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: …and now back to sanctions?

The inability to find effective answers to the Hungarian crisis, and later to the Polish one, ultimately showed to the institutions and the public the deficits of the EU oversight system and of the approach followed until then. First, the deterrent effect of the Article 7 system proved to be very weak: the mere fact that the provision existed did not actually dissuade Hungarian and Polish authorities to pursue their constitutional and institutional reforms. Second, as illustrated in particular by the Polish case, where the Commission relied uniquely on the Rule of Law Framework for a quite long time, preventive and dialogical mechanisms alone cannot achieve the expected results. Third and finally, the Hungarian developments showed that traditional enforcement mechanisms such as the infringement procedure are not a sufficient response either, at least if not complemented by parallel political action.

As a consequence, the attention of both the institutional and the academic debate shifted again to the topic of sanctions, and more generally to EU enforcement tools. This has led to two developments, which could, at least at first sight, be viewed as partially contradictory. On the one hand, Article 7 has regained its centrality as the key instrument to protect EU values, although any actual imposition of sanctions still remains extremely unlikely at the moment, because it requires a previous unanimous decision within the European Council under Article 7(2). On the other hand, precisely in light of the difficulties in reaching a final decision under Article 7(2) and (3) TEU, EU institutions, and the Commission in particular, have attempted to find new ways to tackle breaches of the common values, proposing new sanctioning procedures or rethinking and readapting existing ones.[1]

: The new centrality of Article 7

Almost twenty years after its introduction, Article 7 finally ‘came of age’ in December 2017, when the Commission activated it for the first time against Poland. The Commission took the decision after three unsuccessful Rule of Law Recommendations under the Rule of Law Framework, which did not stop the controversial reforms of the judiciary. A few months later, the Parliament decided to follow the Commission’s step and adopted a resolution calling for the activation of Article 7(1) against Hungary. Both procedures are now pending before the Council, which will take the final decision on the existence of a ‘clear risk of a serious breach’ of the rule of law (in the Polish case) and of EU values (in Hungary). In the Polish case, the Council has already held three formal hearings in June, September and December 2018, while the first formal hearing on Hungary took place in September 2019.

The activation of Article 7 has not had the ‘catastrophic’ effects that some feared. On the contrary, it has made evident that the procedure, or at the very least its first paragraph, is not a nuclear option. It is a tool that can and actually should be used when the Commission, the Parliament or some Member States consider that its substantive thresholds have been fulfilled. In this respect, it is crucial that the institutions are finally developing a concrete practice under Article 7, meaning that there are now precedents on how to conduct the formal hearings, how to exchange views with the national governmentw concerned, and other relevant elements of the procedure. Institutional cooperation between the

Commission and the Council[2] has been fairly positive, with the former taking active part in the debates in the Council, though less positively the Council has refused to give a formal role to the Parliament in the Hungarian procedure. In substance, while it is evident that the activation of Article 7 has not brought the crises to an end, it has undoubtedly raised political pressure on the two governments, for example fostering the debate within the European People’s Party on Fidesz’s membership. All considered, for at least some time, it might have contributed to crystallizing the situation, in the sense that the Hungarian and Polish authorities seemed to be more reluctant to advance other controversial reforms. All considered, Article 7 does not seem to be an empty gesture anymore, but a real tool in the hands of the institutions to tackle threats to the common values. In other words, EU institutions are developing a true ‘Article 7 policy’, though, as acknowledged by the Commission, further reflections on how to best conduct the procedure are still needed.

  • [1] N Lazzerini’s chapter in this volume also underlines how EU institutions are exploring al-terantive routes. 2 For an ovendew of the reforms, see Sadurski, supra note 2. 3 European Parliament, Resolution on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, Strasbourg, 12 September 2018, Doc. 2017/213 l(INL). 4 For a summary, see Council Conclusions, Brussels, 18 December 2018, Doc. 15396/18. 5 Council Conclusions, Brussels, 16 September 2019, Doc. 12111/19. A second hearing took place in December 2019: see Council Conclusions, Brussels, 10 December 2019, Doc. 14959/19. 6 See Williams, supra note 1, p. 27. 7 In July 2019, the Council issued a note on ‘standard modalities’ for Article 7(1) hearings: see Council, Note ‘Standard modalities for hearings referred to in Article 7(1) TEU’, Brussels, 9 July 2019, Doc. 10641/2/19
  • [2] Another positive aspect of the activation of Article 7 is that it has forced the Council to finally take up its responsibility, which had escaped until that moment: see P. Oliver, J. Stefanelli, ‘Strengthening the Rule of Law in the EU: The Council’s Inaction’ (2016) Journal of Common Market Studies 54, 1075. 2 In the months after the submission of this book chapter, however, both the Hungarian and the Polish government pushed forward new controversial reforms. Any positive effect of the activation of Artifcle 7 seems thus to have vanished. 3 See Commission Communication, supra note 23.
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