It is becoming alarmingly popular to argue that terminating the Article 7 procedures against Poland and Hungary could be a potential bargaining chip that may convince the EU’s two autocratizing member states to withdraw from the blockade of the EUR 1800 bn budget deal.
The case for making a deal is as follows: the Article 7 procedures triggered against the Polish and Hungarian governments are widely perceived as dysfunctional legal tools unable to enforce compliance with the norms of democracy or rule of law. The procedures enjoy limited support among the member states in the Council. They are also in practice in suspended animation, as there are serious doubts whether the four-fifth majority required just to “name and shame” Poland and Hungary can be reached. The unanimity required to introduce sanctions, such as the suspension of voting rights, is obviously out of reach because Poland and Hungary will protect each other.
Manfred Weber, head of the EPP group in the European Parliament, recently hinted at that opportunity in his interview given for the Belgian newspaper De Standaard, and various sources close to the German Council Presidency also confirmed that the option is being considered in Berlin and Brussels.
However, pleasing Warsaw and Budapest by ending the procedures would be a fatal mistake.
From a procedural perspective, the Article 7 processes can be terminated by putting them to vote in the Council. However, that move would simply rehabilitate Hungary and Poland and further empower their governments, who can be expected to jump on the opportunity to be more obstructive at EU level and exploit it it the domestic arena to strengthen their electoral support.
It would also deepen the rift between the European Parliament and the Council, and the Parliament could retaliate by relaunching the proceedings. In the Council itself, the termination of the Article 7 procedures could also distance the “Friends of the Rule of Law Group”—the Scandinavian and Benelux countries—from Germany.
On the substance, Poland and Hungary plainly deserve to have Article 7 procedures applied to them and have their membership rights curtailed. Their serious non-compliance with EU values, including the rule of law, protection of fundamental rights and even the basic operation of democracy has gone on too long. The “free but not fair” Hungarian elections from 2014 and 2018 are important warning signals that following the neutralization of checks and balances and critical media, that what I call “autocratization” necessarily perverts the electoral rules of democratic competition as well.
Cancelling the procedures would encourage the two illiberal governments to further extort and blackmail the European Union. The blockade of the MFF and the Next Generation EU deal by Poland and Hungary won’t be their final act of obstruction. Empowering them for the future appears to be a short-sighted, self-defeating act.
On the other hand, changes in the domestic political landscape in Poland or in Hungary may render Article 7 useful again.
The Polish governing coalition is internally divided, and could collapse, even as the ruling PiS’s standing in the polls has taken a knock following the abortion protests. And now that the opposition have joined forces in Hungary, a Fidesz defeat in 2022 is no longer beyond the bounds of possibility. If either Poland or Hungary remains alone and there is sufficient political determination, Article 7 (2) can bite really hard.
All eyes in Europe are on the Germany, who hold the presidency of the Council. The performance of German diplomacy in this crisis will have an enormous impact on the political legacy of Angela Merkel.
Merkel has already a good chance that her legacy and will be tarnished by the highly dubious protection Germany has been providing for Hungarian Prime Minister Orbán during the past decade.
Unless she would like to be remembered as the Chamberlain of the European Union, she cannot afford to make yet another concession to the regimes in Warsaw and Budapest.
Daniel Hegedus is Fellow for Central Europe at the German Marshall Fund of the United States