Rewarding in EU Law
Prospect for a Brighter Future?
The Court of Justice of the European Union (CJEU), as a principle voice of the EU legal order, has long ago severed the link between EU law and international law by pursuing the so-called constitutionalization thesis on the basis of which EU law has been converted into an autonomous legal order with its own constitutional charter. As EU law has thus been widely theorized and practiced as separate and distinct from international law, does that also mean that EU legal theory and practice cannot profit from the highly insightful findings by van Aaken and Simsek (hereinafter: the authors) on the benefits of rewarding, as opposed to mere sanctioning, when pursuing compliance under international law? In what follows, this question will be approached in three steps. First, we will examine the capacity and scope of translation of the authors’ argument to EU law. Second, it will be argued that the utility of rewarding in EU law depends on the type of violations committed. Finally, it will be claimed that rewarding under EU law can only go as far as it does not run counter to the fundamental values of the Union.
The Translation of the Argument and its Limits under EU law
Does the autonomous, constitutional nature of EU law, which is an outcome of its deliberate separation from international law, prevent the translation of the authors’ argument on the utility of rewarding as a means of fostering compliance to EU law? The answer must, of course, be given in the negative. The argument made by the authors clearly can be applied beyond the realm of international law. In fact, the rationalist and the behavioural perspective, which the article conjoins in order to substantiate the advantages of stimulating positive rather than relying just on the negative means of fostering compliance, derive from and describe the very human condition that can be universalized across domestic, supranational, international as well as transnational legal and political spaces. Of course, with an important proviso of taking into account the specificities and particularities of each of these individual legal and political spaces.
With regard to specificities of EU law, the first limitation of the authors’ argument likely lurks in their choice of treating the State as a unitary actor as far as the compliance mechanisms are considered. While such a choice is certainly merited under international law, in particular for the sake of the argument’s clarity, it is less persuasive under EU law. The constitutional doctrines of the CJEU, in particular the direct applicability and the direct effect, and the multi-level governance in the EU, in which the boundaries between the national and supranational institutions, competences, legal, administrative and political processes have been increasingly blurred, have contributed to a disaggregation of the member States. They thus do not act as unitary actors under EU law and, what is more, they are not even the only actors under EU law. Their nationals too, nowadays as EU citizens, have been turned into subjects of EU law and act as direct bearers of the rights and duties, in a way that is importantly different from international law. This fact of a non-unitary and disaggregated status of a member State under EU law would therefore need to be taken into account when transposing the authors’ reasoning from international to EU law, in particular because it might be precisely this disaggregation of the member States that has engendered more pronounced habit of obedience to and hence a higher level of compliance with EU law in comparison to international law.
Between ‘Ordinary’ and ‘Systemic’ Defiance of EU law
However, what about when in EU law, the generally low level of overt incompliance notwithstanding, cases of infringements do emerge? Could these be better addressed, as suggested by the authors, by privileging rewards over sanctions? As we shall see, the answer to this question might depend on the scope of the infringement, an important distinction being drawn between the ordinary, isolated, singular violations of EU law and the systemic defiance reaching all the way down to the fundamental values of the Union.
With regard to the former, it has to be stressed that most violations of EU law in singular cases are resolved by the national authorities either in the horizontal disputes between individuals inter se or in the vertical disputes between the public organs and the individuals. The direct effect, the principle of primacy of EU law and the preliminary ruling procedure thus act in the way that the question of compliance with EU law, by and large, remains a domestic issue. The European Commission, as a guardian of the Treaties, in principle therefore does not even intervene, by taking up a case by itself, if there is a prospect of the latter being resolved by the national authorities. In that sense, the non-intervention of the Commission is itself posited as a reward. Shall the member State resolve the question of compliance with EU law internally, the case does not even grow into a supranational issue, which is, in and of itself, an incentive, a reward, for voluntary compliance with EU law. Furthermore, even when the Commission decides to initiate the infringement procedure against the member State, the proceedings under the residual Art. 258 TFEU is broken into three parts: informal, formal and the discretion to file an action, so to provide a member State with numerous options for complying with EU law before the case is eventually brought to the Court. And even then when the case is lodged with the Court and even if a member State is convicted, it can still avoid sanctions by promptly complying with a CJEU ruling. In short, the ordinary infringement procedure follows the logic of a reward, stimulating positive compliance rather than resorting to immediate, mechanic sanctioning of any violation of EU law irrespective of its scope and its actual negative impact on the functioning of the Union.
It is, however, different and much more difficult in cases of systemic defiance, such as those currently represented by Hungary and Poland, where the very rule of law and the overall system of constitutional democracy have come under attack. As such cases cannot be effectively and hence successfully addressed by ordinary infringement procedure, the EU Treaties have provided for a hybrid political and legal procedure under Art. 7 TEU. This too contains numerous incentives for a member State to comply before the sanctions of outcasting are actually applied. In the awareness of the high price for the reputation, not only of the accused member State, but also of the Union as a whole, that a mere launching of this procedure entails, the Commission has even devised an informal stage, which precedes the formal launching of the procedure. This is destined to stimulate compliance by the exchange of best practices through an inclusive, open and constructive dialogue between all the stakeholders involved. Finally, to deescalate the acute conflict that the launching of Art. 7 TEU due to its highly politicized character inevitably provokes, it has also been attempted to attenuate the problem of systemic defiance by converting into a more profane, less politically exposed issue of compliance with financial requirements related to the EU budgetary powers.
The attempts to deescalate the conflict, despite the unobjectionable gravity of the situation, confirms the central point of the authors’ article that not only rationalist, but also behavioural aspects of (non)compliance need to been taken into account. It is evident that the use of Art. 7 TEU has provoked extremely negative emotions, hawkish biases and reactions, in which the accused member States resist compliance also to avoid looking weak. Rather than resolving the crisis of constitutional democracy in the Union, the remedial attempts, which have been increasingly stirred into the direction of sanctions, have resulted in an ever-deeper value cleavage between the West and the East, which has also been exploited by the rogue member States to get away with their systemic violations of EU law.
Fundamental values as the ultimate limit of rewarding
While the article by van Aaken and Simsek hence contains no silver bullet for the resolution of the EU rule law and democracy crisis, their insistence on the behavioural approach and the importance of rewarding as a complementary mechanism of sanctions could be used by the EU to its own advantage. At the same, it is also true that in cases like this, when the member States seek to deviate from the basic values of the Union and to undermine the very political paradigm on which the Union is based, any means of rewarding such a member State would cause a profound moral hazard. Eventually, there can be no compromise on the fundamental values, if these are to remain fundamental in the first place. Fundamental values of the EU, as stipulated in Art. 2 TEU, thus present the ultimate limit of rewarding as a means for ensuring compliance with EU law.
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