The mechanism provided for in Article 7(2)-(3) TEU is characterised by its political and enforcement nature. The political character of the mechanism draws on the prevalent role assumed by the Council and the European Council, even clearer than under the Article 7 (1) TEU preventive mechanism, and on the limited role that the other EU institutions, including the ECJ, have in its application.
The sanctions mechanism provided for under Article 7(2)-(3) TEU is divided into two distinct phases, in which the role assumed by either the Council or the European Council is key. During the first phase, the European Council may decide if there is a ‘serious and persistent breach’ of EU values by a Member State by unanimity. The involvement of the European Council, requiring unanimity, makes it extraordinarily difficult to satisfy the procedural threshold imposed by this mechanism. The European Council decides without the vote of the Member State concerned, but the Treaties are silent on the voting rights of other Member States simultaneously subject to the same procedure or to an Article 7(1) TEU procedure (Article 354(1) TFEU), raising the same concerns already highlighted in the analysis of the preventive mechanism. Abstentions do not prevent unanimity from being reached in the European Council. In this first phase, involvement of the Commission is limited to triggering the procedure, and involvement of Parliament is limited to giving its consent to the decision made by the European Council by the same majority as for the preventive mechanism (Article 7(2) TFEU). Although during the inter-governmental conference leading to the adoption of the Amsterdam Treaty the possibility of giving Parliament the prerogative to trigger the procedure was discussed, it was ultimately rejected with the Commission and one-third of the Member States being the only actors that can currently activate this mechanism.
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