STUDENT ID: 1800908

Critically evaluate the role of Article 7 TEU in the EU’s enforcement of its values against
‘recalcitrant’ Member States. Include some discussion of recent developments.

The European Union is founded on values. Article 7 of the Treaty on European Union
(TEU) was introduced by the Treaty of Amsterdam with the purpose of safeguarding such
values enshrined in Article 2 which has come to represent a ‘homogeneity clause’. These values
include: ‘respect for human dignity, freedom, democracy, equality, and the rule of law’, and are
those commonly shared by all Member States. At first instance, the wording of Article 2 does not
require that the values to be legally binding and in essence is non-obligational for Member
States, hence appearing to be merely aspirational.1 However, this is where Article 7 steps in,
providing a ‘penalty procedure’2 to be used towards maintaining those foundational values of the
Union and so giving the EU institutions the means to ensure that any and all Member States
conform to those values. Thus, if a Member State has been found in serious and persistent
breach of the fundamental principles listed in Article 2, they may find certain rights of their
membership to be suspended. In order to assess the role of Article 7 in such enforcement of
values against ‘recalcitrant’ Member States, we shall look towards its origin and purpose, its
scope of application, and the effectiveness of its procedures, in addition to any recent
developments made towards its role.

In examining the origins of Article 7, two factors can be identified to have played an
important role in the introduction of such mechanism: the establishment of the European
Community into a supranational entity with constitutional characteristics and the impending
enlargement eastward to include post-totalitarian states, whom in the recent past, suffered from
a lack of democracy and persistent human rights violations​.3 Thus, with such an outlook, it
seemed that the issue of enforcing the values encompassed in the EU in light of possible
breaches seemed more profound than ever: the underpinning of a democratic rule of law-based
state in these new Member States, as rooted as the basis of EU law, fell short. For this reason,
Article 7 provides attempts to ‘bridge the gap’ between the presumptions of the founding leaders
that all Member States shall uphold the values of the EU and the need to enforce the values of
the Union should this presumption prove otherwise.4 In this instance, the origins behind Article 7
demonstrates the role which the Union had envisioned for it - which was to keep ‘recalcitrant’
states in check when it came to the enforcement of EU values, signifying its purpose.

Adding to that, in order to further evaluate the role of Article 7, we shall look towards the
reasoning that justifies the EU’s role in dealing with problematic Member States in its effort to
safeguard its core values - by considering the nature of the EU system. Three arguments have

1
Oliver Mader, Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and Value Homogeneity in Times of
Persistent Challenges to the Rule of Law, (2018), 11 ​Hague Journal on the Rule of Law 133-170
2
​Hermann-Josef Blanke and Stelio Mangiameli, ​The Treaty on European Union (TEU): A Commentary ​(Springer, 2013) 350
3
​Wojciech ​Sadurski,​ Adding Bite To a Bark: The Story of Article 7, EU Enlargement and Jörg Haider,​ (2010), 16(3) The Columbia
Journal of European Law, 385–426;
4
​Dimitry Kochenov​, ‘Busting the myths nuclear: A commentary on Article 7 TEU’, EUI Working Paper LAW 2017/10
<​https://cadmus.eui.eu/bitstream/handle/1814/46345/LAW_2017_10.pdf?sequence=1​> accessed 13 December 2019.
 STUDENT ID: 1800908

emerged on this matter and can be summarised as such: the universality principle, the EU as a
supranational federation approach, and the principle of congruence.5 The first argument relates
to the deep integration and mutual interdependence between Member States of the Union.​ ​If a
single state were to violate the values in Article 2, the effects would be felt by the Union as a
whole, both at the citizens’ level and that of other Member States. This rationale stems from the
nature of the system within the EU: as all states partake in the decision-making in the European
Council and the Council of Ministers, they would indirectly participate in the affairs of all citizens
of Europe. Thus, every individual has an interest not to be faced with a Member State​ ​that
shows signs of defiance towards the values of the EU and so, evidently leads to the support of a
sanctioning mechanism.6 This therefore indicates the pivotal role Article 7 plays in enforcing EU
values among recalcitrant states as it is their detrimental actions which will have a bigger impact
on the EU as a whole. In this way, Article 7 would ensure the livelihoods of all other Member
States and its citizens as it allows for the maintenance of mutual trust and respect. Building on
this argument takes us to the second approach which concerns the recognition of the Union as
a supranational federal body (legally and politically), requiring it to intervene in the protection of
the rights and freedoms, it seeks to provide its citizens with - independent of the Member
States.7 Such apprehension signifies the Union’s responsibility in carrying out this function and
the effectiveness of the rights it grants.​ ​Hence, as it bears an important duty in regards to its
citizens and Member States, the EU is substantially viewed as a responsible actor in instances
where states choose to disregard the Rule of Law. By enforcing EU values, Article 7 thus
upholds the EU’s commitment to its citizens, as a Union. On the other hand, the third argument
deals with addressing the EU’s capability with its own proclaimed values and policies, towards
the international community.​ ​In essence, should the EU establish oversight mechanisms, then it
would clearly also reinforce its credibility in the wider world. Accordingly, Article 7 would
enhance the EU’s integrity in safeguarding and defending its fundamental values not only within
the EU but externally as well, which would strengthen its place as a key representative when it
comes to the development of international law.

