‘Rule-of-law’ disputes between EU institutions and member states have become increasingly important in recent years. These purported legal disputes are really a power struggle between Brussels and conservative national governments, most notably in Hungary and, previously, Poland.
The rule of law is a vague concept, defined in the EU Treaty’s Article 2 as one of its founding values, under which “all public powers must always act within the constraints set out by law.” According to the EU, the rule of law “requires that everyone enjoys equal protection under the law and prevents the arbitrary use of power by governments.”
Yet the EU institutions are the ones that have been arbitrarily using this concept as a political weapon to harass the conservative governments of member states with which they don’t agree ideologically.
Article 7 of the EU Treaty declares that a member state’s rights, including its voting rights, can be suspended if it is established that it is persistently breaching the EU’s core values, which include the rule of law, freedom, democracy, equality, and human rights. Article 7 is considered by many to be the ‘nuclear option’ for the EU, which is probably why it has yet to be fully triggered.
However, the threat of Article 7 has hung over conservative governments. In 2017, the European Commission initiated Article 7 action against Poland for allegedly violating the rule of law on the grounds that judicial reforms by the conservative Law and Justice (PiS) government had supposedly removed the separation of powers between the executive and the judiciary. Rhetorically, the Commission would often bracket Polish judicial reforms with traditionalist PiS social policies in order to defame conservative Poland as authoritarian.
Then, in 2018, the European Parliament (EP) voted for Article 7 action against Hungary, led by the conservative Fidesz government of Viktor Orbán since 2010. The EP accused Hungary of violating the rule of law over judicial independence, freedom of expression, corruption, minority rights, and the treatment of migrants and refugees.
The European Council (made up of the heads of government of the member states) would have to unanimously agree on suspending a member state’s rights under Article 7, and there has been little appetite among the majority of governments for setting such a far-reaching precedent. However, the threat of Article 7 has proved a useful political tool for maintaining constant pressure on a conservative member state, and can be used as leverage when other ‘rule-of-law’ issues emerge.
In practical terms, perhaps the most damaging weapon used against both Hungary and Poland has been the withholding of EU funds under the Rule of Law Conditionality Regulation. Adopted in 2020 by the European Council, amid protests by Hungary and Poland, the Conditionality Regulation allows the European Commission to suspend payment of funds if it rules that a member state has violated the principles of the rule of law.
The Commission has been withholding tens of billions of euros worth of funds from Hungary in the form of 1) cohesion funds, designed to reduce economic and social disparities between member states; and 2) recovery funds, used to make member states’ economies more stable following the hardships brought about by the COVID pandemic and the Ukraine war. The Commission has raised various allegations against Hungary about judicial independence, public procurement, conflict of interest, corruption, academic freedom, the right to asylum, and Hungary’s child-protection law, which heavily restricts the ‘promotion’ of homosexuality and gender transition in schools and the media.
After Hungary met several EU-required conditions to strengthen judicial independence, the Commission in December reluctantly unblocked about €10.2 billion out of roughly €30 billion of withheld EU funds. However, the leftist-liberal majority of the current European Parliament is taking the Commission to court for doing so—an act that proves the rule-of-law procedures have more to do with politics than the law.
Poland was similarly deprived of EU funds during the tenure of the conservative PiS government (2015- 2023) under the pretext that its judicial reforms breached the rule of law. Now that a left-liberal government led by former Eurocrat Donald Tusk is in place, the Commission apparently believes Poland has ‘strengthened’ judicial independence, and is therefore set to receive tens of billions of euros. There have been no calls for ‘rule-of-law’ procedures in the EU against the new government of Poland, despite its constitution-flouting clampdown on the Polish opposition: the purge of conservative judges, the jailing of opposition MPs, or the shutting down of the state broadcaster. Instead of berating Warsaw, EU officials have expressed sympathy and political bias towards the new leadership of Poland.
The political nature of these rule-of-law procedures is visible with the more recent treatment of Slovakia. The European Parliament adopted a resolution in January condemning Slovakia, while the European Commission has threatened to withhold EU funds due to a modification of the country’s criminal code. The fresh wave of hostility towards the country may not be unconnected to the fact that its newly-elected populist leader, Robert Fico, has angered the Brussels establishment with his anti-migration, sovereigntist politics, and criticism of EU support for Ukraine’s war.
The conservative government of Greece has also been singled out, with the EP urging the Commission to freeze funds for the country, citing a myriad of alleged issues they say are threatening the rule of law, including a clampdown on illegal immigration. Meanwhile, the socialist government of Spain has been protected by the left-wing establishment in Brussels, despite the government bending Spanish law to push through judicial reforms and an amnesty deal with Catalan separatists whose support it needs to remain in power.
