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: Article 7(3) and (4): sanctions

Once the European Council has found that there is a ‘serious and persistent breach’ of EU values in a Member State, the Council may (but is not obliged to do so) decide to adopt sanctions with a qualified majority. Consent of the EP is not required under Article 7(3). Following an identical procedure, established in Article 7(4), the Council can then decide to modify or withdraw the sanctions adopted earlier.

More specifically, Article 7(3) allows the Council to ‘suspend certain of the rights deriving from the application of the Treaties to the Member State in question’. The provision then illustrates one concrete type of sanction that can be adopted, namely the suspension ‘of the voting rights of the representative of the government of that Member State in the Council’. While very often mentioned in the public discussion, this is merely one of the options available to the Council: the text of Article 7(3) clearly says that ‘the Council may decide to suspend certain of the rights (...) including the voting rights’. The Council is free to opt for other measures. In the absence on any concrete case until now, what precisely could be done under Article 7(3) is still a matter of speculation, and the formulation of the provision seems to leave a very broad discretion to the Council in deciding what rights can be suspended.

In the first place, it seems reasonable to conclude that the Council may suspend both rights deriving from the Treaties and rights deriving from EU secondary law. To offer some examples, beyond the hypothesis of voting rights’ suspension, the Council could limit other political rights at EU level,3 suspend the application of free movement provisions or the state’s participation to the internal market, or withhold or reduce EU funding.[1] Other examples of sanctions are foreseeable as long as they can be ‘translated’ in the suspension of EU membership rights, while other types of economic sanctions (financial penalties?) might be harder to reconcile with the text of the norm. In any case, as argued above, the discretion of the Council is very broad, and Article 7(3) ultimately puts only one explicit condition for the legitimacy of sanctions: it demands to the Council to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ when it imposes sanctions. This clause creates a proportionalitylike test, which strives in particular to protect the position of those individuals -both citizens and entities of the Member States concerned and of other Member States - that bear no responsibility for the breach to the Union values. The Court of Justice could be called to perform this proportionality check on the basis of Article 269 TFEU, which allows the Court to review whether the procedural stipulations of Article 7 have been respected.

What is however clear from the text of Article 7 is that the system does not allow for the expulsion of a Member State from the Union, and this has been implicitly confirmed by the CJEU in the Wigthman case. Article 7 does not even provide for the full suspension of membership rights: the Council may suspend only ‘certain’ of the rights. Furthermore, membership obligations ‘shall in any case continue to be binding’: forms of reciprocity' from the offending Member State are prohibited. Thus, although Article 7 in many respects resembles procedures of other international organizations that have parallel aims, it provides for a typical and fairly unique sanctions regime. In most other international organizations, including the Council of Europe and the United Nations, expulsion of members is possible;[2] or in the alternative, the relevant statutes at least generally provide for the full suspension of membership. In the EU, on the other hand, neither option is available. The stricter limits to the sanctions’ regime point to the constitutional nature of the EU project: as it happens in fully-fledged federations, it is simply out of the question to remove one of the members from the entity, even if it breaches the common values of the polity. Expelling a Member State would also entail the unacceptable outcome of potentially stripping millions of individuals of EU citizenship and connected rights. Rather than ‘kicking out’ a Member State, it is crucial to offer a concrete solution to the breach, bringing it to an end: as the Commission pointed out in a 2019 communication on the rule of law instruments, the final and paramount objective of EU action ‘must not be to impose a sanction but to find a solution that protects the rule of law, with cooperation and mutual support at the core’.