Another aspect to consider when evaluating the role of Article 7 is to examine its scope
of application.​ ​As clarified in the European Commission’s Communication (2003) on Article 7, its
scope does not just include the areas covered by EU law but also allows the Union to intervene
in the event of serious violations that may arise in an area within the competence of a Member
State.8 This gives it a ‘horizontal nature’ and can include areas such as violation of fundamental
rights, which are safeguarded under Article 6, and violations of the Treaties of the Unions and
laws that derive from them. In regards to the former,​ ​the recurrence of systematic individual
violations could justify the application of Article 7. As the mechanism does not seek to protect

5
Carlos Closa, Dimitry Kochenov and Joseph H.H. Weiler, ‘​Reinforcing the Rule of Law Oversight in the European Union’​ EUI
Working Paper RSCAS 2014/25 <​https://cadmus.eui.eu/bitstream/handle/1814/30117/RSCAS_2014_25_FINAL.pdf?sequence=3​ >
accessed 13 December 2019 5;
6
ibid;
7
ibid 6;
8
Commission, ‘​Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union - Respect for and promotion of the values on which the Union is based​’ (Communication) COM (2003) 606 final,
point 1.1.
 STUDENT ID: 1800908

private interests, but instead the functioning and the common values of the Union as a whole,
the protection of individual rights may be viewed as a ‘reflection’ of this protection rather than its
objective.9 The Commission viewed that this scope of application would be an ‘added value’ of
the procedure of Article 7, which could aim to resolve potential violations by taking a ‘political
and global’ approach, rather than to be confined within the laws of the EU.10 Hence, by looking
at incidents by Member States whose cumulative effect leads to a violation of the values
enshrined in Article 2, we can acknowledge the wide role that Article 7 can play in addressing
violations of fundamental rights too. In terms of violations of the Treaties, the application of
Article 7 may be harder to address due to the establishment of Article 258 and 259 of the TFEU
which are invoked explicitly to deal with such occurrences. Needless to say, although there are
hardly any instances where Article 7 has needed to interfere, it can be argued that such
violations of Treaties can simultaneously reveal conduct that is also inconsistent with Union
values. The conclusion that arises when discussing the scope of application of Article 7 in this
manner, is that it merely demonstrates its role in theory.

Moreover, when assessing the role of Article 7, we shall look towards evaluating the
specific procedures it outlines, beginning with the preventive mechanism of Article 7(1) that calls
for a determination of a ‘clear risk of a serious breach’. The introduction of this criteria (by the
Treaty of Nice) marks a change with respect to the tools available to the Union. On top of being
able to intervene in retrospect, where the violation has already occurred, it now allows for a
preventive measure in cases of clear risk of a serious breach. Substantially, this had the effect
of strengthening the role of Article 7. Before this, the article had only contained the sanctioning
mechanism for a ‘serious and persistent breach’ of values, and as such, was deemed unusable
in situations where immediate action to a persistent breach was needed.11 This inadequacy can
be demonstrated through the example of Austria in 2000 following the formation of a
government coalition which included the FPÖ, a far-right party. Here, the EU leaders were quick
to impose ‘diplomatic sanctions’ with no clear proof that Austria had violated its citizens’
fundamental rights - causing backlash towards interference by the EU that was beyond their
capabilities.12 Thus, by establishing a mechanism for prevention and monitoring, it has the effect
of minimising the use ordinary instruments of international law in relations between the Member
States and essentially prevents the misuse for ad hoc bilateral actions outside the scope of the
Treaty Framework,13 as had happened in the Austrian case. However, despite this
improvement, what seems to be lacking from this provision would be the definition of what
constitutes a ‘breach’ that is to be determined​. ​This could potentially hinder the institutions from
initiating Article 7 when it comes to enforcing EU values as besides the sense of uncertainty,
other states would want to avoid being responsible for any unwarranted accusation. As the
Treaty mentions little on this, scholars ​Closa, Kochenov and Weiler​ in their working paper for the

