On September 12, the European Parliament (EP) launched the Article 7 procedure against the Hungarian government on the basis of a clear risk of a serious breach of the EU’s founding values of democracy, equality, rule of law and civil liberties. The proposal was approved by 448 votes to 197, with 48 abstentions, a surprising majority. To be adopted, the proposal required an absolute majority of members (376) and two thirds of the votes cast, excluding the abstentions.
This is the first time that the EP has called on the council to act against a member state. The EP vote was followed by much controversy but also equally by a great deal of confusion about the significance and implications of this decision.
Article 7 of the Lisbon Treaty establishes a preventive and a corrective procedure. The preventive procedure, which can be triggered by a reasoned proposal by one-third of the member states, by the EP or by the Commission, allows the council, acting by a majority of four-fifths of its members, and with the consent of the European Parliament, to declare the existence of a “clear risk of a serious breach” of the Union’s values.
At this stage the council can make recommendations to the recalcitrant member state to resolve the issue.
The corrective procedure, the second paragraph of Article 7, leads to the determination of the “existence of a serious and persistent breach” of the rule of law. This decision can only be taken by unanimity by the European Council, that is, the heads of government, the highest decision-making body of the Union. It can be followed by sanctions, which may include the suspension of voting rights.
The Commission has its own Rule of Law Framework. This allows the Commission to initiate a formal structured dialogue with a member state when it perceives a systematic threat to the rule of law with the aim of preventing the triggering of Article 7.
Before the EP vote of September 12 against Hungary, Article 7 had only been triggered once, against Poland, on the initiative of the Commission. In the case of Hungary it was the EP that took the initiative. Although the Commission had launched several infringement procedures against Hungary for violations of EU law, it remained reluctant to make the Article 7 move.
The EP vote on Hungary is based on a report prepared by Dutch MEP Judith Sargentini from the European Green Party. Published on July 4, the report alleges serious rule of law concerns about Victor Orbán’s government. These concerns relate to 12 issues ranging from the functioning of the constitutional and electoral system to economic and social rights.
The EP vote, though it undoubtedly sends a strong political message to the Hungarian government, is just a preliminary step towards the opening of the Article 7 preventive procedure. It merely constitutes a formal invitation to the Council to open up a procedure to ascertain that there is actually a real risk that the Hungarian government is breaching the rule of law. The threshold at Council is high: a four-fifths majority.
Nonetheless, the political significance of the vote cannot be ignored nor underestimated, not just for Orbán’s Fidesz party, but also for the EP especially in the run-up to the European elections.
The confrontation with Hungary over issues of illiberalism and democratic backsliding has been going on since 2010. The reluctance of the EU institutions to invoke Article 7 earlier can be attributed to the membership of Fidesz to the EPP.
The EPP is Europe’s largest political group with a relative majority in the EP, in the council and among the commissioners. Key EPP political leaders, including Angela Merkel, believed that they could have more influence on Orbán if he remained within the EPP family.
The European Parliament is the only vociferous one against Malta, mainly based on personal agendas of certain individuals, including Maltese MEPs
The turning point, which most certainly led to the September 12 vote against Hungary, was the decision of Manfred Weber to attempt to become the next president of the Commission. The EPP leaders realised that to retain the Commission presidency upon the departure of Jean Claude Juncker they had little to gain by shielding Orbán, and more to gain from the support of other political groups which have been highly critical of the Hungarian government. This explains the EPP decision on the eve of the vote to allow a free vote on ‘the Sargentini report’.
The EPP and Fidesz are now on a collision course, even though Orbán showed up at the EPP meeting in Salzburg on September 19. The prognosis is that sooner or later Fidesz will be suspended or it will withdraw from the grand old party of Europe. Orban and his Fidesz party will probably move closer to the European radical right. This will deprive Orbán of EPP protection and will expose him to further naming and shaming by the EU institutions and possibly to sanctions.
A conclusion one may draw from the September 12 EP vote against Hungary is that the political scenario within the EP has entered a new state of flux. With the presidencies of the European Council, Commission, and Parliament up for grabs, horse trading and shifting alliances will become the order of the day. As the race becomes more competitive there may be a growing appetite in the EP to invoke the Article 7 procedure yet again.
Jean Claude Juncker in his speech on the State of the Union delivered on the same day as the EP vote, emphasised that Article 7 “must be applied whenever the rule of law is threatened”. Antonio Tajani, EP President, is reported saying that a more powerful European Parliament is needed to be able to defend the rule of law and take action when needed. He specifically mentioned Malta and Slovakia.
Is Malta a potential target? Such speculation sprouted following the adoption by the EP of Resolution 2017/2935 (RSP) on the rule of law in Malta on November 15 last year. In its preamble the resolution refers a number of times to Article 7. The threat of Article 7 comes in the operative part of the resolution where it calls on the Commission to establish a dialogue with the Maltese government regarding the functioning of the rule of law in Malta. This is a call for the Commission to initiate its pre-Article 7 Rule of Law Framework.
The November resolution was followed by several EP fact-finding rule of law missions to Malta, the latest being the delegation from the Civil Liberties Committee on September 19-20.
However, based on a reality check, Malta would not be next on the EP’s list for triggering Article 7. Of the four EU institutions that are involved in the Article 7 procedures, the European Parliament is the only vociferous one against Malta, mainly based on personal agendas of certain individuals, including Maltese MEPs, and factions that are not seeking Malta’s best interest. The Commission, the European Council and the Council have not expressed similar concern about the rule of law in Malta.
On the contrary, basing its findings on hard facts and indicators, the Commission in the 2018 European Semester Report on Malta presents a positive and wide endorsement of the undisputable and very tangible socio-economic achievements of the Maltese government. Clearly, this could not have been possible in a context of disregard for the rule of law.
Nonetheless, the current local political scenario renders me very confident on this front. I refer to Opposition leader Adrian Delia’s statement (Malta Today, January 26), on the possible triggering of Article 7 against Malta. He is reported to have said: “I believe this would be the worst thing that could happen to Malta. We would absolutely be against any such move, wherever it may come from, because this would be extremely devastating.”
He insisted that the PN would fight “lock, stock and barrel” against any attempt to trigger Article 7 against Malta.
To be true to his word, the PN leader should learn that, as the saying goes, charity begins at home. Delia should immediately start by restraining his MEPs from consistently militating against the national interest and from damaging our reputation within the EP and elsewhere.
Edward Zammit Lewis is chairman of the Parliamentary Standing Committee on Foreign and European Affairs.