Poland, Hungary: Use of Article 7 to fight the shift towards authoritarianism in Europe

Romy Arroyo Fernandez / NurPhoto / NurPhoto via AFP

How can the European Union (EU) sanction a Member State that violates fundamental rights? While Hungary and Poland regularly defy EU institutions, there is a mechanism conceived for exactly this circumstance: Article 7 of the Treaty on European Union (TEU). Triggered four and five years ago against these two countries, it will put Hungary back at the heart of the discussions on 23 May, when the 27 ministers of the EU Member States meet in a General Affairs Council.

On 18 May 2022, the International Federation for Human Rights (FIDH) and other civil society organisations addressed an open letter to EU governments about the Article 7(1) TEU hearing on the rule of law, democracy and fundamental rights in Hungary. Read the joint letter

When the nationalist Freiheitliche Partei Österreichs FPÖ party came to power in Austria in 1999, it was the first time that a far-right party was in a position to lead a country in the European Union. Since the rule of law, respect for fundamental rights, and democracy are unconditional prerequisites for participation in the EU, this was an alarming development. European countries decided to provide the Union with a mechanism for maintaining respect for these principles among its members, while envisaging a sanction for any country deviating from democratic principles. Article 7 was thus born.

Article 7: A last resort for Human Rights in European Union

Designed to be the instrument of last resort when all other measures have proved ineffective, and nicknamed a "nuclear weapon" in European circles, Article 7 targets violations of a systemic nature. Violations that affect all fundamental principles that are seriously – and potentially irreversibly – threatened. These principles are mentioned in Article 2 of the TEU, which states that "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 (...)". All Member States are bound to respect and comply with them when they join the EU.

Since the early 2010s, the Polish and Hungarian governments have been in the very situation that Europeans feared in 1999. They are steadily undermining EU values by strengthening the executive’s powers at the expense of the checks and balances that guarantee the viability of a democratic system. Gradually, the independence of the judiciary, universities and the media are jeopardised. Opposition parties are repressed. Civil society is smothered.

In Hungary, the rights to freedom of expression, information and association are being undermined in a context of targeting of minorities and restriction of the space given to civil society.

In Poland, an overhaul of the judicial system has subjected it to the will of the majority in power. The Constitutional Court has been stripped of its independence. Responsible for judging the conformity of new legislation with the fundamental law, it has been relegated to the status of a rubber-stamp agency. Attacks on judges are commonplace and, as in Hungary, minorities – especially sexual minorities – face mounting discrimination. The LGBTI+ community is increasingly targeted with violent attacks in the Polish public and political spheres.

The breakdown of the rule of law has also directly resulted in an assault on women’s fundamental right to control their own bodies – the decision of a compromised constitutional court to impose a de facto ban on the right to abortion, which is a human right.

A vital European commitment for Human Rights

In this context, the use of Article 7 by the European institutions is indispensable. They must assert that authoritarianism has no place in Europe. Above all, they must support civil society in this endeavour: Poland and Hungary, targeted by this procedure since 2017 and 2018, have not yet been sanctioned for their authoritarian drift. They have been able to continue violating EU values, year after year, without any serious consequences. While the EU Council has a lot of discretion with regard to the procedure, it has –thus far– never seemed to want to sanction any of these countries in any meaningful way.

The resumption of the hearings with Poland in February and Hungary on 23 May, under the impetus of France, which currently holds the EU Council Presidency, presents a new opportunity to drive this issue forward.

The 23 May hearing will be held in a distinct post-election context in Hungary. Viktor Orbàn has been re-elected for a fourth consecutive term. The election was held in the midst of a public health and military crisis on the country’s doorstep. Mr Orbàn deftly took advantage of the war in neighbouring Ukraine to win an election whose conditions have been called into question by independent observers. This suggests that unless decisive European action is taken, Mr Orbàn will continue his country’s headlong rush towards less rule of law, less democracy, and more authoritarianism.

