EU Law Analysis: Should the EU sanction its Member States for breaches of rule of law and human rights? Part 1: The Legal Framework


Professor Steve Peers, University of Essex
I’ve taught EU law and human
rights for over twenty years now, and the issue of sanctions against Member
States for human rights breaches used to be the easy bit. Why? Because the
procedure to enforce such sanctions (set out in Article 7 TEU) had never been
used – and there was no apparent prospect that it ever would be. So there was
no need to discuss it in any detail. A more theoretical sort of academic might
have spent time counting the angels on the head of this constitutional pin, but I
was anxious to move on to the real world issues of arrest warrants and asylum
seekers.
Everything has since changed.
Like Article 50 – which similarly raises fundamental issues about the EU’s
relationship with its Member States – Article 7 was apparently dashed off in
previous Treaty amendment talks without much thought to its detailed
application in practice, perhaps because its authors thought it would never be
used. Yet here we are, with both Articles now a live political and legal issue:
the Ragnarok of EU law.
There are two recent parallel major
developments. First of all, the Article 7 process has been triggered both
against Poland (by the European
Commission
) and Hungary (by the European
Parliament
). Secondly, there are case law developments raising general
questions about Member States’ observance of human rights and the rule of law outside
the very specific (and very political) Article 7 process. In this context, last
week the CJEU delivered its first judgment that a Member State is infringing
judicial independence by means of reforms to its judicial system (see
discussion here).
The prospect of the EU
sanctioning its Member States for breaches of human rights and the rule of law
raises a number of fundamental legal and political issues – and is best
understood in a broader historical context. In light of the recent developments
(and ongoing disputes), this is an opportune moment to provide an overview and
analysis of this issue.
I’ll do this in a series of three
blog posts, addressing in turn:
a)      the
legal framework for sanctions under Article 7
b)      the
overlap of the sanctions rules with other aspects of EU law
c)       the
historical context and broader constitutional dynamics.
The legal framework for sanctions
Although many people refer to
Article 7 TEU, there are other Treaty provisions which are inextricably linked:
Article 2 TEU sets out the values which Article 7 is used to enforce; Article
354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides
for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the
normal rules of EU law, discussed in the second blog post.
First of all then, what are the
values of the EU, legally speaking? Article 2 TEU states:
The Union is
founded on the values of respect for human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of
persons belonging to minorities. These values are common to the Member States
in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail.
Article 7 then sets out the
process of enforcing those values. It begins with Article 7(1), which provides
for a kind of ‘yellow card’ – a warning
if there is there is ‘a clear risk of a serious breach’ of those EU values:  
1. On a
reasoned proposal by one third of the Member States, by the European Parliament
or by the European Commission, the Council, acting by a majority of four fifths
of its members after obtaining the consent of the European Parliament, may
determine that there is a clear risk of a serious breach by a Member State of
the values referred to in Article 2. Before making such a determination, the
Council shall hear the Member State in question and may address recommendations
to it, acting in accordance with the same procedure.
The Council
shall regularly verify that the grounds on which such a determination was made
continue to apply.
Notice that the ‘yellow card’
process can be triggered by the European Parliament, or a group of Member
States, or the Commission. There is no requirement of unanimity of Member
States to approve a Council decision to issue a ‘yellow card’ (this is a common
misunderstanding), but the threshold of four-fifths of Member States’
governments in the Council is nevertheless fairly high. Triggering the process (as the EP did for Hungary, and the
Commission did for Poland), does not, as some think, mean that the Council will
agree to issue a ‘yellow card’, or has done so already. Indeed, the Council is
still considering the proposals to issue a ‘yellow card’ against both Poland
and Hungary, having held several of the hearings referred to in Article 7(1). If
the Council ever did issue a ‘yellow card’, note that this does not entail a
sanction as such: it is only a finding of a risk
to EU values, with possible recommendations. Nevertheless, the issue of a
‘yellow card’ is perceived as extremely politically serious.
This brings us to Article 7(2),
which is the ‘red card’ of the process:
2. The
European Council, acting by unanimity on a proposal by one third of the Member
States or by the Commission and after obtaining the consent of the European
Parliament, may determine the existence of a serious and persistent breach by a
Member State of the values referred to in Article 2, after inviting the Member
State in question to submit its observations.
The procedure here is even
tougher: unanimity of the Member States. The European Parliament cannot trigger
the process, but could veto it  if the
Commission or a group of Member States trigger it. The threshold to be met is
higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent
breach’ of those values. It’s likely that the EU would get to the ‘red card’
stage after issuing a ‘yellow card’, but that’s not a legal requirement: a
‘straight red’, for (say) a country which had suddenly undergone a military
coup, is also conceivable.
What are the consequences of a
‘red card’? Article 7(3) sets them out:
…the Council,
acting by a qualified majority, may decide to suspend certain of the rights
deriving from the application of the Treaties to the Member State in question,
including the voting rights of the representative of the government of that
Member State in the Council. In doing so, the Council shall take into account
the possible consequences of such a suspension on the rights and obligations of
natural and legal persons.
