: Article 7 TEU: an overview of the system

The procedures of Article 7 TEU have been the subject of extensive institutional' and academic discussion. A brief summary of the main features of the mechanisms is here sufficient for framing the discussion. In the first place, it may be worth emphasising that, while the recent debate has mostly focused on the value of the rule of law, Article 7 can be used to protect all the values declared by Article 2 TEU, and most importantly also democracy and human rights. Secondly and crucially, Article 7 is blind to any distinction between EU and national competences: it applies horizontally, across the board, irrespectively of whether the national measures threatening or breaching the common values fall within the scope of EU law or not.^[1]

The next paragraphs of this section clarify that Article 7 actually contains two separate procedures that have a different nature and different aims: the first one has a preventive function and leaves room for dialogue between EU institutions and national authorities; the second is more confrontational and can ultimately lead to the imposition of EU sanctions.

: Article 7(1): clear risk of a serious breach

Added by the Treaty of Nice, Article 7(1) TEU allows the Council to determine, after obtaining the European Parliament’s consent, the existence of a ‘clear risk of a serious breach’ of EU values in a Member State of the EU. The procedure can be activated by the European Commission, one-third of the Member States, or the European Parliament. The Council takes the final decision by a four-fifths majority of the Member States. For the EP’s consent, the required majority is two-thirds of the votes expressed, which should also represent the majority of the EP members.

The finding of a clear risk of a serious breach cannot lead to the imposition of sanctions or other measures against the Member State in question. The instrument has thus only a preventive function and sets the scene for further dialogue between EU institutions and national authorities. In particular, the need for a hearing before the Council and the possibility to issue recommendations even prior to any substantive determination under Article 7 clearly shows that Article 7(1) still envisages a constructive engagement with national authorities.

: Article 7(2): serious and persistent breach

The second paragraph of Article 7 is more confrontational in nature and propaedeutic to the imposition of sanctions. It allows the European Council to determine, with previous consent of the EP, the existence of ‘a serious and persistent breach’ of the values of Article 2 TEU. The European Council decides by unanimity, while the

Member State concerned does not participate in the vote. Importantly, a decision under Article 7(2) does not require a prior determination under Article 7(1). If they believe that the substantive threshold of a ‘serious and persistent breach’ is fulfilled, the European Commission and one third of the Member States^[2] can immediately have recourse to Article 7(2). This could happen either in the case of a sudden breach of the common values, as in the - admittedly unlikely - case of a military coup d’état, or even when EU institutions and the Member States have not reacted to a serious risk according to paragraph 1, and then the situation has further deteriorated. Here too, the national government is called to take part in a hearing and can submit its observations to the European Council.

• [1] See Commission Communication, supra note 7; Sadurski, supra note 8; and also C. Hillion, ‘Overseeing the rule of law in the EU: legal mandate and means’, in C. Closa, D. Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016), 59. 2 See Section 4.3.1 of this Chapter. 3 Note that Article 7(2) requires a decision of the European Council, while it is the Council to vote on Article 7(1) procedures.
• [2] The EP, in contrast to the previous paragraph, does not have the formal power to activate the Article 7 (2) mechanism. 2 15 See also Commission Communication, supra note 7. 3 For an overview, Tomas Dumbrovsky, ‘Beyond Voting Rights Suspension - Tailored Sanctions as Democracy Catalyst under Article 7 TEU’, EUI Working Papers RSCAS 2018/12. An example 4 See also Besselink, supra note 5, 129: ‘Article 7(3) TEU is unclear as to the substance of the sanctions which can be imposed’... ’this issue might be a matter of speculation’.