The Rule of the Courts

Claas Friedrich Germelmann

freedom and media pluralism, and the broader area of institutional checks and balances. 11 The Commission is entitled to issue recommendations. Among the existing safeguards contained in the Treaties, the procedure under article 7 TEU is intended to protect the fundamental values of the EU under article 2 TEU. 12 The Commission had initiated proceedings against Poland under the first phase according to article 7 para. 1 TEU because of the judicial reforms. 13 In the meantime, however, the Commission has withdrawn its proposal under article 7 para. 1 TEU and discontinued the procedure after the new government presented an agenda for mending the infringements of the rule of law created by its predecessor. 14 However, the chances of success were very limited from the beginning. Similarly, the ongoing proceedings against Hungary have not been successful either and are still stuck in the first phase. 15 Instead, high political hurdles dominate the procedural pattern, 16 such as the requirement for unanimity in the European Council for determining a “serious and persistent breach” of the values of article 2 TEU, which applies in the second phase according to article 7 para. 2 TEU. A regulation adopted by the EU in 2020 on the so-called conditionality mechanism 17 links the granting of EU funds to compliance with rule of 11 See https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental rights/upholding-rule-law/rule-law/annual-rule-law-cycle_en . 12 For an historical overview, see Ippolito , RTDEur 2019, 274. 13 Proposal for a 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. 14 Press release IP/24/2461, 6 May 2024. 15 After the European Parliament had triggered the procedure in 2018, it is still ongoing without any vote according to article 7 para. 1 TEU in the Council yet. 16 Skouris , Demokratie und Rechtsstaat – Europäische Union in der Krise, 2008, 48. See, in more detail, Blumann , in: Les droits de l’homme à la croisée des droits. Mélanges en l’honneur de Frédéric Sudre, 2018, S. 71 (75 ff.); Kochenov/Pech/Platon , RTDEur 2015, 689 (at 695-6). Concerning the role of the European Parliament, see Pacini , in: Marguery/Platon/Van Eijken (eds.), The european elections, 40 years later, 2020, 287; Jurik , ibid., 205 (at 210 et seq.). 17 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433I, 22.12.2020, pp. 1–10; in more detail Auriel , RevUE 2022, 106;

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