EU can still block Hungary’s veto on Polish sanctions
- ️Mon Jan 11 2016
By letting Hungary slide, EU members squandered their ability to act collectively to sanction Poland.
Viktor Orbán, Hungary’s pugnacious prime minister, announced January 8 that Hungary would block the invocation of Article 7 against Poland | Getty
January 11, 2016 6:43 pm CET
The Law and Justice government in Poland stormed into office with rash plans to disable the Constitutional Court, muzzle the media, fire a wide swath of civil servants, politicize independent institutions and seize partisan control of the military. This has set off alarm bells in Brussels, where the European Commission has listed the Polish crisis on the agenda for its plenary meeting January 13 and the European Parliament has scheduled Poland for a debate January 19. Talk of “Article 7” is in the air.
European law provides no way to eject offending member countries from the European Union. Instead it resorts to quarantine. When a country persistently violates the EU’s basic values of respect for democracy, the rule of law and human rights, the most serious sanction on offer is suspending that state’s vote in European institutions through the invocation of Article 7 of the Treaty of the European Union so that it cannot participate in the creation of European law.
Following Hungary’s moves to disable the checks and balances of its constitutional system, Poland is now the second state to have generated a threat to use Article 7. But precisely because Poland is following Hungary, the harshest sanctions available under Article 7 have already become nearly impossible to use.
Viktor Orbán, Hungary’s pugnacious prime minister, announced January 8 that Hungary would block the invocation of Article 7 against Poland. And he can. Sanctions require a unanimous vote of the European Council, minus the offending state, meaning Hungary does have a veto.
But Article 7 includes two separate parts: a warning system outlined in Article 7(1) and the sanctions mechanism of Article 7(2)-(3). The only way to keep the threat of sanctions on the table under Article 7(2) is for European institutions to act against both Poland and Hungary at the same time by invoking Article 7(1) first.
Sanctions require a unanimous vote of the European Council, minus the offending state, meaning Hungary does have a veto.
What is now Article 7 was inserted into European law in two stages. The sanctions mechanism now in Article 7(2) was introduced into the Treaty of Amsterdam in 1999 when post-communist European countries were waiting in the EU antechamber. Established members of the EU were worried about the possible misbehavior of these new post-communist states, which were thought to have less entrenched commitments to the rule of law.
The first time the issue of collective sanctions arose, however, was not in “new Europe” but instead in Austria, when Jörg Haider’s Freedom Party was included among the government’s coalition partners after the 2000 election. Even though collective sanctions were available, full-scale suspension of a country’s rights in the EU was considered too harsh, so the other EU members resorted to a coordinated set of bilateral sanctions against the Austrian government.
The Austrian case demonstrated the need for a warning stage before full-scale sanctions could be invoked. So EU law was modified. In what is now Article 7(1), the EU can “address recommendations” to an offending member country when it puts European values at risk, providing an opportunity to tutor the wayward state on how to behave. There are no sanctions attached to Article 7(1), but a state is put on notice that its actions are causing serious concern.
The Hungarian case already made apparent that using any part of Article 7 is difficult. The European Parliament teed up the milder Article 7(1) in the Hungarian case with the Tavares Report in July 2013 when it warned of the risk of serious breach of European values. It called on the European Commission to monitor Hungary and sought the development of a “trilogue” among the Council, Commission and Parliament to engage in a constructive effort to bring Hungary back into line.
The new Polish government has followed Hungary by moving very quickly to establish control over all parts of the Polish state that might challenge the governing party’s rule.
The Commission and the Council rebuffed the Parliament’s invitation and developed “rule of law mechanisms” of their own to engage in constructive correction of deviating member countries. The European Commission announced a rule of law mechanism in spring 2014, creating a multi-stage process of dialogue with a wayward member country before Article 7 would be invoked.
The European Council’s legal service promptly declared this modest effort beyond the scope of the Commission’s powers and the Council then announced an even more toothless rule of law mechanism in late 2014 that involves largely self-congratulatory “peer review.”
In the absence of serious rebuke of Hungary from other European institutions despite having explicitly called for action, the European Parliament is considering its own rule of law mechanism.
Amid the dueling attempts by European institutions to find the proper way to address a threat to European values, Hungary has gone its own way without sanction. The dramatic lack of EU action prompted a European Citizen Initiative, which is now gathering signatures to force the EU Commission to put Hungary under review.
Enter the Law and Justice government of Poland. With a brashness that has shocked observers and many of its own citizens, the new Polish government has followed Hungary by moving very quickly to establish control over all parts of the Polish state that might challenge the governing party’s rule.
So now, Article 7 is on the table as a possible option in Brussels. But it is already too late for sanctions to be a real threat. By letting Hungary slide, EU members squandered their ability to act collectively to sanction Poland. If sanctions are proposed against Poland, the Hungarians have a veto. And vice versa.
Poland’s troubling actions clearly warrant a finding that EU values are threatened there too.
There is a way to salvage Article 7 sanctions. Article 7(1), the warning stage, can be triggered by a four-fifths majority of the Council (together with a two-thirds majority of the Parliament), which means that neither Hungary nor Poland could veto the use of Article 7(1) against the other. It is long past time to put Hungary under Article 7(1) warning given its government’s conduct in the last five years; Poland’s troubling actions clearly warrant a finding that EU values are threatened there too.
If EU institutions then want to move toward sanctions, removing either state’s vote from the EU lawmaking process, they should argue that no state already under Article 7(1) tutelage should be able to vote on Article 7(2) sanctions. This would effectively remove the fellow-traveler veto that Hungary is threatening to use, and that Poland would probably invoke to defend Hungary.
The disturbing actions of the Polish government in the last few weeks would not have been carried out so boldly were it not for the fact that European institutions failed to act to curb similar abuses of power by the Hungarian government over the last five years.
The EU cannot start by disciplining only Poland. Without also addressing the Hungarian threat that made the Polish actions possible, the EU sanctions mechanisms cannot work.
Kim Lane Scheppele is Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University.
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