From Sanctions to Prevention, and Now Back to Sanctions? Article 7 TEU and the Protection of the EU Founding Values
Matteo Bonelli *
ABSTRACT: This chapter analyzes the EU procedures to sanction Member States’ breaches of the Union founding values: democracy, the rule of law, and human rights. The key provision in this respect is Article 7 TEU, which allows the Council to impose sanctions against the Member State responsible of a ‘serious and persistent breach’ of the values. Originally introduced by the Treaty of Amsterdam, Article 7 was then amended in Nice with the addition of a preventive mechanism. Further preventive steps, including the adoption of the Rule of Law Framework, have been added over time by the EU institutions. After offering an overview of the Article 7 system and procedures, reflecting in particular on the type of sanctions that can be adopted by the Council, the chapter describes the shift in emphasis and attention from sanctioning to preventive and monitoring procedures. On the basis of an incorrect reading of the provision, Article 7 began to be considered a nuclear option, and the EU institutions preferred focusing on softer dialogical instruments. Only more recently, due to the constitutional crises in Hungary and Poland, Article 7 returned high on the agenda, and was actually activated for the first time, finally reacquiring its centrality in the EU’s values-protection toolkit. Furthermore, the EU has strengthened parallel judicial responses to the challenges and is also developing other tools to sanction values-related breaches, such as the proposed new Regulation on Rule of Law conditionality. The chapter reflects on these recent steps and concludes that, while they can be positively assessed, a more coordinated action is needed, better streamlining institutional efforts in the field and closely linking monitoring and sanctioning efforts.
KEYWORDS: Article 7 - sanctions — rule of law - constitutional crisis - montioring
SUMMARY: 4.1. Introduction. - 4.2. Article 7 TEU: an overview of the system. - 4.2.1. Article 7(1): clear risk of a serious breach. - 4.2.2. Article 7(2): serious and persistent breach. - 4.2.3. Article 7(3) and (4): sanctions. - 4.2.4. Article 7: concluding thoughts. - 4.3. From sanctions to prevention... - 4.3.1. The origins of the procedure: a sanctions regime. -4.3.2. The Haider case: moving towards prevention. - 4.3.3. The Commission’s Rule of
Assistant Professor, Maastricht University. I thank the editors of this volume for their helpful comments. The usual disclaimer applies.
Law Framework: doubling down on prevention. - 4.3.4. The Council Rule of Law Dialogue: a ‘culture’ of prevention? - 4.4. ...and now back to sanctions? - 4.4.1. The new centrality of Article 7. - 4.4.2. New tools: rule of law conditionality. - 4.4.3. Reviving ‘old’ tools: the infringement procedure. - 4.5. Concluding remarks and possible future developments.
Along with Article 50 TEU, setting out the procedure to withdraw from the European Union, Article 7 TEU is probably the most often discussed provision of the EU Treaties in recent legal, political, and academic debates on EU affairs. A sleeping giant - or, as it has been put more critically, an ‘empty’ or ‘indifferent gesture’ - for almost two decades, Article 7 TEU has now taken the center of the stage as the EU tries to react to the processes of constitutional backsliding in Hungary and Poland. In December 2017, the European Commission activated for the first time ever the procedure of Article 7(1) TEU against Poland, and it was soon followed by the European Parliament, which in September 2018 voted on a resolution triggering a parallel but autonomous procedure against Hungary. Both Article 7(1) procedures are now pending before the Council, which has the responsibility to take the final decision, upon obtaining the European Parliament’s consent, on the existence of a ‘clear risk of a serious breach’ of the founding values of the Union identified by Article 2 TEU: most importantly, democracy, the rule of law and human rights.
