In the End, It’s Politics

The path towards more cooperation in the field of European judicial cooperation since the EAW has not been all together unproblematic. Issues surrounding the EAW can, at least in part, be attributed to political unwillingness as exemplified by the fate of the European Commission’s Proposal for a Framework Decision on certain procedural rights in criminal proceedings, which did not reach unanimity.²⁹¹ Anagnostopoulos has called it a “troubling”

example of political unwillingness to promote and enhance individual rights in criminal proceedings under the guise of lacking legal basis and need for such an instrument.²⁹² Sadly, this is an example of how political the system is inherently.

Although one of the aims of the EAW system was to replace largely political extradition treaties with strictly judicial control, this evolution might have contributed to the political unwillingness described above. According to Marin, this shift of powers triggered by mutual recognition within national legal orders from legislative to the judicial authorities should be balanced by the possibility for political actors to control the process again.²⁹³ This would unlikely turn out to be a positive change.

As Articles 2 and 7 of TEU have become integral to the current legal situation, as demonstrated by LM, it’s political nature must be underlined. ECJ has determined that it follows from the wording of Recital 10 of the Framework Decision that it is for the European Council to determine a breach in the issuing Member State of the principles set out in Article 2 TEU, including the principle of the rule of law, with a view to application of the EAW mechanism being suspended in respect of that Member State.²⁹⁴ This gives up a large portion of power in the process back to political powers.

290 See chapter 7.4.2.

291 COM(2004) 328 final Proposal for a COUNCIL FRAMEWORK DECISION on certain procedural rights in criminal proceedings throughout the European Union.

292 Anagnostopoulos (2014), p. 12.

293 Marin (2008), p. 273.

294 C-216/18 LM EU:C:2018:586, para. 71.

However, ECJ has also underlined the independence of judiciary as it guarantees the non-involvement of political powers. The ECJ stated in LM that the requirement of independence means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.²⁹⁵

Although activation of Article 7 TEU can ultimately result in the suspension of membership rights, the aim of this political mechanisms is not to punish member states but rather to neutralize threats to the rule of law.²⁹⁶Kochenov - Pech have held it highly unlikely that the Council would ever adopt sanctions under Article TEU 7. This is in part because, the Council is under no legal obligation to do so even in a situation where it concludes that a member state is in breach of Article 2 TEU values: this clearly shows the predominantly political nature of Article TEU 7.²⁹⁷

Sadly, the EU’s Justice Programme budget has also not grown. As Fair Trials has noted, a limited budget and consistent pressure to create new instruments granting prosecutors ever more powerful tools, is limiting the ability of the Commission to enforce EU law in this area.²⁹⁸

7.4.2. Developing Financial Incentives

There have been attempts, on EU level, to link rule of law obligations to financial incentives.

In 2018, the Commission put forward a proposal for a regulation on the protection of the Union's budget in the event of generalised deficiencies as regards the rule of law in a Member State.²⁹⁹ The proposal addressed, from a budgetary perspective, generalised deficiencies as regards the rule of law: threats to the independence of the judiciary, arbitrary or unlawful decisions by public authorities, limited availability and effectiveness of legal remedies, failure to implement judgments, or limitations on the effective investigation, prosecution or sanctions for breaches of law. The Commission proposed the possibility for the Commission

295 C-216/18 LM, EU:C:2018:586, para. 67.

296 Uitz (2019), p. 3.

297 Kochenov – Pech (2015), p. 516. In order to clarify: The ECtHR is also to an extent influenced by political factors.

See Christoffersen, Jonas – Rask Maden, Mikael: The European Court of Human Rights between Law and Politics (Oxford University Press 2011).

298 Fair Trials (2018), p. 24.

299 COM(2018) 324 final Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States.

to make proposals to the Council in such cases on sanctions measures with regard to EU funding: suspension of payments, suspension, reduction or even termination of legal commitments (to pay), suspension of programmes, and the transfer of money to other programmes. The European Parliament did not agree with the Commission’s initial proposal and made several proposals for amendments.³⁰⁰

Finland’s current presidency of the Council of the European Union aims to find better and more efficient ways to ensure respect for the EU’s common values in the member states and to forestall potential problems and pursue the negotiations on making the receipt of EU funds conditional on respect for the rule of law.³⁰¹ These aims recently brought Finland’s and Hungary’s political actors into an open disagreement as Hungary strictly opposes them.

Hungarian government’s spokesman Zoltan Kovacs said in September 2019: “Trying to link rule-of-law conditions to the EU budget is pure political blackmail,” and that “If member states insist on it, then there simply won’t be an EU budget because Hungary will veto it.”³⁰² In the beginning, there was mutual recognition, but in the end, politics.

300 COM(2018)0324) legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States.

301 Council of the European Union (2019).

302 Simon – Pohjanpalo (2019).