Tuesday

27th Feb 2024

Opinion

How Article 7 could actually defeat Orbán already

  • EU Council president Charles Michel (left) confronting Viktor Orban (Photo: consilium.europa.eu)
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EU leaders' annoyance with prime minister Viktor Orbán appear to have reached a new, critical level, following years of Hungary's autocratisation and challenges to the foreign policy interests of the European Union.

As reported by Politico Europe and confirmed by diplomatic sources in closed-door discussions, member states are contemplating suspending Hungarys' voting rights in the European Council through the Article 7 procedure if it again blocks the €50bn financial aid package to Ukraine at Thursday's (1 February) extraordinary European Council.

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This ultimate EU legal tool allows the sanctioning of member states in serious breach of EU values. However, unleashing the sanctions requires unanimity in the European Council — on which basis commentators usually rush to dismiss Article 7 as 'politically unfeasible'.

At the moment, Hungary and Slovakia seem to have forged a new alliance, based on the shared desire of Orbán and prime minister Robert Fico for illiberal power concentration, appeasement of the Kremlin, and resentment of Ukraine.

However, it is not the unanimity rule, but lack of strategy that is the biggest hurdle before the successful application of Article 7.

Article 7 can achieve two things: the suspension of voting rights through a unanimity vote or altering Hungary's positions by signalling that this time its EU partners really mean it seriously. The second option is deterrence and it is achievable if EU leaders set it as the goal.

Ever since the consequential slip of tongue of ex-commission president Manuel Barroso, Article 7 is often referred to as the "nuclear option" against rouge member states that disregard the EU's founding values. However, EU leaders traditionally have drawn the wrong conclusion from the allegedly nuclear nature of this legal mechanism.

Nuclear weapons are designed, produced, and kept in stockpile with the intention of never being used. But that does not mean that they are useless. Their primary impact mechanism is deterrence, which is the principal goal of nuclear strategy.

Deterrence is achieved through credible threat and signalling resoluteness to deploy the real or legal nuclear weapon once the red-line set to trigger a nuclear response is crossed. Article 7 can help member states to build a credible threat posture vis-à-vis Hungary's autocratic regime.

Furthermore, Article 7 is a two-stage weapon. Article 7 (2) of the Treaty on European Union requires unanimity to suspend the voting rights of member states "seriously and persistently" breaching EU values. However, this sanctioning arm is preceded by a preventive one, Article 7 (1), that calls for "naming and shaming" through the determination that a serious risk to EU values exists. This requires a four-fifths majority.

Reaching four-fifths

Hungary's voting rights cannot be suspended in the European Council without further ado, the procedure is simply not in that stage. In September 2018, the European Parliament triggered the preventive arm against Hungary and the procedure has remained in that stage ever since.

For a credible threat posture, the member states need to create a political and legal setup in which Orbán knows that he is always just one vote away from the suspension of Hungary's voting rights, and also that the support of fellow illiberals like Fico, cannot be seen as iron-clad, as an overwhelming EU majority puts pressure on them to abandon him.

To that end, the member states need to schedule a vote to conclude the preventive arm of Article 7 regarding Hungary. The four-fifths majority threshold might be achievable, if Germany and Poland jointly make diplomatic efforts to building a majority and, especially, bring a seemingly reluctant France on board.

Following the 'naming and shaming', the declaration that there is a clear risk of significant breach of EU values in Hungary, at least one-third of member states would then initiate the sanctioning arm and keep working to create a consensus that Orbán's next Ukraine blocking attempt will activate the nuclear option.

The mobilisation and majority-building against Hungary might alter Orbán's positions on strategic, particularly Ukraine-related issues — at least for a while.

The main goal should be the creation of a political trap for Orbán in which the hitting of the tripwire certainly triggers the Article 7 (2) vote on sanctions and the outcome of that voting appears to be at least uncertain. With that, a credible deterrence posture would be achieved.

And to maintain that posture member states should avoid one obvious mistake: falling back on old habits. The lesson the EU should have learned from the past decade is that, whenever they made a compromise with Orbán on something he was blackmailing the other member states, he always later came back for more.

Now, when trust toward him is running low, it is time to bet on deterrence.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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