Article 7: Why the 'Nuclear Option' turned out to be a dud

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Article 7:

Why the ‘Nuclear Option’ turned out to be a dud

Mads Schou Dethlefsen

European Studies Bachelor Thesis 14 ECTS credits

May 24th_{, 2019}

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Abstract

The aim of this thesis is to find an explanation of the obstacles to deploying Article 7 TEU measures as we see it today. This explanation will be sought in the events in this field starting from the formation of the provision, all the way up to this writing moment. The explanation will be searched for by using the research question: What in the process of forming and amending Article 7 TEU can explain the hesitancy and hardship

to deploy the article today? Four hypotheses for explanations are identified; 1) Article 7 TEU is a political

rather than legal provision, and is thus infiltrated with political subjectiveness rather than legal objective-ness, 2) lessons from the Haider affair have caused hesitancy, 3) adding intermediate steps and alternative procedures have weakened the nature of the provision, and 4) the nuclear notion has falsely created hesitancy to take action and oblivion of the softer mechanisms of the provision. This study concludes, that to fully understand the Article 7 TEU struggles as of today, both political implications, intermediate steps, alternative mechanisms and lessons from the Haider affair has to be taken into account. This com-plexity does then confirm the sufficiency of the explanation: Many factors has played a role in forming the hesitancy and hardship to deploy Article 7 TEU, but the intergovernmental and political nature of the provision explains why it still have not been fully implemented. This is although the scope and appli-cation of the provision fully fits the problems of democratic backsliding, that permeates some of the member states of the EU.

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Table of Abbreviations

CFR Charter of Fundamental Rights

ECJ European Court of Justice

CJEU Court of Justice of the European Union

Commission European Commission

Council Council of the European Union

Parliament European Parliament

ECHR European Convention on Human Rights

EU European Union

FRA European Union Agency for Fundamental Rights

EAW European Arrest Warrant

TEU Treaty on the European Union

TEC Treaty Establishing the European Community

TFEU Treaty on the Functioning of the European Union

QMV Qualified Majority Voting

CFSP Common Foreign and Security Policy

FPÖ Freiheitliche Partei Österreichs

ÖVP Österreichische Volkspartei

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1. Introduction

”

Safeguarding its values, such as the rule of law, is what the European Union was made to do, from its inception to the latest chapters in enlargement. In last year's State of the Union speech, at a moment of challenges to the rule of law in our own member states, I addressed the need to make a bridge between political persuasion and targeted infringement procedures on the one hand, and what I call the nuclear option of Article 7 of the Treaty, namely suspension of a member states' rights. Experience has confirmed the usefulness of the Commission role as an independent and objective referee. We should consolidate this experience through a more general framework. It should be based on the principle of equality between member states, activated only in situations where there is a serious, systemic risk to the rule of law, and triggered by pre-defined benchmarks. The Commission will come forward with a communication on this. I believe it is a debate that is key to our idea of Europe.

”

- José Manuel Barroso, State of the Union Address, September 11th, 2013

The European Union (EU) has been worried by the threat of democratic backsliding since its formation more than 60 years ago. There is no question why the EU has been referred to as an experiment. The founding six member states contained two recent dictatorships and four of the countries they had invaded during the Second World War, while only a fourth of the current 28 member states had the experience of uninterrupted democracy for 15 years or more at the time of joining (Sitter 2017). One example is Spain’s accession in 1981, only a few years after three attempted coup d’états. When the EU decided to bring eastern enlargement, of some of the previous Warsaw Pact countries, to the table in the early 90’s, it became clear that a set of criteria had to be set up for the prospect member states to be able to ensure liberal democracy, market economy and human rights. Hence, the Copenhagen Criteria (Sitter 2017). However, after meeting the Copenhagen Criteria, implementing the acquis communautaire and joining the EU, some countries fall short of the criteria and experience democratic backsliding. Previously, the EU has tried to enforce sanctions on e.g. Italy (‘The Berlusconi-coalition’ and control of media), France (Illegal deportation of Romani migrants in 2009), Romania (Attempted unconstitutional dismissal of president Băsescu in 2012) and Austria (‘The Haider Affair’ in 2000) (Kelemen & Blauberger 2016).

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The European Union is broadly perceived as the “role model”-institution of the world to other regional actors and to its member states when it comes to e.g. environmental values, labor market policy and liberal democracy, enforcing its political values on its member states, and encouraging prospect member states to meet certain standards. However, the last few years have shown a strong opposite tendency, where member states, like Hungary, Poland and the Czech Republic, have experienced democratic back-sliding, meaning “state-led debilitation or elimination of the political institutions sustaining an existing democracy” (Bormeo 2016). This could e.g. be degrading of free elections, declination in liberal rights and freedoms, and compromising the rule of law (See literature review for further definition). Therefore, the EU’s image and function as the good-example-setters is jeopardized.

While a democratic deficit within the EU institutions have been widely discussed, the EU now also have to face undemocratic threats to the institution from some of the member states. When entering into the EU, all member countries has willingly committed themselves to article 2 of the Treaty of the European Union (TEU) representing some of the EU’s most fundamental values such as human dignity, equality, human rights, democracy and the rule of law. And while there might be a broadly discussed democratic deficit within the EU institutions, such as lack of citizen participation and electoral accountability, the EU should not condone democratic deficits in the national governments of the member countries (Closa et al. 2014: 29).

While article 50 TEU was recently activated by the UK for it to leave the EU, there is no article in the treaties to eject a member state. Also, article 7 TEU, which would impose sanctions onto a country and eventually suspend the country’s voting rights in the EU, has never been fully implemented. On October

13th_{, 2015, the European Parliament rejected the proposal of applying article 7 on Hungary, since the}

vote needed a two-thirds majority to pass in the parliament (Hervey & Livingstone 2016). However, the Hungarian government under Viktor Orbán has proceeded in an illiberal direction and further compro-mised democratic values, while the European Commission now has set its eyes on Poland.

Democratic backsliding and breaches of the fundamental values in the European Union has now become a big problem. Poland and Hungary are the leading examples, while countries like the Czech Republic and Romania also experiences democratic backsliding. The European Union has a provision or instru-ment for dealing with such problems: Article 7 in the Treaty of the European Union. However, the European Union are struggling with deploying the article, and many member states are hesitant to take action.

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The aim of this thesis is to find an explanation of the obstacles to deploying Article 7 TEU measures as we see it today. This explanation will be sought in the events in this field starting from the formation of the provision, all the way up to this writing moment. The explanation will be searched for by using the research question: What in the process of forming and amending Article 7 TEU can explain the hesitancy and hardship

to deploy the article today?

