In July of this year, the European Commission published its second annual Rule of Law Report. The report’s country-specific sections confirm that no substantial changes have taken place in the rule-of-law situation in Hungary and Poland compared to the previous year: Poland continues to erode the credibility of the rule of law by undermining judicial independence, while in Hungary the problems affect civil society more broadly, ranging from media independence to inadequate measures against corruption. Hungary’s new law trampling on the rights of sexual minorities is furthermore yet another glaring example of how an EU member state is sliding away from a societal order that respects human rights towards a more authoritarian style of governance.
It has become clear that the union’s legal instruments for responding to rule-of-law violations are limited. Union law was drafted in “fair-weather conditions,” when potential threats were not anticipated proactively. Triggering the sanctions mechanism intended to defend the union’s fundamental values, as enshrined in Article 2 of the Treaty on European Union and included in the same treaty, requires unanimity among all member states. That requirement is a tall order when two member states are working together against the union’s values. The so-called rule-of-law mechanism included in the regulation on a general regime of conditionality for the protection of the union budget makes it possible to freeze funding flowing from the union to member states specifically in situations where misconduct is linked to the use of union funds.
The rule-of-law mechanism, tied specifically to EU funding, could – despite its limitations in scope – be the first real means of addressing the misconduct in Poland and Hungary. Members of the European Parliament responsible for budgetary affairs have repeatedly demanded that the Commission put the mechanism into swift use. One of the published reports seeks, among other things, to show that EU funds intended for renewing Hungary’s street lighting ended up, as a result of corruption, with Viktor Orbán’s son-in-law. This case of misconduct, among others, would, according to a joint report by politicians and lawyers, provide grounds to intervene in the funds allocated to the member state under the regulation governing the rule-of-law mechanism.
The stalemate between the European Union and Poland and Hungary cannot continue indefinitely. A rule-of-law report criticising Poland and Hungary for the second time is a warning sign: the Commission and other EU member states can go on verbally criticising Poland and Hungary indefinitely, but only real sanctions will make the union strong enough to defend the rule of law and the other values underpinning its work. The Commission must launch the implementation of the rule-of-law mechanism immediately.
For further information:
Henri Kaarakainen
JEF Helsinki, Board Member
[email protected]
The author is a law student and a member of JEF Helsinki’s 2021 Board.