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- Article 7 TEU is no more than a theoretically attractive procedure, which under the current circumstances is not able to properly defend EU fundamental values (so the interest of the EU).
- However, it is still reasonable, since it is an instrument with an ultima ratio character which can be effectively used in politically managing problems as a strong argument of the political debates with the unwilling Member States.
The Treaty of Amsterdam (1998) made it possible for the European Union to impose legal (and not only political) sanctions on a Member State in case of violating the fundamental values of the Union. This practice, which initially connected legal consequences only to the serious and persistent violation of EU values, has been modified by the Treaty of Lisbon (2007) through adding the notion of ‘risking’ these values. Even though this Article has been part of the EU public law for two decades now, it only came to the centre of the Hungarian public attention in the last couple of years, mainly due to the continuous debates about the political turn of 2010 and about the new Hungarian constitution.
This short piece of writing will present and analyse Article 7 with the purpose of depicting the broader picture on this topic to policy-makers and the general public.
1. The method and logic of Article 7
The purpose of Article 7 can be easily summarized: it provides an opportunity for the EU to protect the values that form the basis of its identity with constitutional tools. If we consider this aim, there is nothing unusual in it, as the main expectation from a political community with federal features is being able to portray, represent and even protect (if necessary) its identity both externally, in the world of international politics, and internally, towards its members. The protection of EU identity from Member States might be especially crucial due to the fact that the multi-stage enlargement process that started in 2004 resulted in an increase in the number of Member States from fifteen to twenty-eight. This change is very important because most of the new Member States come from a different part of Europe, East-Central Europe, which is a region with distinct historical-cultural features and a socialist past. As a result, the circle of fundamentally Western European EU members widened, which can bring natural conflicts of interests but even conflicts of values to the surface.
Currently Article 7 outlines a procedure of several steps which can be characterized as sophisticated but cautious. The procedure itself can be summarized as follows:
(i.) As a first step, the Council (more precisely the General Affairs Council with the participation of foreign ministers) acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values of the European Union. The values in question are enlisted in Article 2 TEU: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Moreover, Article 2 refers to pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women as general social values. The procedure can be also initiated by one third of the Member States, the European Parliament or the European Commission.
(ii.) The Member State in question has to be auditioned, and besides determining the ‘clear risk’ the Council is entitled to propose recommendations about how to solve the situation. After this ‘hearing’ the Council continuously monitors whether the problems that caused the ‘risk’ are still present or if there was a positive change in the respective policy of the Member State.
(iii.) If the Member State does not change its former policy, then the European Council (that consists of heads of government and heads of state) is entitled to step up. On a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament the European Council acting by unanimity can declare the existence of a serious and persistent breach by a Member State of the values presented above. The Member State in question cannot participate in this vote; however it has the chance to submit its observations. After this procedure, the Council can decide, acting by qualified majority, about introducing several kinds of sanctions which can even lead to suspending the voting rights of the country.
(iv.) If the Member State under sanctions changes its practice which results in changing the value-risking circumstances that served as a basis for the procedure, then the Council can revoke the sanctions with qualified majority voting.
2. Problems, questions
The researcher who does not only want to present but also evaluate the procedure is not in an easy situation. There is no practical experience about applying the procedure, and it is striking how much the responsible actors avoid referring to it. Due to these problems, in the upcoming paragraphs I will only make assumptions about the different dimensions of the procedure based on Article 7, using some legal and social science standpoints.
2.1. Too sophisticated, long and inefficient procedure
In political theory it is a broadly accepted statement that a procedure can only be efficient if it is not too complicated, if it is simple and offers clear viewpoints and measures. If a procedure is too complex, long and requires the cooperation of several independent institutions, then it can become less efficient due to the interference of divergent institutional interests.
The procedure outlined in Article 7 cannot be considered simple and fast. It should not avoid our attention that four EU institutions participate in it: the European Council, the Council, the European Parliament and the European Commission. Given that these institutions represent diverging interests (the European Council and the Council are seen to represent the interests of Member States, the European Parliament represents the ‘Europeans’ and the European Commission protects the interests of the Union), it is not hard to imagine that the examined situation in a Member State might be perceived differently by them. The foreign ministers of the Council, for instance, might see the problem in a more sophisticated, emphatic way, knowing that their own Member State might be the next target of such a procedure, while the European Parliament is more attentive to questions related to democratic values. So it is not certain that a Member State’s situation will be evaluated the same way by all the participating institutions and these conflicts of interests can significantly decrease the efficiency of the procedure in the future.
On the other hand, the procedure consists of several different phases out of which the most important is differentiating between a ‘risk of breaching’ or ‘seriously breaching’ the values. Other important elements of the procedure are asking for the European Parliament’s consent, providing an opportunity for the Member State to defend itself, separating the determination of the serious breach and imposing sanctions from a procedural legal point of view, or making it possible to make recommendations in case of a ‘risk’ and dealing with them. It is evident that we cannot talk about a short and swift process here but such a thorough procedure might be justified by its political importance. However it is also evident that between determining the existence of a ‘risk’, initiating a procedure and imposing sanctions several months can pass only because of the political importance of the procedural steps.
Whether the different procedural steps on determining a situation of ‘risk’ or ‘serious breach’ can be connected, is a very important question. Would it be possible to start evaluating the Member State’s situation starting with the second phase, the procedure on determining the existence of the serious breach? The text does not give us an answer, but the historical (the first paragraph introducing the term of risk was inserted in the Article by the Treaty of Lisbon) and logical (the two phases are inserted in one part in two paragraphs in the text) analysis of the Article suggests that these phases cannot be separated from each other. Consequently, it is well-founded to argue that the phase of determining the ‘risk’ should definitely come before the phase about sanctions present in the second paragraph. Therefore I argue that there is no way to initiate an ‘accelerated’ procedure and start with determining the ‘serious breach’. This does not help the efficient application of Article 7.
