Abstract
The paper claims that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with backsliding Member States the EU institutions using both the traditional mechanism (infringement procedures and Article 7), and the newly established Rule of Law Framework have proven incapable of enforcing compliance, which considerably undermined not only the legitimacy of the Commission, but also that of the entire rule of law oversight. Hence, new means of value conditionality should also be activated, such as cutting funds for member states that do not comply with certain basic institutional requirements of the rule of law. As the paper argues, this is possible through implementing the Common Provision Regulation, and can be carried out on a case-by-case basis. Putting conditionality into the Multiannual Financial Framework after the 2020 budget period is another potential avenue to enforce compliance with joint values.
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Notes
Article 258 of the Treaty on the Functioning of the European Union (TFEU): “If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union”.
The European Council, acting by unanimity on a proposal by one-third of the Member States or by the European Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 after inviting the Member State in question to submit its observations.
“On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply”.
As formulated wittily and appositely by Israel Butler: “…the EU needs to respond with more than just warnings that it will deliver further warnings”. https://www.liberties.eu/en/news/to-halt-polands-pis-go-for-euros.
About the history and the recent debates on spending conditionality in the EU see (Vita 2017a).
See (Pech 2016).
The Croatian enlargement was somewhat special, as it was part of the EU’s Stabilization and Association Policy and the conditionality was different as well. It included, inter alia, collaboration with the ICTY. I am grateful to Elisabeth van Rijckevorsel for pointing this out.
(Kochenov 2004). A more positive evaluation claims that the EU’s refusal to start negotiations with Slovakia under Meciar is a proof of political conditionality. See (Pridham 2002). Some political scientists, like Frank Schimmelfenning and Ulrich Sedelmeier were for a long time rather optimistic about the impact of EU political conditionality. See (Schimmelfenning and Sedelmeier 2004).
See W. Nozar, ‘The 100% Union: The Rise of Chapters 23 and 24’, https://www.clingendael.org/sites/default/files/pdfs/The% 2010).
See. (Hillion 2013).
About the so-called ‘Copenhagen dilemma’ see (Closa 2016).
(Vachudova and Spendzharova 2012).
See (Bátori 2016).
(Selejan-Gutan 2018).
On 11 March 2013, the Hungarian Parliament added the Fourth Amendment to the country’s 2011 constitution, re-enacting a number of controversial provisions that had been annulled by the Constitutional Court. The most alarming change concerning the Constitutional Court annulled all Court decisions prior to when the Fundamental Law entered into force. With the removal of these fundamental Constitutional Court decisions, the government has undermined legal security with respect to the protection of constitutional rights in Hungary.
For the original, Hungarian-language text of Orbán’s speech, entitled Nem leszünk gyarmat! [We won’t be a colony anymore!] see e.g. <http://www.miniszterelnok.hu/beszed/nem_leszunk_gyarmat_The English-language translation of excerpts from Orbán’s speech was made available by Hungarian officials, see e.g. Financial Times: Brussels Blog, 16 March 2012, at: <http://blogs.ft.com/brusselsblog/2012/03/the-eu-soviet-barroso-takes-on-hungarys-orban/?catid=147&SID=google#axzz1qDsigFtC>.
(Barroso 2013).
(Reding 2013).