1.1 Literature review

1.1.1 On EU safeguards against rule of law problems

The contributors to this research topic are mostly debating the up- and downsides of the different in-struments and mechanisms the EU has, will or could utilize to combat democratic backsliding on the national level.

The contributions to this research topic are mostly revolving around the question of the EU’s ability, interests and/or hesitancy to effectively combatting democratic backsliding (see Müller 2013a; Sedelmeier 2013; Iusmen 2014; Kelemen 2015), while even lawyers and practitioners of the EU engage quite critically in the debate as well (see Closa et al. 2014; von Bogdandy & Sonnevend 2015). The following four con-tributions to the debate all pursue to develop the topic and discusses the feasibility of different instru-ments and options for the EU to safeguard its values. The three journal articles each take a different stance, or perspective rather, and are built on somewhat different political sciences. Interesting for these three contributions is, that their conclusions both overlap and contradict. Blauberger and Keleman (2016) takes a legal/judicial approach, arguing that already existing instruments could be applied more insistently to exploit the effect. This could for example be the Commission bringing infringement proceedings to the European Court of Justice (ECJ) as well as enforcing private litigation in national courts. Blauberger and Keleman are also hesitant towards novel judicial proposals and calls for greater intervention and action from not just the Commission and ECJ, but also other EU leaders and heads of national govern-ments. Schlipphak and Treib (2016), on the other hand approach the matter from a public-opinion per-spective. They do agree with Blauberger and Keleman, when they emphasize that the EU needs domestic allies and instruments to be able to successfully safeguard their values. They argue that sanctions and safeguarding should target the illiberal government rather than the country. To this end, Schlipphak and

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Treib also emphasizes that there is a great risk of EU sanctions on Hungary could backfire and strengthen nationalism and skepticism towards the EU. They therefore advice the EU to be cautious with external interventions and instead rely on bottom-up mechanisms. Sedelmeier (2016) follows this view to some extent and calls for non-binding, soft mechanism to be applied. For party-political reasons Sedelmeier does not believe that it is possible to activate material sanctions, hereunder article 7 of the TEU, but does however not discard the thought of those sanctions to have a positive effect, using the intervention in Romania in 2012 as an example. He advices the EU to rely more on social pressure, persuasion, installing a ‘democracy scoreboard’ covering all member states of the EU and a more consistent application of the Commission’s rule of law framework. Closa et al. (2014) do instead call for revisions of the treaties. They do accept the improbability that article 7 of the TEU can be implemented as it is designed today. They also accept that revisions to the treaties might be the slow and circumstantial way to go but argues that it is the only option to provide satisfactory response while upholding the legitimacy of EU intervention, thus preventing potential backfires in the national political landscapes in the form of rising EU-skepti-cism. While these contributions discuss the feasibility of potential EU instruments towards democratic backsliding and are each grounded in different perspectives, this study will not engage deeply in the normative debate nor in what direction the EU should take its safeguarding. Instead, this study will mostly focus on historical mechanisms, that led to the hesitancy and hardship to deploy article 7 TEU as of today.

1.1.2 Defining democratic backsliding

The definition of democratic backsliding can be divided into three categories of democratic and consti-tutional breaches. The first category is consticonsti-tutional capture (Müller 2007). Consticonsti-tutional capture is described as severe abuse and/or rearrangement of power within the national government, however, only using entirely legal procedures (Scheppele 2012b; Bánkuti 2012). The second category is gradual quelling and subversion of the liberal democratic system and framework, while the third category is the, perhaps more widely known, systemic corruption (Vachudova 2009).

1.1.3 Why this hardship?

As we have now established, some of the research already conducted upon this matter or research area, strongly evolves around the possible next steps to take for the EU, hereunder how to deploy article 7

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TEU differently, how to more feasibly combat article 2 TEU infringements, or even what treaty revisions would ease this process. However, most of the research on this topic completely skips the possible deeper explanations for the hesitancy and hardship to deploy article 7 TEU. Most are instead satisfied with the simple explanation: the unachievable unanimous vote necessary to fully deploy article 7 TEU. This thesis will, as most other research done on this topic, work upon the a priori premise, that there is indeed hesi-tancy and hardship to combat democratic backsliding within the EU member states. The research will however not engage in the discussion of alternative measures or treaty revisions. Also, is the discussion of why some member states are infringing the common values stated in article 2 TEU out of the scope of this thesis. Instead, the focus of this research is to find some ‘evidence’ in the timeline from the early steps of forming article 7 TEU and up until this writing moment, and thereby, be able to construct an explanation for the hardship and hesitancy in deploying article 7 TEU today. In my view, this is a pre-condition in constructing a feasible way for the EU to go from here.

In some of the previous studies, there are however fragments, or ‘evidence’, for constructing such an explanation. Budó (2014) and Sadurski (2010) point to the problematic political nature of article 7 TEU, rather than making the provision more legal or judicial. In its formation, article 7 TEU is more political than judicial in its nature, as it is the political entities and institutions of the EU that trigger, form recom-mendations and ultimately sanction the infringing member state, rather than e.g. the ECJ. Looking at the formation of the article, Sadurski (2010), as well as Leconte (2005), also point to the Haider Affair as a possible reason for political hesitancy in sanctioning a member state. One of the outcomes of the Haider Affair, was the extensive amendments to article 7 TEU, introducing intermediate steps. Later on, alter-native procedures for dealing with incompliance was also introduced, and exactly these intermediate steps and alternative procedures has, according to Kochenov (2017) caused lasting effects on the feasibility of article 7 TEU today. Kochenov (2017) also point to a different possible problem. He, together with Scheppele (2018) points at the notion of the ‘nuclear option’ as harming for the EU and its member states’ view on, relationship to and willingness to deploy article 7 TEU. Building upon these claims, this thesis will put forward the following four hypotheses or possible reasons for the hardship and hesitancy of deploying article 7 TEU today. These hypotheses will be tested, or studied rather, in other to find out whether they satisfactorily can explain the hardship and hesitancy:

1. Article 7 TEU is a political rather than legal provision, and is thus infiltrated with political sub-jectiveness rather than legal obsub-jectiveness

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3. Adding intermediate steps and alternative procedures have weakened the nature of the provision 4. The nuclear notion has falsely created hesitancy to take action and oblivion of the softer

mecha-nisms of the provision.

