Protecting Eu Values. A Juridical Look At Article 7 TEU

• Author: Iuliana-Madalina Larion
• Pages: 160-176

LESIJ NO. XXV, VOL. 2/2018

PROTECTING EU VALUES. A JURIDICAL LOOK AT ARTICLE 7 TEU

Iuliana-Mădălina LARION

Abstract

Every European state that wishes to become a member of the European Union (EU) must adhere

to the values enshrined in Article 2 of the Treaty on European Union (TEU). After accession, it is

assumed that all Member States are further bound by these same values, such as the rule of law.

However, the successful enlargement of the EU, especially towards the new democracies of Eastern

Europe, gave rise to the need for a means to balance this somewhat utopian view of irreversible

common ground. Thus, in 1999, in preparation for the wave of accession of 2004, the Treaty of

Amsterdam introduced Article 7 in TEU as a means of protecting EU values in the Member States. The

study makes a juridical analysis of this text, focusing on its content, its possible legal effects, its pluses

and minuses in representing an efficient means of dissuasion in relation to the Member States that have

raised concerns of serious breaches of the rule of law in the last few years. The main goal is to identify

the vulnerabilities of this legal mechanism in order to find solutions for its improvement and to suggest

complementary measures which might aid obtaining positive results. The way this matter is addressed

shall shape the future of the EU.

Keywords: European Union; values; rule of law; illiberalism; Article 7 TEU.

1. EU values in peril

In the last few years the EU’s

institutions, especially the European

Commission and the European Parliament,

have shown an increasing focus on

protecting the values enumerated in Article

2 TEU

1

. These values are meant to represent

the very basis for the Member States’

agreement to work together within this

original integration organisation, since

Article 49 TEU states that respecting and

 PhD Candidate, Faculty of Law, “Nicolae Titulescu” University, Bucharest, Judge at the Bucharest County

Court (e-mail: madalinalarion@gmail.com).

1

Article 2 TEU reads: “The Union is founded on the values of 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.” The Treaty on European Union was signed at Maastricht

on 7 February 1992 and is in force since 1 November 1993. For the consolidated version of TEU see: http://eur-

lex.europa.eu/collection/eu-law/treaties/treaties-force.html, last accessed on 10 March 2018.

2

Article 49 TEU first thesis of the first paragraph: “Any European State which respects the values referred to in

Article 2 and is committed to promoting them may apply to become a member of the Union.”

promoting them is a condition for accession

to the EU

2

.

For the most part of the EU’s

existence, neit her the EU, nor the Mem ber

States, had an y cause for concern about the

solidity of this common ground. However, at

the end of the 1990s and the beginning of the

years 2000, the European Union’ s

institutions were preparing to implement the

expansion policy towards Eastern Euro pe

and were negotiating with 12 states aspiring

Iuliana-Mădălina LARION 161

LESIJ NO. XXV, VOL. 2/2018

to membership status

3

, some of them still

undergoing a co mplex reform pro cess to

consolidate their newly found democracy.

The number of Member States was expected

to gro w from 15 to 27. In this context, the

Treaty of Amsterdam

4

inserted a new text in

TEU, former Article F.1

5

, which was

supposed to act as a preventive measure by

empowering the EU to determine the

existence of a serious and persistent breach

by a Member State of EU values and,

eventually, to “suspend certain of the rights

deriving from t he application of this Treaty

to the Member State in question, including

the voting rights of the representative of the

government of that Member State in the

Council.”

6

The Treaty of Nice

7

amended this

Article, to allow a public warning that there

is a clear risk o f a serious breach of EU

values by a Member S tate, further

emphasizing that the objective is to have the

Member State reconsider its position, rather

than act when the damage is already done.

The study shall make a legal analysis

of Article 7 TEU, in correlation to Article 2

TEU, then it shall present the steps taken so

far by EU institutions in applying this text in

response to concerns about serious breaches

of the rule of law by some Member States,

especially in the last three years.

The matter is not only recent and in

development, as it is the first time Article 7

TEU might be applied, but it is also of the

utmost importance for the future of the EU,

giving rise to a fiery debate about the

efficiency of the means to protect EU values

at the disp osal of EU institutions and about

complementary solutions that might be

3

In 2004 the EU welcomed: Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland,

Slovakia, Slovenia and in 2007 Bulgaria and Romania.

4

Signed on 2 October 1997. It entered into force on 1 May 1999.

5

Currently Article 7 of the consolidated version of TEU.

6

Article 1 point 9 of t he Treaty of Amsterdam, available at: https://europa.eu/european-

union/sites/europaeu/files/docs/ body/treaty_of _amsterdam_en.pdf, last accessed on 10 March 2018.

7

Signed on 26 February 2001. It entered into force on 1 February 2003.

8

Hillion, “EU Enlargement”, 193.

adopted, such as infringement actions or the

multi-speed EU or the differential allocation

of funds.

The study aims to identify the

weaknesses of Article 7 TEU and give

suggestions on how it could be improved, to

present the actions taken so far by EU

institutions on its basis a nd to assess their

efficiency, in an effort to see the limits of the

current mechanisms and to find

complementary ones that would favor

constructive solutions.

Given the great interest the subject

matter stirs up in legal literature, there are

quite a few doctrinal works that have taken

up the topic. The study intends to offer a

more technical ap proach, focused on the

legal texts and on the juridical aspects of the

problems being debated.

2. The legal mechanism for

protecting EU values

2.1 The creation and development of

Article 7 TEU

The 1993 Copenhagen European

Council took the view “that post-communist

central and eastern European countries had a

vocation to become members of the

Union”

8

. One of the three criteria the

European Council set out for the candidate

country aspiring to mem bership was

achieving the “stability of institutions

guaranteeing democracy, the rule of law,

human rights and respect for and protection