The European Union sometimes produces time travel-like moments for those who might not constantly keep up with procedural regulations. An event of such nature came to pass on January 9 when a Finnish People’s Party MEP, Petri Sarvamaa, announced that he would launch a petition to initiate the Article 7 procedure against Hungary. The required signatures accumulated rather quickly, with a total of 120 MEPs endorsing the initiative in the Parliament.
The question begs itself: how could the Article 7 procedure be initiated against Hungary if the process is already in progress? (Watch our explanatory video on the process if you speak Hungarian.)
The Article 7 procedure is an immensely powerful tool in the Union’s toolbox, perhaps overly so. The mechanism is designed to strip a country of its voting rights within the European Council, the EU’s key decision-making body – the procedure is to be triggered if other member states feel the target country is out of line with the EU’s key principles. So far, the process has been initiated against two member countries: Hungary and Poland. Against Poland, the article was triggered by the European Commission, while the current one against Hungary originates from the European Parliament.
To make things more complicated, there are actually two different procedures that can be launched based on Article 7.
As for Hungary, it is the first stage of Article 7 that is underway. The first phase does not yet involve the stripping of voting rights, or any other sanctions. It merely states that there is a “clear risk of a serious breach by a Member State of the values referred to in Article 2.” Article 2 lists the fundamental values of the EU as follows:
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.
The European Court of Justice has previously ruled that both sentences list fundamental values. Therefore, if four-fifths of the member states, at the urging of the Parliament or the Commission, decide that there is a risk of a breach of these values in Hungary, they can vote in favour of the first point of Article 7 (this does not require the vote to be unanimous). However, nothing concrete follows this step, save perhaps for the public persecution of the member state – in essence, a political threat.
It is the subject of legal debates whether Article 7’s first point is to automatically trigger the second phase, but as far as practice goes, the two are separate procedures. The second phase needs to be initiated again, and it can be done either by the European Commission or by one-third of the member states. In this stage, the rest of the member states decide whether the member state in question seriously and persistently violates the values mentioned in Article 2. However, a unanimous vote is required here, meaning that everyone except the concerned member state must vote in favour of acknowledging a persistent and serious violation of fundamental values in that particular country.
Hungary and Poland had previously formed a protective alliance, essentially agreeing that they would veto any voting procedures against either of them, essentially defanging Article 7, as the threat of political consequences could not be followed by practical retribution. However, this situation has changed with the Polish government shift, as Donald Tusk’s administration would obviously not take the same approach. Currently, it is unclear which member state would stand up for Hungary, as the Polish right-wing government had a clear interest in the alliance due to its reciprocity, as opposed to a question of mere sympathy. However, the threat of Article 7 does not loom over any other member state.
Concrete and actual repercussions would eventually come with the Article’s third point, where a decision would have to be made about which of Hungary’s rights to suspend. The phrasing of the legal text is quite general in nature, and potential punishment is not limited to the suspension of voting rights. A qualified majority of Member States’ votes would be sufficient for this stage, as well as for later decisions to introduce new measures or revoke existing ones.
In practice, this means that member states have political leeway for imposing sanctions within the framework of Article 7. Once a unanimous decision is made regarding the violation of fundamental values, a wide range of possibilities is available. Certain rights may be taken from the given country, increasing or diminishing the pressure later depending on whether a positive change is perceived.
The Article 7 process against Hungary is currently in the first phase, where hearings with member states are taking place. What this means in practice is that occasionally, one of Orbán’s ministers has to explain themselves in Brussels regarding rule of law (or the lack thereof) in Hungary. Previously, the Hungarian government has tried several times to push for a final vote that would conclude the process. If for no other reason, then because as far as the second phase of Article 7 is not initiated, Hungary’s government could politically exploit whatever decision is made: if acquitted, Orbán’s administration could claim that even the European Council has approved Hungary’s compliance with the rule of law, and if condemned, the statement could be made that the Article 7 procedure is no longer being pursued against Hungary.
Viktor Orbán has previously stated that he is not afraid of Article 7 as the European Commission had stated that Hungary’s judicial system is in order, which is why the country has ultimately received a portion of its much-discussed EU funds. However, this is not exactly what had been stated by the Commission; rather, the EC merely acknowledged that progress had been made compared to what had been the case earlier, and they only assessed the Hungarian legal system to the extent that it no longer contradicts EU law. Additionally, Hungary only gained access to the funds which were not frozen.
On the other hand, the brief text regarding the EU’s fundamental values makes it evident that potential reasons for initiating the second point of the Article 7 procedure are not limited to the state of a country’s judicial system. In other words: the Commission positively evaluating changes in Hungary’s legal system does not rule out the possibility of a new procedure.
The main issue with the current petition is that the second point of Article 7 is not initiated by the European Parliament. No matter the amount of signatures garnered, the relevant text reads as follows:
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 situation seems clear; while the procedure requires a vote from the Parliament, it can only be initiated based on the decision of the Commission or a proposal from one-third of the EU’s member states. What the current petition aims to achieve is to quicken this process.
The issue is also interesting from a political perspective. Petri Sarvamaa is a representative from the largest Finnish ruling party, the conservative National Coalition, while he is also a member of the European People’s Party parliamentary faction — Sarvamaa was one of the most vocal proponents of Fidesz’s exclusion from the EPP. However, signatures have come not only from the EPP but also from the social democrats, the liberals, as well as the greens. Additionally, while there are no Hungarian opposition members among the signatories, according to Népszava, the signatures of a Finnish far-right and an Italian populist MP are also on the list.
