The López Aguilar report on Poland was adopted by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) on July 16, 2020. The Sargentini report on Hungary was adopted by LIBE on June 25, 2018, and it then served as the basis of a motion adopted in plenary session on September 12 of the same year, although it remains to be decided by the European Court of Justice (ECJ) whether it was legal to exclude abstentions from the voting results in order to achieve the two-thirds majority required by the European treaties. In both cases the reports constitute a necessary step in the Article 7 infringement procedure against those countries. It is on the basis of such a report that the European Parliament can pass a motion giving its approval for a case to be brought before the European Council. Thus, the reports on Poland and Hungary are the first of their kind in the history of the European Union, and they happen to have a lot in common, including their highly ideological content – with criticism covering fields outside the competence of European institutions (including the management of illegal immigration, but also “gay marriage” and abortion) – their tendency to question all of the main reforms introduced by the conservative governments of the two Central European countries, the very left-wing political profile of their authors, and the way public consultations in both countries were conducted, with right-wing, conservative and/or Christian organisations being almost entirely excluded from the process. The problem is that, as the Hungarian Centre for Fundamental Rights put it in its detailed criticism of the Sargentini report in 2018, unless the Article 7 procedure is pursued in an objective and unbiased manner, “the legal instruments will be wiped out and will become instruments of political pressure”. That this prediction has already come true in the European Parliament is best shown by the López Aguilar report on Poland and the Sargentini report on Hungary.
What is in the reports?
Both reports express general criticism against the main reforms enacted since 2015 by the United Right coalition led by PiS in Poland, and since 2010 by the Fidesz–KDNP coalition in Hungary. This is all in the light of Article 2 of the Treaty on European Union, which states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
The Sargentini report against Hungary
In Hungary, among the reasons why, in the eyes of the author of the report and a majority of MEPs, “it should be determined, in accordance with Article 7(1) TEU, that there is a clear risk of a serious breach by Hungary of the values referred to in Article 2 TEU”, one can find, for example, “concerns regarding the constitution-making process in Hungary on several occasions, both as regards the Fundamental Law and amendments thereto”. The new Hungarian constitution was passed by the Fidesz–KDNP two-thirds majority in parliament in 2011 and came into force in 2012. When the Sargentini report was adopted in the form of a motion passed by the European Parliament, there had been two general elections – in 2014 and in April 2018 – since the coming into force of the new Hungarian constitution. Both elections gave Fidesz–KDNP a new two-thirds majority in Parliament. Thus, a comfortable majority of Hungarian electors seemed to hold a very different view on their new constitution from that of the LIBE Committee and the European Parliament. The same goes for other reforms dating back to the early 2010s which are criticised in the Sargentini report, such as new limits placed on the competencies of the Hungarian Constitutional Court as a result of the constitutional reform, and the extensive use of national consultations, which are said in the Sargentini report to induce “hatred towards migrants” and to target “particularly the person of George Soros and the Union”. The Sargentini report goes on to criticise the creation in 2011 of a National Judicial Office, whose president is elected by Parliament and which took on some of the previous competencies of the National Judicial Council, an organ of judicial self-government. It also criticises a reform of the prosecution service introduced by a law passed in 2011. The report reiterates objections expressed by the Venice Commission, a consultative body of the Council of Europe, with regard to the Hungarian media laws passed by Parliament in 2010. It criticises a 2011 law on higher education, in addition to the more recent law passed in 2017 which requires foreign universities operating in Hungary to have a campus in their home country. The Sargentini report continues with the 2011 law on religious freedom and the legal status of Churches, and so on. Of course, more recent moves, such as the 2017 law on the Transparency of Organisations Receiving Support from Abroad and the so-called “Anti-Soros” anti-immigration laws of 2018, are also criticised in the report and considered as so many reasons why the European Council should determine, “in accordance with Article 7(1) TEU, that there is a clear risk of a serious breach by Hungary of the values referred to in Article 2 TEU”. Even the advertisement tax introduced by Hungary in 2014 is criticised in the Sargentini report, and it can therefore be assumed to be another of the reasons for the European Parliament to vote in favour of Article 7 proceedings, although the ECJ later rejected, in June 2019, the Commission’s claim that the Hungarian progressive advertisement tax was against EU law.
