Implementation of rules: a test for the EU’s legitimacy

, by Juuso Järviniemi

Implementation of rules: a test for the EU's legitimacy
Towers of the European Court of Justice - Ⓒ sprklg, Flickr Commons (CC BY-SA 2.0)

Freedom and solidarity are core principles of the EU. Traditionally, the EU has been associated with soft values like peace and tolerance, but the recent years have shown that no organisation can properly function without a common set of cold, hard rules. The European Union does have a vast collection of treaties, laws and other regulation but simply making a law isn’t enough. Without efficient implementation a law doesn’t mean anything.

The European Commission is responsible for implementing the common rules in the EU. If a Member State fails or refuses to adopt regulation and a dialogue between the Commission and the country bears no result, the Commission will refer the case to the Court of Justice. In what is called the infringement procedure, a fine is issued as a penalty if the country is found guilty.

When a fine isn’t enough

While infringement cases are rather common (in the field of environment only, hundreds of cases are open each year), the threshold for putting more frightening sanctions in place is very high.

On December 16, the European Parliament voted on a resolution concerning democracy and rule of law in Hungary. The resolution reminds the Commission to keep an eye on the situation in the country whose government has constantly shocked the European community with its questionable laws and statements.

To the chagrin of the S&D group of the Parliament, the final version of the resolution makes no reference to the Article 7 of the Treaty on European Union. The article, which has thus far never been applied in practice, is the EU version of imprisonment or, like the Euranet Plus article describes it, an ”atomic bomb”. It enables the EU to withdraw a country’s rights, for instance its voting rights in the Council of Ministers. The fact that the Parliament eventually removed any mention of the Article 7 from its resolution despite the arguably alarming recent developments in Hungary demonstrates how complicated it is to take such a strong action against a Member State.

Legal sovereignty for the daring?

Katalin Miklóssy, research fellow at the University of Helsinki, Finland, laments the shortcomings of the EU legal system when it comes to implementation under these exceptional circumstances. In September, she was interviewed by YLE, the Finnish Broadcasting Company. ”No, because the EU is completely toothless. Hungary has been criticised for a long time. [...] But so what? The EU doesn’t have the wherewithal to put its values and decisions to practice in Hungary”, she answered when asked whether Orbán listens to his European critics.

Ultimately, it boils down to the question of whether the European Union is a community of independent states or a federally governed entity.

A problem that characterises all attempts to make rules for independent states is the fact that any state can simply take a risk, stop playing by the rules and hope that the others won’t come up with an enough scary punishment, which is essentially what Orbán’s Hungary has been doing.

In a federal state, it’s different. For instance, the Article 37 of the German Constitution (page 36) says that the Federal Government may ”compel” a state to comply with its duties if the state fails to do so independently. One could argue that a federal state has a stronger atomic bomb than the EU does.

Money talks

I recently attended an event where Olli-Poika Parviainen, a Green member of the Finnish Parliament, bemoaned the disrespect for fundamental rights in Hungary and Romania. After his address, I asked him what kind of methods could be used to coerce such countries into acting in accordance with EU treaties. (The Article 2 of the Treaty on European Union outlines the principles and values that each EU Member State shall respect – therefore coercion would be nothing more than ensuring that the treaty is respected.)

Parviainen suggested that EU funding be made more dependent on the track record of its recipients. Indeed, if a country misses out on hundreds of millions of euros in regional development or R&I funding, it may start feeling a need to reconsider paying more respect to minorities or freedom of speech.

Werner Faymann, the Chancellor of Austria, has a similar point of view. Politico Europe writes that Faymann proposes a financial penalty for the Member States which refuse to bear their responsibility of refugees. He referred to the reviewing of the EU budget next year as an opportunity to give punishments. In the international system where no supreme authority can exercise power over states, financial sanctions are a common way to condemn a country’s actions and push for change. Therefore Faymann’s strategy would be very much similar to the one the EU has been employing in its relations to Russia.

Still not that simple

In a community of soft power, sanctions are still a somewhat outlandish topic. Still, a legal system is bound to fail sooner or later if there is no way to make sure that everyone abides by the rules. Since implementing the kind of harsh methods described in the Article 7 debated in the European Parliament, or the German constitutional law, doesn’t at present seem realistic, increasing the presence of economic sanctions may be the most logical way forward. By moving in that direction, the EU would distance itself from the idea of a federal state.

All kinds of sanctions risk stirring up bad blood between EU Member States. European solidarity has repeatedly been put to a test this year and therefore another quarrel over economic penalties is a particularly unpleasant thought. Perhaps this is also why the resolution the European Parliament adopted was a watered-down version of the original one. Nevertheless, cases like Hungary have shown that EU decision-makers will at one point or another have to think about what exactly leads to the stricter punishments.

This article was reproduced with permission from the author. The original can be found on Undivided Europe.