Here are the major elements of the amendment: (a) Regarding political campaigns on radio and television, commercial media broadcasters are able to air political ads, but they must operate similar to public media channels—i.e., distribution of air time for political ads should not be discriminatory and should be provided free of charge. But since commercial media cannot be obliged to air such ads, it is unlikely that commercial outlets would agree to run campaign ads without charge. (b) Regarding recognition of religious communities (in line with the relevant cardinal law), the amendment emphasizes that all communities are entitled to operate freely, but those who seek further cooperation with the state (the so-called ‘established churches’) must still be voted upon by Parliament to receive that status. This means that the amendment does not address discrimination against churches the government has not recognized. Parliament, instead of an independent body, confers recognition, which is necessary for a church to apply for government subsidies. (c) The provision that enabled the government to levy taxes to settle unforeseen financial expenses occurring after a court ruling against the country—such as the European Court of Justice—was also removed, but the reasoning adds that the government is always free to levy new taxes, and this amendment will cost Hungarian taxpayers at least 6 billion Forints over the next 5 years. “(d) One positive amendment removed the power of the president of the National Judicial Office to transfer cases between courts—a change already made on the statutory level, but since the head of the Office is already able to appoint new judges loyal to the government all over the country, the transfer power is no longer necessary to find politically reliable judges. Both the foreign and Hungarian Human Rights NGOs said that the’amendments show the government is not serious about fixing human rights and rule of law problems in the constitution’. See the assessment of Human Rights Watch: http://www.hrw.org/news/2013/09/17/hungary-constitutional-change-falls-short, and the joint opinion of three Hungarian NGOs: http://helsinki.hu/otodik-alaptorveny-modositas-nem-akarasnak-nyoges-a-vege.
(Bogdandy 2016).
Communication from the Commission of 11 March 2014, A new EU Framework to strengthen the Rule of Law, A new EU Framework to strengthen the Rule of Law.
ECJ, 6 November 2012, Case C—286/12.
For the detailed facts of the case and the assessment of the ECJ judgement see (Halmai 2017).
(Scheppele 2016).
Opinion no. 833/2015 on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland. Adopted by the Venice Commission at its 106th Plenary Adopted by the Venice Commission at its 10 Plenary Session (Venice, 11–12 March 2016).
The full text of the opinion was not published, and a request by Laurent Pech, professor of Middlesex University was rejected by the Commission on the ground that the disclosure “would undermine the protection of the purpose of the ongoing investigation” as any disclosure “at this point in time would affect the climate of mutual trust between the authorities of the Member state and the Commission, which is required to enable them to find a solution and prevent the emergence of a system threat to the rule of law”. The Commission’s subsequent decision to publish a Rule of Law Recommendation on 27 July 2016 led Professor Pech to ask the Commission to review their initial refusal to disclose the Opinion, adopted on 1 June 2016. Having reviewed the application, the Secretariat General of the Commission finally accepted the disclosure of the full text of the Opinion. For the story of the FOI request and the full text see Laurent Pech’s blogpost of 19 August, 2016. http://eulawanalysis.blogspot.it/2016/08/commission-opinion-of-1-june-2016.html.
http://www.politico.eu/article/poland-and-commission-plan-crisis-talks/. Boyden Gray, former US ambassador to the EU in an op-ed article written in the Wall Street Journal also questioned the authority of the EU to use the Framework against Poland: “The European Union’s current overreaching and meddling in Poland’s legal affairs under the guise of its lawless, ironically named “Framework to Strengthen the Rule of law,” provides a glimpse at some of the dynamics underlying last month’s Brexit vote. The framework, announced in March 2014, did not directly factor into Brexit, but it demonstrates the EU’s troubling propensity to harass its member states and dictate Brussels-based solutions for domestic problems. If pursued, the framework could further destabilize the EU.” http://www.wsj.com/articles/the-european-union-shows-poland-why-we-have-brexit-1467747768.
See for a very comprehensive analysis of the government’s package: (Pech and Scheppele 2017).
Commission Recommendation of 26 July 2017 regarding the rule of law in Poland, C (2017) 5320 final, para 58.
European Commission acts to preserve the rule of law in Poland, Press release IP/17/2161, 26 July 2017.
See (Kochenov et al. 2017).
(van Ballegooij and Bárd 2016)
http://www.welt.de/politik/ausland/article157586134/Deutschland-ist-Zahlmeister-in-Europa.html. Hungary has received enormous EU cohesion funds sums during the period Orbán has been in power. The country has received as much as 6–7% of its GDP as inflows from the various cohesion and structural funds of the Union since 2010. This has generated an average GDP growth of around 3%, which according to a KPMG study commissioned by the government, would have been zero without the EU transfers. This means that without the cohesion and structural fund transfers, Hungary would have no autonomous economic growth. See (Pogátsa 2017).
