Article 7 Alive But Needs Booster Shot – Issues with the procedure in Poland and Hungary show where it can be improved

Of all the elements in the EU’s rule of law toolbox, Article 7 of the Treaty on European Union has likely been subjected to the most name-calling and mistrust.

The procedure has been called a nuclear option, a political witch-hunt, Brussels bullying, interference in internal affairs, EU overreach, an attack on sovereignty, a case of double standards and a toothless waste of time.

So far, it has been triggered against two illiberal EU member states, Poland and Hungary, in 2017 and 2018 respectively.

We may now also be witnessing a decoupling of Article 7, since the European Commission intends to drop the procedure against Poland, having been persuaded by the new Polish government that the “clear risk of a serious breach” of the rule of law is over.

The situation in Hungary could not be more contrasting, as every element of the toolkit has been deployed already, but it has yet to yield any real progress towards restoring the rule of law, democracy and fundamental rights.

Could improving its design support the reversal of state capture and improve trust in the process, in case Article 7 should be triggered again?

Premature and politically motivated? The Polish example

The Article 7 procedure is an inherently political tool in the EU’s rule of law toolbox because it is up to the European Council to determine whether there is a “clear risk of a serious breach” (Article 7(1)), or “the existence of a serious and persistent breach” (Article 7(2)), of the values enshrined in Article 2.

This determination, however, should be based on an assessment of facts, taking into consideration a reasoned proposal from the Commission, the European Parliament, or one-third of the member states.

Earlier this month, Commission President Ursula von der Leyen announced that the Commission intends to close the Article 7 procedure and withdraw its proposal against Poland, as it has assessed that there is no longer “a clear risk of a serious breach” of the rule of law.

Many European ministers were quick to welcome this development after the General Affairs Council (GAC) held on 21 May, expressing a sigh of relief that at least one recalcitrant member state is willing to reverse its rule of law state capture. However, a number of experts highlight that this move is motivated largely by political reasons and is premature.

Visegrad Insight Fellow Krzysztof Izdebski warns that “the European Commission’s actions in the context of Poland could be perceived as mainly political. This, in turn, could lower trust and be an easy target for Orbán in the event of Commission activity regarding Hungary.”

Izedebski noted that Poland has not yet enacted any laws to restore the rule of law. Only bills concerning the National Council of the Judiciary and the Constitutional Tribunal are currently in the parliamentary process, and President Duda has not had the opportunity to veto them yet. There are no concrete proposals addressing the disciplinary proceedings of Supreme Court judges. If the Law and Justice Party returns to power, it will retain the same criticised tools it previously established.

“One can, of course, judge the goodwill of the new Polish government, and I assume that it is genuine, but the recently announced decision on plans to withdraw the proposal for an Article 7 procedure and the release of funds from the Recovery Plan gives arguments to the opponents of the Commission’s actions, and no guarantee that Poland will actually become a rule of law-abiding country,” added Izdebski.

It is rare that a Hungarian EU Affairs minister would share the views of civil society experts on rule of law issues, but this day has come. The Hungarian government is seizing the moment to complain of “Brussels’s double standards” and is pointing out that the Polish reforms needed to restore the independence of the judiciary have neither been finalised nor implemented.

Ahead of the GAC, Minister János Bóka set out his concerns about ending the Article 7 procedure to Commission Vice-President Vera Jourová. In a remarkably extensive and legally argued six-page letter (PDF), Bóka requested a justification as to why the Commission has switched its approach to now find sufficient the political commitments that Poland has undertaken in the Action Plan on the Rule of Law, presented in the GAC on 20 February 2024, without their effective implementation.

The Hungarian minister argued that the Commission’s decision to release Poland from the Article 7 procedure without full implementation of the judicial reforms to which its new government has committed is being taken on purely political grounds. However, he did not reflect on why the Commission is mistaken in being persuaded that the “clear risk” criterion of Article 7 is no longer present in Poland.

Essential but not comprehensive. The Hungarian Example

There should be no doubt, however, about the continued presence of the “clear risk of a serious breach” of the values defined in Article 2 in the case of Hungary, the EU’s notorious forerunner of democratic and rule-of-law state capture. Hungary has moved well beyond a “clear risk” scenario to a “serious and persistent breach” situation.

When the European Parliament triggered the Article 7 procedure in September 2018, proposing that the Council determine the existence of a clear risk of a serious breach of the rule of law, fundamental rights and democracy in Hungary, no one could predict the extent of these breaches or how long it would take the Council to react effectively.

Six years on, the Council has held six hearings, yet it has not heeded the numerous calls to address recommendations to the Hungarian government, let alone determine the existence of a clear risk of serious breaches in the meaning of Article 7 (1).

In a second resolution adopted in September 2022, four years after the Sargentini Report, the European Parliament assessed that since the launch of the procedure under Article 7(1), multiple concerns with respect to Hungary’s compliance with the values enshrined in Article 2 TEU had persisted or substantially worsened. This included the independence of the judiciary, corruption, conflicts of interest, media independence and pluralism, the functioning of the constitutional and electoral systems, and the civic space.

