Democracy & Justice

​CJEU Hearing On Conditionality Mechanism Is An Opportunity Not To Miss To Warn Hungary And Poland

The Commission must speak out on the legality and necessity of budget conditionality and take immediate action to enforce the Regulation, as urged by the Parliament.

by Linda Ravo

On Monday 11 and Tuesday 12 October, the EU Court of Justice will hold its hearing on the actions brought by Hungary and Poland earlier this year against the so-called rule of law budget conditionality mechanism – a Regulation adopted in December last year after a fierce legal and political struggle which would allow the EU to suspend its funds to Member States which put the sound management of the Union budget at risk by breaching the principles of the rule of law. Hungary and Poland, which have been escalating deliberate attacks to democracy and the rule of law over the past years that would, as demonstrated by experts, warrant immediate action under the new mechanism, sought the annulment, in full or in a substantive part, of the Regulation. This after succeeding to have the rest of the bloc agree on subjecting the mechanism to a number of undue conditions to delay and make its practical application more difficult – which the Commission has so far decided to get by with, prompting strong criticism from MEPs.

This hearing is an opportunity not to miss for EU institutions and Member States who care about our democracies to defend the Union’s prerogative to take serious and concrete measures to protect its founding values. The Commission must speak out on the legality and necessity of budget conditionality and take immediate action to enforce the Regulation, as urged by the Parliament. It is unacceptable that EU money ends up financing governments that taunt the very basic democratic principles the EU committed to uphold for its people.

The hearing comes at a very heated moment, as the EU is holding off on approving the disbursement of billions of euros of EU pandemic recovery funds to Hungary and Poland over serious rule of law concerns. Last Thursday, Poland’s Constitutional Tribunal, currently dominated by judges that are sympathetic to the governing Law and Justice party, including some former party members, delivered an unprecedented ruling rejecting the principle of primacy of EU law – a cornerstone of the EU legal order –over national constitutional rules. The judgment, prompted by a government claim, is meant to further fuel Poland’s legal and political battle against decisions taken by the EU Commission and backed by the EU Court of Justice. Poland has so far refused to abide by these decisions, which condemn and seek to sanction the government over its controversial judicial reforms. In the meantime, new concerns over the misuse of EU funds by the Hungarian government emerged from a recent fact-finding mission conducted by a group of MEPs.

The Polish Constitutional Tribunal defiance of the principle of primacy of EU law over the government’s capture of the country’s judiciary shows that the rule of law crisis in Poland is now irreversible. The judicial system is being patently used to bend the constitution and baffle Poland’s international commitments to serve the government’s political aims. New allegations by MEPs over Hungary’s misuse of EU funds add to longstanding concerns triggered by the government’s attempts to dismantle checks and balances and cement its grip on power. These are serious threats to the Union’s political, legal and economic stability, and, even more importantly, to the fundamental freedoms and well-being of its citizens. It shows the urgency for the EU to restate its authority and credibility and be able to take concrete measures that can effectively ward off authoritarian governments from undermining the liberties it fought so hard to achieve.

This is the message we need to get from this hearing.

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