Professor Steve Peers, University of Essex

As an EU law and human rights professor for over two decades, the topic of sanctioning Member States for human rights violations was once straightforward. The enforcement procedure (Article 7 TEU) was never used, making in-depth discussions unnecessary. My focus remained on practical issues like arrest warrants and asylum seekers.

However, the landscape has shifted. Like Article 50, which also addresses the EU’s relationship with Member States, Article 7 seems hastily drafted without considering its practical application, possibly because its creators never anticipated its use. Now, both articles are at the forefront of political and legal debate, marking a significant turning point in EU law.

Two major developments are unfolding. Firstly, Article 7 procedures have been initiated against both Poland (by the European Commission) and Hungary (by the European Parliament). Secondly, recent case law raises concerns about Member States’ adherence to human rights and the rule of law outside the specific Article 7 framework. Notably, the Court of Justice of the European Union (CJEU) recently issued its first judgment declaring a Member State’s judicial reforms as infringing upon judicial independence.

The possibility of the EU imposing sanctions on its Member States for violating human rights and the rule of law raises fundamental legal and political questions best understood within a historical context. In light of these developments and ongoing disputes, it’s crucial to analyze this issue.

This analysis will be presented in a three-part blog series:

a) The legal framework for sanctions under Article 7

b) The intersection of sanction rules with other EU law aspects (now published)

c) The historical context and broader constitutional dynamics (forthcoming)

The legal framework for sanctions

While Article 7 TEU is frequently cited, other Treaty provisions are closely linked: Article 2 TEU outlines the values Article 7 aims to uphold; Article 354 TFEU defines voting rules for EU institutions; and Article 269 TFEU grants limited jurisdiction to the CJEU over the sanctions process. These must be distinguished from standard EU law rules, discussed in the second blog post.

First, what are the EU’s values from a legal standpoint? Article 2 TEU states:

“The Union is founded on the values of 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 outlines the process of upholding these values. Article 7(1) acts as a “yellow card” – a warning issued if “there is a clear risk of a serious breach” of these values:

“1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, 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 referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.”

The European Parliament, a group of Member States, or the Commission can initiate this “yellow card” process. Contrary to common belief, unanimous agreement from Member States isn’t required for the Council to issue a “yellow card.” However, the threshold of four-fifths of Member States’ governments in the Council is substantial. Initiating the process, as seen with Hungary and Poland, doesn’t guarantee the Council’s agreement to issue a “yellow card.” Currently, the Council is still evaluating the proposals for both countries, having conducted several hearings. A “yellow card,” if issued, doesn’t constitute a sanction but signifies a risk to EU values with potential recommendations. Nonetheless, it carries significant political weight.

Article 7(2) represents the “red card”:

“2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.”

This procedure is more stringent, demanding unanimity among Member States. The European Parliament can’t initiate this process but holds veto power. The threshold is higher: not just a risk of a breach, but “the existence of a serious and persistent breach.” Reaching the “red card” stage likely follows a “yellow card,” though a “straight red” is possible in cases like a sudden military coup.

Article 7(3) outlines the consequences of a “red card”:

“…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.”

Notably, unanimous agreement among Member States in the Council isn’t required when determining sanctions for the non-compliant member. Unanimity only applies when deciding if a serious and persistent breach occurred. While the Treaty cites the suspension of voting rights as a potential sanction, the Council can impose others, such as suspending MEPs’ voting rights, raising concerns about silencing opposition voices from the sanctioned Member State. However, the obligation to consider the rights of individuals and businesses suggests trade sanctions might be problematic. Restricting free movement rights might also be difficult to justify, but specific rules exist for EU citizens seeking asylum from a “red card” Member State (discussed further in the second blog post).

Significantly, there’s no provision to expel a Member State from the EU. However, a suspended Member State might be compelled to trigger Article 50 and initiate its exit. Considering the UK’s complex and contentious withdrawal, envision the legal and political ramifications of a Member State under Article 7 sanctions triggering Article 50. Would the actions of its political authorities be considered legitimate? What if exiled groups claiming to be the rightful government, opposed to leaving the EU, emerge? What happens if a region disagreeing with the government’s stance on EU membership and its violation of EU values attempts secession?

The possibility of withdrawal, alongside concerns about sovereignty and political dynamics, might explain the EU’s hesitation to utilize Article 7.

Article 7(4) TEU allows the Council, by a qualified majority, to adjust or revoke sanctions against a Member State based on changes in the situation that led to their imposition. Article 7(5) directs us to Article 354 TFEU for voting rules within institutions during Article 7 proceedings. It states that the Member State facing potential sanctions has no voting rights throughout the process, as it would hinder decisions on EU values breaches. Abstentions can’t block a “red card” decision. If the Council votes to implement it, a higher threshold for passing EU laws applies (72% of participating Member States in favor, instead of the usual 55%). If voting rights are suspended, standard Council voting rules with limited Member State participation apply. The European Parliament “shall act by a two-thirds majority of the votes cast, representing the majority of its component Members.”

Article 269 TFEU significantly limits the CJEU’s role in the sanctions process:

“The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.”

The legal issues

Due to limited judicial oversight, the Article 7 process is inherently political, making some legal questions hypothetical.