This chapter discusses the procedures of Article 7 TEU against the background of the increasing ‘sanctioning powers’ of the EU and the Union’s possible transformation into a ‘community of coercion’. It will be argued that the introduction of the Article 7 regime, on the one hand, follows the general pattern of growth of EU sanctioning powers described in this volume; on the other, it presents some peculiar features. The evolution of the Article 7 system is in fact not at all linear. At the origins of the system, with the Amsterdam Treaty, EU institutions alone acquired sanctioning powers. They were formally equipped with preventive and monitoring tools only later, and these tools were then further strengthened over the years. Therefore, soon after the establishment of the sanctioning regime, the attention of the EU institutions and of the Member States shifted from the topic of sanctions to that of monitoring and prevention. However, recent developments and, most notably, the inability to address the Hungarian and Polish crises through dialogue and prevention have forced the EU and the Member States to put the theme of sanctions back on the agenda. Article 7 is thus back on the scene, although the two procedures started against Hungary and Poland have so far remained stuck at the first stage, namely the mere activation of Article 7(1) TEU. Furthermore, both institutional and academic actors have reflected on whether new sanctioning mechanisms should be added to the Union’s toolkit, trying to identify alternatives to the cumbersome Article 7 system.
The chapter is structured as follows. The second section offers a brief overview of the procedures of Article 7 TEU, concentrating in particular on paragraph (3) that allows the Council to impose sanctions if it is ascertained that a Member State has breached EU values in a ‘serious and persistent’ manner. The third section illustrates the origins of the Article 7 system and then the following attempts to anticipate EU intervention in cases of threats to common values, moving, in several steps, from sanctions to prevention. Then, the fourth section looks at the more recent developments: the renewed centrality of Article 7, as well as other attempts to bolster the EU sanctioning capacity in cases of breaches of the common values. The concluding section reflects on possible future evolutions of the Article 7 system and generally of the EU values’ oversight scheme.
-  A. Williams, ‘The indifferent gesture: Article 7 TEU, the Fundamental Rights Agency and the UK’s invasion of Iraq’ (2006) European Law Review 31,3. 2 Literature on the two crises is abundant: on Hungary, see e.g. A. von Bogdandy, P. Sonne-vend (eds), Constitutional Crisis in the European Constitutional Area - Theory, Law and Politics in Hungary and Romania (Hart Publishing, 2015); on Poland, see most recently W. Sadurski, Poland’s Constitutional Breakdown (Oxford University Press, 2019). 3 5The plural (procedures) is needed considering that Article 7, as it will be shown later, actually creates two distinct mechanisms. 4 contrasting the ‘old’ ‘community of law’ to the developing ‘community of coercion’ and noting that ‘since the early 1990s, there has been an expansion of instruments of sanction going beyond declaratory rulings of the Court of Justice’. See also M. Scholten’s chapter in this volume. 5 See A. von Bogdandy, ‘Ways to Frame the European Rule of Law: Rechtsgemeinschaft, Trust, Revolution, and Kantian Peace’, (2018) European Constitutional Law Review 14, 682-683,
-  L. Besselink, ‘The Bite, the Bark and the Howl: Article 7 TEU and the Rule of Law Initiatives’, in A. Jakab and D. Kochenov (eds), The Enforcement of EU Law and Values (Oxford University Press, 2017), 128, described this development as a ‘backward shift from the issue of sanctions to their preconditions and of powers under prior procedures’. 2 Critically, on dialogical approaches: R. Uitz, ‘Editorial - The Perils of Defending the Rule of Law Through Dialogue’, (2019) European Constitutional Law Review 15, 1. 3 'See e.g. European Commission, Communication ‘On Article 7 on the Treaty on European Union - Respect for and promotion of the values on which the Union is based’, Brussels, 15 October 2003, Doc. COM(2003)606; European Parliament, Resolution on the Commission communication on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based, Strasbourg, 20 April 2004, Doc. 2003/2249(INI). 4 E.g. W. Sadurski, ‘Adding Bite to a Bark: the Story of Article 7, E.U. Enlargement, and Jorg Haider’, (2010) Columbia Journal of European Law 16, 385; Williams, supra note 1; Besselink, supra note 5.