Furthermore, the Sargentini report contains general accusations concerning a supposed “deterioration of the situation as regards racism and intolerance in Hungary”, in particular towards Roma, Jews, and LGBTI people. This is an extraordinary statement to be made at a time when Hungary is one of the safest places to be for European Jews, and also given that Fidesz-led governments have done more than any other previous government, in particular through family support and the schooling of children, for the integration of the Roma community into broader Hungarian society. As for the “paramilitary marches and patrolling in Roma-populated villages” which are denounced in the 2018 Sargentini Report, based on a 2014 report by the Council of Europe’s Commissioner for Human Rights, such a situation existed prior to 2010, that is to say before the return to power of Fidesz, and it had long become a thing of the past at the time of the Sargentini report! A special chapter titled “Fundamental rights of migrants, asylum seekers and refugees” is of course reserved for the question of Hungary’s tough policies against illegal immigration. Had the opinion of the European Parliament Committee on Women’s Rights and Gender Equality also been listened to, the motion passed on September 12 would have further condemned Hungary for imposing mandatory counselling and a three-day reflection period on women asking for an abortion (as per regulations that already existed prior to 2010), since this is seen by a majority of the MEPs sitting on that Committee as “complicating and stigmatising women’s access to those healthcare services”. The Committee on Women’s Rights and Gender Equality also wished to add to the report that “the definition of family in the Hungarian constitution as ‘marriage and partner-child relationships’ is outdated and based on conservative beliefs” and to punish Hungary for banning same-sex marriage (the nature of marriage being enshrined in its constitution). Although these demands were not included in the final motion of the European Parliament which launched the Article 7 proceedings against Hungary, demands for more liberal abortion laws are to be found in the new López Aguilar report against Poland.
The López Aguilar report against Poland
Indeed, in a special chapter titled “Sexual and reproductive health and rights” (which are unequivocally outside the scope of EU institutions as per the European treaties), the López Aguilar report criticises a citizens’ initiative that originated a “legislative proposal that would prohibit abortion in cases of severe or fatal foetal impairment”. Just as Hungary is criticised in the Sargentini report for not having ratified the Convention of the Council of Europe on preventing and combating violence against women and domestic violence (the Istanbul Convention), the López Aguilar report expresses deep concern at the fact that there have been declarations in Polish government circles that Poland should withdraw from the Istanbul Convention. Hence, the possibility of withdrawal from the Convention, which has nothing to do with EU law and treaties, is presented in the López Aguilar report, much as it was in the Sargentini report about Hungary, as one more reason to call “on the Commission to make full use of the tools available to it, to address a clear risk of a serious breach by Poland of the values on which the Union is founded, in particular expedited infringement procedures and applications for interim measures before the Court of Justice, as well as budgetary tools”. And while Hungary was targeted by the Sargentini report for its immigration policy, Poland is very strongly criticised in the López Aguilar report for “the declarations of zones in Poland free from so-called ‘LGBT ideology’ and the adoption of ‘Regional Charters of Family Rights’”. Those zones, namely regions where local governments have adopted resolutions stating their rejection of LGBT ideology or simply a charter of family rights with no mention of same-sex partnerships (which are not recognised in Poland, where the nature of marriage is also enshrined in the constitution), are further called in the report “LGBTI-free zones”, as if the resolutions included any exclusion measures or discrimination against people based on their sexual orientation, which is by no means the case. An ideological conflict is in progress in Poland as in other European countries, and the European Parliament is thus using the Article 7 procedure to take sides in that conflict.
Just as with the Sargentini report on Hungary, the López Aguilar report on Poland also criticises the most important reforms introduced since the first election won by the conservative right in 2015, whether or not they fall under the competencies of European institutions. The reasoning behind this approach is clearly explained in the report itself, where it is stated that “the scope of Article 7 of the Treaty on European Union is not confined to areas covered by Union law”, and that “the Union can therefore assess the existence of a clear risk of a serious breach of the common values referred to in Article 2 of the Treaty on European Union not only in the event of a breach in this limited field but also in the event of a breach in an area where the Member States act autonomously”. Another reason behind the wide-ranging criticism of policies pursued by the PiS-led governments is, according to the report, “that the facts and trends mentioned in this resolution taken together represent a systemic threat to the values of Article 2 of the Treaty on European Union (TEU) and constitute a clear risk of a serious breach thereof”. In other words, just as in the Sargentini report, there is no precise action taken by the Polish governments and parliamentary majorities since 2015 which could in itself be considered in breach of the general values mentioned in Article 2 of the TEU, and it is only by making a subjective assessment of the overall picture that Poland can be considered as being in breach of those values. At the same time, it is admitted as a fact in the López Aguilar Report that the European Council, which is the only competent organ to take the Article 7 proceedings further, seems to have a different view on this subject, since it has consistently refused to act on “the Commission’s reasoned proposal of 20 December 2017 in accordance with Article 7(1) of the TEU regarding the rule of law in Poland”. This is why it is proposed in the López Aguilar report to “widen the scope of the reasoned proposal by including clear risks of serious breaches of other basic values of the Union, especially democracy and respect for human rights”. Hence, since the Sargentini Report, the LIBE Committee’s approach to the Article 7 proceedings has become even more openly ideologically motivated, even taking “the view that the latest developments in the ongoing hearings under Article 7(1) TEU once again underline the imminent need for a complementary and preventive Union mechanism on democracy, the rule of law and fundamental rights”, and reiterating “its position on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States” (on this matter, see also: Linking EU funds to rule of law and “European values”: a move against Poland and Hungary?).
