Defending EU values:
INFRINGEMENT GUIDELINES
According to the EU Treaties, the Commission is responsible for ensuring that EU law is respected, and for bringing Member States to court if they breach it. Only the Commission and Member States can do that. However, during the past decades, the Commission has significantly reduced the opening of infringement procedures. And, not once, has an EU Member State government initiated a lawsuit against another EU Member State for breaching EU values before the EU's top court .
Illiberal governments have exploited this enforcement gap to attack the Union's core values.
This trend must be reversed. To protect essential values, such as the rule of law and LGBTIQ+ rights, the European Commission and Member States must actively prosecute rule of law violations in EU's top court and formulate a targeted policy strategy.
The adoption of EU infringement guidelines on Article 2 TEU is crucial for several reasons:
To leverage the untapped sanctioning power and deterrent capability of the CJEU
The European Court of Justice, based in Luxembourg, can levy substantial fines for violations of fundamental rights, including periodic penalty payments until the Member State complies with the judgment. Naturally, this provides big incentives to remedy violations swiftly. In addition, infringement proceedings initiated by the Commission relieve victims of the burden of court proceedings. Conversely, at the European Court of Human Rights in Strasbourg, only individuals who have exhausted all local legal options can file a complaint, an expensive and time-consuming process. In addition, Strasbourg only provides rather small compensation for damages, not fines, which has a significantly lower deterrent effect.
To provide authoritative standards for the implementation of EU rule of law mechanisms and increase their effectiveness
The Court rulings can serve as conditions to access EU funding. This has already been tried, for instance, for some milestones of the Recovery and Resilience Facility. E.g. one of the milestones of the Polish and Hungarian national recovery plans requires them to comply with CJEU case-law on the possibility for judges to submit preliminary references without obstacles. Additionally, Court findings on TEU value violations aid other institutions in utilizing mechanisms like Article 7 TEU procedures, which can impose severe sanctions, including deprivation of voting rights.
To depoliticise and faciliate EU-decision making on rule of law matters
Assessing another Member State's adherence to Article 2 TEU values is challenging for Member States. The Court, to the contrary, has deep legal expertise and the authority to make one such determination. In this way, the findings of the Court can relieve the Commission and Member States from some of the political pressure associated to the imposition of heavy sanctions against a Member State violating Article 2 TEU values. In addition, the depoliticisation of infringements reduces the incentives for the violating Member State to bully other Member States or institutions with the use of veto powers in exchange for not having a case opened against it.
To answer longstanding requests of EU institutions and Member States
EU institutions such as the European Parliament or the European Court of Auditors have repeatedly called upon the Commission for more clarity in the way it handles both infringement procedures and rule of law instruments. Similarly, the Member States have also called for the development of a litigation strategy to defend LGBTIQ+ rights and EU values at the CJEU.
addressing past
MISTAKES
Not acting at all...
In 2018, the CJEU issued a landmark opinion in support of rainbow families' rights (C-674/16 Coman), but more than six years later, Romania has yet to comply with the Court’s decision due to the European Commission's inaction against Romania at the CJEU.
Consequently, same-sex couples and their children still face denial of their EU legal rights, not only in Romania but in Hungary and Bulgaria as well, where policies continue to breach C-674/16 Coman.
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Acting too late...
Despite widespread concerns raised by civil society and the European Parliament, the Commission waited eight years to bring Poland before the CJEU for its controversial reform of the Polish Constitutional Tribunal of 2015. It never brought the country to court for the problematic reform of the National Council of the Judiciary of 2017.
Now, Poland has the difficult task of dealing with a constitutional court that does not recognise the primacy of EU law, and with judges appointed under a twisted system.
Acting insufficiently...
In 2017, Hungary amended its higher education law to effectively force the Central European University (CEU) out of the country. The Commission brought Hungary to the CJEU and won, but by the time the judgement was delivered the university had already been forced to leave.
Had the Commission requested interim measures, the CEU might still be in Hungary.
the
SOLUTION
The Commission should fight breaches of EU values and fundamental rights by providing clear guidelines on how and why it brings Member States to court, explaining:
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The criteria used to decide whether to open infringement proceedings and how it prioritises between cases;
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The procedure in terms of deadlines, the request of interim measures, consultations with experts (e.g. FRA or civil society) and complaint management
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The linkages with other rule of law instruments (e.g. on the protection of the Union budget or Article 7 TEU).
The European Commission should provide an action plan on the next steps to take in the application of the guidelines, addressing the problems mentioned above (e.g. taking action on the non-implementation of CJEU case-law on the free movement of rainbow families).
key
DEVELOPMENTS
Member States repatedly call for the development of a litigation strategy to defend LGBTIQ+ rights and TEU values, pledge to support the Commission in doing so
The Member States have pledged on several occasions (the most recent, in May 2024) to support the European Commission when enforcing EU law to defend LGBTIQ+ rights and TEU values. This support was evidenced when 16 Member States joined the Commission in an infringement case against the Hungarian anti-LGBTIQ+ propaganda law. The Commission should capitalise this political momentum in the 2024-2029 mandate and develop a litigation strategy to defend those values consistently.
May
2024
The European Ombudsman presses the European Commission on the handling of infringement complaints
The European Ombudsman raises concerns regarding the delays of the Commission in the handling of complaints about EU law infringements and their lack of transparency. She is also inquiring about the implementation of the recommendations from the Commission’s 2023 stocktaking report, its plans to revamp the infringements website, and the potential creation of an online portal for complainants. The Ombudsman has requested a response by October 31st, 2024.
November
2024
ECA reports on the handling of rule of law instruments and infringements by the European Commission
The European Court of Auditors published in February 2024 a report onthe rule of law framework in the EU, flagging several shortcomings, like the inconsistency and unpredictability in the application of the framework. The ECA will publish another report early next year (expected Q1 2025), on infringement procedures. The Commission should address the deficiencies identified by both ECA reports.
January
2025
Von der Leyen announces the renegotiation of the bilateral framework agreement on the relations between the European Parliament and the Commission
Concerns have been voiced on the limited political accountability of the Commission towards the Parliament. The renegotiation of the bilateral framework agreement between the two institutions could serve to establish a system of enhanced accountability, making the Commission attentive to the Parliament's concerns, particularly when it flags violations of EU values that need addressing.
July
2024
Hearing at the ECJ of the Hungarian anti-LGBTIQ+ law, where Article 2 TEU was raised as a self-standing plea
The European Commission brought Hungary before the CJEU for the adoption of its anti-LGBTIQ+ propaganda law. The Commission included, among its pleas, an argument regarding the law’s breach of the values of Article 2 TEU. The Court has not yet had the chance to rule on the justiciability of Article 2 TEU.
November
2024