Professor Steve Peers, University of Essex
The re-election of Hungary’s Orban government has led some critics to demand Hungary’s expulsion from the EU. This raises questions about the possibility of such an action and the available sanctions the EU can impose on its members.
This post revisits and updates earlier discussions on this topic, focusing on the ‘Article 7’ process for addressing breaches of the rule of law and other EU values by Member States.
Legal Basis for Sanctions
While Article 7 TEU is frequently referenced, it is crucial to consider related Treaty provisions. Article 2 TEU defines the EU’s foundational values, which Article 7 aims to uphold. Article 354 TFEU outlines voting procedures for EU institutions in this context. Additionally, Article 269 TFEU establishes the limited jurisdiction of the Court of Justice of the European Union (CJEU) concerning the sanctions process. These provisions are distinct from the typical rules of EU law.
Article 2 TEU establishes the EU’s foundation upon values such as respect for human dignity, freedom, democracy, equality, the rule of law, and human rights, encompassing the rights of minorities. These values are shared by Member States within a society characterized by pluralism, non-discrimination, tolerance, justice, solidarity, and gender equality.
Article 7 outlines the enforcement of these values, commencing with Article 7(1). This provision functions as a ‘yellow card,’ issuing a warning in case of a “clear risk of a serious breach” of EU values. This process can be initiated by one-third of the Member States, the European Parliament, or the European Commission. The Council, with a four-fifths majority and the European Parliament’s consent, can determine the presence of such a risk after hearing the Member State in question and potentially issuing recommendations.
Notably, while unanimity among Member States is not required for a ‘yellow card’ decision, the four-fifths majority threshold remains significant. This process has been initiated against both Poland and Hungary, but neither has led to Council action despite numerous hearings.
Article 7(2) represents the ‘red card’ stage, demanding a unanimous decision from the European Council, based on a proposal from one-third of the Member States or the Commission and following the European Parliament’s consent. This stage requires not merely a risk but the “existence of a serious and persistent breach” of EU values. It typically follows a ‘yellow card’ but can be applied directly in exceptional circumstances.
A ‘red card’ can lead to sanctions outlined in Article 7(3). The Council, acting by a qualified majority, can suspend certain rights of the Member State, including voting rights in the Council. However, the Council must consider potential impacts on the rights of individuals and legal entities. While suspension of voting rights is mentioned, other sanctions are possible, although trade sanctions and restrictions on free movement may prove difficult to justify. Notably, there are specific rules for asylum for EU citizens from a Member State facing a ‘red card’.
Importantly, there is no mechanism for outright expulsion of a Member State from the EU. However, a Member State subjected to suspension could choose to initiate the withdrawal process under Article 50.
Article 7(4) TEU enables the Council, through a qualified majority, to adjust or revoke sanctions in response to changes in the situation that led to their imposition. Article 7(5) clarifies that voting rules during the Article 7 process are defined in Article 354 TFEU. This provision prevents the sanctioned Member State from voting, ensuring decisions can be made. It also sets out specific voting thresholds for different stages of the process.
Article 269 TFEU significantly restricts the CJEU’s role, granting it jurisdiction only over the legality of Council or European Council acts under Article 7, solely upon request from the sanctioned Member State and limited to procedural aspects. This request must be filed within one month of the decision, with a one-month deadline for the Court’s ruling.
Legal Considerations
Given the limited judicial oversight over Article 7, the process is inherently political. While legal questions arise, their practical relevance is debatable.
The scope of Article 7 is notably broad. Contrary to some claims, it’s not confined to breaches of EU law, as evident from Articles 2 and 7. Limiting its scope to EU law breaches would create inconsistencies with the CJEU’s limited jurisdiction under Article 269 and the Court’s extensive jurisdiction in enforcing ordinary EU law.
Conversely, Article 7 can intersect with ordinary EU law. The Court can exercise its jurisdiction in matters related to an ongoing Article 7 process, and vice versa.
The interpretation of Article 269’s limitation on the Court’s jurisdiction raises questions regarding its application to the implementation of sanctions. While the text seemingly covers it, the use of the word “determination” creates ambiguity. Additionally, the exclusive right of the sanctioned Member State to challenge decisions raises concerns about the enforceability of the Council’s obligation to consider implications for individuals and businesses.
A CJEU judgment under Article 269 can only address procedural issues, not the substance of the alleged breach of EU values. However, recent case law on the interplay between Article 7 and ordinary EU law blurs this line. Time limits under Article 269, requiring challenges within one month and a one-month ruling period, further complicate matters.
The CJEU addressed Article 7’s scope in a 2021 ruling on Hungary’s challenge to the European Parliament’s decision to trigger Article 7. The Court clarified that while challenges against triggering the process are allowed, they are subject to certain limitations. Only the concerned Member State can challenge, focusing solely on procedural aspects within the usual two-month timeframe.
The unanimity requirement for issuing a ‘red card’ determination presents an ongoing debate. Some argue that a Member State facing an Article 7 procedure should lose its vote even when another Member State is being considered for a ‘red card’. However, this interpretation contradicts the wording of Article 354 TFEU, which clearly refers to a single “Member State in question”.
Conclusion
Article 7 TEU, designed as a political instrument, remains deeply embedded in political considerations. Its impact on national sovereignty and the intricate web of transnational politics render it a ’nuclear option’ – reserved for extreme situations. While the introduction of the ‘yellow card’ process aimed to provide nuance, it too carries significant political weight.
The inherent difficulty lies in addressing the gradual erosion of democratic principles. The EU values Article 7 aims to protect include democracy, yet the process is controlled by governments of Member States, each with its own political complexities and potential vulnerabilities.
However, the expansion of EU law, particularly in areas related to human rights, the CJEU’s assertive stance on judicial independence, and new mechanisms within the EU budget system to address rule of law concerns present alternative avenues. This suggests that safeguarding human rights and the rule of law within Member States may be achievable through conventional means, relying on the existing framework of EU law.
Barnard & Peers: chapter 9
Photo credit: Steve Peers