Tuesday, 16 January 2018

Can an Article 50 notice of withdrawal from the EU be unilaterally revoked?




There is no sign that the UK government (or indeed the opposition Labour party) is considering revoking the UK’s notice of withdrawal from the EU, or that either would be interested in asking the British public to vote again on the question of EU membership. Yet, sparked by the latest attempt of Nigel Farage to draw attention to himself, the prospect of a further Brexit referendum – which necessarily assumes that the Article 50 notice is revocable in some way – continues to be a subject of public debate. 

In that context, and in light of a new European Parliament report on this issue, here’s an argument from Professor Stephen Weatherill arguing that the Article 50 notice cannot be unilaterally revoked – with the contrary argument from Professor Steve Peers.


Why the withdrawal notification under Article 50 TEU is not unilaterally revocable

Professor Stephen Weatherill, Somerville College and Law Faculty, University of Oxford

The recently published European Parliament paper entitled ‘The (ir-)revocability of the withdrawal notification under Article 50 TEU’ addresses an issue that may come to have very sharp significance in determining the options and directions taken in the unfolding Brexit circus. As its title suggests, the paper inquires into the question whether the withdrawal notification under Article 50 TEU is revocable or irrevocable, and, most poignant of all, it asks whether that withdrawal notification is unilaterally revocable. This will matter a lot should the UK repent of its decision to leave the EU. I argue here that the notification is not unilaterally revocable.

The paper, authored by Ioannis Papageorgiou of the Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, takes as its obvious starting-point that Article 50 TEU does not explicitly address the revocation of a withdrawal notification. It also notes that ultimately it is the Court of Justice that will provide an authoritative ruling, should it be provided with the opportunity (pages 6, 22). I agree. It observes that ‘Given the fact that Article 50 does not make any reference to revocation issues, both sides of the argument can be defended’ (pages 16, 21). I agree. It treats the Vienna Convention on the Law of Treaties as irrelevant, mainly because it is in the nature of the evolved EU legal order that answers are to be found within the EU system alone, as a self-contained system (pages 7-13, 24, 27). I agree. And the paper ably surveys both sides of the argument. At page 23 it is commented that ‘Among UK scholars and politicians there is a predominant position that a unilateral revocation is within the right of the UK’. I agree: there is such a predominant position. The purpose of this note is to argue against that predominant position.

Consider first matters of design from the perspective of costs and incentives. A State that notifies an intention to withdraw within the meaning of Article 50 TEU and then wishes to change its mind has generated large costs. It has caused resources to be allocated to the negotiations which it wishes to terminate which could have been used for other purposes. To treat Article 50 TEU as capable of unilateral revocation means that the costs incurred lie where they fall: the repentant State covers its costs and the EU-27 (a term I use to denote the 27 member States plus the EU institutions) covers its costs. That means that the State that wished to leave, but which changed its mind, is able to externalise the costs incurred by the EU-27 as a result of its decision. That in turn reduces its incentives to make a full and careful calculation of the consequences of its action before it issues the Article 50 notification.

By contrast an interpretation which denies that the notification made pursuant to Article 50 TEU may be revoked unilaterally, and which insists that instead revocation depends on the agreement of the EU-27, ensures that as part of that negotiation the repentant State may be required to meet the costs of its choices. It makes every sense to ensure that costs are imposed on the party that is most able to reduce those costs. That is the party that initiated the process in the first place by notifying an intention to withdraw which it then wished to revoke – here, the UK. As a general observation one may argue that it is a matter of simple justice that the party that has generated the costs should pay for those costs – more narrowly my argument here is that such an approach is desirable in order to preclude a State from externalising the costs of its actions, and thereby pushing it to consider fully in advance the costs involved. This militates in favour of denying a unilateral right of revocation, and instead ensures that revocation becomes part of a bargaining process within which costs can be allocated.

A separate strand in the debate concentrates on democracy. Why should a State not be allowed to change its mind? If – perhaps as a result of a fresh referendum, perhaps following an election leading to a change of government – the people of that state have clearly decided they wish to remain in the EU, why should Article 50 be interpreted to thwart that expressed popular will?

This is a good argument in favour of interpreting a notification pursuant to Article 50 to be revocable provided there is political agreement among the repentant state and the EU-27. It is a weak argument in favour of a unilateral right to revoke. A model that permits unilateral revocation entails that some of the costs incurred are borne by voters in the other Member States, albeit largely indirectly because they will be swallowed up by the overall EU budget. So voters in Germany, Italy and France and so on would be expected to pay for the consequences of decisions to leave and then, after a change of mind, to remain taken by the UK although those German, Italian and French voters have had no say at all, and can have no say at all, in influencing those decisions.

Much of EU law is animated by the concern that decisions taken at national level have cross-border implications and that it is accordingly necessary to impose some discipline on the capacity of states to inflict harm on each other: this is why free movement law and the law governing State aids set limits to national regulatory autonomy. The rules of the EU constrain State practices because those affected by such practices in other Member States have no voice in the (national) political process that has generated them. A unilateral right to revoke an Article 50 notification would contradict this model. It would allow the revoking State to export costs to other States. Treating the Article 50 notification as irrevocable by unilateral act forces the parties to negotiate on the terms that shall attach to revocation, and this in turn ensures that (directly or indirectly) all parties which are affected by the preference to revoke have a say. In short, a revocation does not affect only the UK and so should not lie within the power of the UK alone.

The argument so far is normative: based on concern to allocate costs in a way that maximises incentives to account in advance for choices made and on concern to ensure a voice for all affected parties, an Article 50 notification should be treated as incapable of unilateral revocation. But this normative argument cannot prevail if the terms of Article 50 contradict it. They don’t.

Article 50 is of course silent on the question of revocation. So it is necessary to look at its structure and purpose. A case in favour of unilateral revocation is a case which serves to protect the flexibility enjoyed by the State which has issued a notification of its intention to withdraw. But that is not in line with either the structure or purpose of Article 50. Once the notification is made pursuant to Article 50, the terms of that Treaty provision dictate that the pace and content of the process is entirely subject to management by the EU-27 – which, to repeat, covers the other 27 Member States and the EU institutions. After notification, guidelines are provided by the European Council; the Union negotiates an agreement with the withdrawing State; it is to be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament; the Treaties cease to apply to the withdrawing State from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification unless the European Council, in agreement with the withdrawing Member State, unanimously decides to extend this period; and Article 50(4) shuts the withdrawing Member State out of the relevant discussions of the European Council and Council.

This is all about the way in which the EU-27 shall act: it is not at all about the protection of the withdrawing State. The primary concern which underpins Article 50 is to ensure that, once a Member State has chosen to submit its notification of intention to withdraw, the interests of the 27 Member States and the EU institutions then come to the forefront and are protected. To find an extra unilateral right of revocation enjoyed by the withdrawing State contradicts the structure and purpose of Article 50.

A very concrete example serves to emphasise the point. Were a withdrawing State to enjoy a right of unilateral revocation, it would be in a position to give notice of withdrawal and then change its mind after 23 months, once it concludes that the deal is not likely to be good enough. In fact, on this approach, a State could even change its mind after 23 months if it realises it is not going to get a good deal agreed inside 24 months, revoke the notice of withdrawal, and then submit another notice of withdrawal soon afterwards and try again. And it would not be liable to account for the costs.

