The Shared Values of the Member States of the European Union according to Article 2 of the Treaty of the European Union and Instruments for their Enforcement

Dana Schneider, Ph.D. student and research assistant at Goethe University Frankfurt¹

1. Introduction

The European Union (EU) is specific – probably unique – insofar that it is on the one hand an international organization based on a treaty of states like many other organizations including the UN or ASEAN, but that it has on the other hand legal elements that are normally only found in federal states and resemble constitutions of such states. The character of a treaty-based organization is clearly expressed in Article 1 paragraph 1 of the Treaty of the European Union (TEU):

„Article 1

By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called ’the Union’ on which the Member States confer competences to attain objectives they have in common.”

However, there are legal elements that go beyond normal international organisations of states and that allow to speak of a „supranational association” of the Member States. The most important element is probably that the European primary law – especially the TEU and the Treaty on the Functioning of the European Union (TFEU) – and some of the legislation by the EU organs (the secondary EU law) is immediately binding law within the Member States and can be the basis for control of national law and national administrative or judicial activities within the Member States by the European Court of Justice (ECJ).

Another element, reminiscent of a constitution shall be the focus of this text. According to Article 2 TEU

„the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

This is not meant to be just a declaration of ideas shared between the contracting parties as one might find them in a preamble to a treaty. It is part of the TEU as binding primary law, and it has even a specific instrument of enforcement in Article 7:

„Article 7

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.
4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.”

The procedure provided for in Article 7 is complicated, and it is obvious already at first glance that it will be extremely difficult to get through all steps necessary to reach a decision under paragraph 3 suspending member states’ rights. Still, it is clear from the sanctions that Article 2 imposes legal obligations. It is also clear that a breach of values referred to in Article 2 by a Member State can be committed in legal fields outside the scope of competences of the EU. Therefore, by entering into the TEU, the Member States have agreed to legally bind themselves to generally uphold certain values in their behaviour and to submit themselves to fairly severe legal consequences in case of a severe violation of that duty.

We will discuss

–      the vagueness problem of Articles 2 and 7 TEU,

–      some practical reasons which will make it unlikely that Article 7 TEU will ever come to the final result of being the legal basis for suspensions of Member States’ rights,

–      and some proposals for alternative ways of enforcing or at least improving orientation towards the values of Article 2 by the Member States.

2. The substance of the values of Article 2 TEU as application criteria of Article 7 TEU

Article 2 TEU is vague in several regards. This would even be true, if it were about determining the meaning of such terms as human dignity, freedom, democracy, equality or rule of law within one state with one constitutional framework giving systematic guidelines for interpretation. Here however, it is much more difficult to determine the substance of these broad principles considering the differences between all 28 EU members with regard to constitutional structures, political traditions or judicial theory and practice. Therefore, interpretation would have to start with determining what is „common to the Member States” with respect to these values as it is postulated in Article 2, i.e. the „lowest common denominator”. Moreover, even those cannot be understood to be static. Such vague principles have to be open to developments in order to be able to process experiences and to meet new challenges. This is true for constitutional principles in a single constitutional system, and even more so for principles that form the basis of 28 constitutional systems.

However, there are certain concretizations of these values, which arguably nobody would deny to be part of their substance. For example, most will agree that, at least in the context of the European Union „democracy” as part of the Member States’ constitutional structure implies a government legitimated by majority consent expressed in formal voting, or that rule of law demands a legitimization of infringements of rights by law of the state allowing such infringement and a control of that condition by a sufficiently independent judiciary, or that the principle of equality is ignored when different treatment of comparable situations is arbitrary. With regard to human rights, there is an even greater chance to find fairly detailed answers to what is ought to be respected by all EU Member States, for here it is possible to rely to a certain extent on the fact that all Member States are also signatory states or have acceded to the European Convention on Human Rights (ECHR) and have thus submitted themselves to the jurisdiction of the European Court of Human Rights (ECtHR).

Notwithstanding, there are vast areas where it is possible to have different opinions on whether a Member State’s law or practice is still within the scope of the shared values of Article 2. This vagueness has a direct and obvious impact on the scope of the application of Article 7 TEU. Even if the requirement „serious” in Article 7 is interpreted as not only referring to the intensity of violation or breach of a value of Article 2, but is also understood to include the clarity of such violation or breach, doubt and dispute will remain as to the pre-condition for the application of Article 7. And in practice, there has been such dispute.

