Sanctions Related To The Mechanisms Set Forth In Art 7 TEU
Introduction
- Legal sanctions legal consequences (inconvenience) resulting from the addressee's
failure to comply with an order or prohibition established in a legal provision (cf. S.
Wincenciak)
- Grounds for imposing sanctions - Art. 7 in connection with Art. 2 TEU:
• The Council determines that there is a clear risk of a serious breach by a Member
State of the rule of law value;
• The European Council ('EC') determines the existence of a serious and
persistent breach of that value
- Negative legal consequences ('sanctions') for a Member State breaching the rule of law
value may result not only from the application of Art. 7.3, but also Art. 7.1 and 7.2 TEU
Limits Of Discretionary Powers
- Factors delimiting the choices the Council and the EC make under the Art. 7 TEU -
general principles and the values of the EU law, especially the principle of
proportionality as a value-weighting mechanism
• rule of law (its individual elements),
• loyal (sincere) cooperation and mutual trust between the Member States and the
EU,
• primacy of EU law,
• subsidiarity (in the sense of treating Art. 7 TEU as the final option),
• national identity,
• effectiveness of law
• (cf. M. Potacs, L. Tichý, M. Niedobitek, T. Dumbrovsky)
• Report of the EP of April 1, 2004 on the Commission communication on Article
7 of the Treaty on European Union: Respect for and promotion of the values on
which the Union is based: the EU confidence, plurality of ideologies, political
objectives and values and the democratic competition between them, strict
equality of treatment of all Member States, credibility of the decisions taken by
the EU institutions, transparency of procedures
• possible consequences on the rights and obligations of natural and legal persons
(Art. 7.3 TEU)
Negative consequences of implementing Art. 7.1 or 7.2 TEU
- 1. 'Naming and shaming' a Member State in question (an impact on political, diplomatic
and economic relations with other Member States of the EU) - cf. D. Kochenov
- 2. the TFEU Protocol no 24 on Asylum for Nationals of Member States of the European
Union any application for asylum made by a national of a MS may be taken into
consideration or declared admissible for processing by another MS when (inter alia): 1)
the procedure referred to Art. 7.1 TEU has been initiated and until the Council, or, where
appropriate, the European Council, takes a decision in respect thereof; 2) the Council
has adopted a decision in accordance with Art. 7.1 TEU or if the European Council has
adopted a decision under Art. 7.2 TEU
- 3. the Council Framework Decision 2002/584/JHA of June 13, 2002 on the European
arrest warrant and the surrender procedures between Member States in connection with
the CJEU Judg., case ref. C-216/18:
• If the EC has applied Art. 7.2 TEU and the Council has subsequently suspended
the application of the Framework Decision towards that country (Art. 7.3 TEU),
the judicial authority executing EAW is required to refuse automatically to
execute this warrant;
• Other cases under Art. 7 TEU should be treated only as information indicating
that there is a risk of breach of the fundamental right to a fair trial - the authority
should then independently examine and assess the specific situation.
Legal consequences of suspending certain of the rights of the Member State (Art. 7.3
TEU)
- Pursuant to Art. 7.3 TEU the Council 'may decide to suspend certain of the rights
deriving from the application of the Treaties to the Member State in question, including
the voting rights of the representative of the government of that Member State in the
Council'
• 1. Suspension might concern the 'voting rights' (consequences specified in Art.
354 para. 3 in connection with Art. 238.3. TFEU)
• 2. Does not allow for the suspension of all rights of a MS nor may it lead to the
exclusion of this State from the EU (e.g. L. Besselink)
• 3. Applies not only to the primary law (TEU, TFEU), but also includes the rights
granted by the secondary EU law authorized by the Treaties (e.g. T.
Dumbrovsky)
• 4. Broad interpretation of these rights is proposed (M. Potacs) - is it possible to
suspend e.g. the right to bring an action before the CJEU?
CJEU's control of the sanctioning acts adopted pursuant to Art. 7 TEU
- Art. 269 TFEU: 'The Court of Justice shall have jurisdiction to decide on the legality of
an act adopted by the European Council or by the Council pursuant to Article 7 of the
Treaty on European Union solely at the request of the Member State concerned by a
determination of the European Council or of the Council and in respect solely of the
procedural stipulations contained in that Article.
- Such a request must be made within one month from the date of such determination.
The Court shall rule within one month from the date of the request'.
• 1. Reasons for their annulment are confined only to procedural aspects, do not
cover the material aspects of the controlled acts
• 2. 'Acts' are: the Council's recommendations (Art. 7.1 TEU), the Council's
determination that there is a clear risk of a serious breach of the rule of law (Art.
7.1 TEU), the European Council's determination of a serious and persistent
breach of the rule of law (Art. 7.2 TEU), the Council's decision of suspending
certain of the rights deriving from the application of the Treaties (Art. 7.3 TEU),
the Council's decision to vary or revoke the latter sanction (Art. 7.4 TEU)
• 3. Other acts adopted under Art. 7 TEU may be subject to the general action of
Art. 263 co-applied with Art. 269 TFEU (cf. CJEU Judg., case ref. C-650/18)
Final (critical) remarks
- 1. Full extent and nature of sanctions under Art. 7.3 TEU is not clear
- 2. The legal consequences determined by the political body (which may seriously
interfere with the legal situation of the state and individuals) are subject only to a narrow
scope of control by the CJEU, covering only procedural issues
- 3. Issues remaining beyond judicial control include the selection of the type and severity
of sanctions, the correct application of the principle of proportionality, and even the
existence of substantive premises for establishing a negative legal effect
- 4. This quite obviously conflicts with the principle of effective judicial review, which
is an element of the rule of law
