Interinstitutional Dynamics and the Limited EU Sanctioning Capacity Under Article 7 TEU

Despite ample evidence of extensive breaches to the rule of law by governments in Hungary (2011-2018) and Poland (2016-2018) and widespread academic criticism and calls for action, EU institutions have so far failed to take action. This paper argues that the interinstitutional dynamics required by article 7 create a powerful deterrent for action. Adopting a decision under article 7 requires the alignment of the decision of three EU institutions and internal decision-making dynamics respond to different rationales in each institution. Factors explaining decisions in one institution may not have the same explanatory power for others. Thus, partisanship politics dominate EP actions in relation to the rule of law mechanisms. So far, these have had the effect of impeding the activation of the preventive stage of article 7 for which EP initiative is possible. Whilst empirical evidence shows that majorities exist to back specific EP Resolutions addressed to specific member states depending on the partisanship constellation, majorities have been under the required threshold (with the exception of the 2016 vote on Poland). Hence, EP partisanship may neutralize EP initiative capacity and transfers it to the other two involved institutions. The Commission, in turn, is limited in its capacity to take action since it anticipates the effects of any possible action and, additionally, it also calculates Council’s support and the effects of failure to obtain it. This leads to a preference for engagement mechanisms that fell short of sanctioning. The Council finally resist as much as possible any possible encroachment on what can be perceived as discretionary margin for action in domestic democratic politics. These different logics of behavior cancel each other and explain the reduced action taken by the EU monitoring compliance with rule of law by the EU.