Hazy suggestions that this would be an abuse of law are one answer to this problem – and for sure there would be political costs for a State behaving in such a perfidious manner. But the better solution, the one which is fully in line with the structure and purpose of Article 50 itself, is simply to exclude the possibility of unilateral revocation under Article 50. This interpretation also has the merit of deterring a State from triggering Article 50 unless it is absolutely sure that it wants to run the risks of getting a bad deal or even no deal – which, to repeat, is in line with Article 50’s structure and purpose, which is to protect the 27 not the 1. The government of a State that sends a notification pursuant to Article 50 and then waits nine months before initiating internal discussions on what shall be the preferred shape of its future relationship with the EU is in a spectacularly bad position, but it is entirely its choice to have placed itself in that location. There is nothing in the structure and purpose of Article 50 which encourages the view it should be allowed a unilateral right of revocation, thereby to impose costs on the EU-27 and to subvert the protections for the EU-27 carefully spelled out by Article 50. Quite the reverse: Article 50 should not be treated as providing a unilateral right of revocation.

A final point in closing the door to unilateral revocation is needed. Article 50 provides only for notification of an ‘intention’ to withdraw. An intention, it may be argued, can change. So can a Member State set aside its notification of an intention to withdraw on the basis that subsequently it has changed its mind and so no longer has that intention?  This is an attractive argument for those who would wish to maintain maximum flexibility for the UK. But it is not convincing. The notification of an intention to withdraw has been made. The clock starts to tick: the EU-27 acts in reliance on the notification and begins to make preparations for the negotiation. The intention may change subsequently, but the fact of having notified it within the meaning of Article 50 does not and cannot change. This attempt to create a right of unilateral revocation based on subsequent change of intention places an undue strain on the wording of Article 50, as well as running contrary to its structure and purpose.

I do not here address the politics of the matter. It is generally assumed that if the UK changed its mind a way would be found to accommodate its preference to remain a Member State of the EU. That may be right. But it may be complacent. If by the time of the change of mind major employers have decided to quit the UK in favour of the EU-27 (which might be precisely the impulse most likely to trigger the UK to change its mind) the incentives to agree to a UK request to terminate the Article 50 process would be weakened. Moreover, if the UK’s change of mind occurred amid a febrile political environment within which an imminent fall of government and its replacement by another minded to re-issue an Article 50 notification seemed plausible, then the EU-27 might be tempted to let the withdrawal process run its course.

My argument here is simply one of legal interpretation, not political context. But the politics are in part determined by the legal position. These political obstacles to the scope for the UK to change its mind and remain a member of the EU vanish if it enjoys a legal entitlement to revoke the Article 50 notification unilaterally. The UK can resume its current position cost-free (save only for longer-term reputational damage). By contrast if, as I argue, there is no right to unilateral revocation of Article 50, the UK will need to overcome those obstacles, and as part of that process it needs to negotiate on the terms to be attached to the readiness of the EU-27 to acquiesce in the change of mind. That puts the UK in a very weak position. It is the UK that has placed the UK in a very weak position. The structure, purpose and wording of Article 50 show that the solace of a unilateral right of revocation of the notification of withdrawal is not available.



The case for unilateral revocability of the Article 50 notice

Professor Steve Peers, University of Essex

Any form of retreat from Brexit seems unlikely, and any attempt at revoking the Article 50 notice would likely be a political process first and foremost. Still, it’s useful to consider whether unilateral revocability of an Article 50 notice is possible, in the event that the political situation changes radically; and I agree with Professor Weatherill that the legal position would have some relevance even though the politics would take precedence. (Most importantly, the power to revoke unilaterally would mean that the UK would not have to offer any quid pro quo in order to stay in the EU, and so would change the dynamics of the process).

In my view, while there are legal arguments for non-revocability and unilateral revocability, it’s hard to see the legal (as distinct from political) argument for ‘revocability only with consent’. And ultimately, while it’s anyone’s guess how the ECJ might ultimately interpret Article 50 if the case arose, my view is that the stronger argument is for unilateral revocability of the withdrawal notice.

Let’s start with the case law of the ECJ. There’s not yet any case law on Article 50 as such, of course, and so any case law could only be loosely relevant by analogy. The only ECJ case in the last few years I could find about a Member State revoking anything was this asylum law judgment of 2015, which as it happens I discussed at the time here. This case in part concerns whether a Member State can revoke a refugee’s residence permit, even though the relevant EU legislation contains no express reference to such a possibility.

In the court’s view (see paragraphs 47-50 of the judgment), ‘[d]espite the lack of express provision authorising Member States…to revoke a residence permit issued to a refugee, a number of arguments support an interpretation whereby Member States are allowed to take such a measure’. First, the EU legislation ‘does not explicitly rule out the possibility of revoking a residence permit’. Second, revocation of a permit was ‘consistent with the aim of’ the legislative rule (because the law says expressly that Member States could refuse to issue or to renew a residence permit on grounds of national security, it made sense that they could revoke a permit on such grounds). Thirdly, revocation was consistent with other provisions of the law relating to potential national security concerns about refugees.

Refugee law is different from the EU withdrawal process, of course. But there are some general points here. First of all, the Court rejects the argument (commonly made by those who think no revocation of the Article 50 notice is possible) that ‘absence of an explicit clause on revocation must mean that no revocation is possible’. Rather, the judges rule the opposite: if revocation is not explicitly ruled out, then it must be possible. Secondly, the aim of the law is important. This is indeed the main thrust of Professor Weatherill’s argument – but as we’ll see, I take a different view of the aim of Article 50. Thirdly, consistency with other provisions dealing with the same issue is important. This reasoning is sensible in principle, but it’s hard to see how to apply it by analogy to withdrawal from the EU, since Article 50 is the only provision on the subject.

I can foresee a fundamental objection here: the revocation of a residence permit concerns a Member State’s power to regulate non-citizens on its territory, which is quite different from its relations with other Member States. Fair enough. So let’s look at a process, set out in the EU Treaties, which does concern the precise question of whether a Member State which has made a notification to the EU institutions can revoke that notice unilaterally.

I’m referring to the process of ‘enhanced cooperation’, as set out in Article 329 and Article 331 of the Treaty on the Functioning of the European Union. This process, rarely used, allows some Member States to go ahead without the others to adopt EU legislation. The procedure gets underway when a group of willing Member States makes a request to the Commission to start it. But what happens if one of those States becomes unwilling to participate in the planned enhanced cooperation, during the process of negotiations? Can it, in effect, withdraw the notification of its intention to participate?

The EU Council legal service has given a detailed opinion on this issue. You can find it here, heavily redacted. But a helpful little bird has given me the entire text. Let’s see what it says on the key issues. (Note that the UK government has already relied on earlier legal advice to the same effect).