2.2. What exactly are the Member States risking to breach or breaching?
The purpose of the procedure described in Article 7 is protecting the fundamental values of the EU. As nice as this sentence might sound in a political speech, it is as problematic from a procedural legal and value sociological standpoint.
The first important question is how the risk or serious breach of the fundamental EU values by a Member State can be proven. Although in publicist grounds this is an easily answerable question, it is a very delicate problem from a legal point of view. Where to find information that legally proves the value-risking or breaching nature of a national political action, is a very hard question. It is especially problematic because in evaluating a national situation it is still the given Member State who is the most competent simply because it possesses the most accurate and biggest amount of information. Moreover this information is usually necessary for the external observer to understand the situation.
Obviously the EU institutions, especially the Commission, are entitled to deal with evaluating such a situation, but it is questionable whether the investigation they conduct will be thorough and accurate enough. This is also true for the European Parliament; however, in its case even the unavoidable political distortion has to be taken into account, which is the natural consequence of the political competition between the different party families. Other regional international organizations or specialized NGOs might also be employed for finding the proof, but how the information or reports acquired by these organizations can be used is another question that is hard to answer. To sum up, a situation belonging under the competence of Article 7 can be legally evaluated, but having proof about completing the requirements of the rule of law seems to be a complicated task which cannot be done by simple doctrinal-political declarations.
A more abstract but still real problem is the unclear nature of the meaning of the values present in Article 2 (both in theory and institutional practice). Freedom and democracy, for instance, may have the same amount of acceptable understandings as the amount of political philosophical schools that existed in the last two and a half century. One should only think about the fact that freedom means something completely different from the point of view of classical liberalism (the freedom of the individual) and from the standpoint of socialism (ending the social suppression). But we could also mention the populist understanding of democracy here. This line of thought could be continued regarding all the other values; perhaps the respect for human dignity might be the only exception, which is clearly the cornerstone of modern European public thinking and the content of which is unquestionable. So, values are really hard to ‘legalize’ which can drive dealing with them towards political debates and debates of faith; and this makes it consensually unfounded to make an EU decision about their breach.
Based on the thoughts presented above, I think that Article 7 can only be used in unambiguous situations (hypothetically: introducing slavery, violating equal voting rights by providing more votes to some people, concrete deprivations of right from a group etc.), but these are very unlikely to occur mainly because the states of Europe have learnt from the history of the 20st century.
2.3. The challenges of the long-continued economic crisis, redefining Member State politics
The beginning of the economic crisis in 2008, which in Europe was connected to the euro crisis concentrated around the ‘southern’ periphery, created a whole new environment for the Member States and the EU. The most logical Member State behaviour in this situation was increasing the economic-political elbow-room simply because initially the EU did not possess any instruments to tackle the problems caused by the crisis, and the instruments created later (which are directed towards keeping the macro-economic stability and diminishing the social tensions such as unemployment) were received with different enthusiasm from each (group of) Member State.
Some Member State actions aimed at handling the crisis can easily be perceived as breaching EU fundamental values: increasing state intervention, for example, might be in conflict with the rule of law, while the answers given to problems of immigration might violate the postulates of equality. Taking into account the unpredictable nature of the global and European situation (the evaluation of some solutions might change from year to year, as it happened, for instance, in the case of the bank super tax), it is unlikely that Member States would want to uniformly act against another Member State in a borderline situation, given that they are aware that they could also find themselves in such a difficult situation anytime soon. So the political reality of the post 2008 period, which highlighted the boundaries of EU action and brought national political action to the forefront, makes it improbable for Member States to openly confront each other in a dubious situation to such an extent that would lead to the application of Article 7.
3. Is Article 7 a real option?
To sum up, I consider Article 7 to be no more than a theoretically attractive procedure, which under the current circumstances is not able to properly defend EU fundamental values (so the interest of the EU) in case of basic political debates. The procedure itself is also complicated and long, moreover it enables conflicts of interests between EU institutions to hinder its flow. The ‘protected object’ is not clear either, because the legal aspect of the values is really hard to capture and proving the breach is also very hard. Besides, the current European political environment is also rather hostile for conducting such debates.
Furthermore, it is very interesting to consider whether there is need at all for such ‘strict’ procedures of legal nature in the current situation. One can argue convincingly (as did Marton Varju in reflecting to a previous version of this article) that as the existence of the EU is based on a cooperation, there is no need for a procedure enabling serious, executive sanctions because the Member States are aware that their fundamental interest will always be cooperation. In this understanding, the current form of Article 7 is reasonable: it is an instrument with an ultima ratio character which can be effectively used in politically managing problems and the purpose of which is not to be realized but to be the strong argument of the political debates with the unwilling Member States. One might agree with this view, but the question remains: why was then Article 7 so elaborately inserted into the founding treaties, wouldn’t a short reference have been enough?
Finally, Article 7 is not capable to fulfil its basic role, protecting EU identity, so it can only be considered a ‘nuclear weapon’ theoretically. In order for an effective procedure to be created that could protect the fundamental values of the EU in practice, at least the following criteria would have to be met: (i.) the procedure would have to be simplified and accelerated, (ii.) a basic consensus would have to emerge about the content of EU fundamental values in the EU institutional and Member State practice.
The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.