This section, curated by Professor Laurent Pech and Dr Joelle Grogan (see profiles below) and produced in collaboration with DEM-DEC, provides a dedicated portal for information on the so-called ‘Article 7 procedure’, which gets its name from the number of the provision to be found in the Treaty on European Union.
In a nutshell, the procedure can be activated against a specific Member State of the EU in two situations: in a situation where there is a clear risk of a serious breach of the values on which the EU is based or in a situation where there is a serious and persistent breach of these values such as the rule of law, democracy, and human rights.
This section places particular focus on Hungary and Poland, as the two states against which Article 7 proceedings have either been initiated, and contains a mixture of publicly available material from official and secondary sources, and items obtained through freedom of information requests or received from different sources. We wish such a section would not be necessary but in the absence of any systematic publication of Article 7 materials by the Council of the EU and the centralisation of such materials on an easy to navigate webpage, we decided to do what the Council should have done.
In order to help researchers, students or more generally anyone interested and/or concerned about the situation in Hungary and Poland and the connected Article 7 proceedings, this page will offer access to primary and secondary materials. Please do get in touch to share or suggest additional documents: You can use the form below or e-mail Art7teu@gmail.com
What is the Article 7 procedure?
As helpfully summarised by the European Commission in a Q&A published in December 2017,
The Procedure foreseen under Article 7 of the Treaty on European Union (TEU) aims at ensuring that all EU Member States respect the common values of the EU, including the Rule of Law. It foresees two legal possibilities in such a situation: a preventive mechanism in case of a “clear risk of a serious breach of the [Union’s] values” (Article 7(1) TEU) and a sanctioning mechanism in the case of “the existence of a serious and persistent breach” of the Union’s values, including the Rule of Law (Article 7(2) and Article 7(3) TEU).
The original founding Treaties did not include any “Article 7 procedure”. It was not until the entry into force of the Amsterdam Treaty on 1 May 1999 that Member States of the EU were subject for the first time to the theoretical possibility of sanctions should they be found “guilty” of serious and persistent breach of the EU’s foundational values.
Article 7(1) TEU
The current preventive arm was also only added at the time of the entry into force of the Nice Treaty on 1 February 2003. As shown by Professor Sadurski, the inclusion of the current Article 7 procedure into the EU Treaties has been to a large extent the result of concerns about the then forthcoming 2004 Eastward enlargement of the EU, with the inclusion of the preventive arm also reflecting the conclusion drawn after the EU’s incapacity to formally act at the time of the so-called ‘Haider Affair’ in 1999.
On 20 December 2017, the European Commission decided to activate the preventive arm of Article 7 TEU against Poland on the ground that “there is a clear risk of a serious breach of the rule of law” there. This took the legal form of a reasoned proposal submitted to the Council which included a proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, which is one of the foundational principles on which the EU is based according to Article 2 TEU.
The main problem, from the point of view of the Commission, was the adoption, over a period of two years, of “more than 13 laws affecting the entire structure of the justice system in Poland … The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch”.
On 12 September 2018, Article 7(1) TEU was again activated this time with respect to Hungary. The activating institution was not however the European Commission but the European Parliament which, by 488 votes to 197, called on the Council of the EU to examine the situation in Hungary with the view of determining the existence of a clear risk of a serious breach of the values laid down in Article 2 TEU and addressing appropriate recommendations to Hungarian authorities in this respect. A number of issues were highlighted by the European Parliament such as the functioning of the constitutional and electoral system, the independence of the judiciary, corruption and academic freedom.
While often referred to as the EU’s nuclear option, the preventive arm of Article 7 is anything but nuclear. As explained in this post by Professors Pech and Scheppele,the most “severe” potential direct outcome under the “non-nuclear” Article 7(1) is a mere “determination”, that is, a finding that there is clear risk of a serious breach of the rule of law. When using the “nuclear” label, most commentators have in mind the sanctioning arm of the procedure which is however yet to be used and is unlikely to ever been used as long as we have authorities in more than one country at a time engaged in the implementation of a blueprint which aims “to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party”.
Why is that? Because unanimity is the European Council is required before the adoption of any eventual sanctions (the consent of the European Parliament is also needed).
Article 7(2) and 7(3) TEU
By contrast, the determination of a clear risk of a serious breach of the EU’s foundational values is slightly less demanding as it requires a 4/5 majority of the members of the Council of the EU as well as the consent of the European Parliament. The same requirements apply to the eventual adoption of recommendations to be addressed to the relevant Member State. In both the case of Poland and Hungary, the Council of the EU is yet to formally vote on either the determination of a clear risk of a serious breach or the adoption of recommendations.
In accordance with Article 354 TFEU, the country subject to Article 7 proceedings cannot of course take part in the vote and be counted in the calculation of 4/5 majorities.
