From sanctions to prevention...

After this brief overview of the procedures of Article 7, the second section follows with a broader historical perspective on this instrument. As explained above, the system of Article 7 is a fairly recent construction: the provision was introduced only a little more than twenty years ago, with the Treaty of Amsterdam. The next paragraphs have the objective first to explain the rationale that guided the Member States to introduce a sanctions regime for domestic breaches of democracy, the rule of law, and human rights; and second, to show how and, after the introduction of Article 7, the focus of the debate shifted from the topic of sanctions to that of prevention, in order to anticipate the moment of possible EU intervention.

: The origins of the procedure: a sanctions regime

Going back to the first decade of the European integration project, a first predecessor of what is now Article 7 TEU could be found in the proposed - but never entered into force - European Political Community (EPC) Treaty of 1953. The EPC was meant as a platform for political cooperation working alongside the European Coal and Steel Community (ECSC), on the one hand, and the European Defence Community (EDC), on the other. Article 104 of the EPC Treaty would have allowed the Community’s institutions to intervene in order to '[maintain] constitutional order and democratic institutions’ in the Member States ‘territory’.²⁹ However, after the French Parliament failed to ratify the parallel EDC Treaty, the EPC project was abandoned as well. As is widely known, the Member States opted for a project that while extremely ambitious, had a more limited substantive scope: the European Economic Community (EEC). In this context, there was simply no need for a provision comparable to Article 104 EPC or current Article 7 TEU. The EEC was indeed meant to be an economic organization, one where political questions on the democratic conditions in the Member States were simply not meant to arise.

The situation gradually changed over the years as a result of the 'constitutionalisation process’ of the Communities and then the Union. The well-known and much discussed ^[1] process has several dimensions. What matters for our purposes is that - to put it in fairly general terms - the European integration process as a whole has eventually become associated with the 'constitutional values’ now listed in Article 2 TEU. Part and parcel of this transformation was that the common institutions of the Communities and then of the Union began to be interested in the democratic, rule of law, and human rights situation of the Member States.

The accession to the EEC of Greece, Portugal and Spain gave a first impulse to this development. In pre-accession documents, the Commission included for the first time some paragraphs dedicated to the political-constitutional situation of the three countries, which had just established still fragile democratic systems after decades of authoritarianism. Following these first timid steps, the EP advanced a proposal for a post-accession mechanisms in the 1984 Draft Treaty on European Union: it recommended giving to the Court of Justice the competence to determine the existence of 'a serious and persistent violation of democratic principles or fundamental rights by a Member State’ and to the European Council the power to adopt sanctions after the Court’s decision. These sanctions could have included the suspension of participating and voting rights in the Council and more generally the suspension of membership rights. The Member States declined however to introduce similar mechanisms on the occasion of the Single European Act or later the Maastricht Treaty.

A second and even more fundamental stimulus came then from the Eastern Enlargement process. Having established in Copenhagen in 1993 that accession to the EU formally required respect for democracy, the rule of law and human rights, including minority rights (the so-called ‘Copenhagen political criterion’), the Commission then put in place a strong system of political conditionality for candidate countries. With accession of Central and Eastern European countries approaching, though, the institutions and the Member States finally realized that there was also a need for mechanisms that could ensure respect for the same values post-accession. In particular, it was evident that the EU lacked instruments to monitor issues that were crucial during the accession process, such as the independence of the judiciary, but also minority' rights, but fell outside the scope of Union law. In the negotiations leading to the Amsterdam Treaty of 1997, the Member States finally agreed on the creation of what are now Article 7(2), (3), and (4) TEU. The introduction of the Article 7 system was not crucial for the enlargement process itself, because of the strong conditionality regime existing in the accession policy, but it was meant for the next ‘ordinary'’ period’.

