sovereignty of its member states by not interfering in what they consider to be internal affairs. The European Commission has decided not to activate the conditionality mechanism until the CJEU has issued its decision. The European Parliament therefore brought an action for failure to act under Article 265 TFEU against the European Commission. In February 2022, the CJEU confirmed the legality of the 2021 conditionality mechanism and ruled against Poland and Hungary. The Commission then activated the conditionality mechanism against Hungary in April 2022. The European Parliament therefore decided to withdraw its complaint against the Commission in June 2022. On 13 July 2022, the European Commission published its third annual rule of law report under the Rule of Law Mechanism, which covers the rule of law in the European Union (EU) as a whole and in individual Member States. In addition, specific recommendations for each Member State were included for the first time.
The rule of law is one of the EU`s fundamental values and there are several mechanisms to protect it. Since the beginning of 2021, an additional rule of law protection mechanism has been fully in force. This FALQ examines what these and other mechanisms are to protect the rule of law, including how the EU financially penalizes violations of its fundamental values. The stronger position of the Eurosceptic right in the newly elected Parliament could favour efforts by some member states to force a withdrawal of EU ambitions in order to maintain a uniform standard of judicial independence in all member states. However, the loss of seats by the centre-right and centre-left was offset by gains by the Renew Europe (liberal) and Green groups, which generally support a common EU defence of fundamental principles such as the rule of law. The right-wing nationalist Identity and Democracy faction in parliament claims to have been decisive in the election of Ursula von der Leyen and can hope to exert influence on the implementation of her programme.