The
obligations of the Member State in question under the Treaties shall in any
case continue to be binding on that State.
Notice that the Member States don’t have to act unanimously in the
Council when deciding exactly what sanctions to apply to the black sheep
amongst them. The unanimity threshold only applies when taking the previous
step of deciding whether there’s a serious and persistent breach of the EU
values.  As for the specific sanctions
which might be imposed, the Treaty mentions suspension of voting rights, but
that’s just one example. The Council might instead (or additionally) impose
other sanctions, such as suspension of MEPs’ voting rights (which raises the
awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in
question – whose voices would ideally need to be heard). However, there’s an
obligation to consider the rights of individuals and businesses, which suggests
that trade sanctions might be problematic. It might also be hard to justify
restricting free movement rights, but in any event note that there are specific
rules on asylum for EU citizens fleeing from a Member State subject to a ‘red
card’. (I discuss them further in the second blog post).
Most significantly, there’s no
provision to expel a Member State
from the EU as such. Having said that, a Member State subject to suspension
might be so outraged to be in that position that it triggers the process of
leaving the EU under Article 50. The UK’s withdrawal process has been
complicated and controversial enough; now imagine the legal and political
complexities of a Member State subject to an Article 7 ‘red card’ triggering
Article 50. Should its political authorities’ actions be considered legally and
morally valid? What if a group of exiles claim to be the legitimate government
of that Member State (a la the USSR-era Baltic States), and that purported
government does not wish to leave the
EU?  What if a part of that Member State,
at odds with the government in power over EU membership and its violation of EU
values, attempts to secede?
Of course, the possibility of
withdrawal (alongside concerns about sovereignty, and the workings of partisan
politics) may also have influenced the pronounced reluctance of the EU to use
the Article 7 process. Does the EU really want Michel Barnier’s main task to be
crowd control?
Article 7(4) TEU then provides
that the Council, again by qualified majority, may ‘vary or revoke’ its
sanctions against a Member State ‘in response to changes in the situation which
led to their being imposed’. Article 7(5) notes that the rules on voting within
the institutions when Article 7 is being applied are set out in Article 354 TFEU.
The latter provides that the Member State which is the subject of potential
sanctions has no vote at any stage of Article 7, as otherwise this would
obviously have made the adoption of any decision on breach of EU values
impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision.
Where the Council votes to implement a ‘red card’ decision, a higher threshold
for adopting EU laws applies (72% of participating Member States in favour,
instead of the usual 55%). If a Member State’s voting rights are suspended, the
usual rules on Council voting with only some Member States participating apply.
For its part, the EP ‘shall act by a two-thirds majority of the votes cast,
representing the majority of its component Members’.
Finally, Article 269 TFEU
significantly limits the role of the CJEU over the sanctions procedure:
The Court of
Justice shall have jurisdiction to decide on the legality of an act adopted by
the European Council or by the Council pursuant to Article 7 of the Treaty on
European Union solely at the request of the Member State concerned by a
determination of the European Council or of the Council and in respect solely
of the procedural stipulations contained in that Article.
Such a request
must be made within one month from the date of such determination. The Court
shall rule within one month from the date of the request.
Given the limit on judicial
control of the Article 7 process, it is almost entirely political. So the legal
questions arising from it may be largely hypothetical in practice. However,
they do exist.
The first important point is the
wide scope of issues which can be the subject of the Article 7 process. It is
sometimes claimed that the process can only be used to sanction Member States
for breaches of EU law, but this is clearly false. There is no reference to EU
law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7
would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet
other provisions of the Treaties (discussed further in the next blog post) give
the Court extensive jurisdiction over the enforcement of ordinary EU law.
This claim about the limited
scope of Article 7 is also absurd if you consider the broader context. Imagine,
for instance, a Member State placing LGBT citizens in concentration camps. A
narrow interpretation of Article 7 would mean that the EU could only complain
about this to the extent that being locked up in camps would have a discriminatory
effect on the detainees’ access to employment. Yes it would, but that would
hardly be the most outrageous aspect of detaining LGBT people in camps because
of their sexual orientation. (EU law is also relevant to LGBT refugees, but the
Article 7 process would have to be triggered first for it to be relevant to
refugees who are EU citizens).
So obviously Article 7 is not
intended to be limited in this way. Indeed, its broad scope partly explains why
the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on
issues which are not normally within the scope of EU law. (Another reason is
the intention to keep the Article 7 process in the hands of politicians, not
judges).
On the other hand, the Article 7
process and ordinary EU law can overlap. The Court can use its ordinary
jurisdiction to rule on an issue being discussed in the Article 7 process, and
vice versa. This was confirmed implicitly in last week’s judgment on Poland and
the rule of law, given that the issues in that judgment also formed a part of
the Commission’s Article 7 case against Poland. In fact, the Advocate-General’s
opinion
addressed the overlap explicitly (paras 48-50), arguing that ‘[t]here are firm
grounds for finding that Article 7 TEU and Article 258 TFEU
are separate procedures and may be invoked at the same time’.  As noted already, this alternative option of
using ordinary EU law to restrain Member States’ breaches of human rights or
the rule of law is discussed in the next blog post in this series.
