Opinion

The EU favors politics over law in Poland clash

The Commission appears to be making up for inaction in Hungary by picking on Poland.

The Commission’s new rule of law mechanism is not all that new.

It attracted next to no attention when it was created in March 2014, despite the fact that it was issued just before the 2014 European Parliament elections. What is equally difficult to explain is why the framework never came up again in relation to Hungary, long a bête noire of the Western Left.

Věra Jourová, the EU commissioner for justice, did not mention it during the European Parliament’s debate on Hungary last fall. To the irritation of some (left-wing) MEPs, the Commission’s view of Hungary was fairly soft — whenever problems arose, they were sorted out through dialogue with the Hungarian government. The framework was never brought up in Parliament’s Constitutional Affairs committee.

According to the framework, action must be taken if the Commission takes the view that there is systemic risk to the rule of law in a member state. One-off breaches are not relevant — and defining “systemic” risk is in the hands of the Commission.

The procedure itself establishes four principles: dialogue, assessment of what is actually happening in the member state, equal treatment, and concrete action to remedy the situation in order to avoid an Article 7 process.

Much has been made of a link between Hungary and Poland, with politicians and journalists alike claiming Poland was simply following Viktor Orbán’s (bad) example — a kind of liberal guilt by association maybe. But the question then becomes, why be fairly lenient with Hungary, but reach for the framework in the case of Poland?

There are no convincing answers. Legally, there are evident differences between the two countries, but dialogue and possibly infringement procedures ought to have been enough when dealing with Poland.

The Polish government in fact asked the Venice Commission, an advisory body of the Council of Europe, for legal advice on the changes it has introduced. But the Commission chose not to wait for the opinion. Divergent reports on what the College of Commissioners actually decided has made this situation even hazier.

Juncker’s Commission declared itself to be a political one, and politics appear to have primacy over legal procedures.

All this is odd, just the same. The Commission has been particularly insistent that its actions are governed by law — anything else would be arbitrary and destructive. But we now have a rule of law mechanism being employed for political purposes. This bodes ill for the future: It will generate resistance and provide fuel for Euroskeptics, developments that would be completely counterproductive for the Commission.

The Commission prioritized politics over law in its relationship to a member state once before, in November 2015, when it gave the go-ahead to a European Citizens’ Initiative (ECI) aimed at triggering an Article 7 procedure against Hungary. If an initiative receives 1 million statements of support from at least seven different EU nations within a year, the Commission must respond to the demand within three months as to whether it is valid or not.

Article 7 is a long, slow, laborious process at the end of which a sinful member country can be deprived of its voting rights. There has to be a four-fifths majority in Council in the event of there being “a clear risk of a serious breach by a Member State” and unanimity is needed in the European Council to determine the existence of a breach. This is followed by a third phase, a vote by qualified majority voting as to whether or not voting rights should be suspended.

The Commission has been extremely cautious in accepting ECIs — cautious being, in fact, an understatement. ECIs are supposed to encourage the Commission to formulate legislation on some issue of general EU concern. The Right to Water initiative (R2W) is a good example.

Yet, seemingly out of the blue, the Commission accepted the ECI launched by Wake up Europe as valid. It stated, “We call on the EU to go further and trigger the procedure laid out in the Treaty of European Union (Article 7) to check whether the Orbán government policies and legislative changes respect European values.”

This has absolutely nothing to do with formulating legislation, which implies that the Commission accepted the Wake up Europe initiative for other reasons: as a political move against Hungary. The initiative is likely to fail and if it looks close to getting off the ground, it will be taken to the European Court of Justice. Law and politics meet again and it’s not a very happy get-together.

But there may be worse to come: The Council’s legal service expressed grave doubts about the rule of law framework having any legal basis at all. In May 2014, they found: “There is no legal basis in the Treaties empowering the institutions [of the EU] to create a new supervision mechanism of the respect of the rule of law by the Member States,” other than what is prescribed in Article 7. A member country peer review of the rule of law could be compatible with EU treaties, they suggested.

There should be a clear separation between legal and political factors, but they appear to be intertwined. That augurs badly. Meanwhile, media coverage of the issue has been superficial and partisan, to put it mildly. Could the Commission have decided to use the framework with Poland because of media pressure?

From the Central European perspective, many will conclude that the EU is picking on Poland and Hungary. This does nothing to strengthen the credibility or the neutrality of the EU. To allay those fears, it would help if the Commission were to place one of the Western European states in the framework’s cross-hairs — there are skeletons everywhere, after all.

The rule of law framework will always have shortcomings, so in order to be — and appear — evenhanded, the Commission would do well to check for systemic risks in every member country. But don’t hold your breath.

György Schöpflin is a Hungarian MEP from the Fidesz party.

Click Here: Maori All Blacks Store