Up until today, the PiS-led Polish government had been in the process of dismantling judicial independence and the rule of law with its constitutional reform bill, which would have put the Supreme Court under direct government control. This had led the EU to consider what Commission President Barroso has dubbed the ‘nuclear option’: Article 7 of the Treaty on European Union (TEU).
Luckily, after several days of protests of the Polish citizens, President Duda has announced he will be vetoing the Supreme Court bill, making the threats of triggering Article 7 unneccessary.
However, the possibility that the current government will try to push forth other controversial bills is high, and the end of their term still far in the future. So what would happen if the EU was put in the position of calling for the activation of Article 7 again?
If triggered, this article gives the EU the opportunity to issue recommendations and to impose sanctions for breaches of the core values of the Union – including the revocation of voting rights. These key principles to be upheld are contained in Article 2 TEU, and include ‘human dignity, freedom, democracy, equality, the rule of law and respect for human rights’.
But this mechanism is a relatively new addition to the legal framework of the Union, and its functioning widely misunderstood. The EU first started contemplating the possibility of introducing sanctions for countries ‘backsliding’ in terms of democracy and human rights about 20 years ago, but it wasn’t until 2009 that it was enshrined in the treaties in its current form.
Pre-Article 7: the “Copenhagen dilemma”
The Union treaties as they were initially conceived did not have any provision to sanction Member States. Instead, they relied on the presumption of compliance with the values of the EEC through a duty of loyalty and mutual trust. The founding principles of the Union as expressed in the Schuman Declaration weren’t even written down formally. This soon made an unbalance apparent: there was no clarity over the contents and enforceability of the key values of the Union, while other EU laws were strictly enforced.
This gave rise to what is known as the “Copenhagen dilemma”. The EU has included clauses for the protection of human rights in all its association and cooperation agreements. Democracy, freedom, the rule of law, and the other values constituting the core of Article 2 TEU have been pre-accession requisites for each and every candidate country to join the Union. These requirements are part of the Copenhagen criteria for accession, which allow sanctions for non-compliance as well as the interruption of accession talks.
However, these sanctions cease to have any application once full membership has been secured upon accession. This situation was untenable, as it resulted in the risk of slipping back into non-compliance with EU values after accession talks were completed.
The Amsterdam Treaty
Given the numerous rounds of enlargement which gave no sign of stopping, and the several newly-democratised and post-dictatorial states just incorporated into the Union, it was only a matter of time before a clause legally protecting the founding principles were introduced. There was the need to bridge the gap between the founding fathers’ presumptions that Member States would abide by EU principles and the need to have a safety net in case this turned out to be unfeasible.
This need became especially acute by the late 1990s, when the possibility of an enlargement towards East incorporating ex-USSR states became more of a reality. In these countries the tradition of democratic governance was not as deep-rooted as in Western European members, and Member States feared that human rights breaches would be a plausible prospect after their inclusion in the Union.
To ensure that there was a way to counteract this effectively even after membership, the 1997 Amsterdam Treaty introduced a first, embryonic version of Articles 2 and 7. Under this first formulation, any Member State in violation of EU key values could be subject to sanctions and suspension of voting rights. It had, however, one blaring limit, which led to a period of deep crisis between Austria and the rest of the EU just two years later.
The turning point: the “Haider affair”
In October 1999, Europe watched with bated breath as Austrian citizens cast their vote in the parliamentary elections. The far-right Freedom Party (FPÖ), led by Jörg Haider, had been collecting solid support, and the EU feared it could lead to having a far-right party in government for the first time since World War II. The results were catastrophic: the FPÖ became the second largest party in Parliament with almost 27% of the votes, and the Social Democrats lost their working majority. The Social Democrats and the Conservatives tried to work through government negotiations, but these collapsed by January 2000.
The other 14 Member States feared that the Conservatives would now turn to the FPÖ for an agreement. Their main concern was that this would result in the disregard of human rights and freedom in the country. They could not, however, take any action under Article 7 because no breach of the core values had happened yet. What was missing in its formulation was the authority to intervene pre-emptively within the framework of the EU if there was a just concern about a future breach.
Thus, the 14 decided to send Austria an ultimatum threatening political sanctions if FPÖ became part of the government. This decision was unique in EU history: the 14 issued independent decisions as individual actors – and as such the decision was outside of the scope of European law – but at the same time the stated reason was the protection of EU values. They had hoped that this threat would force Austria to back off, but by the end of January the deal was finalised.
The Member States were suddenly forced to put the sanctions into place. However, they backfired, and Haider’s popularity and anti-EU sentiment soared in Austria. To avoid straining the relationship with Austria any further, they lifted the sanctions just a few months later.
This barely averted diplomatic disaster highlighted a glaring gap in Article 7’s formulation: the EU couldn’t take any preventive measure. The apprehension that the rising popularity of right-wing parties across Europe could cause a second “Haider affair” led Member States to further amend Article 7 twice: the first time in the 2001 Nice Treaty, and then again in 2009 with the Lisbon Treaty.
The Lisbon Treaty limited itself to reforming Article 2 by expanding its scope of application, but the real revolution came from the Nice Treaty. This amendment introduced another option to Article 7 as well as sanctions: an ‘alert procedure’ which worked as a preventive mechanism. This confers the EU the possibility to declare a ‘clear risk of a serious breach’ of Article 2 and to issue a rule of law recommendation on how to solve the situation, forestalling the escalation to an actual breach.
How is Article 7 triggered?
Neither of the two enforcement options in Article 7 – the Rule of Law recommendation and sanctions – has ever been used. There are good reasons for this: not only that the alert procedure is a new development in EU law, but also that suspending a country’s voting rights would have unpredictable consequences. Moreover, one additional difficulty is posed by the high activation threshold.
First of all, imposing sanctions requires the statement that a serious breach of Article 2 has occurred. This can only happen after a unanimous vote in favour by the European Council and consent of Parliament. Once this statement has been issued, 72% of the Council comprising at least 65% of the Union population must vote in favour of the sanctions. The Member State which has committed the alleged breach is obviously excluded from all voting procedures against itself.
Activating the preventive mechanism is easier, as it requires only a 4/5 majority in the Council plus consent of the European Parliament. This is because it involves no negative repercussions, but instead its aim is forcing the concerned Member State to engage in dialogue with the EU institutions, in order to prevent a future breach.
The Polish case
Timmermans, the first Vice-President of the European Commission, has stated that the deterioration of democracy and the threat to the independence of the judiciary in Poland has led the EU on the brink of activating the sanction procedure enclosed in Article 7.
However, achieving Council unanimity is a particularly complicated feat, one made basically impossible by the Hungarian government’s assurances that they would veto any Polish sanction procedures. Hungary itself has had a few close calls with Article 7, once last October over its treatment of migrants, and then again more recently after its media reforms which have increased the authoritarian drift in the country. As such, it is understandable that the Hungarian government would want to protect itself by relying on Poland reciprocating the favour should Hungary ever be targeted by the EU again.
A much more realistic possibility is activating the second defence mechanism, the alert procedure. However, the relationship between the Polish government and the EU has been tense since the 2015 elections, and so far Poland has refused to act upon the EU’s warnings. With the reassurance that no sanctions could ever be implemented, nothing is stopping the Polish government from ignoring future EU’s recommendations and pushing forth more contested reforms.