It is worth emphasising two other consequences, though not sanctions strictly speaking, that the activation of Article 7 mechanisms may have. First, Protocol 24 on asylum for nationals of Member States contains a general presumption that Member States are ‘safe countries of origins’ and thus applications for asylum made by a Member State national in another Member State are generally not admissible. Yet, an exception provides that when the Council or the European Council have adopted a decision under Article 7(1) or (2), or even when the procedure of Article 7(1) has been merely activated, applications for asylum ‘may be taken into consideration or declared admissible’. Second, the European Arrest Warrant Framework Decision contains in its preamble a recital (no 10) that allows the European Council, after a decision under Article 7(2) has been adopted, to suspend the EAW system in the Member State responsible for the breach of the common values. The CJEU clarified in the LM case (also known as Celmer)2A that two steps are necessary: first, a decision of the European Council under Article 7(2) and then a second determination, still by the European Council. After the second decision, judicial authorities ‘would be required to refuse automatically to execute any European arrest warrant’ issued by the Member State concerned. In the absence of such a determination, in order to suspend the execution of a European Arrest Warrant on fundamental rights and rule of law grounds, the executing judicial authorities need to conduct a systemic and an individual assessment of the situation, as explained by the Court in LM and earlier in Aranyosi and Caldararu.[3]

: Article 7: concluding thoughts

To summarize, Article 7 TEU offers to the EU institutions the possibility to adopt sanctions against a Member State that breaches in a 'serious and persistent’ manner the basic values of the Union. Sanctions are however the last, and merely possible, step of a process that also allows for softer and more dialogical responses that have a preventive function. Still today, Article 7 TEU is the only provision in the Treaties that is specifically dedicated to the protection of EU values: the question on how to protect EU values has been kept separate from that of enforcing ‘ordinary’ Union law, though, as shall be seen, traditional mechanisms can also contribute to the goal of ensuring respect for democracy, the rule of law, and human rights.

Article 7 TEU is a political mechanism. The key determinations are firmly in the hands of political actors: the EP and the Council, under Article 7(1), and the EP and the European Council, under 7(2); the Council is then exclusively competent on the adoption and removal of sanctions. On the other hand, the Court of Justice is not involved in the substantive decisions, but can only check respect for the procedural stipulations of Article 7. The political nature of the mechanisms is a feature, as noted above, that is common to similar procedures of other international organizations.

  • [1] See M. Novak, ‘Human Rights “Conditionality” in relation to Entry to, and full Participation in, the EU’, in P. Alston (ed.) The EU and Human Rights (Oxford University Press, 1999); Besselink, supra note 5), 131. 2 In this sense, Besselink, supra note 5, and Dumbrovsky, supra note 13. The latter distinguishes ‘general’ proportionality obligations - according to which sanctions should be ‘suitable to change the objectionable policy of the target state’; they must be necessary, in the sense that ‘the objectionable policy cannot be changed by a less intrusive measure’; and finally, they must not ‘have an excessive effect on the target state’s rights’ - and the ‘special’ obligation of respecting individual positions. 3 Yet, in view of the political nature of the Article 7 system, the Court most likely would grant the Council broad leeway in terms of the choice of sanctions. 4 See CJEU, Case C-621/18 Wightman ECLI:EU:C:2018:999. Para. 72: a Member State ‘cannot be forced to leave the European Union against its will’. There was however some discussion on the possibility to introduce an expulsion clause at the time of the Amsterdam Treaty; the idea was ultimately rejected because it would have called into question the idea of ’irreversibility’ of EU membership: see Sadurski, supra note 8, also for a general overview of the drafting history of the provision. 5 For example, even in the case in which budget transfers to a Member State were suspended, the Member State sanctioned under Article 7(3) would still be called to contribute to the EU budget.
  • [2] 2 1 have developed this point at a grater length in M. Bonelli, ‘A Federal Turn? The European Union’s Response to Constitutional Crises in the Member States’ (2018) Perspectives on Federalism 10, 41. 3 European Commission, Communication ‘Further strengthening the Rule of Law within the Union - State of play and possible next steps’, Brussels, 3 April 2019, COM(2019) 163 final, 7. 4 See CJEU, C-216/18 Minister for Justice and Equality v. LM (Deficiencies in the system of justice) ECLI:EU:C:2018:586. 5 CJEU, C-216/18 LM, para. 72.
  • [3] CJEU, C-404/15 AranyosiandCäldäraru ECLI:EU:C:2016:198. 2 See also A. Jakab, D. Kochenov, ‘Introduction’, in Jakab and Kochenov, supra note 5. 3 See Article 269 TFEU.
 
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