‘Austria calls for less money for EU states opposing refugee distribution’, Deutsche Welle, 8 March 2017. http://www.dw.com/en/austria-calls-for-less-money-for-eu-states-opposing-refugee-distribution/a-37848662
(Bertrand 2017).
(Stearns 2017).
The resolution was adopted by 393 votes to 221 with 64 abstentions, which means some members of European Peoples Party (EPP), the party goup of Fidesz, the Hungarian governing party, did not vote against the resolution. Manfred Weber, the president of the EPP-group also harshly criticized the Lex CEU. According to its press-release “the EPP wants the CEU to remain open, deadlines suspended and dialogue with the US to begin”. The EPP also stressed that “NGOs are an integral part of any healthy democracy, that they represent the civil society and that they must be respected”. http://www.epp.eu/press-releases/prime-minister-orban-to-comply-with-eu-laws-and-epp-values-following-meeting-with-epp-presidency/.
(Reflection Paper on the Future of EU Finances 2017).
See e.g. the data available here: https://cohesiondata.ec.europa.eu/. Poland has for instance been allocated ESIF funding of €86 billion representing an average of €2,265 per person over the period 2014–2020. Cited by Pech and Scheppele (2017).
‘Germany supports cutting EU funds to countries that refuse refugee quotas’, Business Insider, 15 September 2015; Austria Threatens EU Funding Cuts over Hungary’s Hard Line on Refugees!, The Guardian, 8 March 2017; ‘Italy Threatens Hungary: EU Countries Who Reject Migrant Quota Should Have Funding Cut’, Express.co.uk, 12 October 2016.
‘10 years of the EU Fundamental Rights Agency: a call to action in defence of fundamental rights, democracy and the rule of law’, Vienna, 28 February 2017, Speech/17/403.
J. Selih with Ian Bond and Carl Dolan,’Can EU Funds Promote the Rule of Law in Europe?’, Centre for European Reform, November 2017.
See this argument by Danuta Hübner, Chair of the European Parliament’s Committee on Constitutional Affairs. www.euronews.com/2017/12/29/view-eu-must-not-surrender-to-illiberal-forces. Similarly, former Commissioner László Andor argues that as a consequence of political conditionality, poorer regions would suffer because of their illiberal governments. http://www.progressiveeconomy.eu/sites/default/files/LA-cohesion-final.pdf.
Cf. (Vita 2017b) Vita refers to Joseph Weiler’s already mentioned objections towards the Rule of Law Framework.
See (Besselink 2016).
“The EU is based on treaties, and there is nothing in there that would create this possibility [of linking funds to the rule of law],” Viktor Orbán said in an interview. See https://berlinpolicyjournal.com/trouble-ahead/.
Regulation (EU) No. 1303/2013 of the European Parliament and of the Council of 17 December 2013. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013R1303.
See a similar argument I. Butler,’To Halt Poland’s PiS, Go for the Euros’, LibertiesEU, August 2, 2017. https://www.liberties.eu/en/news/to-halt-polands-pis-go-for-euros.
See (Waelbroeck and Oliver 2018).
The judgment of the Grand Chamber of the Court of Justice of the EU from 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas suggests that the EU principle of judicial independence may be relied upon irrespective of whether the relevant national measure implements EU law. About the innovative nature of the judgment see (Ovádek 2018).
In the case of Hungary, one must keep in mind first and foremost that the governing Fidesz party delivers votes to the EPP, the largest faction at EP, while PiS belongs to the smaller fraction of the European Conservatives and Reformists. See this conclusion in Kelemen (2017).
White Paper on the Future of Europe. Reflections and Scenarios for the EU27 by 2025. European Commission COM (2017) 2025 of 1 March 2017. https://ec.europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf.
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I am grateful to Professors Laurent Pech and Petra Bárd for their valuable comments and suggestions. The usual disclaimer applies: all errors are my own.
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Halmai, G. The Possibility and Desirability of Rule of Law Conditionality. Hague J Rule Law 11, 171–188 (2019). https://doi.org/10.1007/s40803-018-0077-2
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DOI: https://doi.org/10.1007/s40803-018-0077-2