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Respect for and promotion of the values of the Union
The European Commission suggests that a framework be created to analyse the conditions for applying Article 7 of the Treaty on European Union (EU). The communication it has adopted seeks to spell out when the prevention and penalty mechanisms can be activated in the case of a breach - or the risk of a breach - of the common values of the Union. It also lists the measures which can be taken to prevent such a breach.
Communication from the Commission to the Council and the European Parliament of 15 October 2003 on Article 7 of the Treaty on European Union: Respect for and promotion of values on which the Union is based [COM(2003) 606 final - Not published in the Official Journal].
Respect for human dignity and human rights, liberty, democracy, equality and the rule of law are the common values, enshrined in Article 2 of the Treaty on European Union, on which the European Union (EU) is based.
Respect for these principles is a condition of membership of the Union, and Article 7 of the Treaty on European Union (TEU) and Article 354 of the Treaty on the Functioning of the EU (TFEU) equip the institutions with the means of ensuring that all Member States respect these values. Article 7 of the TEU therefore establishes a prevention mechanism in the event of a risk of a breach of these common values by a Member State, and a penalty mechanism in the event of an actual breach.
Conditions of application
Certain conditions must be met for Article 7 of the TEU to be applied:
- a ‘clear risk of a serious breach’ of values mentioned in Article 2, for the prevention mechanism. At this level the risk remains within the realm of the potential, although purely contingent risks are excluded. This hypothesis provides the institutions with the means of warning the Member State in question before the risk materialises;
- a ‘serious and persistent breach’ of values mentioned in Article 2, for the penalty mechanism. In this case the risk has actually materialised. This breach must last some time.
In both cases, the breach must be serious. This criterion can be assessed based on the purpose of the breach (the social class affected for example), and its result (the breach of a single common value is enough to activate the mechanism, but a breach of several values may be evidence of a serious breach).
Article 7 of the TEU is not designed to apply to specific breaches which fall within the jurisdiction of the national, European and international courts, but to breaches which concern a more systematic problem.
Article 7 of the TEU gives the Council and the European Council a discretionary power to determine that there is a breach or a risk of a breach of fundamental freedoms. The Council also has the option of applying penalties, but is not obliged to do so. The powers of the Council and the European Council are subject to democratic control by the European Parliament, which must approve their decisions. The Court of Justice reviews the procedure only.
The European Parliament's annual report on the fundamental rights situation in the EU contributes to the elaboration of an exact diagnosis for 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 about the public’s concerns in fundamental rights matters.
The Commission also insists on the role of the network of independent experts on fundamental rights and its annual report. The network has since been incorporated into the European Union Agency for Fundamental Rights, set up in 2007, which presents an annual report on the fundamental rights situation in the EU.
In addition, the Commission will henceforth produce an annual report on the application of the Charter of Fundamental Rights of the European Union. The first report was produced for 2010. This monitoring should make it possible to detect situations where there might be breaches of fundamental rights falling within Article 7 of the TEU.
If the Commission were to propose applying Article 7 of the TEU against a Member State, it would establish concertation with the other institutions, especially the European Parliament, and with the Member State concerned at all stages of the procedure. These informal contacts would make it possible to analyse the situation and to gather the opinion of the country concerned.
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 civil society and particularly with the NGOs responsible for protecting and promoting fundamental rights is necessary. Non-Community action is often instrumental in drawing the public's attention to possible breaches.
Lastly, the Commission considers that it would be worthwhile developing a public awareness and education policy in the fundamental rights field.
The Amsterdam Treaty (1997) introduced a possibility of remedial action by the Union in the event of a serious and persistent breach of common values by a Member State. The Nice Treaty (2001) added a prevention mechanism in the event of a clear risk of a serious breach. A number of amendments to the procedure were introduced subsequently by the Lisbon Treaty (2007).