THE STATE OF THE EUROPEAN UNION. Reforming Europe in a time of war

The Rule of Law Situation in the European Union 59 to request the launch of Article 7 of the TEU 15 . The fol- lowing infographic describes this process in more detail ( Figure 3 ) 16 . Unfortunately, this mechanism soon ceased to be a theoretical tool with the forming of the Law and Justice party government in Poland in late 2015 and its attacks on the independence of the judiciary following the adop- tion of the law that changed the composition of and method of appointment to the Constitutional Tribunal, as well as the duration of the terms of its President and Vice-President. The Commission triggered this new framework in January 2016 and, given the lack of progress in the di- alogue and in following the Commission’s recommen- dations on the part of the Polish government 17 , on 20 December 2017 the Commission formally proposed to the Council the launching of an infringement procedure against Poland in accordance with the provisions of Arti- cle 7.1 TEU “determining that there is a clear risk of a se- rious breach of Article 2”.The proposal was based on two points: on the one hand, the absence of an independent and legitimate monitoring of constitutionality and, on the other, the adoption by the Polish parliament of new legislation pertaining to the judiciary, which raised seri- ous doubts about judicial independence, thus posing a systemic threat to the rule of law in Poland 18 . 15  And all in spite of the doubts of the Council’s legal service about the Commission’s capacity to launch a “pre-Article 7 procedure”, considering it ultra vires. See Louis, Jean-Victor: Respect de l’état de droit et protection des finances de l’Union. Cahiers de Droit Européen 2021 nº 1, p.5. As the author himself mentions, in parallel to the “Framework” in the strict sense of the term, in December 2014 the Council decided to establish an annual dialogue of its own on the rule of law among all the Member States, a dialogue that lasted until 2019, when, in the face of the lack of consensus among the states, the dialogue was suspended. 16  See note 12. 17  Commission Recommendation (UE) 2016/1374 of 27 July 2016 regarding the rule of law in Poland. OJEU L 217 of 12.08.2016, p. 53.This recommendation contains a comprehensive and chronological monitoring of how this first application procedure of the Rule of Law Framework was carried out. 18  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) 0835 final of 20.12.2017). Currently, this procedure continues to languish in the Council, despite being formally launched and with several “hearings” already having been held with the Polish government, as Article 7.1 requires, in the face of Hungary’s position of opposing it in return for a similar reciprocal stance on the part of Poland, given that, in parallel, on 12 September 2018 the European Parlia- ment adopted a Resolution, proposing to the Council the launching of an Article 7.1 procedure against Hungary, based on systemic attacks on judicial independence, cor- ruption and conflicts of interest, and violations of various fundamental rights 19 , which also remains ongoing in the consultation phase with the Hungarian government 20 . Moreover, in view of this situation, the Commission has refrained from launching the procedure in other pos- sible cases, to be precise, against Malta and Romania in 2018, which has led a good part of observers to describe it as “a framework devoid of substance” 21 . The Commission was aware of the limits of this Framework as “pre-Article 7” action on launching it in 2014, should there be a lack of political will in the Council to trigger the article 22 . It was intended to be a preventive dialogue that would allow the Commission to “bolster its position and case” in a strategy of “name and shame”, leaving the door open to addressing spe- cific situations that might be tackled via infringement procedures and procedures of control over the use of 19  European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131 (INL)). OJEU C 433 of 23.12.2019, p. 66. 20  For a detailed analysis see:Waelbroeck, Michel et Oliver, Peter: La crise de l’état de droit dans l’Union européenne: Que faire? Cahiers de Droit Européen 2017, p.329. 21  For a good inventory of the limits of the EU’s “tool box” on this matter, see in particular: Maurice, Eric.: Protecting the check and balances to save the Rule of Law. European Issue nº 590, 06/04/2021, Fondation Robert Schuman. 22  For a more detailed analysis of its use as an instrument of soft law, but one that is inadequate if the “repeat offender” state refuses to cooperate and/or remedy see: Kochenov, Dimitry y Pech, Laurent: Better late than never? On the Commission’s Rule of Law Framework and its first activation. Journal of Common Market Studies 2017, p. 1062.