Rule of law update – July 2022

News from the courts

No remarkable news from the CJEU and ECtHR.

Poland

Rule of law report 2022, Country chapter Poland:

The report expressed serious concerns regarding the independence of the Polish judiciary (in particular, the perpetuating irregularities in the appointment of judges in Poland, as well as the separation of the roles of the justice minister and prosecutor general). Whereas the implementation of the anti-corruption program was finished, essential parts remained uncompleted, and concerns and risks of corruption remain. Media freedom and pluralism deteriorated, causing the EC to urge the polish government to ensure a fair way to decide on operating licences for media. Issues on checks and balances also continue, which are to be resolved.

Despite these rule of law concerns, the EC gave green light to the 35 billion euro recovery plan for Poland in June, provided that the Polish government meets certain conditions (“milestones”) to ensure an independent judiciary in Poland (on that note, see Politico article on controversial Polish judge). Whereas the Polish government has meanwhile adopted a law abolishing the controversial disciplinary chamber for judges, commissioners Jourova and Reynders as well as MEPs have deemed it insufficient to meet the milestones as Polish law lacks safeguards against the penalization of judges and the distribution of public funds is increasingly politicized (see EU Observer; EU Observer).

Hungary

Rule of law report 2022, Country chapter Hungary:

The report expressed ongoing concerns over corruption risking “clientelism, favouritism and nepotism in high-level public administration”, while the anti-corruption strategy has been postponed. The EC also raised concerns regarding the lack of judicial independence (which remains “unaddressed”), urging the Hungarian government to strengthen the role of the National Judicial Council and rules for the judicial appointments of Hungary’s Supreme Court. The system of checks and balances should be improved, as well as the media freedom and pluralism (as the independent public media is under threat).

Unlike the conditional approval of the recovery budget for Poland, Hungary has not been authorized by the EC to utilize EU recovery money, pending the rule-of-law mechanism which was triggered in April this year. According to Commissioner Reynders, the Hungarian government has still reforms to make on the rule of law and anti-corruption. (see EU Observer). Meanwhile, Hungary aims to reach agreement with the EC to unlock the pandemic funding by the end of August (Reuters; EU Observer; Euractiv), since domestic economy is facing difficult times (EU Observer; EU Observer). However, Prof. Scheppele has raised concerns about such agreement, as it would “throw away” the rule of law in Hungary (see Verfassungsblog), and other experts are also cautious (see Euractiv). Moreover, the Member State’s antagonistic stance on sensitive issues such as Russian energy and global minimum tax might complicate negotiations in the first place (see EU Observer; see also this Politico opinion, and previous Rule of Law update). Orban’s comments on “race mixing” probably does not help either (see Politico).

At the same time, some critics have argued for even further-reaching measures. According to a legal study by professors Scheppele, Kelemen, and Morijn, the EC should suspend 100 percent of EU funds to Hungary. Assessing the appropriate and proportionate financial consequences to the fundamental and widespread rule of law problems in Hungary, the report concluded that “[f]or rule of law breaches covered by the Regulation that are so fundamental, frequent or widespread that they represent a complete failure of the budgetary implementation and monitoring system in a Member State, the only measures in response that could be considered both appropriate and proportionate, would be suspensions, reductions and interruptions of 100% of the flow of EU funds.” The report was solicited by Freund (MEP Greens/EFA) and supported by MEPs from the centre right EPP, socialist S&D and the liberal Renew Europe (see EU Oberver; see also more generally, Euractiv).

Other Member States

The rule of law report also illustrates problems in other EU Member States, concerning for instance the protection of journalists (Slovenia, Malta, Greece, Ireland) and reporters (Italy), the independence of the prosecutor general (Spain), and independence of governance (Slovenia). More specifically, after the controversy of Neelie Kroes with Uber, the EC recommended the Netherlands to develop a lobbying code of conduct for ministers and other officials.

Jourova: “The EU’s rule of law report shows that there is no country or system that is perfect. Everyone has its own challenges and Germany is no exception, even though the overall situation in the country is positive.” (…) “This is why, for the first time in the report, each member state got homework to do.” (see Politico) However, the situation in Hungary and Poland is the most concerning (see Politico)

Note the very critical remarks by former Prime Minister Fico of Slovakia on the country report of his country (Euractiv).

See all country chapters as part of the Rule of Law Report 2022 here.

EU wide

On 7 July, the EP discussed the issue of Russian ties to EU political parties, turning out in a heated debate. Commissioner Jourová stressed the importance of new EC proposals on political advertising, electoral rights, and party funding (see here), as well as a new EC toolkit to help mitigate foreign interference in research and innovation (see here). Mikulas Bek of the new Czech EU presidency regarded the issue a top priority (EU Observer). Note that the EC proposed last year to allow EP political parties and foundations to collect contributions from member parties or organisations located in States beyond the EU borders, belonging to the Council of Europe (see Euractiv).

Meanwhile, apart from the Pagasus controversy (see Euractiv and Politico) several EU Member States are employing mass surveillance techniques, despite CJEU rulings (see Politico). This comes in the wake of the Pegasus scandal Defiance of EU law amongst many EU Member States appears to be a more general and widespread concern (see documentation by Politico).

Further readings and media

Scheppele, Kim Lane: Will the Commission Throw the Rule of Law Away in Hungary? , VerfBlog, 2022/7/11, https://verfassungsblog.de/will-the-commission-throw-the-rule-of-law-away-in-hungary/

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