2. Theory and Methodology

2.1 Theoretical framework

2.1.1 Theories on compliance

As long as international, multi-national and supranational organizations and institutions have existed, incompliance has been a matter to discuss. And most probably for just as long, scholars have attempted to explain the reasons for compliance and incompliance. A traditional way of classifying compliance theories, originally stemming from international relations-disciplines, is to distinguish between realist and normative theories. A wide variety of theories exist on these two strands of thought, including neo-realism, rationalism, liberalism, institutionalism, constructivism, enforcement theory, regime theory, and many others. However, all of these are variations or elaborations of the two main theories: realism and normative theories. The aim here is therefore not to give a full overview of all the theories that exist on compliance within the discipline of international relations, but rather to outline what types of approach exist when studying compliance with international obligations. By distinguishing between realism and normative theories, the main differences between compliance theories can be captured. This difference is, put short, that non-compliance, on the one hand, can be intentional, rational, or based on cost-benefit analysis, while on the other hand it may be unintentional, unknown to the actor or based on informa-tional, communicational or capacity issues.

Realism is based on the presumption that states only follow international obligations when it is in the state’s self-interest to do so. Most realists do not see rules as affecting state behavior, but rather as re-flecting the states’ interests. Therefore, compliance will occur when a state’s international interests con-curs with its national self-interest. According to this view, non-compliance can be attributed to the lack of a central enforcement agency in the international community (Burgstaller 2005: 96). To this end, the presumption of realism is that a state, in the case of unalignment between national interests and interna-tional obligations, will only comply when it is compelled to do so. This could either be by a dominant state or some kind of enforcement system. This enforcement will realign interests with obligations, since it will be in the state’s self-interest not to be sanctioned by other member states or international

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organization of which it is a member. Realism, put shortly, claims that either 1) a hegemonic state forces or induces other states to comply, 2) treaty rules merely codify parties’ existence behavior or expected behavior in the future, thereby aligning national with international interests, or 3) the treaty resolves a coordination game, where no party has an incentive to violate the rules once a stable equilibrium has been achieved. Most importantly, according to this theory, the adoption of treaty rules themselves can correlate with, but not cause compliance (Mitchell 1994: 428).

Normative theories, on the other hand, do not postulate that state behavior can be explained solely on the basis of a state’s self-interest or cost-benefit analysis. Normative theories would rather presume, that states comply with norms guided by morality and ethics taken from natural law and justice. The central assumption underlying normative theories is that states obey international obligations out of a moral obligation to do so (Burgstaller 2005:101).

2.1.2 Theories on integration

Classic intergovernmental theories predict, that the unification process of a political entity, such as the supranational and intergovernmental EU, cannot go beyond a certain threshold of politically acceptable integration without encountering deep national divisions and sharpening tensions between the EU and the domestic societies (Leconte 2005: 620). Although neo-institutionalist theories rightly account for the development of the EU as a ‘community of values’ as it reflects in EU law and policies, classical inter-governmentalism as well as critical studies on the role of values in integration processes prove useful to explain why this latter trend in European integration is likely to produce political resistance at the national and sub-national level. By postulating the existence of a threshold separating high and low politics, these theoretical perspectives help explain why some Europeanization processes may be more contested than others, depending on the nature of the issues that are at stake. To this end, the Haider affair is a case in point, since it was the core of national sovereignty, the process of government-building itself, which was Europeanized. However, there are two elements which these theories fail to explain: The Europeaniza-tion of what was an Austrian domestic issue in the first place and the relatively high support for the principle of EU-backed democratic interference. Consociative theories and critical studies on European-ization processes could account for the apparent paradoxes in the Haider affair and explain the phenom-ena of EU norms-production and -contestation more generally. By assuming that political elites will en-courage Europeanization for strategic purposes, e.g. to legitimize their policy initiatives, as long as it does not question the monopoly they enjoy in domestic political and electoral arenas, these theories nuance

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the idea that there is some objective political threshold which integration cannot overstep by reorienting the focus on actors’ strategies and their possible instrumentalization of Europeanization processes (Le-conte 2005: 645-646).

As the aim of this thesis is neither to build, explain nor test theories, the theoretical discussion will not be unfolded further in this section. However, some theoretical considerations will be presented in the forming and explanation of the hypotheses for explaining the hesitancy and hardship to deploy Article 7 TEU.

2.2 Methods, material and source critical reflections

This study is based on qualitative research, aimed to answer the ‘what’ and ‘how’ questions of the matter, and the matter is approached inductively and interpretatively (Easterby-Smith 1991). The research is conducted with parts of the disciplines of systematic review and process-tracing. Systematic review con-sists of interpretation of subjective meaning, description of social context, and attention to lay knowledge, and stresses an extensive and transparent approach to examining the literature and précising the answers that are discovered. One of the key components of a systematic review is that the findings in the course of a literature search are scrutinized for the value of the evidence, thus, to what extend we can be assured of the findings. (Bryman 2016).

The material/sources analyzed are both primary and secondary. The primary sources occur in the form of legal documents such as the Treaty on European Union, the Treaty on the Functioning of the Euro-pean Union, the Charter of Fundamental Rights of the EuroEuro-pean Union, the Statute of the Council of Europe, and the ‘Commission v. Hungary’-case (C-286/12). The secondary sources occur in the form of various journal articles and opinion-, working-, discussion-, and research-papers. The primary sources are used to fully understand the outcome and process of Article 7 TEU, while the secondary sources are used to incorporate different views into a possible explanation for the outcome. The secondary sources take different approaches and views on the matter, and the sources are therefore scrutinized and com-pared critically to nurture objectivity. The concept of and literature on conditionality is also used in this study, to help seek answers to the issues (Vachudova 2009; Batory 2010; Botta & Schwellnus 2014; Koops 2014).

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2.2.1 Process-Tracing

The goal of many process-tracing studies is to explain a particular historical outcome, not test or build a theory of a systematic mechanism. This is termed a single-outcome study, defined as seeking the causes of a specific outcome in a single case (Gerring, 2006). Here the ambition is to craft a minimally sufficient explanation of a particular outcome.

In this study, I will use the steps of explaining outcome process tracing as put forward by Beach and Pedersen (2013: 22-28). First, I have to identify the problem: the hesitancy and hardship to deploy article 7 TEU. Secondly, I will present and justify my hypotheses. Third, I will test, or examine rather, if one of these hypotheses can explain the outcome and serve as a causal mechanism, either alone or in an eclectic conglomerate mechanism. After these steps, I should be able to conclude whether one or more of these hypotheses can serve as a minimally sufficient explanation for the outcome or not. The decision that we have a minimally sufficient explanation is based upon a subjective assessment of whether all of the rele-vant facets of the outcome have been accounted for satisfactorily, while at the same time ensuring that the evidence is best explained by the developed explanation instead of plausible alternative explanations. We can never confirm a theory with 100% certainty; instead we stop when we are satisfied that the found explanation is able to account for the outcome. According to the method, the explanation has to be sufficient beyond any reasonable doubt (Beach & Pedersen 2013: 26) and with sufficiency defined as an explanation that accounts for all of the important aspects of an outcome with no redundant factors being present (Mackie, 1965). However, this extremely strict definition will not be followed in this thesis. In-stead, an eventual explanation will be judged sufficient when it accounts for the outcome.

