EU facing unfamiliar dilemmas in using nuclear option against Poland and Hungary

By Emma Myhre

When the Treaty of Amsterdam came into force in 1999, it came with important changes for the EU. Perhaps the most important was the introduction of Article 7, the union’s only legal enforcement mechanism. Introducing such a mechanism held great importance in a time when the EU was preparing to bring in eight former communist countries.1  Member states would be expected to follow a set of common values, and the EU would have potential to suspend the membership rights of those who do not. Article 7 became a mechanism of serious implications, but has never actually been used – until now. The novelty of the situation creates several unfamiliar dilemmas for the EU, the solutions to which are yet to be determined.

Illiberal developments in Poland and Hungary

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A protest against PiS in Warsaw on May 7, 2016 | Wojtek Radwanski

Since the nationalist Law and Justice (PiS) party came to power in Poland in 2015, democracy has gradually been undermined. Poland has been criticized for its controversial reforms, including the empowerment of the Polish government to remove and replace up to 40 percent of the Supreme Court judges2.

Hungary has experienced a slide to a semi-authoritarian regime since the Fidesz party came into government in 20103. The constitutional structure has changed into one that empowers the centralized executive so much that it dismantles checks and balances and thus undermines the rule of law.  

Although Poland and Hungary are dealing with their situations differently, they share the way they are viewed by many Europeans: as success stories of European integration that turned into painful challenges for the EU4.

The EU having illiberal democracies as members will ultimately hurt the union as a whole. The democratic nature of EU decisions will suffer, and the democratic guarantees of EU-citizens will be threatened. EU companies and investments may suffer the same fate. EU foreign policy, rooted in EU values, will lose its credibility5. Thus, there is a common concern that EU rules and values are not being properly enforced, which is where Article 7 becomes relevant.

What is Article 7?

Article 7 acts as a procedure to be used against members that have violated fundamental rights. It spells out an expectation of all members to live up to EU values spelled out in Article 26:

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Signing of the Treaty of Amsterdam | Etienne Scholasse

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 EU uses these values as a foundation to judge whether or not to trigger the rule of law procedure known as Article 7. There are two parts — Article 7.1 would allow the Council to give a formal warning to any country accused of violating fundamental rights. If that doesn’t have the desired effect, Article 7.2 would impose sanctions and suspend voting rights7.

Problems that arise

The idea behind Article 7 is clear: it was established as a way to hold countries accountable for rights violations. But recently the article has proven to have inherent weaknesses, as the EU has faced internal challenges. Undemocratic developments in Poland and Hungary have put pressure on the EU to act – and highlighting its lacking capability to do so.

A major problem arises in attempting to impose sanctions on members. To do this, the EU requires unanimity among its members and Hungary has already expressed that it will vote against such sanctions8. So then Article 7 remains a naming and shaming tool, failing to unite the EU under a common set of values in a time when it is sorely needed.

Furthermore, Brussels has shown reluctance to act too hurriedly on the Polish case, keeping in mind the possibility of being deemed illegitimate and handing a propaganda victory to Warsaw9.

The Hungarian case creates similar problems. Many EU countries have wanted to trigger Article 7 against Hungary because of its illiberal developmen10. The legitimacy of such an intervention would again be questioned, especially since the Hungarian constitutional changes were perfectly legal11. The situation also has an important cultural aspect. Hungary’s president Orbán has expressed a great disappointment in the EU for favoring Western and silencing Eastern values.

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Viktor Orbán at the European Parliament in Strasbourg on September 11, 2018 | Jean-Francois Badias

“We have a different view on Christianity in Europe, the role of nations and national culture. Even differences on the essence of the family and we do have radically different views on immigration. […] These differences cannot be a reason to brand any country and be excluded from joint decisions. We would never go as far as to silence those that do not agree with us.” 12

Orbán signals an east-west divide, raising a further question about what values should be considered “common”. In the future, the EU might have to refine exactly what its values are, making them clearer without making them exclusively western.

The way forward

The EU is faced with many tough dilemmas and has to be careful in its approach to tackle them. The legal weakness of Article 7 has become painfully evident. Hungary and Poland are challenging EU legitimacy and unity, in a time when it is sorely needed. In finding solutions, the EU needs to pay attention to the legitimacy of its actions, what values to root itself in, and how to best respect cultural differences without hurting European unity.