Article 7 of the Treaty on European Union

Following the fall of the Berlin Wall the EU began to consider enlargement to the former Eastern Bloc states. With concerns over the EU's ability to intervene where its core principles and values were violated, there was a desire to introduce some mechanism before enlargement to those states took place. This came to be via the Treaty of Amsterdam which allowed the suspension of rights of a member state which breached the EU's values under Article 2.[2]

In early 2000, Austria formed a government which included the right-wing populist[3][4] Freedom Party. Invoking Article 7 was deemed excessive so other member states threatened to cut off diplomatic contacts instead. This event led to a desire for an intermediate step to provide a warning sign without full suspension.[5][6]

The Treaty of Nice provided this (in Article 7.1) whereby the Council, acting by majority, may identify a potential breach and make recommendations to the state to rectify it before action is taken against it as outlined above.[1] In 2014 the European Commission introduced a three step mechanism to identify "systemic threats" to EU values. The mechanism must be complete before Article 7 is discussed.[7]

Article 7.1: The mechanism begins with a proposal to find a "Clear Risk of Serious Breach" of EU values either by the Commission, the Parliament or one-third of member states. This is then approved by a two-thirds majority in Parliament. The accused country is then called to answer to the Council, which may then issue recommendations and vote by four-fifths to identify a breach. [8]

Article 7.2: In the event of a "serious and persistent breach" (i.e. the country does not heed the Council's guidance) then the Commission or one-third of countries, approved by a two-thirds majority in Parliament, calls the country to answer to the European Council again. The European Council must then decide unanimously[lower-alpha 1] to proceed to Article 7.3.

Article 7.3: Once the European Council has unanimously decided that the breach is still occurring, the Council then votes by qualified majority to suspend rights of the accused country, including voting rights within the Council, until all duties are fulfilled.

In its early history, from about 2000 to 2012, the possibility of activating Article 7 was debated but official recommendations were not made. Events for which activation of Article 7 was debated include the aforementioned Austrian coalition with the far right in 2000, the French government expulsion of thousands of Roma in 2009 and a political struggle in Romania between Traian Băsescu and Victor Ponta in 2012.[2]

Use against Hungary

In June 2015, the European Parliament asked the Commission to present a proposal for starting the mechanism against Hungary over rule of law concerns in the country; but in October voted down a similar proposal to begin procedures against Hungary over its treatment of migrants.[7] At the same time, a European Citizens' Initiative called for the start of Article 7 mechanisms against Hungary.[9]

On 12 September 2018, the European Parliament voted for action against Hungary, alleging breaches of core EU values.[10][11]

UK Conservative MEPs supported the right wing Hungarian leader, Viktor Orbán, against a motion to censure him in the European Parliament.[12] Pablo Casado, leader of Spain's People's Party directly ordered the PP members of the European Parliament to abstain in the voting of the Sargentini report calling for triggering Article 7 proceedings against the Hungarian government of Viktor Orbán.[13]

On 30 March 2020, in response to the coronavirus pandemic, the Hungarian Parliament approved a bill to make the state of emergency indefinite and grant the ability for Prime Minister Orbán to rule by decree.[14] The bill also makes the deliberate distribution of "misleading information that obstructs responses to the pandemic" punishable by up to five years in prison. The bill faced opposition for containing indefinite restrictions on these powers, as well as concerns over the possibility that the "fake news" prohibition in the bill could be abused for censorship of independent media outlets.[15][16][17] As a result, European Parliament group leaders raised concerns, in a meeting of the Conference of Presidents, about the emergency measures and a majority of groups asked Parliamentary President David Sassoli to relay their concerns in a letter to the Commission and to consider activating the Article 7 procedure.[18] In June 2020, the Hungarian parliament voted to end the rule by decree, but this left the government more powerful than before the crisis.[19]

Freedom House ratings for European Union and surrounding states, in 2019.[20]

  Free

  Partly free

  Not free

Freedom House measures the level of political and economic governance in 29 countries from Central Europe to Central Asia".[21]

While a state can be suspended, there is no provision to expel a member state outright. The idea appeared in the drafting of the European Constitution and the Lisbon Treaty but failed to be included. There are a number of considerations which make such a provision impractical. Firstly, a member state leaving would require amendments to the treaties, and amendments require unanimity. Unanimity would be impossible to achieve if the state did not want to leave of its own free will. Secondly it is legally complicated, particularly with all the rights and privileges being withdrawn for both sides that would not be resolved without an orderly and voluntary withdrawal. Third, the concept of expulsion goes against the spirit of the treaties. But it is possible and there is a rule, article 50, allowing a member to expel itself, which the United Kingdom did. In this article, all treaties simply cease to apply to the member leaving, adjusted by a possible treaty with the said member. Contrary to expulsion, most available sanctions are conciliatory, not punitive; they do not punish a state for failing to live up to fellow states' demands, but encourage a state to fulfill its treaty obligations.[22]

• European Union law
• Withdrawal from the European Union
• Rule of Law Conditionality Regulation

• Withdrawal and expulsion from the EU and EMU - some reflections