At last week’s summit, EU leaders wanted to provide a guarantee that rule-of-law procedures against a member state cannot be used for political purposes. Their symbolic statement may ease their guilty consciences. However, it does not change the fact that rule-of-law procedures have always been tools for EU political arbitrariness. On February 1, 2024, the European Council reiterated its conclusions of December 2020 on the need for a neutral use of the rule-of-law conditionality mechanism. This happened after media revelations about an EU plan to destroy the Hungarian economy should Hungary not support an EU budgetary amendment to provide €50 billion to Ukraine.
There is an interesting trend here: while the political nature of rule-of-law procedures is now more visible than ever, some key players in the EU political arena feel that it is necessary solemnly to state the contrary.
Only a few weeks ago, Ursula von der Leyen defended the European Commission’s decision to unblock €10 billion of EU funds for Hungary at the European Parliament (EP) plenary session. According to her, Hungary had delivered the required reforms to its judiciary, and the Commission now had to follow its own rules. “This is what makes the rule of law stand out from arbitrary power,” she said, attempting to send a message to the EP, which, for purely political reasons, refused to release the funds intended for Hungary.
Yet this does not mean that the Commission is less arbitrary than other institutions. In the very same speech, President von der Leyen also added that €20 billion remains “suspended for reasons that include concerns over LGBTQ rights, academic freedom, and asylum rights.” In this, she revealed that the EU continues to sanction Hungary for explicitly political reasons. Hungary is not failing to comply with EU law (the EU has limited or no competence in these areas), but failing to get on board with the latest trends in woke ideology.
Von der Leyen touched upon the point (perhaps exposing her guilty conscience) by evoking the ‘arbitrariness’ of the political which-hunt against Hungary, which is being carried out under the pretext of ‘rule-of-law’ debates. What she forgot to mention is that this is not a hypothetical phenomenon but, in fact, the reality of the past decade and a half.
All EU institutions, including the Commission itself, have been complicit in introducing ever wider ‘rule-of-law’ instruments since the early 2010s. These were, from the beginning, political tools in a legal guise. EU institutions intentionally designed them as a means by which to exert political pressure on those member states who resisted the politics of the EU elite.
When the Commission published its communication on the so-called rule-of-law framework in 2014—a pioneer tool of supranational EU rule-of-law control—it expressly acknowledged that this instrument was designed to deal with cases that fall outside the EU’s competences.
Back then, it was clear that the Commission acted in an unlawful manner and, paradoxically, against the EU’s rule of law itself. The Legal Service of the Council of the European Union concluded that “there was no legal basis in the Treaties empowering the institutions to create a new supervision mechanism of the respect of the rule of law by the Member States.” Nevertheless, in the following years, the EU continued to establish an ever-wider rule-of-law control over member states. The fact that the EU now has an arsenal of ‘rule-of-law’ instruments signals the victory of political arbitrariness over EU law.
The rule-of-law tools are not only arbitrary in their origins but also in their application. All of the EU institutions involved in rule-of-law procedures are political by nature. The European Parliament is composed of elected politicians; government representatives sit in the Council; and, since the presidency of Jean-Claude Juncker, the European Commission has been expressly acting as a political body. These political institutions are anything but neutral and objective. Therefore, it is no surprise that the rule-of-law instruments under their control also serve political ends.
The seemingly ‘legal’ character of these instruments should deceive no one. No matter how complicated the procedures developed by EU institutions, no matter how much they force them into EU law (disregarding the treaties), it does not change the deeply political and ultimately unlawful character of such instruments. In fact, the more arcane and bureaucratic the procedures become, the less transparent and objective they become. This is a recipe for political arbitrariness.
The EU’s actions against Hungary are like travelling back in time to an era before the idea of rule of law had been developed and when those in power did not have to apply the law neutrally and equally to everyone. Absolute monarchs did not have to provide a sound legal justification for their decisions, and there was no possibility of appealing to any impartial bodies to challenge them. Sadly, EU rule-of-law procedures are now the main threat to the political freedom of European countries. Hungary has been a victim of EU political arbitrariness for almost a decade and a half. No one should doubt that if other member states try to resist, the same fate awaits them.