Exactly how does the Court’s
limited jurisdiction over Article 7 work? The wording of Article 269 TFEU
definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first
sight, it also applies to the implementation
of sanctions, since the text refers to any Council actions pursuant to Article
7 TEU. But on this point, the use of the word ‘determination’ is confusing, as
Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values
have been (or might be) breached.
Note also that the only possible
challenger is the Member State sanctioned under Article 7 – not any other
Member State, an EU institution, or an individual or business. If individuals
are barred from challenging the validity of Article 7 implementation decisions,
even indirectly via national courts to the CJEU, how else can the Council’s
obligation to ‘take into account the possible consequences of such a suspension
on the rights and obligations of natural and legal persons’ be enforced? At any
rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing
sanctions, which could be significant in working out the impact of sanctions on
individuals. In particular, if Council decisions under Article 7 disapply
ordinary EU law in some way, there should be no objection to the Court’s
ordinary jurisdiction to interpret such ordinary EU law applying.
A Court judgment under Article
269 TFEU can only address procedural issues, not substance. In other words, the
Court cannot be asked to rule on the question of whether the Member State
concerned has actually breached EU values (or seriously risks breaching them).
As we will see in the second blog post, however, the developing case law on the
overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little
diffuse. Also, one can imagine that a Member State may make arguments about the
fairness of the hearings, even where (as in the case of Poland and Hungary)
some hearings have been held. Finally, the time limits in Article 269 require
significant fast-tracking: the challenge must be made one month after the
determination (the usual deadline to bring an action to challenge an EU act is
two months after publication) and (uniquely in EU law) one month for the Court
to give its ruling.  
Even though Article 7 has not
resulted in any sanctions decision yet, some issues about its scope may be
addressed in the near future, because Hungary has brought a legal
challenge
to the European Parliament’s decision merely to trigger Article 7. This case might be
inadmissible, because usually it is not possible to challenge the start of an
EU legal procedure, but only a legal act once adopted, which may explain why
Article 269 TFEU makes no reference to challenging acts of the European
Parliament at all (or indeed, to challenging acts of the Commission or the
Member States). The substance of the Hungarian government’s argument is that
the European Parliament wrongly ignored abstentions when counting votes cast to
trigger the Article 7 process.
One key legal and political
question is the interpretation of the unanimity requirement to issue a ‘red
card’ determination of a serious breach of EU values. Some have suggested that
since two Member States are facing
Article 7 procedures, and they would have a natural tendency to stick together
and vote for each other, unanimity can never be reached. Therefore, for the
‘red card’ procedure to be effective, it must be interpreted to mean that any
Member State facing an Article 7 procedure must lose its vote even as regards
issuing a ‘red card’ against another
Member State.
With respect, this interpretation
is untenable. Article 354 TFEU refers to ‘the
Member State in question’ not voting
in its own case – clearly using the singular, as well as the definite article.
There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps
of legal fancy are particularly inappropriate when a main point of the process is
to ensure protection of the rule of law in the European Union.
Article 7 TEU recently turned 20
years old. It was conceived as a political process par excellence, and it
remains supremely political at childhood’s end, even as the first attempts to
trigger it are made. Due to its impact on national sovereignty, and the web of
transnational partisan politics in which the governments concerned are
embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used
as a last resort, in a political emergency such as a military coup. Although the
attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003,
in practice this version of the process is perceived as politically ‘nuclear’ too.
The obvious problem here – which the
‘yellow card’ reform sought but failed to address – is that democracy rarely
collapses overnight. In the famous words of Michael
Rosen
, ‘people think that fascism arrives in fancy dress’, but in fact ‘it
arrives as your friend’ – promising to:
…restore your
honour, 
clean up the
neighbourhood, 
remind you of how
great you once were, 
clear out the
venal and the corrupt, 
remove anything
you feel is unlike you…
And to that end, and for those
reasons, it often gains a foothold through
the democratic process
. Yet the values of the EU to be protected also
include democracy – and the Article 7 process is in the hands of the
governments of fellow Member States. All have some skeletons in their own
closet; and all have backs that might need some scratching by the governments of
the States being criticised.
So is the Article 7 process
doomed? In fact, the expansion of EU law in areas with significant relevance to
human rights – and the willingness of the CJEU to rule on the judicial
independence of national courts in general – means that recourse to the nuclear
option may arguably not be necessary. In effect, the conflict over the
protection of human rights and the rule of law in Member States can also be
fought by conventional means: the
ordinary system for the enforcement of EU law as such, to which we will turn in
the second post in this series. As for the broader tension when concerns about
the rule of law and human rights stem from a democratic outcome, this will be assessed as part of the broader
discussion in the third post.  
Barnard & Peers: chapter 9



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