Trust and the Procedural Requirements of Article 7(2) TEU: When More than One Bad Apple Spoils the Barrel

Abstract

This article discusses a currently hypothetical, but increasingly more likely, situation where Article 7(2) TEU is activated against more than one backsliding Member State at the same time. To prevent the offending Member States from teaming up to block the sanction mechanism, an extension of the exclusion from voting in Article 354 TFEU beyond “the Member State in question” is likely to be considered by the CJEU. However, such a use of this mechanism is contrary to the effet utile of Article 7 TEU, if interpreted in the context of trust. This interdisciplinary study uses insights from trust theory to demonstrate that the outcome will inevitably be further distrust and fragmentation between the EU and its Member States. This is why Article 7(2) TEU is not meant to be (and ought not to be) used against more than one Member State at the same time in this manner. This impression is reinforced considering that the existing legal solutions for implementing the extension of the exclusion from voting under Article 354 TFEU violate general principles of EU law and will therefore cause further distrust and fragmentation.