The enemy within? Article 259 and the Union’s intergovernmentalism

, by Guillermo Íñiguez

The enemy within? Article 259 and the Union's intergovernmentalism
Mark Rutte and Angela Merkel, at the 2018 European Council summit in Salzburg (Austria). Source: eu2018at / Flickr

The developments witnessed throughout the past few weeks point towards an increasingly likely possibility: that Poland will be brought before the Court of Justice of the European Union (CJEU) not by any European institution, but by another EU Member State. It is a scenario which would not, in itself, be uncommon – but which, against the backdrop of the EU Recovery Fund negotiations, and of the increasing public awareness surrounding the rule of law backsliding in Central and Eastern Europe, would send a particularly strong political message.

On December 1st, the Dutch House of Representatives (the Tweede Kamer) adopted a resolution compelling the government to bring Poland before the CJEU. In light of the Commission’s failure to enforce the Courts’ previous judgement, the Tweede Kamer noted, and of the ‘serious’ threats faced by the Polish judiciary, the Dutch government should take the lead, and ensure the protection of rule of law across the Union.

How do the Treaties envisage this possibility? The answer lies in the oft-neglected Article 259 of the Treaty on the Functioning of the European Union (TFEU), which provides that ‘[a] Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.’

Article 259 infringement proceedings are rarer than the ’traditional’ procedure under Article 258: the prospect of one government suing another is feared, and it is preferred that action against a Member State be taken by the European Commission. Yet as Dimitry Kochenov notes in Gazeta Prawna, such proceedings are more common than a first glance at the CJEU’s law reports might suggest. In its second limb, Article 259 further notes that ‘[b]efore a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission.’ Many of the claims brought by Member States are halted at this stage, and taken up by the Commission instead – thus reaching the Court as ‘traditional’ Article 258 proceedings, rather than as disputes between two Member States.

This explains the residual nature of cases actually brought under Art 259 itself. Such disputes, Kochenov adds, are ones with a ‘purely political dimension’, which the Commission has refused to get involved in, and which are thus viewed as rather risible conflicts by the European legal community. Prominent examples include Spain v United Kingdom (C-145/04), which concerned a dispute over voting rights in Gibraltar; Hungary v Slovak Republic (C-364/10), which concerned freedom of movement and a diplomatic conflict between the two; or the case of France v United Kingdom (Case 141/78), which dealt with a fisheries disputes.

A turning point

This non-aggression pact between Member States, however, may have changed. Faced with the joint Hungary/Poland veto over the EU Recovery Fund, and in light of the increasing public awareness of the existential rule of law crisis the Union faces, Article 259 appears to be on the cards – and as the past week has shown, a Dutch claim against the Polish government could be plausibly backed by several other governments.

On December 1st, and against the backdrop of the Polish persecution of Judge Igor Tuleya, the Court of Justice heard the case of Commission v Poland (C-791/19), concerning the recently introduced disciplinary regime for Polish courts. According to the Commission, said regime establishes ‘political control’ over the judiciary, allowing the government to sanction judges based on the political content of their rulings. In doing so, the Commission concludes, Poland has failed to fulfil its obligations under Art 19(1) TFEU (the right to effective legal protection), read in conjunction with Art 47 of the Charter of Fundamental Rights (the right to an effective remedy and to a fair trial).

What was most striking about the hearing, however, was not the Polish government’s violation of the judiciary’s independence, which has become a commonplace phenomenon. It was, rather, the presence of five Member States (Belgium, Denmark, the Netherlands, Finland and Sweden), which intervened to support the Commission – coordinating their submissions, as the Belgian government explicitly recognised, and engaging ‘in considerable detail with the situation in Poland in an unprecedented public way’.

Belgium, for example, showcased its ‘concerns’ surrounding the new disciplinary framework: it will have a ‘chilling effect’ on the judicial system as a whole, Finland noted, introducing ‘an element [of fear] into judges’ work. ‘A Polish judge’, it added, ‘may have to show exceptional courage just to rule on a case in a way that they consider fair based on their expertise.’ As Denmark concluded, such a regime is incompatible with the principle of mutual trust – an essential aspect of European cooperation as a whole.

An intergovernmental push to break the impasse

The recent manoeuvres by the Dutch parliament have been met with fierce resistance by the Polish government, which has threatened to bring an Article 7 TEU claim against the Netherlands: in its recent report, titled ‘Violation of the rule of law by the Netherlands – Tax fraud in the EU’, the Polish government warns of the Netherlands’ ‘aggressive tax planning’, labels it a tax haven, and stresses that its fiscal framework risks violating the Union’s financial interests.

The concerns surrounding the Netherlands’ fiscal policy, and its potential to trigger a race to the bottom in fiscal standards, are of course not new, and were subject to increased scrutiny during the Recovery Fund negotiations. This does not, however, make Poland’s attempt at retaliation any less cynical: as Kochenov has noted, it will be ignored by the Council, not taken up by the Commission, and dismissed by the Court of Justice.

What it does show, however, is Poland’s concern against an increasingly assertive group of Member States, which are taking up a duty - the guardianship of the Treaties - which Ursula von der Leyen’s Commission has long abdicated.

Faced with the democratic backsliding in Central and Eastern Europe, the European institutions have systematically failed to act, engaging in never-ending ‘dialogues’ with authoritarian governments, and demanding new legal instruments whilst proving reluctant to use existing ones (such as Article 7 TEU proceedings, Article 260(2) TFEU sanctions, or the Common Provisions Regulation governing the European Structural and Investment Funds). They have shown, in other words, the extent to which an ‘authoritarian equilibrium’, which is rendering the Treaties highly inefficient, is entrenched in the Union’s very functioning.

The coalition of states which is forming around the Netherlands, and the possibility of Article 259 proceedings being launched against Poland, provides welcome news, points to a way of breaking the existing impasse, and highlights the Union’s political reality: that, whatever the federalist ambitions held by many, intergovernmentalism is more present than ever, and can in some instances pave the way towards a closer, more assertive, Union.

The threat of an international agreement, signed by the remaining 25 Member States and taking the Recovery Fund outside the Treaties’ framework, has played a vital role in seemingly overcoming the Orbán-Morawiecki veto. Similarly, faced with the Commission’s blind eye towards the rule of law backsliding, Member States can rely on Art 259 TFEU to bring infringement proceedings against Poland and Hungary.

Overcoming the Treaties’ rigidity, in other words, also means overcoming the institutions’ lack of political will – to protect the Union’s founding values (Art 2 TEU), uphold the principle of mutual trust (Art 4(3) TEU) and safeguard the principle of effective legal protection (Art 19 TEU). Without such assertiveness by the Member States, the EU’s constitutional architecture will prove increasingly fragile.

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