Rule of law conditionality: Poland and Hungary lose battle

Accountability, Justice and Space for Civil Society, Democracy and freedoms, Newsletter, Poland

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Green light for the European Commission to cut funding to ‘illiberal’ Member States! On 16 February 2022, the Court of Justice of the European Union (CJEU) dismissed the legal actions brought by Hungary and Poland against the conditionality mechanism that makes EU funding subject to the respect for the rule of law. 

After triggering Article 7 of the Treaty on the EU (TEU) against Poland and Hungary, in 2017 and 2018 respectively, the EU has now a powerful weapon in its hands to counter attacks on the rule of law, the independence of the judiciary and freedom of expression within the EU. Article 7 of the TEU provides for a procedure against a Member State in the event of a serious (risk of) breach of the Union values, although its triggering has not borne much fruit since unanimity is required, and it has even been used by the two countries to fuel their anti-EU rhetoric. 

It is now hoped that the European Commission will act swiftly to launch the mechanism by reducing, suspending or even prohibiting funding given the “generalised deficiencies” in Poland and Hungary. Within minutes of the CJEU’s ruling, both countries claimed political bias and questioned the Court’s credibility. European Commission President, Ursula von der Leyen, stated that the Commission would adopt in the following weeks “guidelines providing further clarity” about how to apply the mechanism in practice. 

The CJEU ruling marks the latest round in a longstanding legal battle to uphold democratic standards among EU Member States. Yet, as previously underlined by EuroMed Rights, such a mechanism should also be put in place to deal with non-EU countries that gravely undermine the rule of law at home. Human rights NGOs have been calling for ages for greater coherence between the EU’s external and internal policies, bearing in mind the EU’s capacity to condition its external support on respect for human rights, while noting the “members of the club” remained untouched. Failure to apply a similar conditionality mechanism outside its borders would place the EU in the paradoxical situation of “not practising outside what it preaches inside”.