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3. Article 7 TEU

3.1 Background and scope of Article 7 TEU

3.1.1 Background

In the very first treaties of the EU, there was a clear presupposition of compliance by the member states with the unwritten founding values (Kochenov 2005). Enforcement of compliance was only limited to the acquis communautaire in, what is now, Articles 258 and 259 of the Treaty of the Functioning of the European Union (TFEU). This enforcement tool did, however, turn to a situation where compliance with EU law was enforced very strictly, while compliance with the core values and principles was out of reach for the supranational institutions. This situation made it obvious, that the acquis communautaire did not necessarily include the key values, and that enforcement of the acquis communautaire did not necessarily enforce the common values (Kochenov 2017: 3-4). Therefore, an articulation of supranational policing of compliance with the values was only a matter of time. Especially, given the increasing diversity of the member states as a result of many successive enlargements.

Article 7 TEU derives from the Treaty of Amsterdam (1997), as part of a preparation for enlarging the EU eastwards to some of the former Warsaw-pact countries. The article was explicitly linked to Article 6 of the Treaty Establishing the European Community (TEC), which today has become Article 2 TEU. According to Pech (2010: 359), this transformation has weakened the content of the article, namely that Article 6 TEC stated the founding principles, while Article 2 TEU today states common values. The initial version of Article 7 TEU only contained a sanctioning mechanism for a ‘serious and persistent breach’ of values, which made its scope too narrow to deal swiftly with persistent breaches, such as the situation in Austria in 2000. This situation led to an upgrade of Article 7 TEU by the Treaty of Nice (2001) to include the preventive mechanism of Article 7.1 TEU, which was made to deal with the serious and persistent threats of a breach of values. As the provision stands today, it thus incorporates three different procedures (See section 3.3) deployable to safeguard the common values of Article 2 TEU.

3.1.2 Scope of application

The scope of application of Article 7 TEU is inevitably quite a bit broader than what is implied by the principle of conferral, as it is not confined to the scope of the acquis communautaire. According to the Commission, Article 7 TEU “seeks to secure respect for the conditions of Union membership. There

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would be something paradoxical about confining the Union’s possibilities of action to the areas covered by Union law and asking it to ignore serious breaches in areas of national jurisdiction. If a Member State breaches the fundamental values in a manner sufficiently serious to be caught by Article 7, this is likely to undermine the very foundations of the Union and the trust between its members, whatever the field in which the breach occurs” (European Commission 2003: 5). This position of the Commission finds an overwhelming support in the literature. Only a very broad view of the scope of Article 7 TEU can make the provision an effective tool for safeguarding the Article 2 TEU-values. This, in particular, is why any serious breach of the EU-values in the context of member states’ actions or inaction also in the frame-work of Common Foreign and Security Policy (CFSP) is covered. Notwithstanding the fact that those, most often, are excluded from the scope of other enforcement provisions in the treaties.

All in all, as a lex specialis with a very broad scope of application, Article 7 TEU clearly does not preclude the application of Articles 258, 259 and 260 TFEU in the areas of the defense of the Article 2 TEU values (Kochenov 2017:6). While some values infringements can clearly fall within or be paralleled by a breach of the acquis communautaire, a series of systemic violations to the acquis communautaire could also amount to a serious breach of values (Scheppele 2013). This is why the Commission in its ‘Rule of Law Mechanism’ insists on approaching Article 7 TEU and standard infringement proceedings as deployable alongside (European Commission 2014).

3.2 A three-step mechanism

As explained in the background and history of Article 7 TEU, the article started as a mere sanctioning tool, and was later amended with the preventive additions in the Haider-aftermath. The article, as it looks today, is designed as a three-step mechanism. A first step is designed to identify a clear risk of a serious breach; the second step to identify the existence of a serious breach; and the third to ultimately suspend rights deriving from the EU-membership as a result of the serious breach. Although described as a three-step mechanism, the article does not necessarily have to be deployed in the direct order of the three three-steps.

3.2.1 Clear risk of a serious breach (Article 7.1 TEU)

The first step of Article 7 TEU, 7.1, can be initiated in order to state a clear risk of a serious breach of the values stated in Article 2 TEU and address recommendations on how to bring a solution to the situation in the relevant member state. Out of all the three procedures contained in Article 7 TEU can

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be done by the broadest array of actors: one third of the member states; the Parliament and the Com-mission. The essence of Article 7.1 TEU lies in pushing the member state where the breach could occur to engage in dialogue with the EU institutions in order to prevent the possible breach. This is confirmed by the provision’s authority, addressed to the Council, to issue recommendation to the member state concerned in order to prevent the breach of values from occurring. The same procedure, a 4/5 majority in the members of the Council with the consent of the Parliament, is used both for the statement of the existence of a serious risk of breach and for the adoption of the recommendations to be addressed to the member state on the brink of breaching the common values. Moreover, basic requirements of the rule of law have to be observed throughout, that is the member state subjected to the procedure has to be heard. The EU institutions also have to react to eventual changes to the risks, by regularly verifying whether the grounds for triggering Article 7.1. TEU still persists.

The 4/5 majority of the member of the Council should not be too difficult to reach, given that the member state subjected to the procedure is not allowed to cast its vote. This threshold does however not account for more than one member state in the risk of having Article 7.1 TEU activated upon them. Article 7 TEU, which requires the opinion behind the initiation of procedure 7.1 TEU to be reasoned, also requires the initiating actors to do their homework and prepare the case by collecting and systemizing the necessary information and evidence (Kochenov 2017: 8). It is also important to mention, in this regard, that the statement of the existence of a serious risk of breach under Article 7.1 TEU is not nec-essary to activate Article 7.2 TEU.