The latest discussion raising questions regarding the shared values referred to in Article 2 TEU has arisen after the last parliamentary election in Poland in October 2015 which had brought about a huge shift to a national-conservative and more EU skeptical government.² The specific conflict was about legislation aiming at quickly changing the majority-minority relationship within the Polish Constitutional Court, arousing suspicion of violating the principle of rule of law at the European Commission as well as the European Parliament.³ imilar critique came about, since, some years ago, there had arisen a shift of policy in Hungary.⁴

3. Article 7 TEU – an instrument for political promotion, but hardly for legal enforcement of the shared values

The conflict about the developments in Poland after the last election is a good example for the problems of effectively using Article 7 TEU, which is the only instrument provided in the treaty explicitly dealing with breaches of values mentioned in Article 2. Article 7 provides for a gradual system of several levels of intervention. On the first level, the Council⁵ can take two different routes. It can either adopt a declaration that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. This has to be proposed by either one third of the Member States, or by the European Parliament or by the Commission. The decision has to be taken by a majority of four fifth after obtaining the consent of the European Parliament. It has to be preceded by hearing the Member State in question. Or, instead of adopting that declaration, the Council can – acting in accordance with the same procedure – also address recommendations to the respective State. These are already to separate steps which can and probably will be taken one after another. In both cases the majority decision of at least four fifths, which is taking place and counted without the Member State in question, needs to be consented by at least 22 out of 27 Member States.

Whereas there is no direct legal effect on the first level, decisions on the second level have legal consequences. According to Article 7 paragraph 2 TEU, the European Council⁶ can decide to adopt the declaration that there exists a serious and persistent breach by a Member State of the values referred to in Article 2. This decision must be proposed by one third of the Member States or by the Commission, be taken unanimously after having invited the Member State in question to submit its view and be consented by the European Parliament. Therefore, every Member State except the one concerned has a veto position. In the actual conflict with Poland, the Hungarian Prime Minister has already declared publicly that Hungary will not agree to such step.⁷ As long as this does not change, all other Member States and all EU organs will not be able to use Article 7 as an instrument of enforcement.

If however a decision based on paragraph 2 has been adopted, the door is opened for level three. Then, the Council, acting by a qualified majority, defined in Article 354 paragraph 2 and Article 238 No. 3 lit b TFEU^8, and without needing any support by other EU organs may decide to suspend any rights under the TEU or the TFEU of the Member State in question, including the voting rights in the Council, whereby, however, all duties of that Member State under the Treaties remain in force. So, on this last level, the legal consequences can be extreme, practically stripping the Member State in question of all its rights under the EU treaties. Moreover, Member States that might be hesitating could be outvoted more easily than on the previous levels.

This will certainly be taken into account by Member States when deciding on the second level, thus reducing the probability that a unanimous decision will ever come about on that second level. These complications show why this particular decision has been compared to the decision to use nuclear weapons^9, which can only mean that it will almost certainly never be taken. In conclusion, it can be said that Article 7 TEU is not a practical instrument to force Member States to come back to the ground of the values of Article 2. The only situation realistically imaginable for using the two severe levels is that of separation in conflict where all other Member States have given up the hope for a return to these values and are using the Article 7 mechanism as an instrument to get rid of the noncompliant State.

However, Article 7 TEU can be used as a political instrument. The discussions within the EU institutions and in the general public, connected with the use of Article 7 can have and certainly are intended to have feedback effects in the country in question. Developments that cause doubts about adherence to the values of Article 2 TEU are usually and have always been causes for conflicts in the country. And it is a political question depending on all factors relevant to the circumstances of the case, whether „soft” interventions like public discussions about just the possibility of applying Article 7 and about reasons for and against it can impress the governments concerned and can help domestic oppositions to regain sufficient strength to overcome the conflict situation.

4. Motions and proposals to supplement the Article 7 TEU mechanism

The dilemma of Article 7 TEU to be either with no or with too grave legal effects has been in discussion for many years. It has already been the focus of President Barroso’s speech mentioned above and has been analysed as the „Copenhagen dilemma” by then Vice-President of the European Commission and EU Justice Commissioner Viviane Reding in 2013¹⁰. By invoking this term, Reding reminded of the criteria for new EU members which had been agreed upon at the meeting of the European Council in Copenhagen in 1993 – therefore called the „Copenhagen citeria”.¹¹ These criteria included conditions related to what are now the values of Article 2 TEU.

