ATM or community of values: the challenge of stopping attacks on the rule of law in Europe

As the European Union has added members, challenges to the rule of law from several partners have gained ground. The largest has come from Hungary, an “electoral autocracy”, according to a declaration from the European Parliament approved with the rejection of the far-right forces that will probably grow in the elections to be held between Thursday and Sunday. “The situation has deteriorated in the last decade,” certifies the EU Court of Auditors in its latest report on the matter. To stop these threats, the EU has in recent years equipped itself with an arsenal of sanctions that target where it hurts most: money. It is about making it clear that the Union “is not an ATM”, an idea that comes from paraphrasing Belgian Prime Minister Alexander de Croo.

The threat of losing the right to vote – the mechanism that triggers Article 7 of the treaties – in the EU Council never worked. The Member States never dared to press that nuclear button, despite the fact that the Commission proposed it in 2017 for Poland – last week it closed the file – and the European Parliament, in 2018, for Hungary, an option that remains open. The lack of decision from the capitals has generated impotence in Brussels. It was not the fear of being a mere listener in the EU that led Warsaw to give in; It has been a change of Government, which has committed to returning independence to judges and respecting community law. And the challenge to those values ​​may increase with the upcoming integration of new countries. An example from these weeks: Georgia has approved a law on foreign agents of Russian inspiration – and intends to process another restrictive one with the LGTBI community – just a few months after being declared a candidate, despite warnings from Brussels that it was moving away from the values ​​of the Union.

To overcome this impotence, “a sufficiently broad series of tools have been deployed that leaves the Commission with no more excuses to continue appeasing national governments that break the law,” claims Sophie in ‘t Veld, a liberal Dutch MEP. The candidate for the pan-European party Volt also refers to the conditionality mechanism, which can lead the Brussels Executive to suspend the delivery of funds when it has evidence that the Union budget is at risk (something that has already happened with Hungary). . It can also be activated when the requirement to comply with the Charter of Fundamental Rights of the EU is in danger – Poland and Hungary have already introduced this punishment – and requires compliance with requirements that crystallize in reforms if there are deficiencies in the State of right to receive resources from the recovery plan. The cases of Warsaw and Budapest have shown that, when there is political will, the defense of the rule of law is viable.

But what can happen if political will falters? “I’m not a pessimist. I do not think that the panorama can be dimmed, as with the Green Pact. The rule of law is protected,” explains Daniel Sarmiento, professor of European Law at the Complutense University, who recalls that just five years ago “this arsenal was unthinkable.” “The rules will apply. “I don’t think there will be a radical change,” he answers the question of what the foreseeable increase in far-right forces in the European Parliament could mean, a body that has always championed complaints against the breaches of the rule of law, or the increase in ultranationalist governments. “With every penny being monitored, everyone has incentive to jump through hoops if they want to have funds.” Sarmiento reasons that in countries that are net contributors to the EU coffers, such as the Netherlands, Sweden or Finland, where extremist forces exist or condition the governments but the rule of law is not called into question, attention will be paid to use given to European funds and the fight against corruption.

ultra lock

The German MEP of the Greens and candidate, Daniel Freund, is not so clear. “Parties like Vox, the League, National Rally or even the AfD, if you look at how they vote on issues such as corruption in Hungary and the blocking of funds due to corruption, they always vote against acting. They voted against the conditionality mechanism and against its activation every time they could. So given the decision to continue feeding the corrupt system of [el primer ministro húngaro, Viktor] Orbán or not, they have chosen to continue giving funds to Orbán.”

In ‘t Veld, for its part, points to the Commission, because it defends that if the Executive of the Union has not been more forceful with the governments of Italy or Greece, “it is directly due to its desire to remain friends with the respective Prime ministers: [Kyriakos] Mitsotakis and [Giorgia] “Meloni.” It mentions only two countries, but in a resolution this year in which she was a speaker, others such as Bulgaria, Malta, Slovenia, Slovakia or Romania are cited as States in which “Parliament has addressed the situation of the rule of law in their resolutions.” There are also Poland and Hungary, where the situation has been—or is—more serious.

This resolution analyzes another of those tools put in place since 2020 to control the rule of law, the annual reports that are published every year on the individual situation in the 27 countries. This is not a sanctioning mechanism. Rather, it is a public examination that aims to stimulate improvements by bringing to light the shame of each State. But the truth is that in the four editions that have passed, no substantive changes have been seen. Hungary continues with its very serious problems. The ultra-conservative Government of Poland only rectified when it was pressured by the blocking of funds and the country turned definitively with the change of Executive in December. And, to give a well-known example in Spain, on the four occasions in which the report has been made so far, the blockage in the renewal of the General Council of the Judiciary, which continues, has increasingly become ugly.

“The report is not sufficient, since the monitoring of the situation is not adequate,” explains that resolution of the European Parliament, in which the Commission is asked that this examination “be part of an entire process within the scope of the mechanism of the Rule of Law as a whole, and to ensure full use of the arsenal of tools at its disposal, including Article 7, in cases where the report continues to detect continued infringements year after year in certain Member States.

More action

What underlies this wording is the demand to ask the European Commission for more action. In ‘t Veld says it explicitly, with strong criticism of Ursula von der Leyen, the president of the community Executive, for “selling the soul of the European Commission”, by not having resorted more often to tools such as the conditionality mechanism that withholds funds when there is a perceived risk to the European budget, something it has so far only done with Hungary and Poland. “She has made a conscious political choice to appease the European Council,” she notes.

Less harshly, Eulalia Rubio, a researcher at the Delors Institute, also points out that one of the elements that limits the action of the Union Executive is that it is a political body: “The problem with these tools, such as the conditionality mechanism, is that It is evaluated by the Commission, which is not a 100% independent body. “He has pressures and must also carry out other initiatives, making him vulnerable to blackmail from the States.”

The Court of Auditors, for its part, recommends that Von der Leyen’s Executive “continue to evaluate the potential gaps that undermine the effectiveness of the Rule of Law framework” and influence the monetary channel, when it advises that “additional protection measures be deployed ” to the European budget when the next multiannual budget is drawn up. The one that will begin to prepare the day after the next Commission takes office.

_