by Gisela Hernández
Liberal democracy has been systematically dismantled in Poland and Hungary. Despite a wide arsenal of enforcement instruments, the European Union (EU) institutions have not been able to tackle this rule of law (RoL) crisis. Indeed, Article 7, the Treaty provision designed to address systemic violations of fundamental values, has been dragging on in the Council for six years. Criticisms of Art.7 have focused on the high majority thresholds needed to address both recommendations contained in part 1 and sanctions contained in parts 2 and 3. However, the paper I have recently published in JCMS argues that the difficulties in making effective use of Art.7 are not limited to the decision-making phase, but begin at the agenda-shaping stage. Holding hearings, which are a key part of the procedure before the Council can decide, has turned into a kind of “activism” for Presidencies advocating for enforcement as well as a way to monitor the regressing governments in the Council.
Article 7.1 hearings during the Presidencies
The Council Presidency, which rotates every six months among member states, plays a key role. National governments can individually influence whether or not Art.7.1 hearings are held during a given period thanks to the agenda-shaping powers provided by the privileged position in the rotating Presidency.
From 2018 to the first semester of 2022, five hearings on Poland and four on Hungary took place. Six of the nine Presidencies – Romania, Finland, Croatia, Portugal, Slovenia and France – aligned their preferences on the enforcement of the RoL with the outcome of the Council’s activity. However, contradictions can be observed during the Austrian, Bulgarian and German terms.
Most national governments showed a preference against the enforcement of the RoL – Austria, Bulgaria, Romania, Croatia and Slovenia. However, preferences against advancing Art.7.1 through hearings were openly expressed at the very outset of the procedures, and have become more nuanced over time.
The use that the Presidencies make of the different agenda-shaping strategies is key to determining the outcome. Firstly, for hearings to take place, the Presidencies must combine agenda-setting (i.e. making the issue salient by putting it on the agenda) and agenda-structuring (i.e. putting the issue on the agenda of the General Affairs Council (GAC), the Council configuration in which hearings take place). This is the case for the Finnish, Portuguese and French Presidencies. Second, some Presidencies opted only for agenda-setting – Croatia, Germany and Slovenia -, but none of them held hearings. A third group of Presidencies – Austria, Bulgaria, Romania – opted for agenda-exclusion (i.e. avoiding discussion on the subject), though only one of them managed not to hold any hearings.
Commission’s perceived opportunities to influence the agenda
The Commission normally introduces policy proposals when the Presidency has preferences relatively close to itself. However, regarding Art.7.1 hearings, the Commission used its agenda-shaping powers when the Presidencies showed an anti-enforcement preference and opted for agenda-exclusion. The Commission requested hearings against Poland during the Bulgarian and Austrian Presidencies, but did not force the issue onto the Romanian Presidency’s agenda, possibly since the Romanian executive itself faced the Art.7 threat and thus the Commission might have preferred not to escalate tensions.
Additionally, these requests took place during the Juncker Commission. Conversely, the von der Leyen Commission has displayed less interest in Art.7, and a preference for other RoL enforcement tools. This shift of approach also coincides with an increased attention paid by the Presidencies to the RoL crisis.
Since 2020, although some governments have shown a preference for opposing Art.7, all have made use of agenda-setting in relation to the protection of the RoL and this article. This could increase the costs for the Commission of requiring a hearing: it could be perceived as not trusting the Presidency to stick to its commitments.
The trio agenda
Coordination among different Presidencies is organised in trios, which agree on a joint 18-month agenda. A striking fact is that none of the trio’s programmes contained references to Art.7. Nevertheless, the attention to the RoL crisis has increased over time. In none of the trios studied is a homogeneity of preferences for the enforcement of the RoL identified, and therefore the Presidencies avoided coordination in relation to Art.7.1 hearings in the trio’s programme.
The COVID-19 pandemic impacted the hearings: the German Presidency announced that the Council would not to conduct them in the videoconference format to which the GAC was obliged to be held. This also could have helped it not to escalate tensions with the Polish and Hungarian executives which, at that time, vetoed the MFF as a result of the Council’s adoption of the Conditionality Regulation.
No mentions to other crises have been found in the Presidencies official documents that justify the non-holding of hearings for a given period. However, it is likely that the need for the Council to reach consensus on how to handle external crises has prevented the Presidencies from acting more determinedly on Art.7.
While they are expected to act as “honest brokers”, the Presidencies use their agenda-shaping powers to steer the Council’s RoL enforcement activity in their preferred direction. This raises serious doubts about the evolution of this policy area during the forthcoming Hungarian and Polish Presidencies, scheduled for 2024 and 2025. Both governments are not only subject to Art.7 procedures, but in the Hungarian case the Conditionality Regulation is also currently enforced.
National governments with preferences in favour of RoL enforcement appear to be able (or willing) to drive the Council to exercise its prerogatives in this regard through scrutiny (hearings), but not through recommendations or sanctions; the hearings have thus become a form of “activism” for these Presidencies.
Gisela Hernández is currently developing her Ph.D. project on rule of law enforcement in the European Union at the Institute of Public Goods and Policies of the Spanish National Research Council (IPP-CSIC) and Universidad Autónoma de Madrid (UAM). She has been visiting researcher at the Institute for European Studies – Université libre de Bruxelles (IEE-ULB). Previously, she took part in the H2020 RECONNECT Project as a research associate and worked at the European Council on Foreign Relations, Madrid Office, researching on migration and border management issues in the EU. She has published in Politics and Governance and The Hague Journal on the Rule of Law. You can follow Gisela and IPP-CSIC on Twitter.