The proposalThe 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."
The legal consequencesEven 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.