Hungary Is a Victim of the EU’s Arbitrariness
The Hungarian Parliament building in Budapest
Photo: Den Rozhnovsky / shutterstock.com
At last week’s summit, EU leaders wanted to provide a guarantee that rule-of-law procedures against a member state cannot be used for political purposes. Their symbolic statement may ease their guilty consciences. However, it does not change the fact that rule-of-law procedures have always been tools for EU political arbitrariness. On February 1, 2024, the European Council reiterated its conclusions of December 2020 on the need for a neutral use of the rule-of-law conditionality mechanism. This happened after media revelations about an EU plan to destroy the Hungarian economy should Hungary not support an EU budgetary amendment to provide €50 billion to Ukraine.
There is an interesting trend here: while the political nature of rule-of-law procedures is now more visible than ever, some key players in the EU political arena feel that it is necessary solemnly to state the contrary.
Only a few weeks ago, Ursula von der Leyen defended the European Commission’s decision to unblock €10 billion of EU funds for Hungary at the European Parliament (EP) plenary session. According to her, Hungary had delivered the required reforms to its judiciary, and the Commission now had to follow its own rules. “This is what makes the rule of law stand out from arbitrary power,” she said, attempting to send a message to the EP, which, for purely political reasons, refused to release the funds intended for Hungary.
Yet this does not mean that the Commission is less arbitrary than other institutions. In the very same speech, President von der Leyen also added that €20 billion remains “suspended for reasons that include concerns over LGBTQ rights, academic freedom, and asylum rights.” In this, she revealed that the EU continues to sanction Hungary for explicitly political reasons. Hungary is not failing to comply with EU law (the EU has limited or no competence in these areas), but failing to get on board with the latest trends in woke ideology.
Von der Leyen touched upon the point (perhaps exposing her guilty conscience) by evoking the ‘arbitrariness’ of the political which-hunt against Hungary, which is being carried out under the pretext of ‘rule-of-law’ debates. What she forgot to mention is that this is not a hypothetical phenomenon but, in fact, the reality of the past decade and a half.
All EU institutions, including the Commission itself, have been complicit in introducing ever wider ‘rule-of-law’ instruments since the early 2010s. These were, from the beginning, political tools in a legal guise. EU institutions intentionally designed them as a means by which to exert political pressure on those member states who resisted the politics of the EU elite.
When the Commission published its communication on the so-called rule-of-law framework in 2014—a pioneer tool of supranational EU rule-of-law control—it expressly acknowledged that this instrument was designed to deal with cases that fall outside the EU’s competences.
Back then, it was clear that the Commission acted in an unlawful manner and, paradoxically, against the EU’s rule of law itself. The Legal Service of the Council of the European Union concluded that “there was no legal basis in the Treaties empowering the institutions to create a new supervision mechanism of the respect of the rule of law by the Member States.” Nevertheless, in the following years, the EU continued to establish an ever-wider rule-of-law control over member states. The fact that the EU now has an arsenal of ‘rule-of-law’ instruments signals the victory of political arbitrariness over EU law.
The rule-of-law tools are not only arbitrary in their origins but also in their application. All of the EU institutions involved in rule-of-law procedures are political by nature. The European Parliament is composed of elected politicians; government representatives sit in the Council; and, since the presidency of Jean-Claude Juncker, the European Commission has been expressly acting as a political body. These political institutions are anything but neutral and objective. Therefore, it is no surprise that the rule-of-law instruments under their control also serve political ends.
The seemingly ‘legal’ character of these instruments should deceive no one. No matter how complicated the procedures developed by EU institutions, no matter how much they force them into EU law (disregarding the treaties), it does not change the deeply political and ultimately unlawful character of such instruments. In fact, the more arcane and bureaucratic the procedures become, the less transparent and objective they become. This is a recipe for political arbitrariness.
The EU’s actions against Hungary are like travelling back in time to an era before the idea of rule of law had been developed and when those in power did not have to apply the law neutrally and equally to everyone. Absolute monarchs did not have to provide a sound legal justification for their decisions, and there was no possibility of appealing to any impartial bodies to challenge them. Sadly, EU rule-of-law procedures are now the main threat to the political freedom of European countries. Hungary has been a victim of EU political arbitrariness for almost a decade and a half. No one should doubt that if other member states try to resist, the same fate awaits them.
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