At the outset, the Council legal service notes that ‘[t]he Treaties are silent’ on the possibility of a Member State withdrawing its wish to join in enhanced cooperation during the negotiation process. But ‘[i]n the absence of any express provision, recourse must be had to the interpretation of the relevant Treaty provisions on enhanced cooperation, bearing in mind its objectives and two fundamental attributes that govern its functioning: first, the voluntary character of participation in it; second, its openness and flexibility.’

On the first point:

The decision as to whether or not to take part in enhanced cooperation is for the Member States alone, on the basis of their own wishes. The basis of enhanced cooperation is thus a voluntary act of each Member State. The expression of the wish to participate in enhanced cooperation and the subsequent withdrawal of such a wish is an act of free will of the Member States, whose voluntary character only ceases to exist at the moment of adoption of the act establishing enhanced cooperation. (footnotes omitted)

The first step in the process – authorising enhanced cooperation – ‘determines that the conditions for having recourse to enhanced cooperation are fulfilled, thus enabling the willing Member States to proceed with it. However, that decision does not create an obligation to do so’. (emphasis added)

On the second point, the openness of enhanced cooperation is ‘characterised by [the] simplicity’ of the rules, needing no fresh decision for a Member State to join enhanced cooperation which is already underway or under negotiation.

While it is not possible for participating Member States to withdraw from enhanced cooperation once it’s established:

Before that point in time - during the period from the date of adoption of the authorising decision to the establishment of enhanced cooperation - and bearing in mind the voluntary, open and flexible character of enhanced cooperation, a Member State is entitled to withdraw its stated intention to participate.

The first step decision to authorise enhanced cooperation ‘does not definitively establish the content thereof’ and Member States ‘must…be able to stop their participation in the establishment of enhanced cooperation’. Furthermore:

Not allowing unilateral withdrawal at this stage could have the effect of discouraging Member States from proceeding with enhanced cooperation before knowing its precise and definitive content, running thus counter the objective (sic) of "promot[ing] participation by as many Member States as possible” (Article 328(1) second subparagraph TFEU).

The procedure for a Member State to revoke its intended participation in enhanced cooperation should be simple and purely unilateral:

In the view of the Council Legal Service, no modification of the authorising decision is required for the withdrawal of a Member State to take effect. In the absence of any formality required by the Treaties, a Member State wishing to withdraw from enhanced cooperation should simply notify its intention to the Council and to the Commission in written form or through a statement delivered at a Council meeting. No further act of the Council and/or of the Commission is necessary for the notification to take effect. As from the moment of such notification, the Member State concerned should no longer be considered as wishing to participate in the establishment of enhanced cooperation and therefore, should not take part in the vote for the adoption of the act.

….A more formalistic approach requiring, for instance, a modification of the authorising decision would ignore the voluntary, open and flexible character of enhanced cooperation, since the interested Member State would not be able to withdraw on its free will, but would depend on the will of the Commission to propose an amending act of the authorising decision, of the Council to adopt the amended authorising decision and of the European Parliament to grant its consent. (footnotes omitted)

While a legal service opinion is not binding – the Council wins some cases, but loses others – this is an interesting analysis which could apply by analogy to the Article 50 process. The absence of a provision on revocation of intention is not decisive: instead, the key point is the voluntary and flexible nature of the process, and the overall objectives of integration. A Member State can change its mind unilaterally, even after the first step in the procedure has passed, as long as the final decision has not been made. Article 50 is equally a voluntary process, and also has a first step (notification of withdrawal) followed by a negotiation phase before withdrawal becomes definitive. And the overall integration objectives of the EU are obviously served by facilitating a Member State’s wish (if it chooses) to reconsider its decision to leave the Union.

I’ll now turn to the detailed arguments of Professor Weatherill. First of all, he argues that, as a matter of policy, the costs of Article 50 negotiations are an issue which suggests unilateral revocation is not possible. But such an approach is not taken in analogous EU procedures. Some proposed EU laws can be blocked by the veto of a single Member State. Terminating the negotiation process in the event of such a veto imposes costs, but no one argues that a Member State therefore lacks a power to wield its veto unilaterally in such cases. Equally a proposed Treaty amendment can be frustrated by the failure to ratify by a single Member State. And the strongest analogy is the accession process, which can be scuppered by a would-be Member State ending negotiations or refusing to ratify an accession treaty, despite the enormous efforts expended on the ratification process.

In all these cases, the power to act unilaterally is unquestioned, despite the inconvenience caused to other States and EU institutions. That awkwardness stems necessarily from the exercise of national sovereignty – the very sovereignty which is embodied in the right to withdraw from the EU, to which Article 50 gives effect. Furthermore, in the particular context of the UK, it seems odd to be concerned about the costs of a revocation of the Article 50 notice which would be suffered by the EU27, given that a U-turn on Brexit would mean that a major net contributor to the EU budget keeps on contributing. In any event, holding detailed negotiations on revocation of withdrawal will impose more negotiation costs than simply accepting the revocation and returning to the status quo – with Adonis resuming skiing and Farage resuming screeching. (Yes, I know: they never really stopped).

On the issue of democracy, Professor Weatherill again repeats the argument as regards costs. But let me repeat the same rejoinder: the very possibility of withdrawal gives priority to the democratic choices made in the withdrawing Member State over the impact of that choice in the remaining Member States. Indeed, ‘a revocation does not affect only the UK’; but the same could be said, with much more force, of the power of withdrawal. Yet the Treaties accept that the power of withdrawal lies with the UK alone; vesting the power of revocation with the withdrawing Member State alone is a logical corollary.

As for the wording of Article 50, I draw the opposite conclusion from it. Indeed, there are detailed rules on the roles of the EU institutions and the EU27 Member States in negotiating and concluding a withdrawal agreement. But there are no such rules on the role of those institutions and States in the event that a Member State revokes its notification. One can reasonably deduce from this either that no revocation is possible, or that unilateral revocation is possible – although note that the ECJ case law and Council legal service opinion above prefer the latter interpretation in analogous cases. But the least plausible interpretation is that the Treaty drafters intended such rules but just forgot to mention them. To strengthen the argument, look at the detailed procedural rules relating to Treaty amendment, accession, and the negotiation of treaties between the EU and non-EU states, which were all amended in the same Treaty of Lisbon that created Article 50. How odd for the Treaty drafters not to set out rules on the procedure for agreeing revocation of an Article 50 notice at the same time.

What about the possibility of a Member State revoking its withdrawal notice and then issuing it again, to get more time to negotiate withdrawal? I agree with Professor Weatherill that the notion of ‘abuse of law’ is indeed ‘hazy’. But at least this notion already exists in EU law, and so could be clarified if necessary in the event of such alleged abuse in the Article 50 context. On the other hand, Professor Weatherill’s argument for negotiated revocability relies on conjuring up procedural rules which don’t explicitly exist in the Treaty, and are not recognised to exist in any case law to date. If ‘abuse of rights’ is a hazy notion, then ‘procedure for negotiating revocation’ is a Dickensian fog by comparison. 

