Periodically, within the European scene the debate over some States is revived. Despite being members of the Union, such States do not fail to show strong contrasts with it, in particular referring to the respect for human rights and democratic values. In the last few years, Orban’s Hungary has often come into the spotlight, as it has shown authoritarian signals, especially in immigration policies. In recent days, Hungary passed a law that would attempt to "protect" minors from promoting LGBTQ+ content. Many argue that the ideology underlying this choice, and others made in the past by the same country, is in contrast with the founding values of the EU and, therefore, it is considered that continuing to collaborate with these States could harm the Union.
A first chance of reaction is offered by the infringement procedure, but the Treaty on European Union (TEU) also contemplates a more relevant hypothesis. Within Article 7 of the TEU it is provided that the Council may determine that "there is a clear risk of serious breach by a Member State of the values referred to in Article 2". These values include: "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". For this assessment to be left to the Council, however, it must be requested by the Commission, by one third of the Member States or by Parliament, which will have to approve the procedure regardless of whether the initiative is taken. In the event that this occurs, the Council will have to resolve by a majority of four fifths of its members to ascertain the presence of this risk. Even where this happens, however, the result that will be obtained will be limited to ascertaining the presence of the risk.
The following two paragraphs of Article 7 provide instead for a unanimous resolution to determine "the existence of a serious and persistent breach by a Member State of the values referred to in Article 2". However, this second possibility may result in more severe sanctions, since the Council, acting by a qualified majority, "may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council". It is therefore understood that the eventuality just contemplated is difficult to implement, as it requires that the existence of a breach is unanimously recognized.
If the first part of Article, therefore, provides for the chance of intervening in advance to protect the rule of law in the presence of a risk, the following two paragraphs contemplate instead a risk which has become a breach.
This brief overview deserves to be concluded considering that the mechanism referred to in paragraphs 2 and 3 of Article 7 of the TEU has never been used so far. However, for several years now the friction between Hungary and the European Union have progressively increased, therefore it cannot be excluded that there may be consequences - even strict ones - after the approval of the recent law, which could be considered particularly discriminatory towards minorities. The critical element, rather than residing in the fact that it would be the first concrete application of Article 7 (paragraphs 2 and 3) - not even Brexit had a precedent - concerns the required unanimity. If Poland, which in recent years has experienced a similar situation to Hungary in the EU relationship context, decides to join forces with that State, the result would be inaction, since the breach of the rule of law could not be ascertained with the mechanism just considered.
However, in other States of the Union there is an increasing feeling of contempt for the policies of the Hungarian State. It is testified by the episode related to the Munich stadium during the European football championship, in which it was proposed to illuminate the installation where Germany and Hungary would play with the colors of the rainbow. This is further testified by the condemnation position jointly expressed by the representatives of 13 EU member States (including Italy) at the meeting of the "General Affairs" Council on 22 June.
The feeling is that, despite the Union having its hands tied in many regards since the reaction tools are difficult to use, it is desirable to find a way to contrast coexistence with discriminatory policies damaging the rule of law.
Translated by Irene Leonardi