All European Union Member States are linked to respect the values, the Fundamental Rights and the principles provided in the Treaty of the European Union (TEU) and the Charter of Fundamental Rights.
More specifically, Article 2 of the TEU lays down the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including persons belonging to minorities. To ensure that these values are respected, Article 7 TEU provides for an EU mechanism to determine the existence of, and possible sanction, severe and persistent breaches of EU values by a Member State.
Article 7 TEU aims at ensuring that all EU countries respect the shared values of the EU, including the rule of law. Paragraph 1 of Article 7 TEU provides for a preventive phase, empowering one-third of the Member States, the European Parliament and the Commission to initiate a procedure whereby the Council can determine by a four-fifths majority the existence of a clear risk of a severe breach of a Member State of the EU values proclaimed in Article 2 TEU, which include respect for human rights, human dignity, freedom and equality and the rights of persons belonging to minorities.
The European Council can determine the existence of the breach by unanimity after obtaining Parliament’s consent by the same majority as for the preventive mechanism. The Council can decide to suspend certain membership rights of the Member State in question, including voting rights in the Council, acting by qualified majority. To form part of the EU membership.
Recently, due to Poland and Hungary national laws against the LGBTIQ people, that mechanism was activated.
European Union citizens are protected by several rights thanks to Union law, so respect for Human Rights is one of the EU’s fundamental obligations. These rights must be respected by each of its Member States.
But what happens when a Member State infringe a fundamental right?
If a Member State fails to properly comply with EU laws, the European Commission can start a formal infringement procedure against the country in question.
On 17th July, the European Commission starts legal action against Hungary and Poland related to the equality and the protection of fundamental rights of LGBTIQ people.
Hungary prohibits or limits access to content that promotes or portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’ for individuals under 18; and a disclaimer imposed on a children’s book with LGBTIQ content.
Polish authorities failed to fully and appropriately respond to its inquiry regarding the nature and impact of the so-called ‘LGBT-ideology free zones’ resolutions adopted by several Polish regions and municipalities.
They violate the right to freedom of expression and the right to non-discrimination as enshrined in Articles 11 and 21 of the EU Charter of Fundamental Rights. And since the European Union law has primacy over national law, they could face several problems, fines and obstacles.
Both of them have two months to respond to the arguments put forward by the Commission. Otherwise, the Commission may decide to send them a reasoned opinion and, in a further step, refer them to the Court of Justice of the European Union.
Is the mechanism in Article 7 TEU effective?