3.2.2 Stating the existence of a serious breach (Article 7.2 TEU)

There is an abyss of difference between a mere serious threat of breach of values and a serious breach of values actually observable in a member state. This abyss explains the existence of a separate procedure in Article 7 TEU for stating such a breach, as well as the much higher thresholds required by this procedure, namely, the unanimity in the Council and consent of the Parliament. Unlike Article 7.1 TEU, 7.2 cannot be initiated by the Parliament, even though the Parliament can call on others to act in the context of both 7.1 and 7.2. Stating the existence of a serious breach can be procedurally difficult, although the repre-sentative of the member state subjected cannot take part in the vote in the Council. This difficulty is however not illogical since a simple breach of Article 2 TEU is not enough to activate Article 7.2 TEU. Presumably, the requirement is a serious breach, implying a systematic nature of the breach, which means that the institutions of the member state concerned cannot resolve the shortcomings in adhering to the values, on their own (von Bogdandy 2014: 59). The objective here, is to not over-police Article 2 TEU,

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which makes the high thresholds of Article 7.2 TEU quite logical. The emphasis on the breach to be systemic helps us understand why Article 7.2 TEU was never suggested in regard to some cases of mem-ber states seemingly falling short in meeting the values of Article 2 TEU, e.g. Berlusconi’s monistic media in Italy, Sarkozy’s illegal deportation of Romani EU-citizens in France, or the Romanian Parliament’s unconstitutional attempt to impeach President Băsescu. In a certain spectrum of defiance, Article 7.2 TEU only covers the absolute extremes of it (Jakab and Kochenov 2017: 3). What is required is the constitutional capture of the member state institutions resulting in the paralysis of the liberal democracy and its institutions, and thereby making auto-corrections impossible (Müller 2007). This requirement also allows us to distinguish the situation in Poland and Hungary from the cases in Italy, France and Romania, where clear infringements were present, but could be satisfactorily dealt with by the national system and institutions (Müller 2015: 141). The infringement in the institutions of Hungary and Poland is a very particular case then, as it represents an example of ideological defiance, meaning a deliberate choice made by the government to reform the member state organs in such a way, to make committed compliance to the Article 2 TEU values merely impossible (Kochenov 2017: 10).

While naming and shaming could be a potent tool for change, shaming the member states having chosen themselves the systemic non-compliance needs to be backed by possible sanctions to be effective, and might produce little effect as of itself. This is why the core significance of Article 7.2 TEU procedure seems to lie in the fact that it opens the way to triggering Article 7.3 TEU by the Council, thus making real sanctions possible. Although, the main outcome of a successful deployment of Article 7.2 TEU is the statement of the serious breach, by the member state concerned, by the values of Article 2 TEU. Although, a member state in a serious and persistent breach of the EU values remains a full member of the EU, it will see the principle of mutual trust not applying to them in full. An example of this is Recital 10 of the European Arrest Warrant (EAW) framework, which states that the implementation of the mechanism of the EAW may be suspended when a state is found in breach of Article 2 TEU values under the Article 7.2 TEU procedure (Case C-404&659/15 PPU).

3.2.3 Suspension of rights (Article 7.3 TEU)

The third procedure in Article 7 TEU, 7.3, goes beyond the recommending and shaming nature of Article 7.1 TEU and 7.2 TEU, and implies actual sanctioning of a member state. This third procedure is initiated by the Council and requires a reinforced qualified majority voting (QMV), meaning the support of at least 72% of participating council members representing 65% of the EU population (Articles 354 and

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238.3.b TFEU). However, to be noted still, with the representative of the member state subjected to the procedure not taking part in the vote or affecting any counts towards the vote (Article 354 TFEU). Even though the procedural threshold might seem vague for sanctioning a member state, it is important to bear in mind, that to reach this third procedure, the Council has already reached unanimity when stating the existence of a serious breach in Article 7.2 TEU.

The third provision allows the Council to modify the exact span of the sanctions as it sees fit to maximize the likelihood of compliance in the concerned member state. While the provision deals with the suspen-sion of certain rights deriving from the application of the Treaty, it is clear that the sanctions meant to be invoked can be both economic and non-economic in nature. Both access to EU funds and voting rights in the council can be affected. While some literature on the matter is skeptical of the effect of such sanctions, in the cases where a member state is heavily reliant on EU funds and the prestige of the EU institutions, retaining funds or disenfranchising the member state in the Council could probably bring the desired effect. Article 7.3 TEU has, however, never been invoked, and there is therefore no successful example to cite here. Article 7.3 TEU does certainly not authorize the exclusion of a member state from the EU. The very issue of membership of the EU cannot be put in question during this procedure (Besselink in Jakab and Kochenov 2017: 130), only Article 50 TEU guides leaving the EU, while there is no provision for expulsion of a member state.

Lifting the sanctions is very easy under Article 7.4 TEU. Again, a simply QMV in the Council without the participation of the member state concerned is required. Importantly, the same procedure applies to altering the substance of the sanctions.

3.3 Why the hesitancy and hardship?

This thesis aims to explain the problems in deploying Article 7 TEU. To do that, four hypotheses for plausible explanations has already been presented earlier in this paper, and this part will thus go a step further, and dig into these hypotheses and their impact on the feasibility of Article 7 TEU deployment.

3.3.1 A political rather than legal provision

Here I will examine hypothesis 1: Article 7 TEU is a political rather than legal provision and is thus infiltrated with political subjectiveness rather than legal objectiveness.

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Years and years after Article 7 TEU’s entry into the treaties of Amsterdam and Nice, it still remains far from fully deployed, although the Article 7 TEU process has been initiated. Article 7 TEU bestows power only on the political institutions of the EU, and as a clear consequence of that, the criteria for the appli-cation of the provision is wide open for interpretation by the politicians (Van Hüllen & Börzel 2013:19). This could be a main reason for the hesitancy and hardship, or even unwillingness to deploy the provi-sion. Perhaps, the unwillingness to deploy the provision is stronger than the concern for a serious breach of the common values stated in Article 2 TEU (Pinelli 2012: 6). Furthermore, the lack of a sharp, precise and approved definition of what actually constitutes a risk to, or serious breach of the common values leaves us with a wide scope for political interpretations (Van Hüllen & Börzel 2013: 22).

There are institutional obstacles to an effective deployment of the provision, as it requires certain major-ities in the Council and Parliament. But more particular, an eventual suspension of membership rights is only based on intergovernmental decision. To this end, it might seem obvious that member states, thus the European Council and the Council, consisting of member state representatives, are hesitant towards initiating the procedures of Article 7 TEU, and see it as the last resort. Moreover, the member states are often unwilling to engage and deploy a provision and sanctioning mechanism, that eventually could be turned towards themselves (Budó 2014: 7). The Commission is also very hesitant towards applying Article 7 TEU, most likely to prevent conflicting member states.

The Parliament has through numerous and serious debates, contemplated the activation of Article 7 TEU, but has however come short in forming a required majority. Actually, the ability of the Parliament to act in a specific case is more related to its political affiliation than to a real interest in protecting democracy and the rule of law. The Parliament’s actions strongly depend on the current political compo-sition or environment within itself. In 2012, the Parliament highlighted the problems with democratic backsliding in several member states, while numerous members of the Parliament complained about the lack of political will to activate Article 7 TEU and restated the need to create a new mechanism in order to reinsure compliance with Article 2 TEU (EP Working Document 2012).