Equally, if revoking a withdrawal notice places a strain on the wording of Article 50, then inventing a process to negotiate revocability places a bigger strain still. And while one purpose of Article 50 is undoubtedly to protect the remaining Member States’ interests, another purpose is to give priority to the sovereign decisions of the withdrawing Member State. The best way to reconcile the alleged conflict between these two purposes in the event of a unilateral revocation of a withdrawal notice is to conclude, as I noted above, that all the underlying objectives of the EU are best served by allowing a withdrawing Member State to decide to remain in the EU after all, should it wish to do so. This neatly balances the EU’s interest in its integration process with a Member State’s sovereign power to decide on whether it wishes to leave or stay in the EU.

Barnard & Peers: chapter 27

Photo credit: PA Images

Wednesday, 27 December 2017

Beyond Blue Passports: UK/EU immigration after Brexit




Professor Steve Peers, University of Essex

In the last few days, there has been much debate about the UK government’s intention to ‘return’ to blue British passports after Brexit. It’s unfortunate that there have been false statements on both sides of the argument – that the change in passports will cost extra money (the contract was due for renewal anyway) and that the EU forced the UK to apply the burgundy colour (there’s only a non-binding Resolution on this issue).

Some prefer the idea of a change in colour due to Brexit, but the issue isn’t about ‘sneering’ at people who might prefer one passport colour to another. In fact, aesthetically I prefer my previous UK passport colour (which was black, not blue). But a passport should be judged not by the colour of its cover but by the content of the rights it confers.

In that light, it’s a good moment to review the rules on visits and long-term immigration to the EU that will likely apply to UK citizens after Brexit. This is an update of a previous post from 2014 on this issue, except it should be noted that there will likely be separate rules on UK citizens who already live in the EU27 states on Brexit Day – on the basis of the withdrawal agreement, as partly agreed earlier this month. I have discussed that partial deal separately and so I won’t discuss that category of people further again here. My focus is on UK citizens who are still in the UK on that point (and who do not also have the citizenship of an EU27 country).

There are several general points at the outset. First, it seems likely that a transition period will be agreed as part of the withdrawal agreement (see discussion here). This may well mean that EU free movement law continues for a short period longer to apply between the UK and the EU after Brexit Day. Those who move during the transition period will likely be treated the same as those who moved before Brexit Day, although this has yet to be confirmed.

Secondly, EU immigration law (by which I mean the EU laws generally governing the immigration status of non-EU citizens) does not apply to all Member States. In particular, the rules relating to short-term visas and borders (and aspects of irregular migration) deriving originally from the Schengen open borders agreement don’t apply to the UK or Ireland. They only partly apply to Romania, Bulgaria, Cyprus and Croatia (although those States are meant to join in future) and have been extended outside the EU, to Schengen associates: Norway, Iceland, Liechtenstein and Switzerland. The rules relating to longer-term legal migration and asylum apply to all Member States except Ireland and Denmark, but not to any non-EU countries (other than the Dublin rules on which State to apply for asylum in, which apply to the Schengen associates). 

Crucially, this means that immigration between the UK and Ireland after Brexit isn’t directly affected by any of the laws discussed in this blog post. Also EU free movement law will still apply to UK citizens who are family members of EU citizens who move to another Member State. 

Thirdly, the following analysis is based on EU law as it currently stands, as it is applied to countries like the UK post-Brexit: ie, relatively wealthy non-EU countries which do not have free movement with the EU. I’ll indicate where the law is currently being revised. It’s possible that some special post-Brexit deal on some or all aspects of immigration, falling short of free movement, might be agreed between the EU and UK after Brexit. While this prospect can’t be discussed in detail, since the UK government has not indicated whether it would even wish to seek such an agreement and so there’s no indication of what the content might be (or whether the EU would agree to it), I’ll discuss this prospect generally in a final section.

Finally, while some might try to argue that any new difficulty for UK citizens moving or travelling to the EU after Brexit would constitute some form of ‘punishment’ by the EU, this would be profoundly dishonest. The UK government seeks – as most Leave voters supported – to become a non-EU country without free movement after Brexit. Ending free movement law necessarily means that it’s not only harder for EU citizens to visit and stay in the UK, but also the other way around: the clue is in the words ‘free movement’. It should not be too much to hope that people have the integrity to accept the responsibility for the consequences of the outcome which they advocated.

Visas and border controls

‘Visas’ are an issue for both longer-term immigration and short-term travel; here I’ll discuss short-term travel, which (like border controls) has been fully harmonised by the EU as part of the Schengen process. While it’s sometimes argued that UK citizens will face short-term visa requirements to visit the EU after Brexit, the current law of the EU (the visa list Regulation) suggests that they will not (as I discuss in more detail here). That’s because it’s EU policy not to apply visa requirements to fairly wealthy non-EU countries, or to most neighbouring EU states, provided that the countries concerned reciprocate by not imposing visa requirements on EU citizens.

However, the EU is planning to set up an electronic travel advance authorisation system (ETIAS). I previously discussed this idea here; in the meantime, the legislation to establish ETIAS has been proposed by the Commission, agreed by the Council and is now under negotiation with the European Parliament. The text as agreed by the Council (and the most recent EP/Council negotiation text) would apply the ETIAS to all non-EU countries without free movement, therefore including the UK. Some in the UK would like to do set up a parallel system after Brexit, which would apply to EU citizens in return. (Note: I assume that during any transition period in the withdrawal agreement, the UK will temporarily be defined as a non-EU country which does apply free movement. The focus here is on what happens after that).

What about queues at border controls? At present, the Schengen borders code sets up a fast track solely for those with EU citizenship or nationality of a state with a free movement deal (see Articles 8 and 10). So UK citizens will no longer be fast-tracked at those borders after the end of free movement rules, unless the UK and EU negotiate an unprecedented special arrangement. Those who assert with certainty – like this MP – that nothing will change as regards longer border queues are therefore misstating the legal position. The comparison with Switzerland by the same MP is even more bizarre, given that Switzerland has signed up not only to free movement but also to the Schengen system.

UK citizens will also be subject to the planned EU entry-exit system, on the basis of newly adopted legislation, once that system is set up.  Again, that system, which will take records of all those entering and leaving the EU, will apply to all non-EU countries without a free movement agreement.  Similarly, UK citizens who have a record of criminal offences or immigration law breaches will be subject to entry bans for the entire EU enforced by means of the Schengen Information System (which is being revised), for the same reasons.  (The UK currently participates in other aspects of that System, as regards exchanges of criminal law and policing information, but it remains to be seen if this remains the case after Brexit: see further discussion here).

Long-term migration

Of course there will still be some UK citizens moving to EU countries on a long-term basis after Brexit. The point is that they (like EU citizens moving in the other direction) will no longer have the right to do so on the very liberal terms set out in free movement law, but instead will be moving on the basis of more restrictive rules set out in national law. On the EU side, those national laws have been partly harmonised by EU law. (Retirement of UK citizens in the EU will be entirely subject to the national laws of Member States).

First of all, as regards moving for work, there is EU legislation on highly-skilled non-EU migrants (the ‘Blue Card’ Directive, currently being revised as discussed here); the single permit Directive, which sets out common rules for equal treatment of non-EU migrants allowed to work; the Directive on seasonal workers (discussed here); and the Directive on intra-corporate transferees (discussed here). To some extent, this legislation sets only minimum standards or allows Member States to set up parallel national regimes.  

