Analysis: There is still hope for Poland and Hungary after ECJ’s rule-of-law verdict

The European Court of Justice’s own narrow definition of the rule-of-law ordinance may prove to be a valuable asset in Poland and Hungary’s case against the European Commission, writes Michał Karnowski for

editor: Grzegorz Adamczyk
author: Michał Karnowski

As its latest verdict confirms, the European Court of Justice is remarkably predictable, but is also far from being an independent judicial entity, and is instead a tool for political pressure.

On Wednesday, the European Court of Justice rejected complaints filed by Hungary and Poland concerning the sanctions mechanism Brussels wants to use to cut EU budget funds to member states violating the so-called rule of law.

This is bad news, but politics never ends.

It is worth considering the options Poland has in this case and examining the exact justification behind the verdict because there are fragments which confirm what the Polish and Hungarian sides have been fighting for since the beginning. What lies at the basis of the European Commission accepting the conclusions in December 2020, which the internal rules for the European Commission enacting the legislation on rule of law) is narrow and restricted only to budget affairs meaning.

An important reservation is worth noting here: our respect for the European Commission and European Parliament’s lawfulness is limited. In these two institutions, political violence is accepted as reality and a tool to be used, which is bad news for the entire EU.

Despite all of this, it is important to point out that also according to the European Court of Justice, procedures associated with the rule-of-law mechanism can only be used when a consequence as a result of inadequate management of funds has taken place, or when a serious risk of such a situation has been proven.

To quote: “the discussed ordinance is meant to protect the EU’s budget, and only in the case of a violation of the rules of the legal state within a member state which would influence or create a serious risk of influencing the correct execution of the budget.”

Of course, terms such as “risk of influence” are not precise, but in combination with the rules previously accepted by the European Commission (the December 2020 Conclusions), they give the opportunity to fight and establish a second line of defense against a possible unlawful suspension of funds.

In other words, the European Court of Justice has confirmed that the aim of the ordinance is solely to protect the budget.

There is also one more element: in the hypothetical situation in which the European Commission would consider activating the procedure based on the rule-of-law sanctions mechanism, it would have to find support for its actions among at least 55 percent of member states which represent at least 65 percent of the EU’s entire population.

This may not be so obvious in light of the dynamically changing political situation on the continent.

Even if this would happen, the Polish government could appeal to such actions to the European Court of Justice, which in this case would be bound by its own narrow interpretation of the ordinance.

I must underline that there is little reason left to have any trust or faith in EU institutions, but the complexity of this situation and the possibility of further defense against political lawlessness dressed up as “rule of law” is worth pointing out.

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