Considering the positions of the European institutions, it could be that only small and relatively powerless member states could realistically become subject to the interventions of the EU. This view could be regarded as a kind of ‘EU hypocrisy’ that delegitimatizes the EU institutions in both the member state concerned and possibly across the EU as a whole (Pinelli 2012: 6; Müller 2013b: 1). Member states might object to the application of Article 7 TEU on the basis of Article 4.2 TEU appealing for respect of their

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national identities from the EU. To this end, the question arises whether the respect for national identities might legitimize member states to derogate the values from Article 2 TEU (Pinelli 2012: 7; Capitani 2012: 4).

Another question that emerges is the role of the Court of Justice of the European Union (CJEU). The mechanism under Article 7 TEU does not provide any role for the CJEU. During the intergovernmental conference in 1996 during the formation process of Article 7 TEU, it was suggested, that the CJEU should have a much more important role in initiating the provision (IGC Progress Report 1996: 3). The idea turned out to be a nonstarter and Article 7 TEU became thoroughly political, with no traces of a legal or judicial character in the procedure. This is most likely because of the member states’ reluctance to submit themselves to a constraining legal mechanism which could go, partly at least, beyond their full control (Sadurski 2010: 9). Despite the suggestions by the Council during the intergovernmental confer-ences prior to the Amsterdam and Nice treaties, the TEU does not provide the power of judicial review of the decision for the CJEU to determine the existence of a serious and persistent breach of common values or a clear risk of such a breach. Moreover, the Lisbon treaty has repealed Article 46.e TEU under the Nice treaty, which let the CJEU review “purely procedural stipulations in Article 7 TEU and allowed the state’s rights to be respected”. Nonetheless, this does not mean that the CJEU is totally excluded in the case of a violation of the Article 2 TEU values. The CJEU can intervene in accordance with the infringement procedure under Articles 258-260 TFEU (Pinelli 2012: 10). The CJEU may also act if the sanctioned member state submits an application for annulment of the Council’s decision. The CJEU could asses the legality of the sanctions imposed, and more specifically, it could decide whether any of the common values were violated and were actually a case of serious and persistent violation. However, it is for institutions involved in the mechanism to define the existence, severity and persistence of the violation. The CJEU has ruled on other relevant issues, such as the notion of ‘state’ in the case of a breach. In this regard, the CJEU has in several judgements considered, that the violation may come from the legislative, executive, and judiciary, as well as from the central, federal, local and decentralized author-ities (Budó 2014: 3).

3.3.2 Lessons from the ‘Haider Affair’

Here, I will quickly outline the events of the Haider affair, and examine hypothesis 2: Lessons from the Haider affair have caused hesitancy.

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During, what is now known as, ‘The Haider Affair’, Austria was for a short time sanctioned. Five months after the Austrian general election of 1999, the leader of the center-right Austrian People’s Party (ÖVP), Wolfgang Schüssel, snatched the power and the Chancellor chair from the Social Democratic Party (SPÖ), by forming a coalition with the far-right Freedom Party (FPÖ), led by Jörg Haider, after whom ‘The Haider Affair’ is named. Soon after 14 member states (EU14) of the Council, led by the, then, Portuguese prime minister, launched a series of diplomatic sanctions against Austria, including ceasing bilateral political contacts with the Austrian government, reducing contact with Austrian ambassadors at a technical level, and suspending support for Austrian candidates for posts in international organizations (Bugaric 2014). A few member states even cut educational and cultural exchanges (Teasdale 2012). As the sanctions were initiated and carried out by the EU14, and therefore not as an official EU state-ment, the sanctions were, according to Cramér and Wrange (2001), exempt from article 4.3 TEU about mutual respect and sincere cooperation (TEU C83/18 2010). Only about nine months later, the sanctions were lifted, after the president of the Council had been advised to do so in a report issued by a council of experts appointed by the European Convention on Human Rights. The council of experts were called the ‘Three Wise Men’, and consisted of a former President of Finland, Martti Ahtisaari; a former Spanish foreign minister, European commissioner and secretary general of the Council of Europe, Marcelino Oreja; and a leading German lawyer, Jochen Frowein. Other than advising to lift the sanctions on Austria, the ‘Three Wise Men’ had other proposals, three of which turned out to make great impact on the insti-tutional development of the EU. First, they suggested an amendment to article 7 TEU, which was initi-ated by the Nice Treaty to offer a mechanism, that could gradually escalate measures. Second, the report suggested the formation of a European human rights agency, which was founded in Vienna in 2007 in the form of the European Union Agency for Fundamental Rights (FRA). Third, the ‘Three Wise Men’ advised to amalgamate a ‘Bill of Rights’ into the EU Treaties, which we today know as the Charter of Fundamental Rights (CFR) (Teasdale 2012).

In the aftermath of the sanctions on Austria there was great criticism of the decision by the EU14, claim-ing that the sanctions were incitclaim-ing right-wclaim-ing populism, harmclaim-ing the supranational position of the EU institutions, disrespecting the democratic processes, abating European integration support, neglecting a viable way out and, potentially, setting a problematic precedent (Cramér & Wrange 2001:31-32). The report by the “Three Wise Men” did conclude, that the sanctions had been counterproductive (Teasdale 2012), however, during the roughly nine months, the sanctions were in action, the EU did gain some compliance from Austria. During the nine months, the two first directives on counteraction of

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discrimination (Directives 2000/43 and 2000/78) was adopted with the Austrian vote; to pull the Euro-pean Convention on the CFR to a positive end; while the FPÖ lost popularity and Jörg Haider himself, resigned his leadership of the party (Capitani 2012). However, even years later, it is almost undisputed that the EU14’s sanctions on Austria were highly problematic. (Müller 2013a). Even though Haider and FPÖ’s political opinions trivialized or even approximated some parts of national socialism, if looked upon though a judicial lens, the Austrian government did not infringe any EU treaties. Thus, the EU14’s diplomatic sanctions were mainly conjured and justified by the political proclamations of Jörg Haider (Bugaric 2014). One important consequence from the Haider affair was, that it led to a chilling effect preventing the effective deployment of Article 7 TEU when the problems with living up to the values are strongly observable. In this case, Austria being constantly and erroneously cited by the EU institutions as a tale of caution about the heavy implications of the use of Article 7 TEU (Timmermans 2015). The lesson learned in the Haider affair showed the risks of the exclusively intergovernmental character of the decision since they changed the purpose of the sanctions, making them appear as a clear tool of national interests. One factor, that strongly influenced the Haider affair and still could influence the current Article 7 TEU situation, is the relative weakness of the current state of integration in the political sphere. Here, the Europeanization of the Haider affair ran into some obstacles. The first obstacle is the logic of diversity. There is not a shared understanding and definition amongst Europeans of right-wing extremism, nor is there a consensus in the big political parties of the EU system on how to relate to members who engage in coalitions with right-wing populists. Also, the debate on the possible sanctions constantly overlaps with the rising debate on Euroscepticism, directed towards EU law and policies on cultural and normative issues (Leconte 2005: 644). The attempt by mainstream domestic political actors to selectively use the processes of Europeanization may backfire on them by intensifying the perceived democratic deficit as a result of the gap between Europeanized decision-making systems and the neglect of European issues in the domestic arena and political campaigns.