As regards students and researchers, a revised EU law (discussed here) will apply from 2018 (so before Brexit). UK students will lose the right to equal treatment as regards tuition fees and admission in EU universities that they currently enjoy as EU citizens (unless otherwise agreed). However, according to ECJ case law (discussed here) non-EU students must be admitted if the (more stringent) standards in the current version of the EU legislation on non-EU students are met. (There’s no reason to think that case law won’t apply to the newer version of the law).

Family reunion for UK citizens who move to the EU will also be harder after Brexit, whether their family are UK citizens or citizens of other non-EU countries, on the basis of the standards in the EU’s family reunion Directive. While Member States can set higher standards than the Directive, they often do not do so.

Finally, what about asylum? EU citizens are all but banned from applying for asylum in other Member States (the exception is discussed here), but UK citizens will no longer be EU citizens after Brexit. Like the UN Refugee Convention, EU refugee law (which is currently being revised: see discussion here) defines a refugee as person who is outside their country of origin due to a genuine fear of persecution by reason of race, religion, nationality, political opinion or particular social group. Persecution is defined as entailing some form of violence or other severe restriction on human rights. As things stand, despite obnoxious headlines from the UK’s most toxic newspapers, those calling for murder of Remain supporters are a tiny extreme fringe and there is no sign that the UK government is unable or unwilling to respond to any further violence which they might commit. Nor is there any move to lock up or ban the free speech of Remain supporters. Let’s hope this always remains the case.

Irregular migration

Finally, it should be noted that UK citizens who breach the immigration law of the EU and/or its Member States – which would obviously be more likely after Brexit as less liberal rules would apply – would be subject to the EU’s Returns Directive, which governs many aspects of the process of removing non-EU citizens who are not legally resident. This Directive has been subject to a relatively liberal interpretation by the ECJ, as I discuss here), but nevertheless it is rather more restrictive than the rules on expulsion or detention as set out in EU free movement law.

Special deal?

Could the EU and UK sign as special deal on immigration after Brexit? (I am leaving aside the likely transition period in the withdrawal agreement). As regards visas and borders, this would likely be an agreement with the entire EU, since the degree of harmonisation in this field means that the ECJ would likely rule that the EU has exclusive competence. In practice, the EU has been willing to sign treaties with non-EU countries on links with the border agency Frontex, and on visa waiver and readmission treaties. Would the EU be willing to go further, and (for instance) agree reciprocal non-application of the electronic travel authorisation rules on each side?

On legal migration, the EU has harmonised the law less and the Treaties reserve a national competence regarding the numbers of non-EU citizens admitted to work. Moreover, EU legislation in this field usually expressly states that Member States can enter into bilateral treaties with non-EU countries.  So any agreement would either be ‘mixed’ (needing ratification by the EU and its Member States), or purely bilateral between the UK and individual Member States. In some cases the EU has been willing to sign an association agreement with non-EU countries which contains limited rules on immigration.

More broadly, the issue of whether the UK and EU should sign a special immigration deal after Brexit may form part of the broader talks, with some in the UK willing to offer a trade of limited preferential labour market access in return for bigger access to the EU services market, for instance. Others might be unwilling on principle to offer any commitment regarding immigration. One factor that shouldn’t be overlooked is that such a deal would be reciprocal – preserving equally some possibility of facilitated immigration for UK citizens to the EU, not only the other way around.

*This blog post was supported by an ESRC priority grant on "Brexit and UK/EU immigration policy"

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:3, I:4, I:5, I:6, I:7

Photo credit: Telegraph

Saturday, 23 December 2017

The European Commission’s Activation of Article 7: Better Late than Never?








Dimitry Kochenov, Professor of EU Constitutional Law at the University of Groningen; Laurent Pech, Professor of European Law at Middlesex University London; and Kim Lane Scheppele, Professor of Sociology and International Affairs at Princeton University

‘The European Union is first and foremost a Union of values and of the rule of law. The conquest of these values is the result of our history. They are the hard core of the Union's identity and enable every citizen to identify with it. The Commission is convinced that in this Union of values it will not be necessary to apply penalties pursuant to Article 7 of the Union Treaty’ European Commission, 15 October 2003


1. What has just happened?


On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland by (i) issuing a fourth Rule of Law Recommendation, which complements three previous Recommendations, adopted on 27 July 2016, 21 December 2016 and 27 July 2017; (ii) submitting a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland under Article 7(1) TEU and (iii) referring the Polish Law on the Ordinary Courts Organisation to the Court of Justice of the EU under Article 258 TFEU and in the context of which the Commission is raising for the first time (to the best of our knowledge) a violation of Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights by Poland to the extent that the Minister of Justice has been given a discretionary power to prolong the mandate of judges which have reached retirement age (a similar combination was raised in the first stage of an infringement action against Hungary in December 2015 with regard to immigration issues but this language was dropped by the time it got to the Court of Justice).

Should the Polish authorities finally decide to implement the Commission’s recommendations within three months, the Commission has indicated its readiness to ‘reconsider’ its Article 7(1) proposal (para 50 of the Commission’s fourth rule of law recommendation).

The intensity and repeated nature of Poland’s ruling party attacks on the most basic tenets of the rule of law are unprecedentedly aggressive and in obvious breach of the Polish Constitution, which in our view warrants the Commission’s action (this is not to say that Article 7(1) should not also be activated against Hungary as two of the present authors previously argued in this 2016 article). Indeed, as rightly noted by the Commission, the Polish authorities have adopted over a period of two years no less ‘than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary’. It was time therefore for the Commission to defend the independence of Member State judiciaries and the rule of law (as nicely put by Maximilian Steinbeis, ‘Polish courts are our courts’, that is, ‘if the legal system in a Member State is broken, the legal system in the whole of the EU is broken’).

The media have so far only almost exclusively focused on the first ever invocation of what is often described as the EU’s ‘nuclear option’, which, however, as correctly pointed out by Frans Timmermans in his press conference announcing the Commission’s actions, is a misnomer (as we previously argued here). To put it briefly, Article 7 TEU provides for two main mechanisms: a preventive one in case of a ‘clear risk of a serious breach’ of the values common to the EU and its Member States and a sanctioning one where ‘a serious and persistent breach’ of the same values has materialised (for more detailed commentaries on the mechanics of Article 7 see here and here).

The Commission merely initiated the preventive mechanism on Wednesday when one could however reasonably argue that we are already way beyond the stage of a ‘clear risk’ and entered ‘serious and persistent breach’ territory following the capture of the Polish Constitutional Tribunal in obvious breach both of the Polish Constitution and the Commission’s first and second rule of law recommendations (see Pech and Scheppele, January 2017). Before however offering further details on the situation in Poland, however, it may be worth offering a brief overview of Article 7’s genesis.

