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Article 7: The European Union’s “Nuclear Option” (8/11)     Print Email

By: Joseph Bebel, Washington D.C.

In early July, members of the Polish Law and Justice Party (PiS) introduced three controversial bills that would subjugate Poland’s legal system to increased political control. PiS Party Leader Jaroslaw Kaczynski justified the actions as necessary to  purge the “sick” judiciary of supposed Communist influence.  Vice President of the European Commission Frans Timmermans decried the proposed legislation as a clear and “systemic threat to the rule of law” in Poland. Timmermans even went so far as to say that to threaten that the Commission is “coming very close to triggering Article 7,” which would suspend Poland’s voting rights in the bloc.

While President Andrezj Duda proceeded to veto two of the three proposed bills,  saying the controversial reforms would not “increase the sense of security and justice” in the nation, he did sign into law the third bill that allows the justice minister to appoint judges to lower courts. 

Kaczynski retorted that the vetoes “will quickly be forgotten” as PiS will “forge ahead” in its “cleanup” plans. Prime Minister Beata Szydlo further added that despite the setbacks, PiS would continue its process of “repairing the state.” European Commission President Jean-Claude Junker cautioned that if PiS continues to undermine the Polish judiciary, the Commission would have “no other choice” but to trigger Article 7.

So what is Article 7 and why is its potential exercise so dire?  Article 7 of the Lisbon Treaty is a process whereby the EU can punish member states who fail to live up to basic tenets of the EU.  The measure allows for a qualified majority of EU member states to suspend another member’s voting rights in the case of a serious violation of EU values.[1] Article 7 is often referred to as the “nuclear option,” and it has never been invoked. 

While voting rights can be stripped with a qualified majority vote, unanimity is needed to establish the existence of a serious breach before voting rights can be revoked. According to Article 7, the European Council “acting on unanimity…may determine the existence of a serious and persistent breach” of EU “values referred to in Article 2” of the Lisbon Treaty. Those values included in Article 2 are “respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights.” Once the unanimous vote passes, then the European Parliament must uphold the decision by a two-thirds majority. 

In the case of Poland, Hungarian Prime Minister Viktor Orban has promised to veto any attempt to establish such a breach, thus stymying further action by the European Council on Poland’s voting rights.  

Orban himself has been accused of instigating a “serious deterioration” of the rule of law in Hungary. In May, a resolution from the European Parliament called for the use of Article 7 after the Prime Minister supported a contentious law cracking down on foreign-funded NGOs. In turn, Poland  has vowed that it would veto any attempt to use Article 7 against Hungary.  

Despite the seemingly difficult achievement of unanimity in using Article 7, another factor may be  important in preventing the actual use of the mechanism. Scholars R. Daniel Kelemen and Michael Blauberger point to a “lack of political will to intervene” as the real reason for why Article 7 will never be actually used. Perhaps that is why Article 7 is referred to as the “nuclear option,” because it is considered a deterrent to use only as a threat. 

The EU has implemented a new rule of law procedure that further raises the threshold for using Article 7. Sometimes termed the “pre-Article 7 procedure,” the mechanism follows a three-step process of assessment, recommendation, and monitoring by the European Commission. If this lengthy process fails in reforming the member state, only then will the Commission turn to Article 7.   

However, the EU does have other options in dealing with member states, such as Poland, that are judged to be in breach of Article 2. The Commission has already initiated an “infringement proceeding” against Poland for its attempt to weaken the rule of law because of its actions against the judiciary. 

On July 29th, a Letter of  Formal Notice was sent by the Commission giving Poland one month to reply. If the Polish government fails to reply or if the response is deemed unsatisfactory, the Commission will then issue a Reasoned Opinion. If Warsaw continues to breach the EU's fundamental values,   the case will then be sent to the European Court of Justice, with the Commission seeking for a penalty payment from the defiant nation.

Article 7

Other enforcement options open to the EU include diplomatic sanctions or revoking funding. In 2000, the EU first considered sanctioning the far-right Austrian Freedom Party government of Jorg Haider in an effort to “diplomatically isolate” the nation. While official EU sanctions were never imposed, a number of the other 14 member states employed bilateral diplomatic sanctions that eventually pushed the government to comply with EU values. 

Revocation of EU funding has yet to be linked to preservation of the rule of law. However, European leaders have backed making all future funds “conditional on recipient countries’ adherence to the rule of law.”

[1] EU’s qualified majority is based on the “double majority” rule where 16 of the 28 member states must vote in favor of a motion and those supporting states must represent 65 percent of the total EU population.

Joseph Bebel is an Editorial Assistant at the European Institute.