On reforms of the Polish judicial system, the López Aguilar report reiterates the stance of the European Commission (described here on the website of the European Centre for Law and Justice). It also finds fit to interfere in the Polish political debate concerning the date of the last presidential election in the context of the COVID-19 pandemic, criticising the former proposal to hold an all-postal vote on May 10, even though by the time the report was approved by the LIBE Committee no such vote had happened and the election had been held in the traditional way at a later date, and its results acknowledged by all Polish political parties and candidates. While the López Aguilar report accuses PiS-led governments and parliamentary majorities of having violated the Polish constitution, as if the European Parliament could act in place of the Polish Constitutional Court to assess such violations, it also criticises the Polish Sejm (the lower house of parliament) for having discussed citizens’ initiatives in the form of a “legislative proposal that would prohibit abortion in cases of severe or fatal foetal impairment”, even though the Sejm was required to do so as per the same Polish Constitution. Finally, as in the Sargentini Report against Hungary, the López Aguilar report against Poland makes general assertions about a supposed specific Polish problem with “hate speech, public discrimination, violence against women, domestic violence and intolerant behaviour against minorities and other vulnerable groups, including LGBTI persons”.
How were the reports prepared?
For the Sargentini Report, there was no official visit by a LIBE delegation, and it is admitted by the Rapporteur that “One can hardly explain to authorities and citizens of the Member State under scrutiny that the Parliament judges a situation as a clear risk of serious breach of European values as enshrined in the Treaties, without having made the effort of a visit.” Still, a majority of MEPs in the European Parliament did judge the situation in Hungary “as a clear risk of serious breach of European values as enshrined in the Treaties”, although the Sargentini Report was mainly based on previous reports published by different international and European organisations, including the European Parliament itself, and by NGOs, with some hearings also being held in Strasbourg, including in the presence of representatives of the Hungarian government. However, as is explained by the Hungarian Centre for Fundamental Rights in its criticism of the Sargentini Report, “the non-governmental organisations included in the annex of the draft report, from which Sargentini and the LIBE were informed about the ‘Hungarian situation’ – except for the Center for Fundamental Rights, are explicitly on the basis of liberal, human rights fundamentalist ideology or they are linked straight to the open society network”.
This is very similar to the way the Polish report was prepared, first by British MEP Claude Moraes and then, after the May 2019 elections to the European Parliament, further by Spanish MEP Juan Fernando López Aguilar. In the case of the report on Poland, a visit was paid to Warsaw in September 2018 by a LIBE delegation. However, apart from the Ordo Iuris lawyers’ organisation, which is a pro-life conservative organisation, all other organisations invited to provide input to Claude Moraes’ report were opposition liberal and left-wing organisations, including pro-abortion organisations like Czarny Protest (Black Protest) and Federacja na rzecz Kobiet i Planowania Rodzinnego (Federation for Women and Family Planning). Furthermore, according to MEP Nicolas Bay from the French National Rally, who was part of the delegation, and to Zych himself, Ordo Iuris lawyer Tymoteusz Zych was constantly interrupted by the Dutch Green MEP Judith Sargentini (the author of the Sargentini Report on Hungary), the Italian Communist MEP Barbara Spinelli, and Moraes. The three MEPs were constantly derailing the conversation from the rule of law to the question of abortion, even though the regulation of abortion is not a competence of the EU and should have no place in a report whose purpose is to inform a vote on whether or not the European Parliament sees “a clear risk of a serious breach by a Member State of the values referred to in Article 2”. It should also be noted that the pro-life conservative Polish MEP Marek Jurek had been excluded from the delegation at Claude Moraes’ request through a majority vote in the LIBE Committee. For this specific purpose, the Committee enacted an ad hoc rule stating that there should be no MEP from the country being investigated in order to ensure the impartiality of the proceedings. Moreover, only four journalists, all from leftist or liberal opposition media, including two from the same fiercely anti-PiS and progressivist media group Agora (the owner of the Gazeta Wyborcza daily and of the Tok FM radio station), had been invited to enlighten the LIBE delegation on the freedom of the press in Poland. At the request of Nicolas Bay, Moraes finally agreed to invite only one additional journalist from a conservative media outlet. The choice fell on a journalist from the Catholic daily Nasz Dziennik, who was invited to attend, but only after the meeting with other media representatives, on the afternoon of the last day of the hearings, when half of the delegation members – including Moraes himself – had already left for the airport.