2. Genesis of Article 7

On 9 May 1950, the venerable Schuman Declaration invited all the free European states to join the unification project, implying respect for the rule of law, a democratic system of government, and a market economy. The initial versions of the Treaties presumed compliance of the Member States with these principles, now reflected in Article 2 TEU. The enforcement of compliance was nevertheless strictly confined to the scope of the law of the EU via what are now Articles 258 and 259 TFEU, later reinforced by Article 260 TFEU, thus leaving compliance with the EU’s foundational values almost exclusively to the care of the constitutional systems of the Member States. The first shift towards a more active role to be played by the EU in this respect happened in 1978 when the Commission contemplated a proposal for a possible sanctions mechanism against the backdrop of the then upcoming Greek accession.

A few years later, the European Parliament draft EU Treaty from 1984 contained such a mechanism for the first time. Later on, the EU began systematically including ‘human rights clauses’ in all association and cooperation (‘Europe-’) agreements with the Central and Eastern European states and incorporated these into the fabric of the pre-accession political conditionality in the areas of democracy, the rule of law and human rights.

In anticipation of the forthcoming accession of numerous countries to the EU, the Treaty of Amsterdam included the first version of Article 7 which only provided then for possible sanctions in a situation of ‘serious and persistent breach’. With the Nice Treaty, Article 7 TEU was revised to further enable the EU to adopt preventive sanctions in the situation where there is ‘a clear risk of a serious breach’ of the EU values by a Member State. This change was made to enable the EU to step in in a situation similar to the one in Austria following the formation of a governmental coalition involving Jorg Haider's far-right Freedom Party. Before the Nice amendment, EU’s involvement with Austria took the form of a series of illegal ad hoc ‘bilateral sanctions’ imposed on Austria by 14 other Member States acting, strictly speaking, outside of the framework of EU law.

These diplomatic sanctions were ended when the report issued by a “wise men” committee, which was set up to investigate the political and human rights situation in Austria, concluded that Austria’s record and commitment to common European values, including the rights of minorities, refugees and immigrants, was at the time of the report satisfactory: the illegal sanctions triggered by the election result would thus clearly not be justified under the amended Article 7 either. One might note in this respect how times have changed when the Freedom Party's inclusion in a coalition government in Austria last week passed almost totally unremarked this time. It is wise however for the EU not to overreact to election results, but to instead react to actual breaches of the values common the EU and its Member States.

In the light of this episode and other factors explored in this blog post published in January 2015, the European Commission thought it useful to adopt a pre-Article 7 procedure in 2014 to address systemic threats to the rule of law in any of the EU’s 28 Member States in response to the EU-28 governments’ express request in 2013 that the Commission should ‘take forward the debate in line with the Treaties on the possible need for and shape of a collaborative and systematic method to tackle’ rule of law backsliding (this is why it beggars belief that some EU national governments are now complaining that the Commission is finally taking this existential issue seriously).

The new pre-Article 7 procedure was activated for the very first time in January 2016 following the non-respect by Polish authorities of crucially important rulings of the Polish Constitutional Court and the adoption of new rules with respect to Public Service Broadcasters. As we predicted in this January 2015 post, any soft dialogue with authorities bent on undermining if not completely dismantling all checks and balances was bound to fail and this is indeed what has happened with respect to Poland. It was also bound to create more space within which the determined autocrats in the Polish governing party would have more time to consolidate their unchecked power in relative peace. Be that as it may, having at last accepted the totally fruitless nature of the so-called constructive dialogue with Polish authorities, the European Commission finally decided, ‘with a heavy heart’, to activate Article 7(1).

3. Is the Commission’s decision to initiate Article 7 justified?

First, we agree fully with Frans Timmermans when he said earlier this week that the ‘common pattern’ of all the legislative changes targeting the judiciary in Poland ‘is that the executive or legislative powers are now set up in such a way that the ruling majority can systematically, politically interfere with the composition, the powers, the administration and the functioning of these authorities, thereby rendering the independence of the judiciary completely moot.’ We also share the view recently expressed by Vera Jourova and according to which 'if one national system of judiciary is broken, the EU system is broken’.

A full account of the measures taken to remove checks and balances would take more space than we have here, so we can only but give a flavour of the so-called ‘reforms’ devised by Poland’s ruling party and which have been repetitively and publicly criticised (a point which the Polish government tends to conveniently forget). It is not just the European Commission that has repeatedly criticised the Polish reforms, but also the European Parliament, key bodies of the Council of Europe such as the Venice Commission, the United Nations Human RightsCommittee, the OSCE Office for Democratic Institutions and Human Rights as well as representatives of the judiciary across Europe, including the Network of Presidents of the Supreme Judicial Courts of the European Union and the European Network of Councils for the Judiciary. Numerous civil society organisations such as AmnestyInternational and Human Rights Watch have also expressed concerns and tens of thousands of Poles have taken to the street to protest the attacks on their own judiciary.

In light of yesterday’s visit to Poland by the British Prime Minister and her failure to publicly and unambiguously criticise the country’s ongoing descent into authoritarianism  (when asked about the Commission’s activation of Article 7(1) Theresa May said:These constitutional issues are normally, and should be primarily a matter for the individual country concerned’), it is may also be worth recalling that a number of UK bodies have also expressed their strong concerns regarding the situation in Poland.

For instance, last July, the Bar Human Rights Committee of England and Wales called on ‘the Polish President, government and parliament to reject these draft laws and to withdraw and repeal all the measures which pose such a grave threat to judicial independence and the rule of law in Poland’. Previously, the body which represents independent judges in England and Wales issued a press release to make clear its concerns 'about the proposed situation in Poland and any impact on judicial independence'.

Last but not least, let us not forget the recent and significant intervention of the Court of Justice in the Białowieża Forest infringement case in the context of which the Court decided that Poland should be subject to a penalty payment of at least €100,000 per day should it be found to have violated the Court’s order. They did so because Polish authorities’ declared that they would ignore a previous order adopted by the Vice-President of the Court to that effect. This was another factor which led the European Parliament to adopt a resolution on 15 November 2017 in which the Parliament describes the current rule of law situation in Poland as representing ‘a clear risk of a serious breach of the values referred to in Article 2 of the TEU’ and in which the Parliament also rightly deplored ‘the Polish Government’s refusal to implement the order of the Court of Justice of the EU on logging in the Białowieża forest’.

The European Commission therefore is hardly alone in its criticism of the Polish ruling party’s repeated attacks on the rule of law notwithstanding the Polish government’s ridiculous claim repeated ad nauseam that these attacks are politically motivated.

Three examples may also suffice to demonstrate that what the Polish ruling party calls ‘reforms’ are nothing but a set of unconstitutional and autocratic changes which aim to completely subjugate the judiciary to the will of the ruling party under the guise of the ‘will of the people’, no matter how plainly incompatible these changes are with both the Polish Constitution and Poland’s international obligations.

