Issue link: https://maltatoday.uberflip.com/i/955503
maltatoday SUNDAY 18 MARCH 2018 Opinion 20 F ollowing the adoption by the European Parliament of Resolution 2017/2935 (RSP) on the rule of law in Malta on 15 November 2017, there has been speculation about the possible triggering of Article 7 against Malta. This resolution was adopted after endless and relentless manoeuvring by elements, both local and foreign, within the EP who unfortunately only pay lip service to Malta's national interest. Since these same elements will no doubt continue with their malicious attempts to harm Malta with sanctions and infringement procedures, one cannot exclude this possibility. I believe that it is my duty to explain to the Maltese public the nature and extent of the Article 7 procedures that may be triggered by the EU, and what may be the consequences. The first procedure, which can be triggered by a reasoned proposal by one third of the member states, by the European Parliament or by the Commission, allows the Council, acting by a majority of four fifths of its members, and with the consent of the European Parliament, to declare the existence of a "clear risk of a serious breach" of the values referred to in Article 2. At this stage the Council can make recommendations to the member-states concerned to resolve the issue. Following this preventive procedure, the second paragraph of Article 7 establishes a procedure "to determine the existence of a serious and persistent breach" by a member state of the values referred to in Article 2. This decision can only be taken by unanimity at the European Council, that is, the Heads of State or Government, the highest decision-making body of the EU. The third step is the adoption of sanctions against the member state in question by the Council acting by a qualified majority. The sanctions may include the suspension of voting rights. This means that the member state will still be bound by EU rules, but will be excluded from decision making. Aware of the political hurdles to be overcome before triggering even the preventive mechanism established by Article 7 paragraph 1, the Commission adopted a pre-Article 7 procedure which attempts to find a solution with the member state concerned before the situation develops into a "clear risk of a serious breach". In March 2014 the Commission established what came to be known as the EU Rule of Law Framework, which allows it to initiate a formal structured dialogue with a member state when it perceives a systematic threat to the rule of law. If this dialogue does not resolve the issue the Commission can trigger Article 7. This is what happened last 2017 in the case of Poland. The Commission announced that it had been fruitlessly engaged in a formal dialogue with the Polish authorities in the context of the Rule of Law Framework for almost two years, and had no other choice but to trigger Article 7. In its reasoned proposal the Commission invited the Council to declare that there was a clear risk of a serious breach of the rule of law in Poland, unless the latter replied satisfactorily to its recommendations within three months. Until last December Article 7 has never been activated, although there have been several altercations between the Union and individual member states on rule of law issues, including the recent confrontation with Hungary on the latter's judicial and media reforms. By triggering Article 7 against Poland the Commission has entered uncharted territory. There is widespread feeling among member states that Article 7 represents a "nuclear option", whose political fall-out would be difficult to manage and could irreparably damage the Union. Moreover, the Article 7 procedure is long and complicated, during which political reality may present insurmountable stumbling blocks. The crucial phase of the procedure is the unanimous decision of the European Council declaring the existence of a serious and persistent breach of the rule of law. Unanimity at the European Council will be difficult mainly because the situation in the member state under scrutiny will be perceived differently by each of the other member states. Each will take account of its own interests and existing alliances. In the case of Poland, as soon as the Commission triggered Article 7, the Hungarian Prime Minister, Victor Orban, described the whole process against Poland as a waste of time because Hungary would always be there to block the road. Complications may also arise from the diverging interests of the four EU Institutions involved in the Article 7 procedure. The European Council and the Council represent the national interests of the member states and are more likely to be sensitive to the prevailing political realities. The European Parliament represents the European electorate and each political group interprets rule of law issues according to its political orientation. The Commission is there to protect the interests of the Union and its assessment will reflect this role. The EP Resolution on the rule of law in Malta, adopted last November, makes several references to Article 7. A veiled threat of Article 7 features in the preamble where it is stated that the Union has the possibility to act in order to protect the common values on which it was founded, and that the rule of law mechanism should be applied with equal strength to all member states. Moreover, the EP calls on the Commission to establish a dialogue with the Maltese government regarding the functioning of the rule of law in Malta. This can be interpreted as a call for the Commission to initiate its pre-Article 7 Rule Law Framework. Should we be worried by this threat? In my view we should be more worried by the unjustifiable tarnish to Malta's reputation, that is the consequence of other hidden agendas, than by the possibility that this threat would actually materialise. Of the four EU institutions that are involved in the Article 7 procedure, only the European Parliament is somewhat vociferous against Malta. The Commission does not seem to be responding to Parliament's prodding fuelled by three irresponsible MEPs that are being led by other agendas and objectives, all arising from the ongoing and extensive conflicts within the PN itself at all its levels. Frans Timmermans, the Commission Vice-President responsible for the rule of law and fundamental freedoms, feels that "there is no general concern over Malta's compliance". The European Council and the Council have kept out of the debate. Moreover, the credit agency Fitch has also recently noted within its latest report for Malta "a strong rule of law and government effectiveness". In the current political scenario, both in Malta and in Europe, only the European Parliament is likely to continue brandishing the Article 7 threat against Malta. In this context one should note that the Leader of the Opposition has unequivocally stated that the Opposition would vehemently oppose such a move. Let us hope that this implies that he has the moral and above all, political authority to restrain the MEPs of his own party from militating against Malta's national interest and wellbeing, and from instigating another resolution against Malta. Time will tell! Edward Zammit Lewis Undermining national interest This resolution was adopted after endless and relentless manoeuvring by elements, local and foreign, within the EP who only pay lip service to Malta's national interest We should be more worried by the unjustifiable tarnish to Malta's reputation, that is the consequence of other hidden agendas, than by the possibility that this threat would actually materialise