9
​Blanke and Mangiameli (n 2) 352;
10
Commission, ‘Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’,
(Communication) COM (2010) 573 final, p. 10;
11
​Kochenov​ (n 4) 5;
12
Ginger Hervey and Emmet Livingstone, ‘What is Article 7?’ (Politico EU, 20 December 2017)
<​https://www.politico.eu/article/hungary-eu-news-article-7-vote-poland-rule-of-law/​> accessed 13 December 2019; ​Kochenov​ (n 4) 5;
13
Blanke and Mangiameli (n 2) 361.
 STUDENT ID: 1800908

EUI, attempts to provide clarity to determine three characteristics of such a breach: (i) existence
of a ‘constitutional coup’ whereby power is abused through perfectly legal means; (ii)
dismantlement of the liberal democratic state; (iii) systemic corruption.14 Regardless of this, it
seems that any form of further explanation can only be found through academic writing rather
than the formal Treaty itself which reveals a flaw in the mechanism. This therefore renders the
role of Article 7 as rather ineffective when it comes to upholding the values in Article 2 against
any potential recalcitrant Member States.

Following this would lead to the assessment of the executive mechanism of Article 7
which seeks to determine the existence of a ‘serious and persistent breach’ of the EU’s values
as a precondition for activating the sanctions procedure. The burden that comes about under
Article 7(2) stems from the fact that the determination of a ‘serious and persistent breach’ of EU
values is made by the European Council, acting unanimously, on the proposal of a third of the
Member States or the European Commission after receiving consent from the European
Parliament - the threshold of unanimity being significantly higher than that required of Article
7(1). One the one hand, it should be acknowledged that the ​imposition of sanctions is only
justified when the extent of insubordination is such that conflict arises between the Member
State and others in the EU institutions when it comes to the purposes of decision-making.15 This
would signify the role of Article 7 as one that deals with crucial systemic concerns, instead of
one-off isolated acts that stem from careless use of the law. However, on the other hand, ​such
high threshold could ​ultimately lead to an ineffective enforcement mechanism as was evidenced
during the Polish constitutional crisis of 2017 where the Commission, in its recommendation,
considered the situation in Poland to be a ‘​systemic threat to the rule of law​’.16 In this case,
sanctions to suspend Poland’s voting rights were not followed through as Hungary vowed to
veto against measures being taken against Poland.17 As it stands, Article 7 appears to provide
the Council with tools with which they can constrain Member States who exhibit traits that stray
away from the values the EU embraces. Nevertheless, due to procedural limitations presented
within the mechanism ​–​ both Article 7(1) and Article 7(2) ​–​ the essential role of Article 7 is, as of
right now, ineffective. Adding to this, although it may be convenient to propose to amend the
article, such revisions are time-consuming and burdensome.18 More so, non-complying Member
States, alongside any other allies in support of their actions, will without hesitation block any
such changes that are aimed at controlling their behaviour.

Besides procedural limits, what affects the role of Article 7 is the inaction by the
institutions responsible when it comes to enforcement of values. ​In dealing with recalcitrant
states, it seems that there is much disagreement among the actors involved concerning what
should be done, on top of the declining will among Member States to even deal with the current
14
​Closa, Kochenov and Weiler​ (n 5) 6;
15
​Blanke and Mangiameli (n 2) 365;
16
Commission Recommendation 2018/103 of 20 December 2017 regarding the rule of law in Poland complementary to Commission
Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520 [2017];
17
Lidia Kelly,​ ‘Poland will not yield to EU over court reforms’, (Reuters, 26 January 2018)
<​https://uk.reuters.com/article/uk-poland-judiciary-kaczynski/poland-will-not-yield-to-eu-over-court-reforms-kaczynski-idUKKBN1FF1
3X?il=0​> accessed 13 December 2019;
18
Carlos Closa, The Politics of Ratification of EU Treaties, (1st edn Routledge 2013).
 STUDENT ID: 1800908

impasse that the EU is facing.19 Unsurprisingly, this situation leads to the opinion that the Union
is powerless in enforcing its values. This debacle manifested, not so much because there is little
to nothing that can be done or because of a lack of Treaty instruments; rather, the instruments
that are available are, allegedly, ‘too toxic’ to be used.20 This argument would allude to the
presumption of Article 7 as the EU’s ‘nuclear’ option, which if activated would cause a fallout
that would be difficult to restore. However, Kochenov in his article suggests that this contention
is merely a ‘nuclear myth’ to justify inaction and abuse of Article 7. Indeed it is argued that, the
preventive arm of Article 7 is far from nuclear.​ ​The outcome that the responsible parties seem
so threatened by is a mere determination, that is, a finding that there is a clear risk of a serious
breach of the rule of law.21 ​Moreover, while the mechanism sanctions the suspension of rights, it
lacks any expulsion mechanisms - meaning that there is no deterrence behind the supposed
‘nuclear’ option that some argue to be too ‘toxic’ for use.22 This convenient disregard of Article 7
emphasises the institutions inactions as a main reason that undermines the role of the
mechanism.