Frans Timmermans was entirely correct to point out that the constitutionality of legislation in Poland is longer guaranteed following the successful but unconstitutional capture of the Polish Constitutional Tribunal via the unlawful appointment of ideologically compatible ‘judges’ and the rushed installation, specifically in violation of a request from the Commission, of a new president of the Polish Constitutional Court in December 2016 (for further analysis see the 2017 posts by Pech and Scheppele: Part I; Part II; Part III). The situation is now so out of control that crucial rulings of the Constitutional Court that were made before it was captured ‘have been removed from the register of the Tribunal which is accessible from its website’ while ‘other judgements which were not yet published at the time of the adoption of the Recommendation of 21 December 2016 have by contrast been published on 29 December 2016 in the Journal of Laws’ (see para 5 of Commission Recommendation 2017/1520 of 26 July 2017). We are here in Orwellian and unprecedented territory for a country belonging to the EU and space precludes any analysis of the also unprecedented use (again to the best of our knowledge) of criminal law provisions designed to protect State institutions by the unlawfully appointed President of the Polish Constitutional Tribunal to silence her critics (see analysis here).

Secondly, Polish authorities never shy away from describing their ongoing destruction of the Polish judiciary as being in line with European standards or, failing that, as a pure matter of national sovereignty: two ludicrous points as explained here in a study co-authored by Professors Pech and Platon.

Let’s take for instance the forthcoming ‘reform’ of the Supreme Court. It is nothing less than a total purge of its current membership which should take two to three years to be completed. As noted by the Commission, by lowering the retirement age and applying it to current Supreme Court judges, the Polish ruling aims to compulsory retire right away ‘almost 40% of the current Supreme Court judges’ with the additional discretionary power given to the President of the Republic ‘to prolong the mandate of Supreme Court judges’ with all new Supreme Court judges to be appointed ‘by the President on the recommendation of the newly composed National Council for the Judiciary, which will be largely dominated by political appointees’. One should note in passing that the Minister of Justice, on the basis of another set of provisions, has already gained the power ‘to appoint and dismiss all presidents of courts without concrete criteria, no obligation to state reasons and no judicial review’… This will prove no doubt useful at the time of the next parliamentary elections as the Supreme Court has jurisdiction over the validation of election results (the Polish ruling party has already begun the process of amending electoral rules with no doubt the aim to make sure it will not be in a position to lose them ever again, and a process which no doubt they will try to defend as another necessary ‘reform’…).

To make matters even worse, the new process of ‘extraordinary review’ of final judgments laid down in the Act on the Supreme Court, which the Venice Commission described as having a lot of similarities with the ‘old Soviet system’ and as jeopardising the ‘stability of the Polish legal order’ in its most recent Opinion on Poland. Indeed, again as noted by the Venice Commission, under this new process, ‘it it will be possible to reopen any case decided in the country in the past 20 years, on virtually any ground. Moreover, in the proposed system the new judgements, adopted after the re-opening, will also be susceptible to the extraordinary review. It means that no judgment in the Polish system will ever be “final” anymore’ (para 58). This is as breath-taking as it is unprecedented for a country belonging to the EU and in this respect we also share the Venice Commission’s finding that some aspects of the Polish judicial ‘reform’ targeting its Supreme Court ‘have a striking resemblance with the institutions which existed in the Soviet Union and its satellites’ (para 89).

Viewed in this light one may be forgiven for thinking that the European Commission should have moved right away to the sanctioning branch of Article 7 TEU by initiating Article 7(2) rather than Article 7(1). With its neo-Soviet approach to the division of powers, Poland is already closer to Belarus in the structure of its institutions than it is to any other European state. But, as the best is sometimes the enemy of the good, we can understand why the European Commission would prefer to proceed with the preventive arm of Article 7 first. Indeed, going straight to the European Council would mean having to secure a unanimous determination regarding ‘the existence of a serious and persistent breach’ in Poland before the eventual suspension of ‘certain of the rights deriving from the application’ of the EU Treaties to be agreed under a lighter procedure laid down in Article 7(3) TEU (qualified majority in the Council is then required). Importantly, the Commission faced no legal obligation to start with 7(1) TEU first, as Article 7(2) TEU – unanimous finding by the European Council of the existence o the breach of values can unquestionably serve as the entry point into the palette of what Article 7 TEU has to offer.

4. Will the triggering of Article 7(1) make a difference?

While we welcome the Commission’s decision to submit a reasoned proposal to the Council having rightly concluded that there is a ‘clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU’ (para 127 of the reasoned proposal), the triggering of this provision is overdue and, as one of us previously argued in October 2016, the right time to have done so was November 2016 before the all too predictable unconstitutional capture of the Polish Constitutional Tribunal which happened at the end of December 2016. The continuing and misplaced faith in ‘dialogue’ with a government so clearly following Orban's autocratic blueprint has meant that the Polish ruling party was able to undermine if not annihilate virtually all checks and balances one year before the Commission moved to act, fulfilling its duty as the guardian of the Treaties.

The Commission may also be criticised for not triggering much earlier on Article 7(1) against ‘both Poland and Hungary even apart from the instrumental reason that Article 7 TEU is foiled by two rogue states acting in concert if sanctions are attempted against them one at a time’. In this respect, sceptics may argue that the triggering of Article 7 is bound to fail as ultimately, ‘rogue countries’ may just protect one another should the Commission (or one third of the Member States) decide to activate the sanctioning mechanism laid down in this provision. While this is a minority view we share the argument first defended by one of the present authors that in a situation where ‘Article 7(1) is invoked against both Hungary and Poland at the same time, neither should be able to vote if Article 7(2) … is invoked against either one. We believe this interpretation can be justified on the basis of the effet utile doctrine – a corollary to the teleological method of interpretation and which may be described as a ‘form of interpretation of treaties and other instruments derived from French administrative law which looks to the object and purpose of a treaty, as well as the context, to make the treaty more effective' (Encyclopaedic Dictionary of International Law).

The recent ruling of the Court of Justice in the Białowieża Forest infringement case may be said to further strengthen Professor Scheppele’s claim. Indeed, in the absence of any explicit reference to the eventual imposition of financial sanctions in the context of interim relief rulings under Article 279 TFEU (for further analysis see Professor Sarmiento’s post here), the Court, correctly in our view, by reference to Article 260 TFEU but also and significantly by reference to the effective application of EU Law in the name of the principle of the rule of law enshrined in Article 2 TEU, held that Article 279 TFEU confers on it the power to make provision for a penalty payment to prevent non-compliance:

The purpose of seeking to ensure that a Member State complies with interim measures adopted by the Court hearing an application for such measures by providing for the imposition of a periodic penalty payment in the event of non-compliance with those measures is to guarantee the effective application of EU law, such application being an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded.

Be that as it may, we also agree with Frans Timmermans when he said that ‘the facts leave [the Commission] no choice’ but to initiate Article 7. As two of the present authors previously wrote, it was more than time ‘to oblige national governments to face up to their own responsibilities to keep European values at the centre of the Treaties’. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed to 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof.

The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage. Even though Article 7(1) is merely a warning without any direct sanctions, the indirect effects of triggering Article 7(1) should not be underestimated. To name but a few possible knock-on effects (further analysis and references here), the activation of Article 7(1) coupled with the forthcoming total subjugation of the Polish courts to the whims and interests of the Polish ruling party may lead the Court of Justice to set aside the principle of mutual trust and/or stop recognising Polish courts as courts within the meaning of EU Law (the ongoing and arguably insufficiently noticed infringement procedure concerning the Polish Law on the Ordinary Courts will require the Court of Justice to address, for the first time as far as we know, the independence of the whole judiciary of a Member State). This could then leave the European Commission no choice but to suspend EU funding to Poland, an option which according to Israel Butler is in any event already available to the Commission (on this issue see also a recent reportCan EU funds promote the rule of law in Europe?’).

