Professor Steve Peers, University of Essex
With the re-election of the Orban
government in Hungary, some of its critics are calling for Hungary to be
expelled from the EU. But is that even possible? And if not, what other
sanctions can be imposed against a Member State by the EU?
Back in 2019, I wrote two blog
posts on this theme: first,
on the ‘Article 7’ process for sanctioning Member States for breach of the rule
of law or other EU values; second,
on the alternative processes (ie other than Article 7) for sanctioning Member
States. This is an update of the first of those blog posts; I hope to update
the second one at some point too.
The legal framework for sanctions
Although many people refer to
Article 7 TEU, there are other Treaty provisions which are inextricably linked:
Article 2 TEU sets out the values which Article 7 is used to enforce; Article
354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU
provides for limited jurisdiction for the CJEU over the sanctions
procedure. All of this must be distinguished from the normal rules
of EU law, discussed in the second blog post.
First of all then, what are the
values of the EU, legally speaking? 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 then sets out the
process of enforcing those values. It begins with Article 7(1), which provides
for a kind of ‘yellow card’ – a warning if there is there is ‘a clear
risk of a serious breach’ of those EU 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.
shall regularly verify that the grounds on which such a determination was made
continue to apply.
Notice that the ‘yellow card’
process can be triggered by the European Parliament, or a group of Member
States, or the Commission. There is no requirement of unanimity of Member
States to approve a Council decision to issue a ‘yellow card’ (this is a common
misunderstanding), but the threshold of four-fifths of Member States’
governments in the Council is nevertheless fairly high.
In practice, this process has
been triggered both against Poland (by the European
Commission) and Hungary (by the European
Parliament). So far neither has resulted in any action by the Council, despite
holding a number of the hearings referred to in Article 7(1).. So obviously triggering the
process does not, as some think, mean that the Council will agree to issue a
‘yellow card’, or has done so already. If the Council ever did issue a ‘yellow
card’, note that this does not entail a sanction as such: it is only a finding
of a risk to EU values, with possible recommendations. Nevertheless,
the issue of a ‘yellow card’ is perceived as extremely politically serious.
This brings us to Article 7(2),
which is the ‘red card’ of the process:
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.
The procedure here is even
tougher: unanimity of the Member States. The European Parliament cannot trigger
the process, but could veto it if the Commission or a group of Member
States trigger it. The threshold to be met is higher: not just the risk of a
serious breach, but the ‘existence of a serious and persistent breach’
of those values. It’s likely that the EU would get to the ‘red card’ stage
after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight
red’, for (say) a country which had suddenly undergone a military coup, is also
What are the consequences of a
‘red card’? Article 7(3) sets them out:
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.
of the Member State in question under the Treaties shall in any case continue
to be binding on that State.
Note that Member States don’t have
to act unanimously in the Council when deciding exactly what sanctions to apply
to the black sheep amongst them. The unanimity threshold only applies when
taking the previous step of deciding whether there’s a serious and persistent
breach of the EU values. As for the specific sanctions which might
be imposed, the Treaty mentions suspension of voting rights, but that’s just
one example. The Council might instead (or additionally) impose other
sanctions, such as suspension of MEPs’ voting rights (which raises the awkward
question of whether they might also end up sanctioning any opposition MEPs
from the Member State in question – whose voices would ideally need to be
heard). However, there’s an obligation to consider the rights of individuals
and businesses, which suggests that trade sanctions might be problematic. It
might also be hard to justify restricting free movement rights, but in any
event note that there are specific rules on asylum for EU citizens fleeing from
a Member State subject to a ‘red card’. (see the second blog post).
Most significantly, there’s no provision to expel a
Member State from the EU as such. Having said that, a Member State
subject to suspension might be so outraged to be in that position that it
triggers the process of leaving the EU under Article 50. The UK’s withdrawal
process was complicated and controversial enough; now imagine the legal and
political complexities of a Member State subject to an Article 7 ‘red card’
triggering Article 50. Should its political authorities’ actions be considered
legally and morally valid? What if a group of exiles claim to be the legitimate
government of that Member State (a la the USSR-era Baltic States), and that
purported government does not wish to leave the EU? What
if a part of that Member State, at odds with the government in power over EU
membership and its violation of EU values, attempts to secede?