Most of these ideas remain on the level of „soft” political influence. The most developed and probably most influential instrument is certainly the „EU Framework to strengthen the Rule of Law”, which has been developed and published by the Commission in 2014 formalizing the Commission’s activities before starting to apply its competence under Article 7 paragraph 1 TEU.¹²

The only proposal for a legally binding enforcement of the values of Article 2 TEU without having to change the EU Treaties is the recommendation that the EU Court of Justice should adopt and apply a doctrine which the authors of that proposal call the „Reverse Solange” approach.¹³ This name reminds of a doctrine of the German Constitutional Court (Bundesverfassungsgericht) in the early days of the then European Economic Community (EEC). In a case of 1974, the Court had decided that it would control European law, legally effective in the Federal Republic of Germany, in the light of the basic rights catalogue of the German Basic Law (Grundgesetz) although European law had already been understood to be superior to national law of the Member States and binding upon all their national courts.¹⁴ The analogy to the old German jurisdiction lies in the parallel approach of not respecting the official European law doctrine – in the German „Solange 1″ case the superiority of European law and in the „Reverse” proposal the limitation of European law with regard to national Member States’ law outside the reach of European law. This approach is particularly courageous insofar as it can be seen from Article 269 TFEU^15, that the Jurisdiction of the ECJ should not cover the substantial criteria for the decisions under Article 7. This limitation would be undermined, if the ECJ could use the criteria of Article 2 TEU without all the limitations of Article 7 TEU in infringement proceedings upon action of the Commission or a Member State under Articles 258 or 259, or even in preliminary ruling procedures under 267 TFEU upon request of a national court – thus immediately intervening in internal conflicts in Member States.

It is doubtful that the ECJ would stir up the already conflictual situation in several Member States and in the EU altogether by so obviously expanding its jurisdiction in such a delicate question – at least in the near future.

¹I wish to thank Ann-Sophie Hillmann for her help and discussions.

²See Wikipedia: https://en.wikipedia.org/wiki/Polish_Constitutional_Court_crisis, _2015; see also the Opinion of the European Commission for Democracy through Law (Venice Commission) of 11 March 2016: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD (2016)001-e.

³See European Commission – Press release of 1. June 2016: http://europa.eu/rapid/press-release_IP-16-2015_en.htm; Commission Recommendation of 27.7.2016 regarding the rule of law in Poland: http://ec.europa.eu/justice/effective-justice/files/recommendation-rule-of-law-poland-20160727_en.pdf; European Parliament resolution of 13 April 2016 on the situation in Poland (2015/3031(RSP)): http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2016-0123&language=EN&ring=B8-2016-0461; European Parliament, Press Release of 14 December 2016: http://www.europarl.europa.eu/news/en/news-room/20161209IPR55523/rule-of-law-and-democracy-in-poland-debated-in-parliament-for-the-fourth-time.

⁴See European Parliament, Resolution of 10 June 2015 on the situation in Hungary (2015/2700(RSP)): http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0227+0+DOC+XML+V0//EN

⁵According to Article 16 TEU, the Council consists of representatives of the Member States at ministerial level and usually decides by a qualified majority of the Member States.

⁶The council consisting of the heads of state or government of the Member States (Article 16 TEU); see: https://en.wikipedia.org/wiki/European_Council

⁷See:  http://verfassungsblog.de/can-poland-be-sanctioned-by-the-eu-not-unless-hungary-is-sanctioned-too/

⁸At least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States; again without counting the Member State in question.

⁹See José Manuel Durão Barroso, then President of the European Commission in his State of the Union 2012 Address: http://europa.eu/rapid/press-release_SPEECH-12-596_en.htm

¹⁰See Viviane Reding, Safeguarding the rule of law and solving the “Copenhagen dilemma”: Towards a new EU-mechanism: http://europa.eu/rapid/press-release_SPEECH-13-348_en.htm

¹¹See: http://eur-lex.europa.eu/summary/glossary/accession_criteria_copenhague.html

¹²See: http://ec.europa.eu/justice/effective-justice/rule-of-law/index_en.htm; the framework consists of several steps of interactions and publications allowing to uphold and to fuel public debate on problematic developments in Member States, none of which is in any way formally going beyond what Article 7 paragraph 1 TEU authorizes the Commission to do.

¹³See Max Planck Institute for Comparative Public Law and International Law: Reverse Solange – Protecting the Essence of Fundamental Rights against EU Member States: http://www.mpil.de/en/pub/research/areas/law-european-union/reverse-solange.cfm#project

¹⁴See a translation of this decision of 1974: https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=588; „solange” is the German word for „as long as”; later – in 1986 – when the ECJ had developed a line of jurisdiction applying unwritten human rights as part of European law, the Constitutional Court gave up that doctrine saying it would no longer control European law using German basic rights as long as the ECJ would uphold an appropriate level of human rights; see for  a translation of this „Solange II” decision: https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=572

¹⁵Article 269 paragraph 1 TFEU: „The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.”