Besides that, there are several political factors explain – but do not justify – the Council’s
inaction. Their unwillingness to follow through with enforcement proceedings is caused by
Member States being wary of condemning another for its violation of Article 2 TEU, as ​this could
backfire​ and may ultimately rebound onto themselves.23 As the scope of Article 7 TEU goes
beyond situations which fall within the EU’s jurisdiction – EU institutions are well aware of the
risks associated with crossing the line of national sovereignty. Therefore, notwithstanding the
challenges posed by its procedural requirements of Article 7(2), the European Council would
nonetheless be more inclined to resolve matters diplomatically.24 As a result, issues arise when
Member States refuse to cooperate, as is the case currently with Poland. Similarly, as is being
demonstrated in the case against Hungary and Orbán’s ‘illiberal democracy’ stance, another
factor refers to the point that a high proportion of the governments of the Member States are
dominated by conservative parties which form part of the European People's Party, such as
Fidesz.25 Naturally, this would hinder the proceedings under Article 7 as it adds to the
disagreements in the enforcement of EU values, making it ineffective.

With the acknowledgement of such an ineffective mechanism comes the development of

potential reforms in order to resolve the deficiencies and address improvements that can be
made. ​In the past years, the values contained in Art. 2 TEU have been tested by what is known
as the ‘rule of law crisis’. Hence, the Commission launched its ‘Rule of Law Initiative’ in hopes of
establishing a new framework that would substantially strengthens the EU’s role in safeguarding

19
​Kochenov​ (n 4) 1;
20
ibid 2;
21
https://verfassungsblog.de/is-article-7-really-the-eus-nuclear-option/
22
J​W Müller,​ ​Should the EU Protect Democracy and the Rule of Law inside Member States? ​(2015) 21 European Law Journal 141;
23
​Peter Oliver​ and ​Justine Stefanelli​, Strengthening the Rule of Law in the EU: The Council's Inaction (2016) 54 Journal of Common
Market Studies 1081;
24
​Blanke and Mangiameli (n 2)​ 366;
25
Oliver and Stefanelli (n 23) 1081.
 STUDENT ID: 1800908

the Rule of Law – and by extension its values.26 In brief, this would be an advance-warning tool,
preceding​ ​the eventual trigger of Article 7​,​ to enable a dialogue between the Commission and
the Member State concerned with the aim of remedying the issue. Some scholars however,
have a less positive outlook on this development, arguing that even with the engagement
through dialogue, there is nothing to suggest new automatic or direct legal consequences
should they fail to agree with any of the recommendations adopted by the Commission.27
Besides that, the recommendation procedure is not legally binding in nature and the exercise of
Article 7 is not immediate, increasing the likelihood of its ineffectiveness. The framework equally
receives criticism from the Council with its Legal Service indicating that it was beyond the realm
of competence of the Commission to issue recommendations to Member States in relation to
Article 2.28 However, such an argument may prove to be unconvincing. The Framework can be
said to provide the Commission with a formulated plan on how it will proceed before exercising
its competence to submit a proposal to activate the Article 7 mechanisms. In other words, it
merely seeks to structure the steps that the Commission will make as part of its assessment in
determining a threat of the EU’s fundamental values. In addition, there are no further imposed
and the final decision is still ultimately reserved to the Council and the European Council as
follows in Article 7.29 Moreover, any such criticism might be premature considering that the
Framework is only a recent development. If anything, its existence will still exert considerable
political pressure on the relevant Member States. More specifically, recent practice confirms this
optimistic outlook: the activation of the Framework has shown its potential to invoke European
public opinion discussion to the current state of EU values.30

In conclusion, we can see that the role the Union first envisioned for Article 7 was a
promising one. In theory it had a significant and positive role however, its use in practice, or lack
thereof, eventually revealed its flaws not only because of its procedures but due to the
reluctance of the EU institutions in actually enforcing such values. Given that Article 7 has never
been properly triggered in enforcing EU values against recalcitrant states, its role, in its present
condition, is thus unfulfilled. Looking at the current limitations demonstrated, it seems that the
way forward would be to re-evaluate the mechanism to allow for more genuine efforts rather
than empty rhetorics.

