Explanatory and commentary blog—the Article 7 of the TEU and the cases of Poland and Hungary gulayicoz

Poland and Hungary are the main members of the Visegrad group.  They have common cultural and political interests and have shown similar standpoints on the EU’s migrant relocation scheme or the burden sharing policy, but they starkly differ on whether to do business with Russia or America.  In fact last week we witnessed that Hungary is opting for Russia’s Putin, while America’s Trump was Poland’s choice in forming new economic and security alliances.  Most crucially however both of these countries are facing the Article 7 procedure of the Treaty of the European Union. 

Just to give a little bit of background to the most talked about Article 7 of the EU Treaty; it was introduced by the Amsterdam Treaty so to mitigate and prevent member states from backsliding on European values and the rule of law.  It is activated against a member state, when it has been thought that there is “a clear risk” of an EU member state breaching the bloc’s core values: human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.  It includes two mechanisms: preventive measures, if there is a clear risk of a breach of EU values; and sanctions, if such a breach has already occurred. 

However activating the Article 7 is not the first option in the context of handling the misbehaving member states—there is the process of Rule of Law Framework of 2014.  The European Commission adopted this process when it felt confronted with crisis events in some EU countries that revealed systemic threats to the rule of law.  The objective of the Rule of Law is to prevent emerging threats to the rule of law to escalate to the point where the Commission has to trigger the mechanisms of Article 7.  This is done through dialogue which consists of three key stages: Commission assessment; Commission recommendation and monitoring of the EU country’s follow-up to the Commission’s recommendation.  If no solution is found within the rule of law framework, Article 7 of the TEU is the last resort to resolve a crisis and to ensure the EU country complies with EU values. 

In the case of Poland, initially the European Commission launched an inquiry under its new Rule of Framework into whether Poland’s government has breached the EU’s democratic standards.  This was followed by a number of recommendations to the Polish government as to how they could improve the situation in Poland, as well as in the hope of forming a constructive dialogue with the Law and Justice Party (PiS) .  However when its efforts fell on deaf ears, in December 2017 the Commission proposed to activate the Article 7 of the EU treaty against Poland and then in January 2018 Members of the European Parliament voted by a large majority in favor of urging the EU to put Poland on the path toward sanctions for breaching the bloc’s laws by passing constitutional reforms that undermine the independence of the judiciary.  Whereas in the case of Hungary, most recently the Article 7 was launched against Hungary on 12th September 2018, when the European Parliament passed a motion, with 448 votes in favor and 197 against, declaring that Hungary is at risk of breaching the core values of the Union – judicial independence, freedom of expression, academic freedom, rights of minorities and others, in other words approving Sargetini’s report of April 2018. 

So far Poland and Hungary have presented an uncompromising attitudes towards this process; in fact the PiS and the Hungarian Civic Alliance (Fidesz) continue to fiercely defend their controversial reforms or policy choices.  This means that the EU is left with activating the subsequent stages of the Article 7. 

Ultimately what drastic action the Article 7 allows the EU to take is impose sanctions against Poland and Hungary, such as suspension of its voting rights in the European Council.  This is however unlikely to happen since sanctions require a unanimous sign-off from EU governments.  It is believed that both of these countries will support each other out by blocking the process.  That said the Bulgarian government also expressed their support for Hungary if and when the process comes to that stage. 

So what is the point then? 

As seen from the above the processes of the both Rule of Law Framework and Article 7 are time consuming and involves meticulous work on the European Commission’s and the European Parliament’s part.  However it does not look like they are making any impressions on the Polish and Hungarian governments, since they continue business as usual.  Then one asks: what is the point of activating the Article 7 against Poland and Hungary if there is not going to be any consequences for their departure from the core values of the EU. 

I believe these processes are successful about putting pressure on the member states like Poland and Hungary.  Since these processes produce vast amount of expert knowledge and information about the details of what reforms and the policy the PiS and Fidesz are making, the general public, journalists, policy-analysts,non-governmental organisations and the governments of other member states and non member states do get informed about these countries and their standings in the EU.  Having legal frictions with the European Commission and the European Parliament do not only damage these countries’ standing in the international relations, but it is also a cause of concern for the countries that the Polish and the Hungarian governments would want to do business with.  Clearly the Polish and the Hungarian governments have not yet felt negative implications of their policy choices in their relations with other countries, but this may be on the horizon for them. 

Additionally, one reason why these countries are uncompromising for now is because they have a strong sense that at the next European Parliament elections the right-wing and anti-migration political parties will increase share of seats in the European Parliament, which will then strengthen the PiS’s and Fidesz’s hands in the European Parliament and at the EU level.  Recent study however has shown that there is not a surge for the right-wing political parties in Europe as it is suggested in the Media and by some academics.  Thus I believe after the next European Parliament elections, the PiS and Fidesz will begin to put their policy choices in line with the core values of the EU. 

Of course, let’s wait and see.