Why does the EU insist on beating Poland and Hungary?
Giuseppe Liturri's analysis
On Wednesday 16 February , yet another episode took place in which Poland and Hungary on the one hand have been opposing each other for years and, on the other, the main EU institutions.
In fact, the request for annulment of regulation 2092 of December 2020 for the protection of the Union budget, made by Warsaw and Budapest, was rejected by the Court of Justice based in Luxembourg.
The story has its roots in the very long European Council of July 2020 – the one in which the foundations of the Recovery Fund were laid – during which the guidelines of a regulation that had the aim of conditioning the disbursement of Union funds were also decided respect for the principles of the rule of law. In the following months, the two riotous countries threatened for a long time to lack the unanimity necessary for the approval of the EU budget by the Council, because they were firmly intent on opposing the regulation painstakingly developed by the Commission. The compromise reached provided that the Commission would renounce to exercise its action as the driving force of the sanctions then adopted by the Council, until the moment in which the Court of Justice had not ruled on the objections raised by Poland and Hungary. Basically the regulation was put in the freezer.
Thus we come to the sentence of February 16, which however does not come as a surprise because already on December 2 last, the Advocate General Campos Sánchez-Bordona, in his conclusions , which however do not bind the EU Court of Justice, had rejected the objections of the applicants who also based on a confidential opinion of the legal service of the Council formulated during the gestation phase of the regulation.
However, the Court, in rejecting the appeal, greatly weakened the scope of the Regulation by circumscribing its legal basis, which was one of the disputes by Poles and Hungarians. The regulation is brought back into its bed, much narrower than the one that even after the sentence was exalted by certain comments or certain propaganda – which perhaps has not even read it – which has always been inclined to see it as the Holy Grail of the founding values of 'Union. None of this, the range of action of the regulation is much more limited. It is a general and closing rule (because many regulations, such as the RRF, already have specific rules within them that block payments if certain conditions are not met).
The judges believe that several factors must concur at the same time in order for the sanctions to be triggered: first of all there must be the ascertainment of violations of the principles of the rule of law, then a direct and effective causal link is required that leads to the conclusion that such violations compromise or seriously jeopardize the sound financial management of the EU budget and its financial interests. Without the involvement of financial interests, the regulation does not operate, even in the presence of violations.
The Court also firmly rejects another objection from the applicants, who contested the very notion of "rule of law", pleading that it was not codified anywhere. The judges recall that this notion includes “ the principles of legality, according to which the legislative process must be transparent, accountable, democratic and pluralistic; legal certainty; prohibition of arbitrariness of the executive power; effective judicial protection, including access to justice, by independent and impartial courts, including as regards fundamental rights; separation of powers; non-discrimination and equality before the law " . All principles that the Court considers sufficiently covered by the regulation and amply elaborated by its jurisprudence. So there does not seem to be any doubts as to their content and accuracy. Even on this, however, the Court makes several clarifications that sound like limits to those who saw this instrument as a good truncheon for all seasons.
At this point the question arises whether the problem of respecting this broad and well-codified notion of the rule of law exists only in Poland and Hungary. Because, judging by the verminaio uncovered by the Palamara case, or thinking about the indiscriminate and illegitimate use of the Prime Minister's Decree by the Conte government or the law decrees – which have now become an instrument of ordinary legislation, with Parliament called only to press the button of votes of confidence – on the part of the Draghi government, some doubts would also arise about Italy.
Now the ball goes to the Commission which, not surprisingly, reacted in a prudent manner , promising to define guidelines for the application of the Regulations. So no immediate reaction against the reprobate on the eastern shore of the EU.
The sanctioning measures to be borne by the States, decided by the Council, will essentially consist in the suspension of payments from the EU budget and in the suspension of the approval of the programs to be borne by that budget.
But even here, nothing particularly disruptive. Hungary and Poland are still awaiting the approval of their respective Recovery Plans and are already undergoing, in fact and without any judicial protection, the blackmail of the Commission, without the regulation to which they unsuccessfully opposed ever being applied.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/perche-lue-insiste-a-bastonare-polonia-e-ungheria/ on Sun, 20 Feb 2022 09:56:20 +0000.