The same pattern was repeated in May this year by López Aguilar, Moraes’ successor as chairman of the LIBE Committee and Rapporteur of the European Parliament for the Article 7 proceedings against Poland, when almost all contributors who were invited to share their views during the special hearings held for the presentation of what had become the López Aguilar report were from leftist and liberal organisations. The most radical example was that of a far-left activist who was presented simply as a lawyer for the purpose of her appearance before LIBE, but who is in fact a member of the infamous “Abortion Dream Team” which has shocked Poland several times in recent years by running campaigns aimed at convincing people that having an abortion is something “cool”, and by illegally helping women obtain abortion pills by post or have an abortion abroad. Together with the representative of the Helsinki Foundation for Human Rights, the Abortion Dream Team activist tried to convince LIBE members that the mere fact that contraception was not free in Poland was in itself a violation of civil rights and should lead to sanctions against Poland.
Hence, while Hungary’s policy against immigration seems to be an important motivation behind the criticism contained in the Sargentini Report, Poland’s restrictive law on abortion (which dates back to 1993!) appears to constitute a breach of “European values” as well, in the eyes of a majority of MEPs sitting on the LIBE Committee.
Who are the rapporteurs?
Last but not least, a few words should be said about the political profiles of the respective Rapporteurs, as this helps understand why the first two reports prepared in the European Parliament for the purpose of launching Article 7 proceedings against two member countries are so blatantly politically and ideologically motivated under a very thin disguise of legal expertise.
Just as her Dutch compatriot Sophie In’t Veld, from the liberal Renew Europe group, who has chaired the Rule of Law Monitoring Group (ROLMG) within the LIBE Committee since 2018, admitted in 2016 that the choice of a target for the Article 7 proceedings was very arbitrary (“As it stands now, the process is very arbitrary. Why Poland and not Hungary? Why not France that is in a quasi permanent state of emergency? Why not Lithuania, which is about to pass an anti-gay law?”), Green MEP Judith Sargentini was quoted by Polish MEP Marek Jurek in September 2018 as having said that if the proceedings against Hungary and Poland succeed, it will then be Slovakia’s and Romania’s turn. Sargentini is listed in the Open Society Foundations’ list of “Reliable allies in the European Parliament (2014 – 2019)” in several fields of interest of George Soros’ network, including that of “migration and asylum” and minorities. As an MEP, she was very openly in favour of the relocation of illegal immigrants that is so strongly opposed by Hungary, and this was before she was entrusted with the preparation of a report on that country in late 2017. During the migrant crisis of the summer of 2015, Judith Sargentini was in favour of letting in more immigrants as the key to fighting illegal immigration, and also of transferring the responsibility for migration management from member states to the EU. With Viktor Orbán’s Hungary having been since that time a leading proponent of the exact opposite stance on the fight against illegal immigration, the European Parliament can hardly be said to have chosen an impartial observer when it entrusted the Dutch Green MEP with the task of preparing a report on possible breaches of the rule of law by the Hungarian government.
As a British Labour MEP and an OSF “reliable ally” in asylum and migration, and also in the field of the rights of minorities and LGBTI people, Claude Moraes could be expected to be no less prejudiced against the successive right-wing conservative PiS-led governments of Poland after 2015. And things could only get worse with Spanish Socialist Juan Fernando López Aguilar, also a “reliable ally” in the eyes of George Soros’ OSF. As justice minister of Spain under José Luis Rodríguez Zapatero, he was one of the main promoters of gay marriage in his home country, while Poland, like Hungary, has the nature of marriage enshrined in its constitution. In July 2016, three years before the task of completing the EP’s report on Poland was entrusted to him, he published an article in which he attributed a supposed erosion of democracy and a surge of nationalism, far-right tendencies and hate speech in the whole of the EU to its enlargement to include countries of the former Eastern bloc, arguing that Poland and Hungary were already the worst examples of such anti-democratic evolution. A Spanish law professor recently quoted by a Polish journalist attributes a statement made by justice minister López Aguilar at a dinner with jurists in Barcelona in 2004, according to which they (Zapatero’s socialists) “were not in government to make things better but to achieve a revolution”, that they would “ carry out the revolution through laws that create faits accomplis which cannot be reverted”, and that they were conscious “that governments come and go, but the revolutionary social transformation will stay”. But why, then, was the report on respect for European values and the rule of law in conservative, Catholic Poland entrusted to that Spanish freemason dreaming of a new kind of socialist revolution? Probably for much the same reasons that the report on conservative, anti-immigration Hungary was entrusted to a radically pro-immigration Green Dutch politician: so that there could be no doubt about the outcome of their work, notwithstanding the real state of affairs in Poland and Hungary. At a session of the European Parliament in January 2020, López Aguilar famously asked MEPs from the Polish opposition: “What else can the European Parliament do? What else can you expect from it? Because we have done everything possible.”