The hesitancy, unwillingness and reluctance of domestic political elites to institutionalize a principle

which might backfire against their own countries and Europeanize interference competencies, is ac-counted for both in the events of the Haider affair and by the concept of spill-over effect in intermental theories. Already in February 2000, under a month after the formation of the Austrian govern-ment and the sanctions were invoked, the German Chancellor Gerhard Schröder advocated for EU-sanctions against an eventual Italian government containing Alleanza Nazionale and Lega Nord. Almost simultaneously, the Swedish Prime Minister advocated for similar EU-backed sanctions against an

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eventual Danish government containing Dansk Folkeparti. As it became clear, that the sanctions were initiating a spill-over effect and that other national government coalitions in EU could be sanctioned as well, most EU leaders feared that the Haider affair could set an unwelcome precedent which ultimately could hit their own counties. In Ireland, opponents of the sanctions asked their government to withdraw its support for the sanctions on the ground fear for sanctions against an eventual Irish government con-taining Sinn Fein.

The Haider affair and the current Article 7 TEU issues are two further indications of these counter-productive consequences. Former advocates of the sanctions on Austria have not derived gains from the sanctions. Instead, they have been widely criticized for the failure to defend a coherent standpoint on the issue (Mair 2000: 49). The fragility of the EU as a strong value-defender and -enforcer resides in this instrumentalization of EU norms by mainstream political elites. A strategy which eventually plays into the hands of the populist forces they intend to fight.

3.3.3 Addition of intermediate steps and alternative procedures

Here, the third hypothesis, namely the addition of intermediate steps and alternative procedures to Article 7 TEU, and its impact on the article’s feasibility will be examined.

Even though the thresholds for triggering Article 7.1 TEU are rather low, the Commission has introduced the Rule of Law Mechanism. This mechanism is a non-binding explanation on how the Commission can prepare its own activation of Articles 7.1 and 7.2 TEU (COM[2014]158). Published in 2014 and used rather inconsistently against Poland, but not against Hungary, the mechanism has not had any positive effect so far (Kochenov & Pech 2016). In introducing the mechanism, the Commission aimed at intro-ducing some informal dialogue with the infringing member state before Article 7 TEU is triggered. The Commission would then address recommendations to that member state and receive replies. Undeniably, this Rule of Law mechanism looks suspiciously like a double of Article 7 TEU, only with no involvement of other institutions (Kochenov & Pech 2016).

Perhaps, the biggest effect of the Rule of Law mechanism’s deployment can be the delay in triggering the Article 7 TEU. Although the other institutions, that do have the power to trigger Article 7 TEU, are not obliged to wait for the Commission to finish their own procedure. The Commission comes off as inco-herent and inconsistent in managing its own mechanism. This became in particular evident when the

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Commission deployed the Rule of Law Mechanism against Poland, while Hungary went clear and was not accused, although the situation there was and had been just as bad, if not worse, for quite some time. Other than that, the Commission also came off as incapable of sticking to the steps of the procedure. Following Poland’s refusal to cooperate with the Commission and listen to the recommendations, the Commission, instead of triggering Article 7.1 TEU as the Rule of Law Mechanism requires, came up with a new impromptu recommendation instead. All this while, the situation in Poland continued to deterio-rate. This situation demonstrated, that triggering Article 7 TEU and the alternative mechanisms could inflict tactical implications. Having accused one out of two currently backsliding member states, the Commission handed over the veto power over any serious move under Article 7.2 TEU against Poland to Hungary, making the deployment of the provision impossible. To this end, the Rule of Law Mecha-nism has de facto become a semi-official step preceding the deployment of Article 7 TEU, which could be a possibility. However, the undermining of the effet utile of the provision by the Commission thus goes even further and creates a dangerous precedent (Kochenov 2017). To be fair, the Rule of Law Mechanism has proven to be useful in that it builds on the Venice Commission practice in defining the elements of the rule of law, which could be useful to the EU institutions in stating the risk of breach under Article 7.1 TEU.

3.3.4 The nuclear notion

In this part hypothesis four, more specifically, the literature on the nuclear notion and its consequently rebranding of Article 7 TEU, will be examined.

In the State of the Union address given in September 2013, the former President of the Commission, José Manuel Barroso, highlighted the increasing “challenges to the rule of law in our own member states” in the context of which he referred to Article 7 of the Treaty on European Union as the EU’s “nuclear

option” (Barroso State of the Union Address 2013). When doing so, however, he only mentioned the

suspension of a Member State’s rights. This proved to be a rather unhelpful label as it undermined the preventive nature of Article 7 TEU, and furthermore led to a widespread belief that Article 7 TEU only involved excluding the Member State from participation in EU decision-making. As previously noted, this is however not correct because this provision also contains a preventive mechanism provided for in Article 7.1 TEU, which can hardly be described as ‘nuclear’. It merely consists of enabling the Council to formally recognize the existence of a risk of serious breach and adopt recommendations to address the situation (Scheppele & Pech 2018). Today the nuclear notion is perhaps the most popular

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presentation of Article 7 TEU. This is based on the assumption that deploying the provision is extremely difficult and the results of its application are too devastating, to make this feasible (Kochenov 2017: 6). This view does however ignore the differences between the three procedures of Article 7 TEU and that the three procedures can be activated separately. The three paragraphs of Article 7 TEU are thus not necessarily part of one procedure with three steps (Kochenov & Pech 2016). As the Council has adopted the restrictive interpretation of Article 7 TEU, the Council has often invoked alternative measures in each case and ruled out Article 7 TEU as the ‘nuclear option’. This has caused situations where the Council has merely threatened to start infringement procedures, but in fact never intended to do so (Budó 2014: 7), completely neglecting that the preventive mechanism of Article 7.1 TEU is intended to do exactly that.

3.4 Plausibility of the hypotheses

As the four hypotheses has now been explained and defended, they will in this part be taken into scrutiny to consider whether one or more of them can provide a plausible and sufficient explanation for the hesitancy and hardship to deploy Article 7 TEU. To recap, the four hypotheses are 1) Article 7 TEU is a political rather than legal provision, and is thus infiltrated with political subjectiveness rather than legal objectiveness, 2) lessons from the Haider affair have caused hesitancy, 3) adding intermediate steps and alternative procedures have weakened the nature of the provision, and 4) the nuclear notion has falsely created hesitancy to take action and oblivion of the softer mechanisms of the provision.

