Europe’s ‘Groundhog Day’

Provided that it is endorsed in today’s European Council summit, the European Council conclusions, drafted by the German Council presidency, will overcome Hungary and Poland’s veto. In a brief two-page document, the parties have come up with a framework which will allow everyone to claim victory. It will put an end to weeks of political tension in Brussels and unlock, once and for all, the EU Recovery Fund, yet it will be a Pyrrhic victory for the rule of law in Europe.

The proposal

The Council Conclusions do not amend the substance of the conditionality mechanism, but they significantly delay its entry into force. According to Article 2(c), the Commission will not be able to propose measures under the mechanism until it has «develop[ed] and adopt[ed] guidelines on the way it will apply the [conditionality] Regulation», including a «methodology for carrying out its assessment.» Should a Member State challenge the Regulation through an action for annulment (Art 263 TFEU), however, it will remain suspended until the Court of Justice of the EU (CJEU) has handed down a ruling on its legality. The Commission guidelines necessary for its entry into force, in other words, «will [only] be finalized after the judgement of the [CJEU], so as to incorporate any relevant elements stemming from such judgement.»

To all practical effects, therefore, an action for annulment brought by Poland or Hungary –perhaps for an alleged violation of the principles of subsidiarity, conferral or respect for Member States’ national constitutional identities– will suspend the conditionality mechanism for a period which, according to Aleksejs Dimitrovs, will be of around two years –two months’ worth of preparation, fourteen in the CJEU itself, and a couple of months to draft the new guidelines. In doing so, adds Daniel Kelemen, it will buy authoritarian governments time: Orbán will be able to run (or, in Kelemen’s words, «rig and steal») the 2022 election, whilst the Polish government will go a long way towards entrenching its authoritarian regime before its EU funds are put at risk.

The legal consequences

Even if adopted by the European Council, however, Wednesday’s agreement faces an uncertain legal future. According to Alberto Alemanno, professor of EU Law at HEC Paris, Article 2(c) many be challenged by an EU institution for being ultra vires. Council Conclusions, he adds, are a «non-legally binding political declaration», which need not be endorsed by the European legislature (Council and Parliament). As such, they cannot be used, as has happened on the facts, to suspend the Commission’s obligations under the Rule of law mechanism itself, Article 5 of which reads that it ‘shall’ apply the Rule of law mechanism. The European Parliament, which has strongly advocated for an ambitious mechanism, and which will be denied a say on Wednesday’s agreement, may use this basis to see it struck down.

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The Conclusions’ unclear legal status raises another possibility –that by adhering to them, and thus failing to comply with its obligations under the Rule of law mechanism, the Commission may be subject to an action for a failure to act. According to Art 265 TFEU, «[s]hould the … European Commission … in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established.» Such a claim is not straightforward, and requires two further criteria: that the relevant institution «has first been called upon to act»; and that, «within two months of being called upon», it has «not defined its position.» Yet faced with the Von der Leyen Commission, which has consistently shown, according to Daniel Kelemen, to be «weak on the rule of law«, Article 265 may prove useful, both in exerting political pressure on the Commission and in seeking a judicial remedy.

‘Groundhog day’

Provided that it is approved by the EU27, Wednesday’s agreement will overcome the Orbán/Morawiecki veto, unlocking the Recovery Fund and the MFF 2021-27 and allowing their entry into force in 2021 (Article 2(k)). This, in a sense, was always the likeliest outcome: Poland and Hungary’s dependency on EU funds was too obvious for their veto to be more than a mere bluff, and the EU was all but certain to call it. The agreement, however, cannot be said to be an unequivocal victory for the Union: despite giving rise to an historic rule of law framework, the mechanism will be but a paper tiger, perpetuating the farce that rule of law enforcement has become. In the words of Garvan Walshe, Hungary and Poland will pretend to abide by the rule of law, and the Union will pretend to enforce it.

[Escuche el ‘podcast’ de Agenda Pública: ¿La vacuna es la solución?]

As well as resulting in an obvious paradox –that two authoritarian governments which have neglected the CJEU for years will now be able to rely on the Court to have the Rule of law mechanism suspended–, the agreement also sends out an unequivocal message about the Commission’s role. An agreement involving one of its flagship projects, and which will modify its legal obligations, will have been negotiated by another institution (the Council) and by two Member States which are openly hostile to its political agenda. The sidelining of the Commission, as the guardian of the Treaties and of the Union’s interest, is striking.

The crisis witnessed throughout the past weeks is not a one-off, but reflects the structural problem faced by the Union: a fragile constitutional architecture, which makes the rule of law enforcement dependent on the political will of its institutions (the Commission and Council) and its Member States. When such goodwill is not present –due to the Commission’s weakness on the rule of law, or to the Council’s dependence on the unanimity rule– the Treaties are rendered ineffective, and the Union’s founding values (Art 2 TEU) become a mere rhetorical device.

Many a European will breathe a sigh of relief –with the veto seen off, the entry into force of the Recovery Fund is a within sight. The Council’s agreement will, indeed, avoid a major crisis, but it fails to address said structural deficiencies. At best, it will kick the can down the road, delaying the inevitable face-off with Poland and Hungary; at worst, it entrenches the Union’s «authoritarian equilibrium«, raising the question of when, if at all, it will be overcome.

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