The decision to introduce Article 7 was at the same time the result of the EU constitutionalisation process and a further contribution to it, and a true sign of the ‘coming of age’ of the EU human rights regime. Yet, at the same time, the creation of Article 7 did not produce a fundamental shift in concrete Union policies. The desire of the Member States to retain strict control over the procedure -

• 1
• 51 See Article 4(4) of the Draft Treaty on European Union.
• 2
• 52 On the link between the introduction of Article 7 and the Eastern enlargement process: Sa-durski, supra note 8; B. De Witte, ‘The Impact of Enlargement on the Constitution of the European Union’, in M. Cremona (ed.), The Enlargement of the European Union (Oxford University Press, 2003), p 209.
• 3

^iJSee Cremona, supra note 32; C. Pinelli, ‘Conditionality and Enlargement in Light of the EU Constitutional Developments, (2004) European Law journal 10, 354; W. Sadurski, Constitutionalism and the Enlargement of Europe (Oxford University Press, 2012) and, for a more critical assessment, D. Kochenov, EU Enlargement and the Failure of Conditionality (Kluwer Law International, 2008).

⁴

Sadurski, supra note 8, 425, argued that the introduction of Article 7 had a ‘marginal’ role in Central European candidate states.

• 5
• 55 G. de Burca, ‘Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union’, (2003) Fordham International Law journal 27,679.
• 6
• 56 See also Sadurski, supra note 8, 393, while Austria and Italy proposed to introduce mechashown for example by the extremely high thresholds required for the activation of Article 7(2), namely the unanimity of the Member States in the European Council -led to the creation of a system that was mostly intended to have a deterrent effect, rather than being actually used. These choices may also mirror the general reluctance of the Member States to confer to the EU strong sanctioning powers, described elsewhere in this volume.⁵' In any event and at the very least, Article 7 was never meant to be used often.^[2] It was included in the Treaties as a safeguard clause for extreme situations. Perhaps, at that stage, it could truly be considered a ‘nuclear option’, as it came to be known over the years. Although the label now creates confusion, especially when it is applied to the entire framework created by Article 7 and thus also to the preventive part, there is little doubt that deterrence was originally in the minds of the drafters of the provision.

In the Amsterdam setting, the strong sanctioning regime of Article 7 was not accompanied by other softer instruments that could also contribute to protect EU values. In particular, the Member States rejected the EP’s calls for the setting up of a general monitoring system that could constantly verify respect for EU values at the national level. Thus, Article 7 granted at the time only one possibility: finding a serious and persistent breach of EU values and then, if considered necessary, imposing sanctions. The system did not allow for a more gradual approach. Soon however, the EU and the Member States began to be confronted with the fact that, while a full-scale collapse of a state that could immediately warrant the activation of Article 7(2) and (3) was fairly unlikely, other serious but softer threats to the common values were much more realistic, even in the Western part of the continent. The attention began to shift from the topic of sanctions to that of prevention.

• [1] 29 For an overview, see G. de Bürca, ‘The Road Not Taken: The EU as a Global Human Rights Actor’ (2011) American Journal of International Law 105, 649. The concrete procedures for intervention were supposed to be specified by secondary law. 2 See for example the groundbreaking works of E. Stein, 'Lawyers. Judges and the Making of a Transnational Constitution, (1981) American Journal of International Law 25, 1; G.F. Mancini, ‘The Making of a Constitution for Europe’, (1989) Common Market Law Review 26, 395; and J.H.H. Weiler, ‘The Transformation of Europe’ (1991) The Yale Law Journal 8, 100.
• [2] nism with qualified majority voting, the other Member States ‘were more reluctant regarding the creation of a broad sanctions mechanism, which could impinge on their sovereign rights’. 2 See also the Chapter by S. Montaldo, F. Costamagna and A. Miglio in this volume. 3 This was immediately clear after its introduction: see A. Verhoeven, ‘How democratic need European Union members be? Some thoughts after Amsterdam’ (1998) European Law Review 23, 217, p 224: the ‘chances of a Member state ever being condemned or punished ... are limited, and ‘it is the deterrent effect that counts’. 4 ’’In the Amsterdam formulation, Article 7 did not even allow the Council or the European Council to adopt recommendations before the finding of a serious and persistent breach of the values.