The EU now has a “Rule of Law Mechanism” and it intends to use it. EU funds can now be withheld from countries in which “established breaches of the rule of law compromise management of the EU funds”. The new powers come into force following a compromise between EU governments in December 2020, when it was agreed no country would be sanctioned until Hungary and Poland (who are most likely to be on the receiving end of the new mechanism) are able to challenge its legality at the European Court of Justice.
Věra Jourová, Vice President of the European Commission for Values and Transparency, has said the EU won’t use its new powers in an “activist” way. Nevertheless, she also hinted that the EU Commission has a broad definition of “misuse of funds”, including any payments that support the “wrong political systems”.
77% of Europeans want EU funds to be conditional on respect for rule of law. This was according to an October 2020 poll commissioned by the European Parliament. Almost 8 in 10 EU citizens think money from the EU’s long-term budget and coronavirus recovery fund should only be distributed to Member States that can guarantee judicial independence, press freedom, protection for civil liberties, etc.
What do our readers think? We had a comment sent in from Fernando arguing that making EU funds conditional on the rule of law is not going far enough. He believes Hungary and Poland should have their EU membership suspended.
To get a response, we spoke to Dr. Franziska Brantner, a Member of the German Bundestag and the German Green party’s spokesperson for European affairs. What would she say to Fernando? Should EU Member States have their membership (or, at least, their voting rights) suspended if they continue to breach rule of law?
There is a procedure in the EU treaties for voting rights suspension, that’s the Article 7 procedure. The difficulty in that article is that in order to kick it off you need unanimity among all the other Member States (except the country concerned). And there is an Article 7 procedure going on against Hungary but, of course, it will never be finalised because Poland is in solidarity, and in the past there were more in solidarity – like Salvini [in Italy] and Strache from Austria. So, this mechanism exists but is sort of non-functioning because of the majority that is required.
It’s not yet possible to kick anybody out [of the European Union], which I also think is difficult. But I think one has to revise the special voting rights article, if we get changes to the treaties – which is difficult because you need unanimity for it, so it’s probably impossible. That’s why we have to go other ways, via the sanctions, via creating also incentives for those that do respect democracy and the rule of law, and probably we will have in some areas to go ahead and reinforce cooperation with those willing to do so, without countries like Hungary or Poland, so we are not blocked by them, but we rather create coalitions of the willing to go ahead so we are not all paralysed together.
For another perspective, we also put Fernando’s comment to Professor Michael Ignatieff, Rector of the Central European University. How would he react?
I have long been in favour of the EU using rule of law conditionalities in the allocation of EU funds. It is impossible to justify to a hard working German, Austrian or a French worker, why money from their taxes should go to regimes that systematically steal that money. This is unsustainable; politically as well as morally. That’s why the rule of law conditionality serves not simply to display a lot of moral principles or to punish someone.
The political legitimacy of the European Union is fatally eroded in the minds of ordinary voters if their money is stolen. Let’s be clear; there are lots of places where EU money goes astray. Therefore it is crucial that rule-of-law mechanisms are transparent, impartial and fair. They must apply to the rich states and the poor ones, to the founding members and the new members. Because you do not want to have a rule of law mechanism that is vulnerable to charges by Hungary, Poland, Slovakia, France, Germany or anybody who says there is one rule for them and another rule for anybody else. Getting a rule-of-law mechanism that is transparent, universal and fair is difficult but I don’t think there is any doubt that we need it.
The alternative is suspension. I think that is a risky thing to do because there is always somewhere else for these countries to go. I am concerned at the growing influence of China in Hungary. The Chinese university has recently been established there, and Hungary is going to receive the Chinese vaccine because the EU has been to slow to get their own vaccine in. There is no question that the authoritarian regimes of Russia and China, and possibly even Turkey, are only too happy to work with Hungary. You could suspend them, and they will simply go somewhere else. Then, bit by bit that fragments an enormously successful project. I feel a conditionality mechanism that is universal, transparent and fair is superior to suspension mechanisms, although there might come a circumstance where the rule-of-law violations are so systemic, so continuous, and so defiant of EU norms that suspension would become the only option. But I don’t think we’re there yet.
Next up, Yannick sent us a comment arguing that the EU risks alienating populations by being too strict over the rule of law. Is this a risk? How would Franziska Brantner respond?
There is this risk, and that’s why, for example, we as Greens we have been arguing that if we do sanction Member State governments and do not give them the EU funding for the disrespect of rule of law, that this money should not be kept away from the country as such, it should just be taken away from the national government to decide on its disbursement, so that the national government no longer has the right to decide who gets the EU funds, as it does today. Instead, we give it, for example, to an independent foundation that can then support citizens in that country, communities in that country, cities in that country which do support the rule of law and democracy, so that we don’t take it away from the country and don’t punish all citizens by it. We just take the money away from the government so it cannot use it for its own purposes in the destruction of democracy. So, I think we have to be very careful about how it’s framed and implemented, so it doesn’t come across like we want to sanction entire populations and countries, but rather that we do it in a targeted way.
Finally, what would Michael Ignatieff say to Yannick’s comment?
I’ve made it clear that I’m in favour of rule of law conditionality and I think the EU has done almost nothing to restrain the erosion of the rule of law in Poland, Slovakia, Hungary, Cyprus and other countries. But I think Yannick has a point that these are political matters. Politically, I don’t think you can underestimate how these central and eastern European regimes run against and blame the European Union for everything Monday through Friday. They use government media to campaign ceaselessly against the EU, and then they cash the checks on Saturday. That’s the politics of this region. They use the EU as a whipping board but then depend on the EU for the structural subsidies that these regimes need to feed their client base.
Some of the EU money does do a lot of good for a place like Hungary. In my wife’s hometown, you can see the EU symbol in lots of places doing wonderful things. The rebuilding of the historical centre in her hometown, for example, is an EU project. That means that the EU continues to enjoy very strong degrees of public support. What is truly interesting about the Hungarian case is that despite ten years of anti-EU rhetoric by the regime, support for the European Union consistently remains between 60-70% in polls.
To Yannick’s question, I think it is very important for rule of law mechanisms to be universal, transparent and fair in order to preserve political legitimacy with the populations in these countries. But I think the problem is not the EU and the rule of law mechanisms. It’s the scandalous way in which regimes that are utterly dependent on EU subsidies feel it is in their political advantage to run against the EU all the time. It’s hypocritical, and it’s destructive. But it’s politically successful. So, young Europeans in these countries need to stand up to this and say: “Listen, you can’t have it both ways. If you want the structural subsidies and transfers, you have to stop stealing and running against your European partners every day of the week, because this is going to destroy the European project. I hope Yannick and his generation will stand up and say this.
Has the EU fixed its ‘rule of law’ problem? Is it enough to have money from the EU’s long-term budget and coronavirus recovery fund be conditional on having strong judicial independence, press freedom, and protection for civil liberties? Should Member States be kicked out of the EU if they breach rule of law principles? Let us know your thoughts and comments in the form below and we’ll take them to policymakers and experts for their reactions!