The gradual rise of far-right parties elsewhere in Europe, such as the Rassemblement National in France in the recent presidential elections, shows that these two countries are by no means the sole ones concerned. A contagion effect of the illiberal Hungarian political model could, after Poland, spread throughout Europe, including in the West. Urgent action by all Member States is needed, without delay. It is imperative to take action.

Activating Article 7: A long term fight for International Federation for Human Rights - FIDH

FIDH, along with its member organisations and partners in both countries, has been active on this issue from the start. Since the emergence of this trend, they have conducted intensive advocacy to push the EU to react firmly. They have worked hard to ensure that all possible mechanisms are activated. Including Article 7 of the TEU.

FIDH has held numerous meetings with decision-makers, written open letters, issued statements and press releases to the relevant authorities, and produced a large number of substantiated reports documenting all of the violations, while supporting the legal proceedings that have been launched to address some of them. FIDH has done everything in its power to ensure that these violations are addressed.

Its daily monitoring of the evolution of the situation in these States, as well as its mastery of the issues at stake, is only possible thanks to its federative structure. It is the member organisations in the countries concerned, which are on the front line in defending the rule of law and human rights, that enable FIDH to clearly analyse the situation. They also allow FIDH to establish legitimacy with European institutions and governments and share its expertise with policy makers, while ensuring full support to Polish and Hungarian civil societies.

In the run-up to the hearing, FIDH, its members and partners reiterate their request for a much more active engagement of the Council and all Member States in the procedure. They ask for the adoption of recommendations that Hungary should implement within a specific timeframe. They also ask Member States to determine whether or not there is a "clear risk of a serious breach" of EU values.

This recommendation echoes the demands of the European Parliament in its recent resolution adopted on 5 May 2022, as well as its long-term work in supporting and defending civil society.

In the same vein, as long as Poland and Hungary have not complied with the decisions of the European Court of Justice, the European Court of Human Rights and the numerous recommendations of the Commission and the European Parliament, FIDH and its members call for European funds, in particular those of the national recovery plans of the post-Covid recovery mechanism, not to be approved in the light of the serious and repeated violations of the rule of law and fundamental rights and in the absence of any real improvement.

The organisations also call for Poland and Hungary to be barred from receiving EU funding if they fail to respect the rule of law, and for a new mechanism to be put in place to ensure this.

Going further: A two-part procedure

The Article 7 procedure has two parts. The first is preventive (Article 7(1)): it can be triggered by the Commission, the European Parliament or one-third of the Member States, which can propose to the Council that it establish a "clear risk of a serious breach" by a Member State of fundamental EU values, such as the rule of law, democracy, respect for human rights and minorities, by a qualified majority vote (requiring 15 out of 27 Member States) and can issue recommendations.

In the absence of improvement by the Member State, the second tier of sanctions (Article 7(2)) can be activated when a ’serious and persistent breach’ of values is found. This is triggered by a unanimous vote (with the exception of the state concerned) in the European Council. This step is in fact difficult to achieve in the current context, with Hungary and Poland protecting each other. But, if taken, it can lead to the suspension of the state’s voting rights in the EU Council (7.3): a de facto suspension of the Member State’s decision-making power at the EU level.

It is important to stress that this mechanism was not initially created with the aim of imposing the strongest possible sanction against a state. It aims, rather, to push the state – thanks to political pressure from its peers – to restore respect for European values. In this sense, the procedure is the only instrument available to the EU to assert its authority and enforce its principles in the context of widespread violations for which other mechanisms are unsuitable.

In the event that the procedure were to stall, there is a real risk of setting a precedent for violating states. They could exploit this weakness, this inaction, to further erode EU values: violations of common European values could go unpunished.

The advancement of the procedure and the basic establishment of Article 7.1, in the absence of unanimity that would allow the transgressing states to be sanctioned, would allow Europe to officially acknowledge, in the clearest terms, the gravity of the situation.

This political – and economic – pressure would help to put a stop, perhaps permanently, to the authoritarian drift in Europe.

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