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ANALYSIS OF THE EXISTING LEGAL INSTRUMENTS FOR STRENGTHENING THE RULE OF LAW NUCLEAR OPTION OR INFRINGEMENT PROCEDURE?
Abstract
This article is focusing on the analysis of the current EU legal instruments which can be used for the protection of the rule of law, their effectiveness and certain limits, as well as proposals de lege ferenda. Especially the procedure contained in Article 7 TEU is designated to deter Member states from the violation of principles of rule of law by a mechanism, which can amount to even the suspension of their voting rights in the Council. Although the fact, that this instrument doesnt imply the judicial procedure, but political mechanism, nevertheless the impacts of its application can be so crucial and devastating towards the state concerned, that this procedure is often described as a last resort mechanism or even nuclear option. Recent developments in some Member States have shown that the preventive and sanctioning of Article 7 TEU are not always appropriate to quickly respond to threats to the rule of law in a Member State. As a certain alternative to a ponderous political procedure can be used a judicial proceeding under Article 258 TFEU. But this solution, nevertheless, has its great limits, given by the fact, that infringement procedures can be launched by the Commission only where these concerns constitute, at the same time, a breach of a specific provision of EU law.
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Communication from the Commission to the European Parliament and the Council „A New Framework to Strengthen the Rule of Law“, COM (2014) 158 final, Strasbourg, 12. 3. 2014
for the detailed description of this procedure see: Lenaerts, K., Maselis, I., Gutman K.: EU Procedural Law, Oxford University Press, Oxford, 2014´
ibid, note 1, p.6
for the analysis of this article see : Piris, J –C: The Lisbon Treat. A Legal and Political Analysis, Cambridge University, Press, Cambridge, 2010, p. 71 – 74
Kochenov, D.: Busting the Myths Nuclear : A Commentary on Article 7 TEU, EUJ Working Paper Law 2017/10, European University Institute, Department of Law p. 6, available at: http://cadmus.eui.eu/bitstream/handle/1814/46345/LAW_2017_10.pdf?sequence=1&isAllowed=y, accessed on 17. 4. 2018
ibid, note1
ibid
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Council of the European Union. Opinion of Legal Service 10296/14, Brussels, 27 May 2014
ibid, p.7
Budó, G.: EU Common Values at Stake: Is Article 7 TEU An Affective Protection Mechanism?, Documents CIDOB, May 2014, p. 3, available at https://www.cidob.org/en/publications/publication_series/documents_cidob_new_era/eu_common_values_at_stake_is_article_7_teu_an_effective_protection_mechanism, accessed on 19. 1. 2018, p. 3
Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland (OJ L217, 12. 8. 2016, p. 53; Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding rule of law in Poland complementary to Recommendation (EU) 2016/1374; OJ L 22, 27. 1. 2017, p. 65; Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to the Recommendation (EU) 2016/1374 and EU 2017/146; OJ L 228, 2. 9. 2017, p. 19.
Reasoned Proposal in Accordance with Article 7 (1) of the Treaty on European Union Regarding the Rule of Law in Poland. Prosposal for Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM (2017), 835 final, Brussels, 20. 12. 2017, 2017/0360 (APP), p. 1 - 2
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