Hungary and Article 7
It is the opinion of the Centre for Fundamental Rights that EU rules governing the “rule of law procedure” launched by the European Parliament are extremely vague and ambiguous and as a result we see a clear danger that, as the process drags along, institutional instability within the EU will increase and conflicts between the EU institutions and the member states will become more acute. The most controversial aspects of the procedure are listed here:
• The final vote on the “Sargentini Report” created some controversy with the voting procedure applied therein, as the “present” votes cast should have been counted but were not. If that is correct the European Parliament’s resolution is null and void on procedural grounds. At the time of writing the vote is being contested at the Court of Justice of the European Union.
• The procedure under Article 7 is initiated based on a “risk” of a breach of the “EU values” enumerated in Article 2 of the Treaty on the European Union. However these “values” (democracy, rule of law, tolerance etc.) are terms of political philosophy and lack clear legal, normative substance or definition. Their application in a legal process leaves the door wide open for political interpretations and an unlawful intrusion of the EU into matters of constitutional and national sovereignty. Therefore what we have here isn’t a debate over the rule of law – it is a debate over national sovereignty and involves the question pertaining to the hierarchical relationship between “EU values” and national identity which is protected under the EU treaties.
• The deepest legal problem however, arises from the procedural mechanism described in Article 7. There is a milder “prevention or control mechanism” and a harsher “sanctions mechanism”. One possible interpretation is that the two mechanisms build on each other and the “prevention mechanism” is the first step towards the “sanctions mechanism”. Another possible interpretation states that the two procedures are entirely separate from each other, they are two mechanisms and consequently the “prevention mechanism” can never turn into the “sanctions mechanism” which, if it is to be applied, must be (re-)initiated.
• Beyond the above, it should be underlined that the enumerated institutions entitled to launch the two mechanisms are not identical. While the “prevention mechanism” can be initiated by the European Parliament, the “sanctions mechanism” cannot be. What follows is that the process started by the “Sargentini Report” cannot lead to a suspension of Hungary’s voting rights in the European Council or other sanctions, as those are consequences of the “sanctions mechanism” which can only be initiated by one third of the member states or by the European Commission.
We can conclude that although the majority in the European Parliament aimed to counter a perceived disruption of EU values through the Sargentini Report, the resulting procedure raises far more and deeper questions about the European Union itself than what it can hope to answer. It does however, draw attention to the fact that there exist, in parallel, differing attitudes to and interpretations of EU competences, national identity and democracy itself within the member states and the European Union.