The Rule of law: what about Poland and Hungary?

Traslated by Marine El Hajji

In its first report published on the 30th of September 2020, the European Commission presents an overview of the current rule of law situation in European countries. The report is divided into several chapters: the first one, covering all European countries, is a synthesis of the general rule of law situation in the EU, while the other chapters are assessments of the situation in each Member State with the Commission analysis and goes over the development, progress and current situation of the rule of law. Some countries such as Poland, Hungary or Bulgaria are the prime focus of attention, as well as a source of worries for the EU.

The Rule of Law?

In European law, Article 2 of the Treaty on European Union (TEU), the rule of law is one of the democratic values on which the European Union is founded and which each Member State must respect. The rule of law can be defined as follows: “Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts(2020 Rule of Law Report). The European Commission has decided to base the rule of law on four main pillars: “justice systems”, which are necessary for the proper respect of the rule of law; “the anti-corruption framework”, as corruption undermines the functioning of the state and of public authorities at all levels and is a key enabler of organized crime; “media pluralism and media freedom”, which refers to fundamental freedoms such as the freedom of media, the freedom of expression or the right of access to information; “checks and balances”, which concerns the interplay between national institutions and their sincere cooperation.

Poland and Hungary Continue to Receive Special Attention

The European Commission is engaged in a never-ending fight against Poland and Hungary for breach of the rule of law. Since 2010 and Viktor Orbán’s rise to power, laws have been put in place to restrain media freedom and the independence of the European Central Bank. In the report on Hungary, the concern of the European institutions is the judicial independence and the transparency of the legislative process in Hungary. The sanction proceeding under Article 7 of the TEU was launched in September 2018 by the European Parliament.

With Poland, the arm wrestling began in 2015, when the Law and Justice Party rose to power. In 2016, the European Commission first tried to negotiate – but in vain. In December 2017, the Commission decided to launch sanction proceedings against Poland. The country had already been repeatedly condemned by the European Court of Justice for undermining the judicial independence of Polish judges. Indeed, appointments to the Constitutional Court are illegal as contrary to the Constitution. Moreover, Poland authorized in 2017 the creation of a Disciplinary Chamber of the Supreme Court to sanction judges defending the rule of law. Through this chamber, criminal proceedings may be brought against judges, leading to their temporary suspension from office.

But Poland and Hungary are not the only bad eggs: Croatia, the Czech Republic, Estonia and Greece are not doing enough to fight corruption, and Spain, Malta and Slovenia are being prosecuted for threats and physical attacks against journalists.

The limitations of sanction proceedings

In 1997, the Treaty of Amsterdam amended the TEU, establishing a procedure to sanction – under the Article 7 of the TEU – a Member States which does not uphold the EU values. To properly understand the limitations of this mechanism, one must look at said procedure. The Treaty of Nice of 2001 slightly modified the sanction mechanism by introducing a paragraph on the preventive mechanism. A preventive phase, in cases of a breach, can then be initiated by the European Commission, one third of Member States or the European Parliament. This first step must be voted by two thirds of the Parliament. The Council of Ministers then intervenes to ascertain the risk of a breach of values and makes recommendations to the country in question. However, things get more complicated for the rest of the procedure. The European Council must vote unanimously to move on to the third and final stage and impose sanctions, which will be voted on by qualified majority. The sanctions can go as far as suspending the Member State’s voting rights.

Photo credit: picture by Dimitris Vetsikas on Pixabay

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