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Article 7 sanctions: a legal expert explains the EU’s ‘nuclear option’

EPA/Olivier Hoslet

Article 7 sanctions: a legal expert explains the EU’s ‘nuclear option’

EPA/Olivier Hoslet

Several disputes between the European Union and national governments have raised a matter rarely discussed beyond Brussels – the potential for the union to sanction one of its member states by suspending its membership rights.

This sanction is delivered by triggering Article 7 of the Treaty of the European Union. It’s a mechanism that has severe implications and has never actually been used. But concerns about the rule of law in Poland have raised intense discussions about using Article 7.

Article 7 is a mechanism for ensuring that the values of the European Union are upheld. Those values, as expressed in Article 2 of the Treaty of the European Union, are:

Respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 details a so-called “preventive and monitoring mechanism” or “early-warning mechanism” for identifying a clear risk of serious breach of values by a member state. It also includes a more serious “sanctioning mechanism”. When a member state has seriously and persistently breached Article 2 values, this can be used against it.

Why does Article 7 exist?

Article 7 was first introduced by the Treaty of Amsterdam (which came into force in 1999). At a time when the European Union was preparing for a significant wave of enlargement by bringing in eight former communist countries, the inclusion of Article 7 was simultaneously a gesture and a warning. The EU member states would be expected to live up to the values of the union. If they did not, there would be consequences.

It’s also said that Article 7 was introduced as a response to accusations that the EU had limited capacity to intervene when its core principles and values were violated by one of its member states – even though the EU required strict compliance to human rights before new states could accede to the EU.

The provisions of Article 7 were extended in the 2001 Treaty of Nice to cover situations in which a member state is considered to be close to breaching EU values. The switch to a more pre-emptive approach was born of concern about the results of the 1999 elections in Austria, which led to the so-called “Haider affair”. A far-right party, led by populist Jörg Haider, won sufficient votes in the election to enter coalition talks to form a government, which led Brussels to wonder if it would be a good idea to extend Article 7 to allow for intervention that might prevent breaches from occurring in the first place.

What does Article 7 do?

Article 7 establishes three procedures that are intended to safeguard the values of Article 2 of the treaty.

First is a procedure to declare the existence of a “clear risk of a serious breach” of the values referred to in Article 2. The same procedure can be used to make recommendations to the recalcitrant member state on how to resolve the issue. It states that the Council of Ministers may determine whether a breach is in danger of occurring and issue recommendations (so long as four-fifths of its members agree – and after it has secured the consent of the European Parliament). The council will act on concerns presented by one-third of the member states, by the European Parliament or by the European Commission.

Second, it establishes a procedure to determine whether a “serious and persistent breach” of values has occurred. Unsurprisingly, this is a more rigorous procedure than the process of identifying whether there is a risk of a breach. The European Commission, or one-third of member states, acting together, can call on the European Council (heads of state or government) to declare that a breach has occurred – but the council must agree unanimously before issuing a ruling. The European Parliament must also consent.

Finally, if it is determined that a serious and persistent breach of Article 2 values has been made, sanctions can be adopted against the member state in question. The council, acting by qualified majority, can suspend certain rights. That can include suspending the member state’s voting rights in the council. That means the country would still be subject to EU rules but would be excluded from decision making.

Has it ever been used?

Article 7 has never actually been activated. Besides the Haider affair, discussions on triggering have been started on numerous other occasions in recent years but none have come to anything.

Article 7 was mentioned when the French government expelled thousands of Roma in 2009 and in Romania in 2012 when a lengthy struggle between president Traian Băsescu and prime minister Victor Ponta caused significant political instability.

Most recently, Poland has been in the Article 7 firing line as a result of proposed reforms that would allow the government to take control of the judiciary.

Article 7 is considered by many to be the nuclear option for the EU, which is probably why it has never been triggered. Even if the significant hurdles for activating the procedures could be surmounted, it is thought that the the political fall-out would be incredibly toxic.

For that reason, triggering Article 7 has long been regarded as politically unfeasible. EU law scholars have persistently pointed out, however, that this is little more than a politically convenient excuse for inaction.

That excuse is not only intellectually dishonest, it undermines the letter and the spirit of the treaties and the EU’s commitment to upholding the rule of law. Many people agree that it’s high time to end Article 7’s days as a political gesture. It is a tool in the EU’s box and should actually be used when it is needed.