European Union: no rule of law, no funds

After tough negotiations under the German Presidency, European funds should, from 1^is January 2021, be able to be suspended in the event of a breach of the rule of law by one of the Member States. In any case, this is what was agreed between Parliament and the Council. The main political parties in Parliament are delighted. However, two Member States, Poland and Hungary, denounce what they consider to be a pretext for EU interference in their internal affairs, or even a “political trial” led by left-wing forces (it does not matter that the moderate right approves the device).

No one will be surprised, these are the same two states which are the subject of an infringement procedure of article 7 for various breaches of European values ​​as defined in article 2 of the Treaty of l ‘Union*. Two procedures stalled, which cannot lead to the Council, where the unanimity rule allows Hungary to protect Poland and vice versa.

Threat to the European recovery plan

Unable to reason with these two regimes, the Europeans have therefore decided to strike at the portfolio through this legal device which comes in eight articles. Hungary and Poland being among the biggest beneficiaries of European funds (we are talking here of tens of billions of euros per year), the financial argument will perhaps be more likely to be heard, they say to themselves. This budget clause is therefore based on a political bet: to bend the Kaczynski family who reigns over Poland and to tie the hands of Viktor Orban, the strong man of Hungary after years of litigation launched by the Commission which did not achieved much… The decisions of the Court of Justice of the EU have certainly a little more authority than the “bubbles” of the Commission, but the highest Polish court is starting to emancipate itself from them.

In response, both Poland and Hungary threaten to derail the recovery plan by refusing to adopt the “own resources” decision which should allow the Commission to proceed with the large loan (750 billion euros). Obviously, everyone would lose. Is this threat serious given the negative economic consequences that will hit both Warsaw and Budapest? This is the whole point. This passage in force for the respect of the rule of law intervenes in a sealed economic context and of the mass demonstrations in Poland against the restriction of abortion … In short, one cannot say that Europe is united and serene in the face to the adversity of the moment.

The heads of state and government of the 27 had agreed at the European summit in July on a budgetary clause linked to the rule of law but the details of which were to be determined later. For the Hungarians and the Poles, one had to stick to the strict control of the good use of European funds without other political and moral implication. “Let’s get on well: it is not the rule of law that bothers us,” argues George Károly, the Hungarian ambassador in Paris. And we are quiet about it: Hungary is a rule of law. A completely different question is the control of the appropriate use of European funds by the various beneficiary countries, which is a fair concern not only of the European institutions, but of all the Member States, including Hungary, which contribute to the budget of The union. This control must obviously be carried out, but on the basis of intrinsic criteria clearly and previously defined. This is provided for in the compromise adopted in Brussels last July, and which we accepted. The presence in this game of the rule of law, of which there is no unanimously accepted normative definition and which, for this reason, opens the door to the most uncontrollable political arbitrariness, is extrinsic to the subject and has nothing to do in this mess. Legal certainty is at stake, which is the basic condition for democratic governance, and therefore for the rule of law itself. ”

On the contrary, for the so-called frugal countries (Netherlands, Sweden, Denmark, etc.), as for France, Germany, Italy, Spain, etc., the clause had to take into account the European values ​​of democracy, separation of powers, respect for the rights of minorities, independence of the judiciary … In short, everything which, in Article 2 of the EU Treaty, outlines between Europeans a political contract, a project of society which is distinguished from a simple market.

Commission proposes, Council decides by qualified majority

It is also a story of mutual trust. A European citizen can be tried in another State of the Union than his own and must be able to benefit from the same guarantees. As Commissioner Reynders in charge of Justice often says, any EU judge is a “European judge” because his decisions are enforceable in the 27 EU countries. The quality of justice cannot be less in Warsaw than in Rome, Madrid, Berlin or Nicosia. And not only in business law, which is of particular interest to companies that interact in the single market.

The mechanism retained by the compromise between Parliament and the Council is as follows: the Commission notes the breaches of the rule of law, initiates a dialogue with the State targeted by the measures, refers to the Council, which decides by qualified majority . Among the behaviors more particularly targeted, the system mentions the fact of “endangering the independence of the judiciary”, of “not preventing, correcting and sanctioning the arbitrary or illegal decisions of public authorities, including the authorities in charge of ‘law enforcement’, ‘withholding financial and human resources affecting their proper functioning or failing to guarantee the absence of conflicts of interest’. Here, Poland is clearly targeted.

Short deadlines to avoid bogged down procedures

It is also reprehensible to “limit the availability and effectiveness of legal remedies” or “limit the effective investigation, prosecution or punishment of breaches of the law”. Here, it is Hungary whose Commission notes, in its first annual report on the rule of law, that corruption investigations curiously spare senior officials of the regime and those close to the Prime Minister. The system then declines a whole series of inappropriate behaviors in the management of European public funds: lack of control, lack of transparency, tax evasion, fraud, lack of cooperation with the new European criminal prosecutor.

When the European Commission considers that there are “reasonable grounds” to implicate a State, it notifies it in writing and immediately informs the Council and the European Parliament. MEPs can then ask the Commission to come and detail its grievances. The Commission may request explanations from the Member State concerned, which must respond and may reply within 1 to 3 months. He can suggest remedies to prevent the shortcomings from continuing. Therefore, the Commission must take this into account before concluding its assessment of the situation “within a reasonable period of time” (one month as an indication).

Proportionality of the measures

If the Commission considers that the remedies are insufficient and plans to refer the matter to the Council, it must allow the Member State to present its observations, in particular on the “proportionality of the measures envisaged”. The Commission has one month in which to refer the matter to the Council and present evidence of what it claims. The Council usually has one month to decide, or a maximum of three months in exceptional circumstances. The Council has the power to amend the Commission proposal.

At any time, the Member State concerned can address remedies and, in any case, the Commission assesses the situation one year after the adoption of the measures adopted by the Council. In this case, if the situation seems to it to be improved, the Commission can propose to the Council to lift the financial measures taken with regard to the State in breach or to adapt the measures according to the progress made. On the other hand, if the Commission considers that the problematic situation has not been remedied, it proposes to the Council a new measure in accordance with the procedure described above.