The “Rule of Law” applied by the European Parliament against Hungary? A political decision without a legal basis
If you want to understand the actions of the European Parliament you have to remember that the legal basis is very thin. The famous TFEU, the one that remained after the rejection of the "European Constitution" of Nice, is above all a rather complex and confused instrument of bureaucratic organization and division of powers, not an ethical instrument. With the definition of "rule of law" as deliberated by parliament we went "Ultra Vires", that is, it was expressed well outside its powers, "Creating" a right that was not there, and does not exist.
To explain better, I take an extract of what Musso wrote and also taken up by Porro in his blog:
(I) novative. It contains a definition of "violation of the rule of law" (articles 2a and 3), devoid of normative references in the Treaties, therefore sufficient in itself, therefore self-founding. As if it were a modification of the Treaty. This is all the more true, as the definition of "rule of law" (art. 2) lacks any normative references in the Treaties. Both are so self-founding that they are explicitly introduced "for the purposes of applying this regulation". Very significantly, the regulation does not contain a definition of 'good financial management', because this is well established, as opposed to the previous one.
(II) twice novative. It introduces a sanctioning (art. 5) and de-sanctioning (art. 6) procedure unknown to the Treaties. Again, as if it were a treaty change. This is all the more true, since the Treaties already have protective sanctioning procedures, to which the Regulation comes to overlap: in the case of the 'rule of law' principle, it is a question of the suspension of "some of the rights deriving from the Member State in question by the application of the Treaties, including the voting rights of the representative of the government of that Member State in the Council "( art. 7 Tfeu ).
The fact that there is no clear case of the "rule of law" in the treaties makes decisions on the matter, which fortunately must also pass under the control of the Council, rather arbitrary. Among other things, as Musso always notes, the principle, which is essential in the treaties, of non-discrimination between the states of the Union is broken: now we have a state obliged to compete for payments, but which theoretically should not obtain funds, inter alia by blocking indirect funds such as those of the EIB.
The vote in the Strasbourg Parliament therefore appears to be an error, even a political one: the passage of the decision was only due to a certain psychological subjection of the EPP to the socialists, but this wind is changing a bit in all states. Even the "Liberals", as what happened in France shows, either differ from the Left or risk being overwhelmed by the right and the left. The decision on Hungary will weaken, not strengthen, the authority of Parliament, and with it that of the other European institutions.
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The article The “Rule of Law Regulation” applied by the European Parliament against Hungary? A political decision without a legal basis comes from ScenariEconomici.it .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/la-normativa-sullo-stato-di-diritto-applicata-dal-parlamento-europeo-contro-lungheria-una-decisione-politica-senza-base-giuridca/ on Mon, 19 Sep 2022 12:12:20 +0000.