EU Values and the Article 7 Procedure

Article 2 TEU establishes the foundational values upon which the European Union is founded: 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. Article 2 TEU functions as the Union’s constitutional identity clause, defining the normative character of the EU and imposing substantive conditions for membership and continued participation in the Union.

The Values of Article 2 TEU

Human dignity is the first value listed in Article 2 TEU and is also protected by Article 1 of the Charter of Fundamental Rights. It reflects the Kantian principle that every person is an end in themselves and must never be treated as a means only. The CJEU has recognised human dignity as a general principle of EU law, applying it in cases involving fundamental rights, biomedical ethics, and the limits of economic freedoms (Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn, Case C-36/02).

Freedom encompasses the liberal democratic tradition of individual autonomy and the specific economic freedoms guaranteed by the Treaties, including the four fundamental freedoms of the internal market. Democracy is the foundational principle of EU governance, expressed through representative democracy (Article 10 TEU), participatory democracy (Article 11 TEU), and the role of national parliaments. Equality includes both formal equality before the law and substantive equality, particularly equality between men and women, and non-discrimination on grounds of nationality, sex, race, religion, disability, age, and sexual orientation.

The rule of law is an essential value of the Union, requiring that all public power be exercised within the constraints established by law. The CJEU has elaborated the rule of law to include principles of legal certainty, non-retroactivity, protection of legitimate expectations, access to justice, and effective judicial protection. The requirement of effective judicial protection has been given particular emphasis in the context of Article 19 TEU, which requires Member States to provide remedies sufficient to ensure effective legal protection in fields covered by Union law.

The Article 7 TEU Procedure

Article 7 TEU establishes a procedure for determining the existence of a serious and persistent breach of Article 2 values by a Member State. The procedure operates in two stages. Article 7(1) allows the Council, acting by a four-fifths majority on a reasoned proposal by one-third of Member States, the European Parliament, or the Commission, to determine that there is a clear risk of a serious breach of Article 2 values by a Member State. The Council must hear the Member State concerned before making such a determination and may address recommendations to the Member State.

Article 7(2) allows the European Council, acting by unanimity on a proposal by one-third of Member States or the Commission (with the consent of the European Parliament), to determine the existence of a serious and persistent breach of Article 2 values by a Member State. The Member State concerned is invited to submit its observations before the determination. Following such a determination, Article 7(3) allows the Council, acting by qualified majority, to suspend certain rights of the Member State under the Treaties, including voting rights in the Council. The suspension must take account of the possible consequences for the rights and obligations of natural and legal persons. The Council may subsequently vary or revoke suspension measures by qualified majority.

Enforcement and Criticisms

The Article 7 procedure has been criticised as a blunt instrument with a high political threshold. Unanimity in the European Council (excluding the state concerned) for determining a serious and persistent breach has proved practically insurmountable. The procedure requires political will among Member States to initiate proceedings against a fellow Member State, which has been lacking even in cases of serious concerns about the rule of law.

The procedure has been activated only twice. In 2017, the Commission triggered Article 7(1) against Poland concerning rule of law issues, including the independence of the judiciary, the reform of the Constitutional Tribunal, and threats to judicial independence. In 2018, the European Parliament triggered Article 7(1) against Hungary concerning threats to judicial independence, freedom of expression, academic freedom, and the treatment of migrants and refugees. Neither procedure has progressed to the Article 7(2) stage, and the limitations of the mechanism have prompted the development of alternative enforcement tools.

The Rule of Law Conditionality Mechanism

In response to the limitations of Article 7, the Union adopted Regulation (EU) 2020/2092 on a general regime of conditionality for the protection of the Union budget (the Rule of Law Conditionality Regulation). The regulation links the receipt of EU funds to respect for the rule of law, allowing the Commission to propose, and the Council to adopt by qualified majority, measures including the suspension of budget payments where breaches of the rule of law affect the sound financial management of the EU budget.

The CJEU upheld the regulation in Hungary v Parliament and Council (Cases C-156/21 and C-157/21), rejecting challenges that the regulation exceeded EU competence or violated the principle of legal certainty. The Court held that the protection of the rule of law is a condition for the sound financial management of the budget and that the regulation provided appropriate procedural safeguards. The mechanism has been applied against Hungary, resulting in the suspension of approximately €6 billion in cohesion funds.

Judicial Protection of EU Values

The CJEU has played an active role in protecting EU values through judicial enforcement. The Court has held that Member States must ensure the independence of national courts for the application of EU law under Article 19 TEU, developing a body of case law on judicial independence that requires Member States to protect judges from political pressure, ensure objective appointment and disciplinary procedures, and guarantee the irremovability of judges (Commission v Poland (Independence of the Supreme Court), Case C-619/18).

The Court has also held that national courts may disapply national legislation that threatens judicial independence, and that the principle of mutual trust between Member States may be limited where there are systemic deficiencies in the rule of law of another Member State (Aranyosi and Căldăraru, Cases C-404/15 and C-659/15 PPU). The protection of EU values has become one of the most dynamic areas of EU constitutional law, reflecting the recognition that the Union’s legal order depends on the common commitment of all Member States to the values of Article 2 TEU.