A functioning judicial system is not only necessary to maintain a constitutional government; it is also necessary to maintain a market economy. The impact on commercial arbitration involving Polish companies if not the financial markets may also in time be too significant to be comfortably ignored by Polish authorities. And while it was recently noted by Capital Economics that the experience of Hungary suggests that ‘recurrent run-ins’ with the EU ‘do not tend to have much impact on growth in the short-run’, ‘the potential impact on Poland’s growth prospects over the medium-term’ might eventually become significant for an economy which is not only highly dependent on EU funding but also FDI.

Looking beyond the law and economics of Article 7, it is difficult to predict how the politics of Article 7 may play out. We do not believe the Austrian precedent means that a nationalistic backlash is necessarily bound to materialise and undermine the Commission’s attempts to stop Poland’s descent into authoritarianism. In the case of Austria in 2000, a number of EU countries overreacted as diplomatic sanctions were adopted before any evidence of any systemic attempts to undermine principles such as the rule of law or respect for human rights. And while the freezing of bilateral relations may have led to a rise in nationalist sentiments in Austria, which was unsurprising considering that diplomatic sanctions were adopted before a breach of Article 2 values in the country could be documented, using the ‘Austrian precedent’ to justify inaction against both Poland and Hungary makes no (legal) sense. In these two countries, we have a sustained track record and ample evidence of actual, repeated and systemic rule of law violations in these two countries starting in 2011 in the case of Hungary and starting in 2015 in the case of Poland.

The Commission, as Guardian of the Treaties, should not, in any event, only seek to uphold the rule of law when facing an easy political constellation. All EU institutions but also national governments should carefully assess the long term cost of appeasement or inaction  and stop prioritising how autocratic or nativist forces may reach to prioritise instead the broader interests of EU citizens, whose rights and obligations can now unfortunately ‘be defined, in part, by ‘illiberalregimes’ via their participation to the EU’s decision making processes’.

The European Parliament did point out in December 2015 that Hungary was ‘a test for the EU to prove its capacity and political willingness to react to threats and breaches of its own founding values by a Member State’ and that ‘the inaction of the EU may have contributed to … the rule of law being undermined’ elsewhere in the EU. The Union’s passivity regarding Orban's mafia state (in large part due to the leadership of the European People’s Party putting time and time again short term political considerations over the principles this party supposedly stands for) has no doubt emboldened Poland’s ruling party to not even bother playing to the gallery while they relentlessly destroy all rule of law institutions in plain sight and prepare the grounds for the de facto establishment of a one-party state.

To end however on an optimistic note, one may refer to the seemingly beneficial political knock-on effects of the Commission's decision to initiate Article 7(1) in Romania, a country where the rule of law situation has been seriously deteriorating these past few months despite the country having been subject to a special rule of law mechanism since 2007. With reference to the Commission's decision, the Romanian President has warned the country's ruling coalition that the country could be next if the ruling coalition pushes ahead with its controversial changes to Romania's legal system.

5. Next steps

The Commission’s Article 7(1) proposal was issued at the same time as the Commission’s fourth rule of law recommendation. This recommendation gives Poland three months to solve the problems identified in the Recommendation. This suggests that the Council will not seek to organise the hearing of Poland and obtain the consent of the European Parliament until at least the end of March 2018. There are no signs yet that the Polish government tends to engage in good faith and cooperate by that time. On this basis one could foresee the following schedule for playing out the next stages of the Article 7 process:

(i) The Council would organise a hearing following the procedure identified in of Article 7(1) TEU in April/May 2018;

(ii) Consent of the Parliament would then be sought in May/June 2018 (Article 354 TFEU provides that the European Parliament shall act by a two-thirds majority of votes cast, representing the majority of its component Members);

(iii) Assuming this consent is given the Council may then seek to adopt in June/July a decision by a four-fifths majority (22 of 27 Members of the Council will have to agree with Poland obviously precluded from taking part in this vote) in order to formally determine the existence of ‘a clear risk of a serious breach by the Republic of Poland of the rule of law’ (see Article 1 of the Commission’s reasoned proposal for a Council decision under Article 7(1) regarding the rule of law in Poland);

(iv) Assuming this decision is adopted (at this stage it remains unclear whether 22 of 27 Members of the Council stand ready to de facto censure the Polish ruling party), the Council would then most likely simultaneously address recommendations to Poland acting in accordance with the same voting procedure (the post-Lisbon text of Article 7(1) provides that the Council may address recommendations to Poland before making such a determination but the Commission’s reasoned proposal suggests that a single decision could be adopted by the Council to simultaneously determine the existence of a clear risk of a serious breach of the rule of law and adopt recommendations);

(v) Should Poland fail to comply with the Council’s recommendations within the foreseen three-month deadline post the adoption of the Council’s Article 7(1) decision, one would then expect this problem to be escalated to the European Council by the end of December 2018, but this would not be an automatic consequence of Poland’s failure to comply with any eventual Article 7(1) decision by the Council.

Interestingly, it is also expected that the European Parliament will organise a plenary vote on whether to initiate Article 7(1) proceedings against Hungary in September 2018, in which case by the time the European Council might have to unanimously determine the existence of a serious breach, we could have both Kaczynski's Poland and Orban's Hungary subject to Article 7 proceedings, in which case, if one agrees with our effet utile reading of Article 7, both should lose their right to vote to protect one another in this context. It would indeed be quite an absurd construction of Article 7 if its deterrent effect simply disappeared when one rogue member state was joined by a second.

Looking beyond Article 7 and as previously noted, we can only but deplore the EU’s failure to prevent and sanction rule of law backsliding from emerging first in Hungary before spreading to Poland. Faced with two member states that are violating European values, the most effective way to deal with the issue may be to cut off EU funding. We worry that this, too, is unlikely to happen in the absence of a ‘nuclear’ ruling by the Court of Justice, meaning a ruling leading to the suspension of the principle of mutual trust where Poland is concerned (further analysis here). The impact of bilateral diplomatic pressure if not the freezing of diplomatic relations would also most likely be effective but the need for the EU27 to remain united in the context of the Brexit negotiations means that this option is off the table.

Thinking longer-term, multi-speed Europe may well solve not only the uneven willingness of states to move toward closer cooperation, but may also provide the perfect opportunity to leave behind states that are unwilling to fully adhere to basic principles. If the EU proves unable to rein in autocrats any other way, the incorporation of conditionality techniques into policing each of the integration’s concentric circles likely to become a necessary element of the edifice. As the speed and vectors of integration evolve, Poland and the likes of Poland could find themselves outside the scope of meaningful activity – behind the door of the integration’s kitchen. With the growing pressure on the Union’s values from a number of countries, this may be the most realistic way forward to preserve the EU as a union of value in the long run, while also being sufficiently open towards the states hijacked by autocratic and plutocratic forces.

Barnard & Peers: chapter 9
Photo credit: DW