The ‘rule of law’ in the European Union has rarely been discussed so much and fiercely as in recent months. But during a two-day session at the European Court of Justice in Luxembourg this week, the main question was: what exactly are we talking about?
The issue on which the highest European judges were concerned is therefore fundamental: can respect for ‘the rule of law’ be a condition for receiving European funds? Or, to be more precise: can violations of constitutional principles jeopardize the proper use of EU funds to such an extent that the European Commission has to intervene?
Last year, after heated negotiations, member states agreed on a new ‘rule of law test’ for the EU budget, giving the Commission the opportunity to intervene. But according to Poland and Hungary, repeatedly reprimanded by Brussels for violations of the rule of law, such a test is illegal and only intended to annoy them. At the beginning of this year they challenged the instrument at the Court in Luxembourg.
The timing of the session could hardly have been more spicy. Just last week, relations between Poland and the European Court came under high tension after the Polish Constitutional Court, at the request of its own government, ruled that Polish law sometimes takes precedence over European law. That verdict, which officially came into effect on Tuesday, has a clear message: interference from Luxembourg is undesirable.
Yet it was precisely the same Court in Luxembourg where Poland now advocated the destruction of the new instrument. “The importance of the rule of law for the European legal order is not in question for Poland,” Polish representative Sylwia Zyrek emphasized on Monday. “But that interest in itself does not lead to the competence to define it and take measures that command respect for it.”
According to Hungary, the new instrument means significant legal uncertainty
The hearing thus developed into a legal ping-pong game about the definition of the rule of law. Is it sufficiently precise, so that Member States know what they must meet in order not to miss out on money? No, argued Hungarian lawyer Zoltán Fehér, pointing out that the implementation of the new instrument is ‘completely unpredictable’ and therefore means great legal uncertainty for Member States.
Nonsense, said lawyers from the European Parliament and the Commission, among others. When it comes to protecting the EU’s financial interests, it is ‘crystal clear’ which conditions must be met. For example, the regulation contains sufficient examples: independence of the judiciary, or the adequate investigation of fraud and corruption. Because only this definition matters in this specific regulation, “you don’t have to start legal discussions about this now,” said lawyer Tamas Lukacs on behalf of the EP.
It turned out to be that legal discussion, with both sides shielding themselves with a laundry list of treaty articles and provisions. A large part of that conversation took place in Polish and Hungarian: the EP and the Council for the EU were also represented by a Hungarian and a Polish person respectively. They were supported by representatives of ten Member States, including the Netherlands, who emphasized the importance of the new instrument in their own contributions. That is not intended to punish, according to the lawyer on behalf of Luxembourg. “The fact that the EU budget is the important instrument for European solidarity can only remain so if it is accompanied by a shared commitment to European values.”
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In this way, amid all the legal language, the extremely political context in which the hearing took place shone through. Both judges and lawyers occasionally referred to the Polish ruling, which shook the European legal order last week. “Don’t actually dispute that our Court can rule on this,” one of the judges asked Poland – who denied this. According to the lawyer representing Denmark, the Polish judgment underlines “the urgency to demand respect for the rules of the game on which the EU is based”.
Still months to wait
But urgency is always relative in a European context – a judgment by the Court may still take months. The solicitor general said on Tuesday that he wanted to give his opinion on 2 December. Only then will the final decision of the highest European court follow. The main question is whether the Commission will wait for that. Officially, this is not necessary: the instrument has been in force since 1 January and MEPs have repeatedly urged rapid deployment. The Commission informally promised last year that it would wait for the Court, but now that the conflict with Poland has escalated to such an extent, there is also a growing enthusiasm in Brussels to send a signal. In order to do that, she has to take the small risk of being called back by Luxembourg afterwards.