More than ten years of serious rule of law violations and state capture in Hungary finally led EU Member States in December 2022 to put significant financial pressure on the Hungarian government by triggering the EU conditionality mechanism, and by linking the country’s access to EU cohesion funds and the Recovery and Resilience Facility to fulfilling various rule of law and fundamental rights criteria related to the independence of the judiciary, anti-corruption, academic freedom, as well as the rights of LGBTIQ+ citizens and asylum-seekers.

Undoubtedly, suspending EU funds due to the rule of law breaches has compelled the Hungarian government to adopt measures to strengthen the Hungarian anti-corruption framework and judicial independence.

However, the limited improvements achieved through funding conditionalities cannot remedy the overall environment marked by a dismantled system of checks and balances, excessive government regulatory powers and a lack of legal certainty. Non-execution of both domestic and international court judgments is a recurring issue, independent civil society and media remain under pressure, and various vulnerable groups face rights violations without independent institutions capable or willing to protect their rights.

Developing a forum for Article 7 design

Exasperated by the lack of progress achieved through the Article 7 procedure, the European Parliament in its January 2024 resolution “expresse[d] deep regret that the lack of decisive action by the Commission and the Council has contributed to a breakdown in democracy, the rule of law and fundamental rights in that country, turning it into a hybrid regime of electoral autocracy’” and “deplore[d] the inability of the Council to make meaningful progress in the ongoing Article 7(1) procedure and reiterate[ds] its call to improve the situation.” While in this stage of the process, it could address recommendations to Hungary, the Council has not dared to venture this far.

Thus, the EP called on the Commission and the Member States to initiate the procedure to establish “serious and persistent breaches” under Article 7(2) and on the European Council to determine whether Hungary has committed serious and persistent breaches of EU values under Article 7(2).

For the moment, this is not likely to happen. There is hope that the Belgian Presidency of the Council of the EU will not hesitate to hold an Article 7 hearing in the case of Hungary at the last GAC meeting in June. After that, Hungary’s EU Presidency will kick off and representatives of the Hungarian government will be chairing the Council’s meetings – including those concerning democracy, the rule of law and fundamental rights.

Learning from the lack of achievements, in their next cycle, EU institutions should seize the chance to strengthen rule of law protection and improve the Article 7 design process.

This is possible even without Treaty amendments. The merit of the Article 7 process is that it has the potential to address systemic or non-legislative breaches of EU values – even those that the other, more legally focused tools such as infringements are less able or unable to address.

The process in the Council should serve as a forum to clearly articulate the consternation, alarm and concern of peers in member state governments, voicing a political message and giving clear visibility in support of core EU values. After all, while EU values should be enshrined in law and enforceable in courts, they are more than law, and require a social-political context to breathe life into them. Governments bear the ultimate responsibility to ensure respect for the rule of law and fundamental rights and should show leadership in this process.

This includes that governments also listen to civil society and expert debate and recommendations. Acknowledging that suspending access to EU funds is an essential consequence but not a comprehensive solution to the manifold instances of continued disrespect for Article 2 values, Hungarian NGOs have made specific recommendations that ministers should address to the Hungarian government at the Article 7 hearings (here and here).

How to protect the rule of law effectively 

In response to the many actors who question whether Article 7 is an efficient tool at all to protect core EU values, several proposals have been advanced – particularly in the context of proliferating threats against rule of law violations and potential EU enlargement – that would render the procedure more clear, improved and effective.

These include those submitted by the European Parliament, by a group of Franco-German experts, in a new German non-paper, or those suggested by International IDEA in collaboration with the Belgian EU Presidency.

Many of these recommendations aim to strengthen the substance, transparency and reasonable timeframe of the Article 7 procedure. More transparency about the questions that member state ministers in the Council are asking and on what issues they choose to stay silent could generate more public trust in the process.

This would be served by adopting procedural rules and publishing comprehensive minutes and conclusions after each hearing. Ensuring that Parliament can present its reasoned proposal to the Council, attend Article 7 hearings and be promptly and fully informed at every stage of the procedure would also add trust and accountability to the process.

Issuing concrete recommendations with deadlines for implementation in the Article 7 (1) stage would allow for follow-up and give external stakeholders opportunities to check and report on progress. Designing additional sanctions apart from the suspension of voting rights could establish a link to funding conditionalities which are also meant to safeguard the EU’s financial, rule of law and fundamental rights interests.

In the next institution cycle, facing many known as well as still unknown challenges, the European Union cannot grow stronger without strong democracy protected by strong rule of law. Once no longer directly concerned by the Article 7 process, Poland, which will hold the next EU Presidency right after Hungary, should also contribute to ensuring that this tool becomes effective in general as well as vis à vis its former partner in rule of law state capture.

This article was written by Márta Pardavi, co-chair of the Hungarian Helsinki Committee, and was originally published on Visegrad Insight.