Prospects for Enhanced Infringement Procedures in the EU

Jesse Stricklan Vol. 37 Notes Editor Vol. 36 Associate Editor

It is a fundamental assumption of the EU project that economic and political freedoms go hand-in-hand,[i] but recent political trends in some EU member states, particularly Hungary, seem to be challenging this consensus.  In 2010, Viktor Orbán’s Fidesz party enacted reforms in pursuit of “illiberal democracy” to consolidate their grip over elections, governance, and the media, all the while asserting that an illiberal Hungary could exist in harmoniously within the EU.[ii]  The Fidesz reforms elicited outrage from both domestic[iii] and international[iv] human rights organizations and spread worry across Europe. What is the EU to do when a member state engages in systemic violations of fundamental rights protection?  The EU treaties provide tools to deal with such situations – namely, infringement procedures and Article 7 procedures.  Infringement procedures derive from Article 258 of the Treaty of the Functioning of the European Union (TFEU) as a means of resolving disputes between the European Commission and Member States about the application of EU law within national jurisdictions.[v]  Article 7 procedures derive from the Treaty on the European Union (TEU), granting the European Council broad powers to sanction Member States for a “serious and persistent breach” of rights protections under Article 2 TEU, but only after reaching near unanimity in the Council as to the breach.[vi]  The infringement procedures, already underway, seem to be ineffective at changing Hungary’s behavior, and Article 7 procedures have not been employed. In the first place, infringement procedures are a poor remedy for addressing systemic violations.  Infringement procedures usually pursue an individual remedy for each violation, which multiplies the work for the EU and leaves EU citizens without a remedy while their cases work through the system.  More importantly, infringement procedures might focus on details and leave larger questions unaddressed, particularly because they are typically applied to specific EU regulations.[vii] If infringement procedures are too weak, the disenfranchisement procedures under Article 7 may seem too strong.  Article 7 procedures require a great deal of consensus and can result in severe consequences levied against the member state in question, according to the almost plenary discretion of the EU institutions involved.[viii]  Thus, the wide gap persists between the intimidatingly broad powers of Article 7 and the relatively benign infringement procedures. To close the gap, the EU could employ something like what Kim Lane Scheppele calls “enhanced infringement procedures” through the application of Article 2 TEU (as opposed to Directives or Regulations) by means of an infringement action based on Article 258 TFEU.[ix]  If the Commission were to present the Court of Justice of the European Union (“CJEU”) with systematic fundamental rights violations, the Court might find it easier to assert general EU treaty principles as inherently binding.  Enhanced infringement procedures would use existing infringement procedures more aggressively and thereby avoid modification of the treaty. Nevertheless, some EU legal observers are skeptical of the effectiveness of enhanced infringement procedures.  Jan Komárek has argued that it would be more appropriate (and more effective) to establish a more direct method of enforcing Article 2, perhaps by revising the treaty.[x]  Matej Avbelj argues that Article 2 can only be properly defended if citizens of a state care to do so on a domestic level,[xi] and Paul Blokker worries that the legalistic application of Article 2 standards by the CJEU may encourage the very feelings of resentment toward EU institutions which is animating Fidesz’s current political success.[xii]  While these concerns are well-founded, the more pressing question is whether inaction is more costly to the EU than pursuing action. If action is necessary, then one of the great advantages of enhanced infringement is that the Commission already has the legal authority to pursue this course of action.  Articles 258 and 260 of the TFEU specify that infringement procedures may be brought in connection with any “obligation under the treaties.”[xiii]  Given the fraught nature of exercising EU powers against a member state, it seems to me that the use of Directives and Regulations in infringement actions is rooted not in a legal restriction but rather an excess of caution; some might fear that if Article 258 TFEU infringement actions can be applied to Article 2 TEU, then a whole range of actions are immediately available to the Commission and the CJEU. From a legal perspective, it is indeed worrisome to set a possibly open-ended precedent applying infringement procedures to any general treaty principle, particularly in light of the difficulty of bringing any check upon the CJEU.  The concern with opening the aperture of infringement procedures as applied to Article 2 derives from the general difficulty of courts applying general rights such as those found in Article 2, including “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights … [and] a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”[xiv]  This broad language contrasts sharply with the often narrowly-focused provisions usually applied in infringement procedures.  Once enhanced infringement procedures are applied to Article 2, would enhanced infringement represent a blank check to the Commission and the CJEU to interfere with Member State law? The answer is two-fold.  In the first place, it does not seem strange to assert that all the provisions of the TEU should be interpreted as having binding force.  If the concern is to maintain member state authority, or that resistance from member states will be sufficiently strong so as to make this process ineffective, the immediate response appears to be that the member states signed on to the EU treaties in the first place and must be considered to have given consent to their application. The second observation supports the first: EU institutions, and in particular the CJEU, have traditionally understood the development of EU processes as requiring restraint.  Just because the Commission can apply infringement procedures to any part of the treaties, it may not choose to do so, and the CJEU may choose not to proceed.  This is not a legal as much as a political consideration, which may not be terribly reassuring to critics of an enhanced infringement procedure.  However, the CJEU has demonstrated the capacity to interpret general rights, just as a constitutional court might. The very serious challenge presented by systemic fundamental rights violations should change the risk-reward calculus of such an expansion, particularly since enhanced infringement procedures may be the best way to avoid a more destructive conflict through the direct application of Article 7.  Given the tools at hand, enhanced infringement procedures represent an opportunity to resolve a difficult situation in fundamental rights protection.  Infringement uses existing mechanisms within the TEU and commands a higher degree of legitimacy through the involvement of multiple EU institutions, in which Member States have a strong say (as opposed to autonomous action by the CJEU).  Friction in the application of new EU authority will be inevitable, but unless EU institutions are content to wait and hope that the Hungary problem resolves itself, they must attempt to navigate fundamental rights protection by one method or another.