The research of hypothesis 1 in part 3.3.1 showed that Article 7 TEU is in fact a political rather than legal provision, where the legal institutions are far from the decision-making competencies. This has caused, that the provision is far infiltrated with political implications rather that the judicial objectiveness. These political implications can rightly account for the hesitancy, unwillingness and reluctance of domestic po-litical elites to institutionalize a principle which might backfire against their own countries and ultimately implies a far-reaching Europeanisation of domestic politics and party strategies. These political implica-tions could also very well be the explanation for the tumultuous political events of the Haider affair. This research cannot prove any direct linkage or correlation between hypothesis 2, the lessons from the Haider affair, and the current situation with deployment of Article 7 TEU. Some reasons for this are e.g. that the sanctions invoked during the Haider affair was outside the scope and application of Article 7 TEU, and that the preventive mechanisms of the article were not yet included into the TEU. The nature and scope of Article 7 TEU was thus completely different during the Haider affair, compared with today.

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The connection that can be made is, however, that the political implications and political nature of Article 7 TEU was perhaps the main reason for the incoherent and inconsistent events in response to the Aus-trian government. This connection is very strong. The research shows, that the EU leaders tend to only nurture integration when it clearly brings advantages to their domestic constituencies. On the other hand, the leaders rear when the integration process potentially could wash out the borders between the national constituencies, on which the leaders’ legitimacy rests. This selectivity became evident during the Haider affair when the EU leaders framed the sanctions against Austria as strictly intergovernmental. This showed clear hesitancy to Europeanize the competencies to democratic interference in national arenas. Also, the spill-over effects produced by the sanctions invoked against Austria did in fact trigger a backlash effect among national political leaders, since they consequently tried to prevent any repetition of the Haider affair in the future.

Furthermore, the research has shown, that hypothesis 3, the addition of intermediate steps and alternative procedures to Article 7 TEU, has indeed changed the nature of the provision, and even weakened the feasibility of the provision. Especially, the Commission’s Rule of Law Mechanism has de facto become a first and inefficient step to be activated before proceeding to Article 7 TEU deployment. There is how-ever no measurable effect of this, but there is a clear connection between the political implications and the introduction of the Rule of Law Mechanism. When it comes to the research of the fourth hypothesis, the impact of the nuclear notion, there are some scholars who deem the nuclear notion hurtful for the debate of Article 7 TEU deployment. There is however no tracible causality or correlation between the introduction and popularization of the nuclear notion and the hesitancy and hardship to deploy Article 7 TEU.

The political nature and implications of activating Article 7 TEU proceedings is a certain factor in the hesitancy and hardship to fully implement the tool against democratic backsliding. Furthermore, what this research has found is, that there is not so much hesitancy as there is political unwillingness to proceed along the mechanisms of Article 7 TEU. This unwillingness is an unveiling of domestic political elites’ reluctance to institutionalize a principle and provision which might backfire against their own countries and Europeanize interference competencies, hence their willingness to selectively use the processes of Europeanization.

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4. Conclusion

The aim of this thesis is to find an explanation of the obstacles to deploying Article 7 TEU measures as we see it today. In doing so, a review of the existing literature on Article 7 TEU matters identified four hypotheses for explanations; 1) Article 7 TEU is a political rather than legal provision, and is thus infil-trated with political subjectiveness rather than legal objectiveness, 2) lessons from the Haider affair have caused hesitancy, 3) adding intermediate steps and alternative procedures have weakened the nature of the provision, and 4) the nuclear notion has falsely created hesitancy to take action and oblivion of the softer mechanisms of the provision.

The study of the hypotheses showed, that there is no tracible causality or correlation between the intro-duction and popularization of the nuclear notion and the hesitancy and hardship to deploy Article 7 TEU. The research does however show, that the other three hypotheses and the situation we see today can be connected. The addition of intermediate steps and introduction of alternative mechanisms has had an impact on the feasibility of Article 7 TEU today. As well as the lessons learned from the Haider affair also has changed the way, the countries are willing to utilize the provision. Although there can be made clear connections between these two hypotheses and the hesitancy and hardship we see, they do not completely account for the current situation. Both the intermediate step, the alternative mechanism and the lessons learned from the Haider affair are however both great examples, or results rather, of the intergovernmental and political nature of Article 7 TEU. Exactly this, is the explanation that this research is able to confirm. Since the provision is purely intergovernmental with no judicial string, its initiation- and thresholds are strongly infiltrated with political considerations. This has created strong hesitancy, or unwillingness rather, among the political leaders of the member states, partly to set a precedent which might backfire against their own countries and partly to further incorporate far-reaching Europeanization of domestic politics and party strategies. This study thus concludes, that to fully understand the Article 7 TEU struggles as of today, both political implications, intermediate steps, alternative mechanisms and lessons from the Haider affair has to be taken into account. This complexity does then confirm the sufficiency of the explanation: Many factors has played a role in forming the hesitancy and hardship to deploy Article 7 TEU, but the intergovernmental and political nature of the provision explains why it still have not been fully implemented. This is although the scope and application of the provision fully fits the problems of democratic backsliding, that permeates some of the member states of the EU.

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This thesis has identified a causality chain, that has not been identified in the previous research. Not only has it presented an explanation for the outcome, it has also identified a chronological causality chain connecting the events. Article 7 TEU was political rather than judicial from its formation. This political nature is what caused the chaotic events of the Haider affair. The lessons from the Haider affair created the incentive to introduce the preventive mechanism, high thresholds and alternative procedures, which ultimately has hurt the feasibility of the provision today. Unlike the previous research on the topic of Article 7 TEU, this research has been able to connect the problem of the political nature of the article with the events in context to Article 7 TEU and Article 2 TEU compliance.

Another interesting and unexpected finding in the research was, that not only are the member states reluctant to activate a provision that could potentially be directed towards themselves, they also take a selective stance to Europeanization. Most evident in the reluctance of mainstream political actors to allow the principles agreed upon at the level of European party federations to constrain parties’ strategies and choices in domestic political arenas. This also proves, that the classic intergovernmental theories, which predict that the unification process of a political entity cannot go beyond a certain threshold of politically acceptable integration without encountering deep national divisions and sharpening tensions between the EU and the national politicians, only partly explain the situation we see today. We also have to take into account the consociative theories, which can explain the selective Europeanization, where national political entities will not encourage Europeanization if it jeopardizes the monopoly they enjoy.

Although the explanation cannot be confirmed with 100% certainty, the judgement that has been made in this study assesses that the explanation is able to account for the outcome and serves well over a minimally sufficient explanation. To be able to craft an explanation of even higher certainty, a more far-reaching examination of internal documents and negotiation behaviors of the political leaders would have to be undertaken.

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Article 7: Why the &apos;Nuclear Option&apos; turned out to be a dud