EU documents: Article 7 TEU in general
COM (2003) 606: Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union - Respect for and promotion of the values on which the Union is based
EU documents: Article 7 proceedings against Poland
European Commission: REASONED PROPOSAL IN ACCORDANCE WITH ARTICLE 7(1) OF THE TREATY ON EUROPEAN UNION REGARDING THE RULE OF LAW IN POLAND. Proposal for a COUNCIL DECISION on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law Brussels, 20.12.2017 COM(2017) 835 final 2017/0360 (APP)
EU documents: Article 7 proceedings against Hungary
European Parliament: 'Sargentini Report' ('Report on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, 4 July 2018)
Academic publications and reports on Article 7 TEU in general
Note: These publications are listed in reverse chronological order and broadly follow the same format as DEM-DEC Research Updates
Carlos CLOSA, ‘The politics of guarding the Treaties: Commission scrutiny of rule of law compliance’ (2018) Journal of European Public Policy (published online: 30 May 2018)
Dimitry KOCHENOV, ‘Busting the myths nuclear: A commentary on Article 7 TEU’, EUI Working Paper LAW 2017/10
Leonard FM BESSELINK, ‘The Bite, the Bark and the Howl: Article 7 TEU and the Rule of Law Initiatives’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Methods against Defiance (Oxford University Press, 2017) 128-144
Günter WILMS, Protecting Fundamental Values in the European Union through the Rule of Law, Robert Schuman Centre for Advanced Studies, EUI Florence, 2017
Michel WAELBROEK and Peter OLIVER, ‘La crise de l’État de droit dans l’Union Européenne: Que faire?’ (2017) 2 Cahiers de droit européenne 299
Petra BÁRD, Sergio CARRERA, Elspeth GUILD and Dimitry KOCHENOV, with thematic contribution by Wim MARNEFFE, Assessing the need and possibilities for the establishment of an EU Scoreboard on democracy, the rule of law and fundamental rights, European Parliamentary Research Service (EPRS) Study, PE 579.328, Annex II, April 2016
Laurent PECH, Erik WENNERSTRÖM, Vanessa LEIGH, Agnieszka MARKOWSKA, Linda DE KEYSER, Ana GÓMEZ ROJO and Hana SPANIKOVA, An EU mechanism on Democracy, the Rule of Law and Fundamental Rights, European Parliamentary Research Service (EPRS) Study, PE 579.328, Annex I, April 2016
Bojan BUGARIČ, ‘Protecting Democracy inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, 2016)
Vera VAN HÜLLEN and Tanja A. BÖRZEL, ‘Why Being Democratic Is Just Not Enough: The EU’s Governance Transfer’ in Tanja A. Börzel and Vera van Hüllen (eds), Governance Transfer by Regional Organizations. Governance and Limited Statehood Series (Palgrave Macmillan, 2015) 227-241
Roland BIEBER and Francesco MAIANI, ‘Enhancing Centralized Enforcement of EU Law: Pandora’s Toolbox?’ (2014) 51(4) Common Market Law Review 1057
Jan-Werner MÜLLER, Safeguarding Democracy inside the EU. Brussels and the future of liberal order. Transatlantic Academy Paper Series, 2012-2013 Paper series, No 3, February 2013
Wojciech SADURSKI, ‘Adding Bite to a Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider” (2010) 16(3) Columbia Journal of European Law 385
Helmut SCHMIDT VON SYDOW, ‘Liberté, Démocratie, Droits Fondamentaux et État de Droit: Analyse de l’Article 7 du Traité UE’ (2001) 2 Revue de droit de l’Union Européenne
Academic publications and reports on Article 7 TEU with respect to Poland and/or Hungary
Note: These publications are listed in reverse chronological order and broadly follow the same format as DEM-DEC Research Updates
Gábor HALMAI, “The possibility and desirability of rule of law conditionality” (2018) Hague Journal on the Rule of Law (First Online article: published 11 June 2018)
Krizsta KOVÁCS and Kim Lane SCHEPPELE, ‘The fragility of an independent judiciary: Lessons from Hungary and Poland – and the European Union’ (2018) 51(3) Communist and Post-Communist Studies 189
Sergio CARRERA and Petra BÁRD, ‘The European Parliament Vote on Article 7 TEU against the Hungarian Government. Too late, too little, too political?’, CEPS Commentary, 14 September 2018
Kim Lane SCHEPPELE, ‘Autocratic Legalism’ (2018) 85 The University of Chicago Law Review 545
Laurent PECH and Kim LANE SCHEPPELE, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3
R. Daniel KELEMEN, ‘Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union’ (2017) 52(2) Government and Opposition 211
Tomasz Tadeusz KONCEWICZ, ‘Of institutions, democracy, constitutional self-defence and the rule of law: The judgments of the Polish Constitutional Tribunal in Cases K 34/15, K 35/15 and beyond’ (2016) 53(6) Common Market Law Review 1753
Jan-Werner MÜLLER, ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) European Law Journal 141
Article 7 infographics & EXPLAINERS
Kim Lane Scheppele and Laurent Pech, ‘Is Article 7 Really the EU’s “Nuclear Option”?’ Verfassungsblog 6 March 2018
Prof. Laurent PECH
Laurent Pech is Professor of European Law and Head of the Law and Politics Department at Middlesex University London. Laurent is also a Visiting Professor of Law at Bordeaux University. Professor Pech specialises in EU Public Law and has lectured in a variety of subjects including EU Constitutional Law, EU Internal Market Law and EU Fundamental Rights Law. He is currently a member of the editorial board of the Hague Journal on the Rule of Law and a member of the H2020 funded multidisciplinary research project on ‘Reconciling Europe with its Citizens through Democracy and the Rule of Law” (RECONNECT): https://www.reconnect-europe.eu/
Dr Joelle GROGAN
Joelle Grogan is Senior Lecturer in Law at Middlesex University. Her primary focus of research is the intersection between EU and UK public law, and the rule of law in the EU. She is a member of RECONNECT, the H2020 funded multidisciplinary research project on ‘Reconciling Europe with its Citizens through Democracy and the Rule of Law”. She serves as advisor to citizens’ rights advocacy groups, and is the creator of public legal education project, StickyTrickyLaw, published on Twitter, Facebook and Instagram.