16 February 2022: the European Court of Justice (ECJ) rules against Hungary’s and Poland’s position on the Rule of Law Conditionality regulation. For the first time, the Court live-streams its ruling. This is more than just a ruling: the very essence of our Union was challenged. If we want to preserve our sacred values, we need to defend them. Our credibility is at stake, and the virus of autocratisation proves to be very contagious.
December 2020: Hungary and Poland threaten to block a historic EU €1.8 trillion budget package during negotiations like we have never seen before. The reason? Their resistance against the Rule of Law Conditionality Regulation, a new mechanism that links EU funds to the rule of law – a tool created due to the immense and united effort of the European Parliament. The blackmailing tactics of only two member states have eventually led to an enormous and ongoing delay in triggering the conditionality regulation. Unacceptable and unnecessary, as now confirmed by a landmark ruling of the European Court of Justice. It is crystal clear: there are no excuses left. The Commission has to take action. Every day letters to Warsaw and Budapest remain on desks, and procedures are at a standstill, is a lost day for the rule of law.
In the past decade, we have learned that democracy is never a given. We had assumed that there is no way back once a country is a democracy for far too long. During the 2004 enlargement, we were optimistic about the future of these new EU member states. They had successfully gone through an extensive process towards democratisation before entering the EU. Accession is based on conditionality, and a merit-based approach is applied: candidate countries have to adhere to the Copenhagen criteria and go through a range of enlargement chapters and subsequent reforms. But we did not realise that once a country is an EU member state, democratically chosen leaders can reverse a positive trend. Only later did we find out that the EU does not have effective tools to intervene once this happens.
Of course, there is the Article 7 Procedure. And the fact that we launched this procedure – thanks to the previous Commission (Commissioner Frans Timmermans initiated the procedure against Poland) and the European Parliament (MEP Judith Sargentini initiated the procedure against Hungary) – a few years ago is an important step. But since then, all consecutive EU Presidencies have been afraid to burn their hands on the process. If a hearing on the procedures is scheduled at all, we usually hear back not much more than ‘it was a good exchange of views’. And next time, a member state might need Poland or Hungary again, so it is delicate to take on one of your colleagues. It became increasingly evident that we need more than just the non-functional ‘nuclear’ option of Article 7. That is why the creation of the rule of law conditionality mechanism was such an important milestone: finally, a ready-to-use instrument after years of European indecisiveness and passivity. This is the way to hit Viktor Orbán and his non-democratic friends where it hurts: their wallet.
The huge risks taken by the Polish and Hungarian governments in 2020 demonstrate how effective this mechanism can be. They ended their hazardous blockade of the EU budget only after former German Chancellor Angela Merkel allowed them to challenge the regulation at the European Court of Justice before its application. Another example of enabling autocratic antics and delaying tactics – precisely what the EU should stop doing. Moreover, it was an offence to the democratic power of the European Parliament. Once laws are passed according to the EU legislative procedure, the Council cannot decide to change it, inserting a sheet later.
The fact that the Commission has accepted this so-called compromise and actively participates in this time-lagging, is disappointing, to put it mildly. It likes to call itself the ‘Guardian of the Treaties’, so why are they so afraid to take up this role? Contrary to what one would expect, the number of infringement procedures launched by the European Commission to challenge the undermining of the rule of law or fundamental rights has steadily decreased. In the previous legislature, the responsible Commissioner Frans Timmermans had a quite activist and, at the same time, predictable approach. In case of an infringement or undermining of the rule of law, a member state would promptly receive a letter – and follow-up procedures would be launched if the answer was not satisfactory. He lost precisely zero cases.
The notoriously slow responses by the Commission over the last two years and the reluctance to punish another member state in the Council made autocrats think they could get away with it. I’m convinced that over five years (yes, that long!) of structural breakdown of the independent judiciary in Poland and turning Hungary into a business model for Orbán and his friends instead of the democracy it should be, has served as an inspiration for others. The virus of autocratisation proved to be very contagious. The EU’s inability to counter this tendency has undermined our credibility vis-à-vis our own citizens, but vis-à-vis the wider world. That is why the Parliament submitted a lawsuit against the European Commission for its failure to trigger the rule of law mechanism. Not because this is something MEPs like to do – on the contrary. But if we are not taking a strong stance in this debate, who will?
On 16 February 2022, everyone involved in the European rule of law debate watched the long-awaited judgment of the ECJ. The Court even provided a live stream of its ruling for the first time ever. The verdict was not surprising: the rule of law conditionality mechanism is entirely legal. Has something changed now? To my astonishment, the Commission only published the somewhat superfluous guidelines on 2 March. If these guidelines were really necessary to trigger the mechanism, it would surely have been possible to issue them a lot earlier. It seems that from the outset, the strategy has been to buy time and delay the publication of the guidelines. And in the case of Hungary, the French Presidency came up with a new argument for not acting. Action against Hungary has to be timed appropriately ‘not to intervene with the elections’. Pardon? Not ensuring democratic elections by all possible means, that, really, is interfering with elections!
Today, we all witness how fragile democracy and peace are. And we are witnessing it on our continent. The Ukrainian people are not only fighting for their country. They fight for the values we need to defend within our Union too. Applying the conditionality mechanism was long overdue, but with the clear-cut ruling by the ECJ every excuse to remain passive is off the table. As ‘Guardian of the Treaties’, the Commission must be uncompromising and determined. It has to settle for nothing less than the complete restoration of the rule of law in Poland and Hungary, thus setting an example for wannabe autocrats in and outside our Union. We have to beat the virus of autocratisation.