Of course, the possibility of
withdrawal (alongside concerns about sovereignty, and the workings of partisan
politics) may also have influenced the pronounced reluctance of the EU to use
the Article 7 process.
It’s sometimes suggested that the
large bulk of Member States could just leave the EU, forming an “EU 2.0” copy
of it among themselves, with only Poland and Hungary left in the original EU. Such
a move would be risky for those who support EU membership in the departing
Member States, as the critics of the EU would be given an opportunity to
prevent their countries signing up to the new EU, or to demand renegotiation of
the current terms of membership.
Article 7(4) TEU then provides
that the Council, again by qualified majority, may ‘vary or revoke’ its
sanctions against a Member State ‘in response to changes in the situation which
led to their being imposed’. Article 7(5) notes that the rules on voting within
the institutions when Article 7 is being applied are set out in Article 354
TFEU. The latter provides that the Member State which is the subject of
potential sanctions has no vote at any stage of Article 7, as otherwise this
would obviously have made the adoption of any decision on breach of EU values
impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision.
Where the Council votes to implement a ‘red card’ decision, a higher threshold
for adopting EU laws applies (72% of participating Member States in favour,
instead of the usual 55%). If a Member State’s voting rights are suspended, the
usual rules on Council voting with only some Member States participating apply.
For its part, the EP ‘shall act by a two-thirds majority of the votes cast,
representing the majority of its component Members’.
Finally, Article 269 TFEU
significantly limits the role of the CJEU over the sanctions procedure:
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
Given the limit on judicial
control of the Article 7 process, it is almost entirely political. So the legal
questions arising from it may be largely hypothetical in practice. However,
they do exist.
The first important point is the
wide scope of issues which can be the subject of the Article 7 process. It is
sometimes claimed that the process can only be used to sanction Member States
for breaches of EU law, but this is clearly false. There is no reference to EU
law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7
would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet
other provisions of the Treaties (discussed further in the second blog post)
give the Court extensive jurisdiction over the enforcement of ordinary EU law.
This claim about the limited
scope of Article 7 is also absurd if you consider the broader context. Imagine,
for instance, a Member State placing LGBT citizens in concentration camps. A
narrow interpretation of Article 7 would mean that the EU could only complain
about this to the extent that being locked up in camps would have a
discriminatory effect on the detainees’ access to employment (ie, an issue definitely
within the scope of EU law). Yes it would; but that would hardly be the most
outrageous aspect of detaining LGBT people in camps because of their sexual
orientation. (EU law is also relevant to LGBT refugees, but the Article 7
process would have to be triggered first for it to be relevant to refugees who
are EU citizens).
So obviously Article 7 is not
intended to be limited in this way. Indeed, its broad scope partly explains why
the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on
issues which are not normally within the scope of EU law. (Another reason is
the intention to keep the Article 7 process in the hands of politicians, not
On the other hand, the Article 7
process and ordinary EU law can overlap. The Court can use its ordinary
jurisdiction to rule on an issue being discussed in the Article 7 process, and
vice versa – for example, in the string of rule of law judgments regarding the
Exactly how does the Court’s
limited jurisdiction over Article 7 work? The wording of Article 269 TFEU
definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At
first sight, it also applies to the implementation of sanctions,
since the text refers to any Council actions pursuant to Article 7 TEU. But on
this point, the use of the word ‘determination’ is confusing, as Article 7
doesn’t use that word to refer to the implementation of sanctions, but
only the decisions on whether EU values have been (or might be) breached.
Note also that the only possible
challenger is the Member State sanctioned under Article 7 – not any other
Member State, an EU institution, or an individual or business. If individuals
are barred from challenging the validity of Article 7 implementation decisions,
even indirectly via national courts to the CJEU, how else 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? At any
rate, there’s no limit on the Court being asked by national courts to interpret the
decisions implementing sanctions, which could be significant in working out the
impact of sanctions on individuals. In particular, if Council decisions under
Article 7 disapply ordinary EU law in some way, there should be no objection to
the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.
A Court judgment under Article
269 TFEU can only address procedural issues, not substance. In other words, the
Court cannot be asked to rule on the question of whether the Member State
concerned has actually breached EU values (or seriously risks breaching them).
