EUROPA

SUMMARY

Conditions for applying Article 7 of the TEU

Article 6 (1) of the Treaty on European Union (TEU) lists the principles common to the Member States: liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. This list puts the person at the very centre of European integration. Every citizen is properly recognised irrespective of the social or cultural differences linked to national identity. Respect for these common values is one of the conditions for any State wishing to join the European Union. Article 7 TEU (introduced by the Amsterdam Treaty and subsequently amended at Nice) and Article 309 of the Treaty establishing the European Community (the "EC Treaty"), equip the Union institutions with the means of ensuring that all Member States respect the common values. Unlike the Amsterdam Treaty which allowed only remedial action after the serious and persistent breach had already occurred, the Nice Treaty (Article 7 TEU) gave the Union the capacity to act preventively in the event of a clear threat of a serious breach of the common values, thus greatly enhancing the operational character of the means already available to the Union.

The Commission considers it appropriate to look at these matters at a time when the Union is about to enlarge thereby increasing the cultural, social and political diversity between Member States. The EU's internal policies must be uniform and consistent with those it applies to third countries. Here, all double speak, rightly criticised by the NGOs or third countries, should be eschewed.

Mechanisms

The innovation made at Nice was the addition of a prevention mechanism to the penalty mechanism provided for by the Amsterdam Treaty. Two mechanisms now coexist, with the activation of the first not required for the second: they are determination that there is a threat of a serious breach (Article 7(1)) and determination that there is a serious and persistent breach of the common values (Article 7(2)).

Article 7 gives the Council a discretionary power to determine that there is a breach or a risk of a breach of fundamental freedoms. Once the Council has determined the seriousness and persistence of the breach, it may apply penalties, but is not obliged to do so. The Council's power is subject to democratic control by the European Parliament, in the form of the assent that it must give before the Council can act. The Court of Justice reviews "the purely procedural stipulations in Article 7".

The involvement of "independent persons", who can be invited to present a report on the relevant Member State in question, could help to provide an objective picture of the situation. The Commission suggests that the list of persons who could be contacted and consulted should be drawn up quickly.

Breaches

For Article 7 of the Union Treaty to be applied, essential conditions must be met: the preventive mechanism can be activated where there is a "clear risk of serious breach" and the penalty mechanism where there is a "serious and persistent breach" of the common values.

The concept of "serious and persistent" breach is included in the United Nations Charter; however, the concept of "risk" introduced by the Nice Treaty is a specific creature of the Union's legal system. A large and growing number of people often suggest that the Commission should start proceedings; the procedure laid down by Article 7 of the Union Treaty aims to remedy the breach through a comprehensive political approach. It is not designed to remedy individual breaches. The risk or breach identified must go beyond specific situations and concern a more systematic problem.

The concept of "clear risk of serious breach" enables the institutions to take preventive action. A practical example would be the adoption of legislation allowing procedural guarantees to be abolished in wartime is a clear risk; its actual use even in wartime would be a serious breach.

The serious breach criterion is common to the prevention and penalty mechanisms. A breach must be serious to activate these mechanisms. The purpose or result of a breach is a possible criterion in determining the seriousness of the breach. A breach of several values could be evidence of the seriousness of the breach even if is enough for one of the common values to be violated.
For a breach to be persistent, it must last some time and can be expressed in a variety of manners.

Regular monitoring

The common values listed in Article 6 must be respected and promoted. The European Parliament's annual report contributes to the elaboration of an exact diagnosis of the situation in the Member States of the Union. Other sources are also available (Non-Governmental Organisations regional and international case law, international organisations etc.) Individual complaints sent to the Commission and to Parliament are also sources of information.

In 2000, Parliament recommended establishing a network of authoritative fundamental rights experts. A pilot project was launched by the Commission in 2002. The network prepares an annual report on the fundamental rights situation in the Union. The published report reaches a wide audience. It is important that the Member States cooperate with the experts who are independent of both the Commission and Parliament.

Concertation between institutions and the Member States

Activating Article 7 mechanisms would have repercussions for the Union as a whole (Member States and institutions). In order to resolve the problem concertation could be necessary between Parliament and the Member State in question, which could make its view known. In addition, the Commission suggests that contact points could be designated in the Member States to facilitate liaison with the networks of independent experts.

Developments

With a view to the additional exchange of information, the Commission also suggests that contact should be made with the Council of Europe and, in particular, with the Commissioner for Human Rights. For the same purpose, a continuing and regular dialogue with the civil society which protects and promotes fundamental rights is necessary. Non-Community action is often instrumental in drawing the public's attention to possible breaches.

Education projects such as "Leonardo da Vinci" and "Socrates" are in place to help promote fundamental rights among the public. The Commission considers that it would be worthwhile developing a public awareness and education policy.

To conclude, the Commission believes that the preservation of the common values should always be at the core of every action of the Union in order to promote peace and the well-being of its peoples.