Don’t Call it Rule of Law, Call it Vendetta

I remember a conversation I had two years ago, when Europe started breathing after the peak of the pandemic, and when the prospect of war in Ukraine was plain science fiction. I was seated on a terrace with a former colleague from the EU, the type of convinced European federalist who does not shy away from debates but puts friendship above political dissonances. Rather rare in times of hegemonic cancel culture where people cherry pick their company even over a coffee. The topic? Hungary and Poland, of course, Viktor Orbán’s long litany of sins against EU values as defined by the brahmins of the European Parliament, recalcitrant Poland, and the recent adoption of the conditionality mechanism “for the protection of the Union’s Budget.” 

After a heated but civilised debate came his cynical punchline: Poland is too big and geopolitically indispensable, but Hungary has the right size and profile to be bashed so that ‘we’ can teach a lesson for open dissidence and deter future deviant behaviours. Thanks for your sincerity, dear former colleague, and thanks for confirming my intuition that rule of law, conditionality, common values, and other buzzwords are just semantic pretexts to wage a cultural war, take sides, and assume a leading role. That remark continued to resonate with me, as such an abuse of power constitutes a direct negation of the raison d’être of European integration. Mulling over this conversation, I came to the bitter conclusion that the EU, in the hands of its current pilots, has become an ideological trap—political blackmail clumsily disguised in technocratic euphemisms. 

Two years later, my worst forecasts were right. Orbán’s crushing victory in the polls (the last straw for Brussels?), the European Court of Justice’s green light on the conditionality mechanism, and the dire economic situation triggered largely by the war in Ukraine, resulted in a long-awaited alignment of planets. Finally, the best possible occasion to push the brand new nuclear button. Yes, brand new, and yes, nuclear. Because until the final approval of the conditionality mechanism in 2022, the Commission could only launch infringement proceedings against member states that might otherwise end up paying a heavy fine. That was it and that was not much, according to them. Yet, suddenly, toothless Brussels has been granted ‘blackmailing superpowers’ in the form of financial conditionality. After years of simmering frustrations, technocrats are finally playing the sorcerer’s apprentice against the ideal black sheep, and with few counterpowers.

Prima facie, all fine. Who could possibly be opposed to “protecting the financial interests of the Union” and addressing rule of law questions that might “have an impact on the EU budget”? Except that the devil’s in the details, or more precisely, in the lack of details. Actually, the current proceedings against Hungary are a reminder that undefined legal concepts applied with unlimited discretion, and without regard to one’s field of competence, are the perfect recipe for arbitrariness. At first, Brussels put 17 conditions on Budapest’s table. When the latter ticked all the boxes, the Commission added ten more “related to judiciary independence” without really explaining the link to the protection of the EU’s financial interests. To what extent do the current competences of the Hungarian Supreme and Constitutional Court represent a threat for the EU’s budget? Are there concrete examples or is it a case of ‘just in case’ wishful thinking? Don’t ask, just do, and too bad if this entails turning the EU budget into a master key to grab competences and force constitutional changes on member states. 

So, from 17 milestones to 27 ‘supermilestones’ (lovely example of technocratic poetry, en passant). Except that Hungary kept playing the game and delivering. So, what’s next, ‘we’ need to punish the black sheep, don’t ‘we’? Let’s try the Hungarian law on the protection of minors that bans pornography, ‘gender theory,’ and the promotion of homosexuality for minors. If there is a field where the EU does not have an inch of a competence it is precisely this one, but never mind. When Richelieu coined his famous mot d’esprit (“If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him”), he did not foresee that it would somehow be recycled in Brussels some centuries later in a more sophisticated, and less macabre, fashion. 

The trick is that there is always an existing EU legislation that the Commission is ready to invoke in order to claim ‘this is my business’ without a clear mandate. In this case, the jackpot legislation is the Common Provisions Regulation, a tedious, technical law on the implementation of several EU funds that nevertheless contains a few traps. One is the obligation to promote ‘gender mainstreaming’ and ‘a gender perspective’ when implementing those funds (if someone is knowledgeable enough in woke sciences, please explain the difference). The second is an obligation to respect the EU’s Charter of Fundamental Rights. Enough for the Commission to write in black and white on December 22nd that “the provisions of Hungary’s so called child-protection law … have a concrete and direct impact on the compliance with the Charter in the implementation of certain specific objectives of three cohesion programmes.” Translated into jargon free language: Hungary will be financially punished if this law is not amended. So much for all those mandarins swearing to God that the EU Budget was not an ideological weapon. 

And now that the blackmail mechanism is well oiled, why should Brussels stop? And since the witch hunt is widely applauded by a European Parliament desperately trying to sweep a ‘QatarGate’ under the carpet, let’s double down on it! The EP resolutions against Hungary are an unassuageable source of lies put together by third class MEPs wishing to build themselves a name on Orbán’s popularity. And one of the latest tunes is that Hungarian universities are ‘politically hijacked’ because there are a couple of right-wing politicians in their boards of trustees. Again, does the EU have competence in that field? No, but who cares, because it suffices to claim that Erasmus funds could potentially/theoretically/presumably be in danger from those couple of politicians sitting in the board of trustees with a limited role. Who needs law faculties to elaborate such ‘legal reasonings’? 

The problem is that the EU, by expelling Hungarian universities and students from the Erasmus program as from next year, crossed a red line of infamy and shot itself in the foot. Erasmus is the EU’s most consensual brand, a successful and popular program meant to ‘build bridges,’ a sacred cow that the Commission just tainted with the dirt of arbitrariness, thus showing the real nature of its alleged attachment to values, rule of law and you name it: political punishment to set a deterring example—financial authoritarianism, if you prefer.

So what’s next? What is the European Parliament whispering in the Commission’s ear in order to keep up the financial blackmail? The conditionality mechanism is arguably the largest power that the EU in general, and the Commission in particular, has ever exercised. After years of soft power, Brussels seems to enjoy the sadistic thrill of the financial whiplash with lust and self-satisfaction, especially in times of war—a tasty and cold vendetta also known as “protecting the budget of the Union,” and a prerogative that is likely to blow the EU apart if placed in bad hands. Like the current ones. 

P.S. My friend was wrong on one point. Neither its size, nor its geopolitical weight in times of war, spared Poland from financial blackmail. For the rest, he was absolutely right.