The European Commission should not simply reduce or stop subsidies to EU countries if a country does not have the rule of law in order. Moreover, the Commission is not at all authorised to assess the rule of law of Member States, Poland and Hungary state to the European Court of Justice in Luxembourg.
It sounds like boring and technical, but this week a very principled discussion is being held in Luxembourg. A brief explanation.
Its all about the rule of law mechanism. EU countries that do not have their rule of law in order can be shortened on EU subsidies since last January. The European Parliament and the European Council agreed last year.
Poland and Hungary were absolutely unhappy and went directly to the European Court of Justice to challenge the new rule. For the time being, the Commission has decided to wait to introduce the rule of law mechanism until the judges have decided.
Its not surprising that Poland and Hungary want to challenge the rule. Both countries have been warned several times. For example, Poland received a warning against the contentious disciplinary chamber, which mainly punishes judges who do not support the Pis government party. Independent judges are also under pressure in Hungary. Thus, if the rule of law mechanism were deployed by the Commission, these countries could be shortened.
Why is this lawsuit important?
recent days, lawyers have been blasting articles from the two basic treaties of the European Union. To indicate the importance of the case: all 27 judges (one from each Member State) present, where there are usually only three or four judges present. They will soon have to decide whether the EU can punish a country if countries do not respect independent case-law.
The importance of this ruling was emphasized last week, when the Polish Constitutional Court decided that national laws are above the European. Commissioner Reijnders said that he wanted to use the rule of law mechanism to punish Poland.
Poland and Hungarys arguments
But according to Poland and Hungary, thats not just possible. They say nowhere in the European treaties state that a country should be shortened if it does not have the rule of law in order. In addition, they say that the rule of law is a vague concept and is not legally well defined. It is impossible for countries to abide by rules that are not set at all, according to Poland and Hungary.
The countries also wonder how the Commission is going to determine how much money will be withheld. How do you determine if the punishment fits in with the offence of a country? Poland and Hungary also believe that the rule of law is also separate from the grants they receive from the EU.
The EUs arguments
The EU strongly contradicts this. Parliament and the Council are just saying that if there are no independent judges in a country, no one can check whether the money is properly spent and that there is no corruption. If a country does not have its rule of law in order, other EU countries cannot be sure that European money is well spent. Therefore, the rule of law mechanism should not be seen as a punishment, according to the EU. Above all, it should ensure that EU money is not abused.
Moreover, the EU says, the concept of rule of law is not new at all. At present, countries are already being punished through other routes if they do not have their rule of law in order.
Do Poland and Hungary have a chance to win?
Today, the 27 judges were able to ask questions to the countries concerned and the EU. On the basis of these questions, you can see what direction the judges are thinking in. In particular, the judges asked the EU how it wants to ensure that the sanction fits in with the offence of a Member State.
But Poland and Hungary received the most questions by far. It went very hard at times. For example, a judge asked whether Poland and Hungary could not have known that independent case-law is important. According to the court, that is explicitly stated in European treaties. Another judge wanted to know why Poland and Hungary were knocking on them. Wont they just put the verdict next to them if it doesnt suit them?
It may take several months for the court to come up with a judgment; a ruling this year is uncertain.