Watering down the ‘nuclear option’? The Council and the Article 7 dilemma

ABSTRACT

This article offers an explanation for why the Article 7 (1) procedures, the so-called preventive mechanism, triggered against Poland and Hungary over breaches of the European Union’s fundamental values have not made any progress and have come to a standstill. Drawing on the incomplete contracting approach, it is argued that the Council, which is charged with carrying out the procedures, has been able to water these procedures down by filling the incomplete provision of Article 7 (1) with its own procedural rules. The ‘offender-friendly’ rules established by the Council have enabled it to control and delay the processes. Moreover, it is argued that these rules were essential for the Council to solve its ‘Article 7 dilemma’. The findings highlight that the effectiveness of the alleged ‘nuclear option’ is highly dependent on the Council’s procedural rules.

KEYWORDS:

• Article 7 TEU
• preventive mechanism
• council of the EU
• rule of law
• rules
• Hungary
• Poland
• incomplete contract

Acknowledgments

I would like to thank Lisa H. Anders as well as the two anonymous reviewers for their valuable feedback on earlier versions of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. See for an overview Closa and Kochenov (2016).

2. According to Article 269 TFEU, the Court may only decide on the legality of an act adopted under the Article 7 procedures.

3. The incomplete contracting approach draws on the assumptions of the distributional Rational Choice Institutionalism that highlights the distribution of power in political conflicts and the relevance of power asymmetries for their outcomes. See Knight (1998); Windhoff-Héritier (2007, chapter 3.4).

4. The Council could not exclude the Commission to the same extent because the Commission is allowed to participate in Council meetings anyway. Thus, it can present its Reasoned Proposal to the Council in procedures which it initiated itself. Moreover, it may also provide the Council with updates or information on issues discussed in procedures triggered by the Member States or the Parliament. Also, the Commission’s inclusion is logical given that it is the main actor in the so-called pre-Article 7 procedure, the Rule of Law Framework.

5. The summaries of these events were published only after several official requests by Laurent Pech and can now be downloaded from https://www.democratic-decay.org/article-7-eu. The lacking access to documents highlights the Council’s still insufficient transparency (see Pech 2019).

6. After the triggering of Article 7 (1) the Hungarian government turned to the CJEU for annulment of the Parliament’s resolution, claiming that the body had breached Article 354 TFEU and its own rules of procedure by not counting abstentions. Had they been counted, no two-thirds-majority would have been achieved (Case C-650/18). According to the Opinion of the Advocate General published in December 2020, this reasoning is unfounded and the action should be dismissed (ECLI:EU:C:2020:985).

7. Indeed, the Commission delivered written updates on the current rule of law situation in Poland ahead of the three hearings (see Council of the EU 2018c, 2018b) and was also present at each of them.

8. For example, the Commission’s proposal to link EU funds to ‘generalised deficiencies’ in the rule of law (see e.g. Blauberger and van Hüllen 2021).

9. See for a critical assessment of these dialogues Oliver and Stefanelli (2016); Closa (2016, 32ff.).