When the Treaties establishing the European Communities were signed in the 1950s, the political elites of the time were more concerned with peace and freedom in Europe, while democracy promotion was the purview and primary purpose of the Council of Europe. The democratic character of Member States only became an issue in 1962 when Franco’s Spain first asked to join the European communities. Although the founding treaties were silent on any specific enlargement criteria, the members of the Parliamentary Assembly insisted on the importance of democracy as a sine qua non condition for accession. Over the years, democratic requirements have been affirmed in many declarations[1], taken up more and more space on the pages of treaties, starting with the preambles and slowly being integrated in Article 2 TUE and Article 7 TUE, as well as in provisions for internal and external European Union policies in order to strengthen the political identity of the Union.

Over the last decades, transformations in Poland, Hungary and Romania have put the question of European values on the EU agenda. The changes made to the judicial systems in these countries have brought some researchers to believe that the EU is facing an existential crisis, with “far-reaching implications for the European project because without common values, there are fewer reasons for the EU to exist” (Pech and Scheppele 2017: 8).

From 2011 onwards the Hungarian government led by Viktor Orbán (Fidesz) introduced extensive changes to the legal framework of the country. Two examples of this are the competences of the Hungarian Constitutional Court being limited as a result of the constitutional reform and a policy lowering the compulsory retirement of judges, prosecutors and notaries from 70 to 62 which resulted in the early retirement of 236 judges. Since then the situation in Hungary has further deteriorated as stated in the Report adopted by the European Parliament (Rapporteur Judith Sargentini) in September 2018, calling on the Council to trigger Article 7, which sanctions Member States which fail to comply with the values referred to in Article 2.

A similar path has been followed by the Polish government. From 2015 onwards the Law and Justice (PiS) party has argued that far-reaching changes to the judiciary are required to remove judges who served during the communist era. While the EP triggered article 7 against Hungary, on 20 December 2017 the Commission activated article 7 against Poland.

What has happened since then?

Critical observers would answer “nothing”. Since then, the Polish and Hungarian authorities have adopted other controversial measures, although both under Article 7.

The European Parliament (EP) has passed several resolutions and invited the Prime ministers of the Member States in question for debates; the Commission – under the presidency of José Manuel Barroso and Jean-Claude Juncker – created a series of new tools such as the Justice Scoreboard in 2013 and the Rule of Law Framework in 2014, the latter crafted as an ancillary instrument to the infringement procedures and article 7 TEU. As argued elsewhere, these tools, although criticised for their limits, have been attempts to strengthen the Commission’s legitimacy in dealing with rule of law issues (see Coman 2015, 2018), to objectify evaluations and be able to monitor the state of the rule of law in all EU Member States. This has been done! Nonetheless, the von der Leyen Commission has proposed a new toolbox (see COM 2019(343).

The Juncker Commission initiated the rule of law dialogue with Poland. Over the course of two years, more than 25 letters were exchanged between the Commission, represented by Vice-President Frans Timmermans and members of the Polish PiS Government. The Commission published one opinion and four recommendations on the rule of law. In light of the weak collaboration of the Polish government in the exchanges with the Commission, academics such as Blauberger and Kelemen, Kochenov and Bard as well as Kochenov and Pech have underscored that the instruments set up by the Commission – particularly the Rule of Law Framework – do not seem to be efficient in the face of a government determined to transform its judiciary. Other solutions have been put on the table such as the rule of law conditionality. This is another complex debate that I will not weigh in on here.

The Commission has been at the centre of the debates as well as the Parliament, with support and criticism.

Starting in March 2017, the Vice-president of the Commission, Frans Timmermans, asked repeatedly that the situation of the rule of law in Poland be examined by the Council.
The rotating presidencies of the Council have been reluctant to put these issues on the agenda of their meetings. When the topic was discussed it was not put under a specific item on the agenda, but under “any other business”. Initially, many Member States considered that triggering article 7 would be counter-productive while others were impatient to see domestic legislation progress more quickly towards a framework that did not threaten the independence of the judiciary.
The representatives of France, Germany, and the Netherlands did not hesitate to make their positions public. Representatives for Spain, Ireland, and Slovakia wanted to remain “neutral” in this debate for reasons related to their domestic political situation. The Belgian Foreign Minister Didier Reynders played an active role putting on the agenda of the Council a proposal of a rule of peer review mechanism in all EU member states, with the support of German State Secretary Michael Roth.

As the Hungarian and Polish authorities implemented new measures in addition to the ones for which article 7 was triggered, the Council could no longer avoid the topic. Hearings have been organized.

The situation in Poland was discussed in February 2018 when France and Germany expressed their preoccupations in a joint statement (Agence Europe, 27 February 2018). In June 2018, the permanent representatives of the Member States to the EU (COREPER) agreed to an audition on 26 June 2018, in Luxemburg in the General affairs Council framework, the last step before a vote (Agence Europe 13 June 2018). During this unprecedented three-hour hearing in which each party had the opportunity to talk, thirteen States spoke. As it started late, it seems that the hearing took place in the absence of the Italian, German, and Austrian ministers while the next discussion was scheduled to take place during the Austrian presidency (July-December 2018) in September 2018.

In October 2018, the Council also took up the situation of the rule of law in Hungary. A debate was held towards the end of the Austrian presidency, on 12 November 2018, in Brussels, in which most of the discussions pertained to Hungary while the deliberation on Poland was over in a matter of minutes as no representative of a Member State chose to speak (Agence Europe, 3 November 2018). Another hearing on Poland took place in December 2018 in the framework of the General affairs Council. In neither case were the concerns alleviated.