26
Commission, ‘Communication from the European Commission to the Council and the Parliament, A New EU Mechanism to
Strengthen the Rule of Law’ (Communication) COM (2014) 158 final/2;
27
Dimitry Kochenov and Laurent Pech, ‘From bad to worse? On the Commission and the Council’s rule of law initiatives’
(Verfassungsblog, 20 January 2015) <​https://verfassungsblog.de/bad-worse-commission-councils-rule-law-initiatives/​. Accessed 19
December 2019;
28
Council Opinion 10296/14 of 27 May 2014 on the Commission’s Communication on a new EU Framework to strengthen the Rule
of Law: Compatibility with the Treaties [2014];
29
Armin von Bogdandy, Carlino Antpöhler and Michael Ioannidis, ​Protecting EU Values: Reverse S ​ olange ​and the Rule of Law
Framework, (​ 2016)​ 4
​ ​Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper​ 4/2016 227
<​https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2771311​> accessed 20 December 2019;
30
ibid 228.
 STUDENT ID: 1800908

Bibliography

Books

Blanke HJ., Mangiameli S., ​The Treaty on European Union (TEU): A Commentary (​ Springer,
2013)

Closa C., ​The Politics of Ratification of EU Treaties​, (1st edn Routledge 2013)

Cremona M., ​Compliance and the enforcement of EU law​, (​ Oxford University Press, 2012)

Jakab A., Kochenov D., ​The Enforcement of EU Law and Values: Ensuring Member States'
Compliance​, (Oxford University Press, 2017)

Journals

Mader O., ​‘Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and

Value Homogeneity in Times of Persistent Challenges to the Rule of Law’,​ (2018), ​Hague
Journal on the Rule of Law

​ hould the EU Protect Democracy and the Rule of Law inside Member States?’
Müller JW.,​ ‘S
(2015) European Law Journal

Oliver ​P​., ​Stefanelli​ J., ​‘Strengthening the Rule of Law in the EU: The Council's Inaction’,​ (2016)
Journal of Common Market Studies

Sadurski W., ​‘Adding Bite To a Bark: The Story of Article 7, EU Enlargement and Jörg Haider’,
(2010), The Columbia Journal of European Law.

EU Legislation

Commission Recommendation 2018/103 of 20 December 2017 regarding the rule of law in

Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and
(EU) 2017/1520 [2017]

Council Opinion 10296/14 of 27 May 2014 on the Commission’s Communication on a new EU

Framework to strengthen the Rule of Law: Compatibility with the Treaties [2014]
 STUDENT ID: 1800908

Working Papers

Closa C., Kochenov D., Weiler J.H.H., ​‘Reinforcing the Rule of Law Oversight in the European
Union’, ​EUI Working Paper RSCAS 2014/25
<​https://cadmus.eui.eu/bitstream/handle/1814/30117/RSCAS_2014_25_FINAL.pdf?sequence=
3​> accessed 13 December 2019 ;

Kochenov​ D., ​‘Busting the myths nuclear: A commentary on Article 7 TEU’,​ EUI Working Paper
LAW 2017/10
<​https://cadmus.eui.eu/bitstream/handle/1814/46345/LAW_2017_10.pdf?sequence=1​>
accessed 13 December 2019.

European Commission Documents

Commission, ​‘​Communication from the Commission to the Council and the European
Parliament on Article 7 of the Treaty on European Union - Respect for and promotion of the
values on which the Union is based’​ ,​ (Communication) COM (2003) 606 final

Commission, ​‘Strategy for the effective implementation of the Charter of Fundamental Rights by
the European Union’,​ (Communication) COM (2010) 573 final

Commission, ​‘Communication from the European Commission to the Council and the
Parliament, A New EU Mechanism to Strengthen the Rule of Law’, ​(Communication) COM
(2014) 158 final/2

Websites

Hervey G., Livingstone E., ​‘What is Article 7?’ (​ Politico EU, 20 December 2017)
<​https://www.politico.eu/article/hungary-eu-news-article-7-vote-poland-rule-of-law/​> accessed
13 December 2019

Kelly L.,​ ​‘Poland will not yield to EU over court reforms’,​ (Reuters, 26 January 2018)
<​https://uk.reuters.com/article/uk-poland-judiciary-kaczynski/poland-will-not-yield-to-eu-over-cou
rt-reforms-kaczynski-idUKKBN1FF13X?il=0​> accessed 13 December 2019

Kochenov D., Pech L., ​‘From bad to worse? On the Commission and the Council’s rule of law
initiatives’ ​(Verfassungsblog, 20 January 2015)
<​https://verfassungsblog.de/bad-worse-commission-councils-rule-law-initiatives/​. Accessed 19
December 2019