As we will see in the second blog post, however, the developing case law on the
overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little
diffuse. Also, one can imagine that a Member State may make arguments about the
fairness of the hearings, even where (as in the case of Poland and Hungary)
some hearings have been held (note that the Council's internal rules on Article
7 hearings have been published).
Finally, the time limits in Article 269 require significant fast-tracking: the
challenge must be made one month after the determination (the usual deadline to
bring an action to challenge an EU act is two months after publication) and
(uniquely in EU law) one month for the Court to give its ruling.
Even though Article 7 has not
resulted in any sanctions decision yet, the CJEU did address some issues about
its scope in 2021, when it ruled on a legal
challenge by Hungary to the European Parliament’s decision merely
to trigger Article 7. In the Court’s view, the special rules in Article
269 did not exclude a legal challenge to the decision to trigger the process,
because those special rules only apply to acts of the Council or European
Council. The European Parliament’s resolution had legal effect, because it also
triggered the protocol on asylum for EU citizens; therefore it could be
challenged (non-binding EU acts, ie with no legal effect, cannot be challenged).
Nor did the Court agree with the European Parliament that its resolution was a
purely intermediate step.
However, the Court ruled that
some aspects of Article 269 did apply to legal actions against the triggering
of an Article 7 procedure: only the Member State concerned could bring a
challenge, and it could only raise the procedural issues referred to in Article
269, not the substance of whether the body which started the process had
wrongly claimed that the Member State was breaching (or risked breaching) EU
values to the thresholds set out in Article 7. However, that Member State was
entitled to the usual two months to bring the legal action, not the one month
referred to in Article 269. Ultimately the Court rejected the Hungarian
government’s argument on the merits, finding that European Parliament correctly
counted the votes cast (and abstentions) to trigger the Article 7 process.
One key legal and political
question is the interpretation of the unanimity requirement to issue a ‘red
card’ determination of a serious breach of EU values. Some have suggested that
since two Member States are facing Article 7 procedures, and they
would have a natural tendency to stick together and vote for each other,
unanimity can never be reached. Therefore, for the ‘red card’ procedure to be
effective, it must be interpreted to mean that any Member State facing an
Article 7 procedure must lose its vote even as regards issuing a ‘red card’
against another Member State.
With respect, this interpretation
is untenable. Article 354 TFEU refers to ‘the Member State in
question’ not voting in its own case – clearly using the singular, as well as
the definite article. There is no way to stretch the canons of interpretation
for this to refer to multiple Member States. Such wild leaps of legal
fancy are particularly inappropriate when a main point of the process is to
ensure protection of the rule of law in the European Union.
Article 7 TEU was conceived as a
political process par excellence, and it remains supremely political. Due to
its impact on national sovereignty, and the web of transnational partisan
politics in which the governments concerned are embedded, Article 7 has long
been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a
political emergency such as a military coup. Although the attempt to nuance
Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this
version of the process is perceived as politically ‘nuclear’ too.
The obvious problem here – which
the ‘yellow card’ reform sought but failed to address – is that democracy
rarely collapses overnight. In the famous words of Michael
Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it
arrives as your friend’ – promising to:
make you feel
give you a
clean up the
remind you of
how great you once were,
clear out the
venal and the corrupt,
anything you feel is unlike you...
And to that end, and for those
reasons, it often gains a foothold through the democratic process. Yet the
values of the EU to be protected also include democracy – and the Article 7
process is in the hands of the governments of fellow Member States. All have
some skeletons in their own closet; and all have backs that might need some
scratching by the governments of the States being criticised. While recent Hungarian
elections have been criticised as undemocratic, Member States seem reluctant to
pursue the route of defining what they consider to be acceptable democratic
standards and sanctioning other Member States for breaching them.
So is the Article 7 process
doomed? In fact, the expansion of EU law in areas with significant relevance to
human rights, the willingness of the CJEU to rule on the judicial independence
of national courts in general, and the creation of new means to address ‘rule
of law’ concerns within the EU budget system means that recourse to the nuclear
option may arguably not be necessary. In effect, the conflict over the
protection of human rights and the rule of law in Member States can also be
fought by conventional means: the ordinary EU law system, discussed
in the second blog post.
Barnard & Peers: chapter 9
Photo credit: Steve Peers