Firstly, the scope of issues covered by Article 7 is broad. Claims suggesting it only addresses EU law breaches are inaccurate. Articles 2 and 7 make no mention of such limitations. In fact, restricting Article 7’s scope to EU law breaches seems illogical given Article 269 TFEU’s limitation on the Court’s jurisdiction while other Treaty provisions (discussed further in the next post) grant the Court extensive jurisdiction over enforcing standard EU law.

The claim of limited scope becomes even more illogical when considering the broader context. For instance, if a Member State detains LGBT individuals in camps, a narrow interpretation of Article 7 would limit the EU’s response to discriminatory employment access for those detained. While a valid concern, it ignores the core issue of detaining individuals based on sexual orientation. (EU law addresses LGBT refugees, but Article 7 must be triggered first for it to apply to EU citizen refugees).

Therefore, Article 7 clearly isn’t intended to be restricted in this manner. Its broad scope partly explains the CJEU’s limited jurisdiction – to avoid granting it authority over matters typically outside EU law. Another reason is the intent to keep Article 7 under political, not judicial, control.

However, Article 7 and regular EU law can overlap. The Court can exercise its regular jurisdiction to address issues discussed within the Article 7 process and vice versa. This was evident in the recent judgment concerning Poland and the rule of law, as the issues also factored into the Commission’s Article 7 case against Poland. The Advocate General’s opinion explicitly addressed this overlap, arguing that “there are firm grounds for finding that Article 7 TEU and Article 258 TFEU are separate procedures and may be invoked at the same time.” Utilizing standard EU law to address Member States’ breaches of human rights or the rule of law is discussed in the next blog post.

How does the Court’s limited jurisdiction over Article 7 function in practice? Article 269 TFEU’s wording covers decisions related to both “yellow card” and “red card” scenarios. It seemingly applies to the implementation of sanctions as well, referring to any Council actions pursuant to Article 7 TEU. However, the use of the word “determination” causes confusion, as Article 7 employs it solely for decisions regarding potential or actual breaches of EU values, not for sanction implementation.

Furthermore, only the sanctioned Member State can challenge decisions under Article 7, excluding other Member States, EU institutions, individuals, or businesses. If individuals can’t challenge the validity of Article 7 implementation decisions, even indirectly through national courts to the CJEU, how can the Council’s obligation to “take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons” be enforced? However, national courts can still request the Court to interpret decisions implementing sanctions, potentially clarifying their impact on individuals. If Council decisions under Article 7 disapply specific aspects of standard EU law, the Court should retain jurisdiction to interpret the application of such standard EU law.

A CJEU judgment under Article 269 TFEU can only address procedural matters, not the substance of the case. In other words, the Court can’t rule on whether a Member State actually violated (or risks violating) EU values. However, as we’ll explore in the second post, the evolving case law on the interplay between Article 7 and “ordinary” EU law blurs this line. One can also envision a Member State raising concerns about the fairness of hearings, even when some have taken place (as in the cases of Poland and Hungary). (Update: the Council’s internal rules on Article 7 hearings are now available). Lastly, Article 269’s time limits require expedited action: challenges must be submitted within one month of the determination (compared to the usual two-month deadline for challenging EU acts), and the Court must issue a ruling within one month (unique in EU law).

While Article 7 hasn’t resulted in sanctions yet, questions regarding its scope might arise soon. Hungary is challenging the European Parliament’s decision to trigger Article 7. This challenge might be inadmissible, as typically, only adopted legal acts can be challenged, not the initiation of procedures. This could explain why Article 269 TFEU doesn’t address challenging European Parliament actions (or those of the Commission or Member States). The Hungarian government argues that the European Parliament incorrectly disregarded abstentions when counting votes to trigger Article 7.

Interpreting the unanimity requirement for issuing a “red card” determination presents a crucial legal and political question. Some argue that with two Member States facing Article 7 procedures, their tendency to support each other would make unanimity impossible. They propose that for the “red card” process to function effectively, any Member State facing Article 7 should lose its vote even when issuing a “red card” against another Member State.

However, this interpretation is flawed. Article 354 TFEU clearly states that “the Member State in question” loses voting rights in its own case, using both the singular and definite article. This cannot be stretched to encompass multiple Member States. Such interpretations, particularly when seeking to ensure the rule of law within the EU, are inappropriate.

Conclusions

At 20 years old, Article 7 TEU, envisioned as a political tool, remains inherently so despite attempts to utilize it. Its impact on national sovereignty and the intricate web of political relationships render it a “nuclear option” – reserved for extreme situations like military coups. While the 2003 “yellow card” reform aimed to introduce nuance, it’s still perceived as a drastic measure.

The primary issue, which the “yellow card” reform failed to address, is that democratic erosion rarely happens overnight. As the saying goes, “fascism arrives as your friend” – promising to restore honor, instill pride, protect homes, provide jobs, improve safety, evoke past glories, eliminate corruption, and remove anything perceived as different.

Thus, it often gains ground through democratic processes. Yet, the EU values to be protected include democracy itself, and the Article 7 process rests in the hands of fellow Member States, each with their own flaws and potential biases.

Is Article 7 doomed to fail? The expansion of EU law into areas relevant to human rights and the CJEU’s willingness to address judicial independence in national courts suggest the “nuclear option” might not be necessary. The fight for human rights and the rule of law within Member States can be waged through conventional means: the standard system of enforcing EU law, which we will explore in the next post. The broader tension arising from concerns about the rule of law and human rights stemming from democratic outcomes will be analyzed in the third post.

Barnard & Peers: chapter 9

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