“The more I listen to Timmermans talk on rule of law and respond to questions, the more obvious it seems that spitzenkandidaten should temporarily leave their EU paid roles during the campaign. Creates shades of political suspicion over all they do, fair or not.” This remark was made on Twitter last April 3 by the Wall Street Journal correspondent in Brussels, Laurence Norman, after a press conference by the European Commission’s First Vice-President, who is in charge of “Better Regulation, Interinstitutional Relations, the Rule of Law and the Charter of Fundamental Rights”. The Dutch Labour Party politician Frans Timmermans is at the same time Spitzenkandidat (lead candidate) of the Party of European Socialists (PES) to replace Jean-Claude Juncker as President of the next European Commission, which will be formed after the May 2019 European elections. The day Laurence Norman posted his critical remark on Twitter, Frans Timmermans and the European Commission were launching a reflection process on whether member states would accept new instruments for better control at EU level of their possible breaches of the rule of law. “The functioning of the EU as a whole depends on the rule of law in all member states”, the Dutch commissioner stated, adding that “There is still reluctance, I have to be honest about that, among member states, to address painful issues amongst each other. […] This is something the member states in the Council will have to face. If they want to be more effective, if they want peer pressure to work, they also have to bite the bullet sometimes. And how they do that is something they will have to decide, and the Commission is there to assist them.”
Both Spitzenkandidaten in favour of a new mechanism to monitor the rule of law in member states
This initiative came soon after a joint proposal by Germany and Belgium for a new mechanism of annual peer reviews to monitor the rule of law among member states. Such a mechanism would come in addition to the existing Article 7 procedure enshrined in the EU treaties. The proposed mechanism would cover “the rule of law, including judicial independence, effective judicial protection and legal certainty” and it would “not apply only to two or three member states but all of them.” The European Commission now wants a reflection process on this matter to take place in the European Council (among heads of state and government) and in the European Parliament.
In mid-March, Manfred Weber from the German CSU, who is the European People’s Party (EPP) Spitzenkandidat for the presidency of the next European Commission, and thus Timmermans’ most serious competitor, also said in an article he co-authored in Frankfurter Allgemeine Zeitung that if he becomes Juncker’s successor he will create a new mechanism to monitor the rule of law in member states. According to Weber, the Article 7 proceedings launched against Poland and Hungary send strong signals to those countries, but this is an instrument which is oversized and difficult to manage. This is why he would like to have a new instrument to monitor and punish a member state without the need for unanimity among other member states, as is required for the final stage of the sanction procedure of Article 7 of the Treaty on the European Union. To this end, Weber would see a committee of independent experts who would regularly assess such matters as the independence of the judiciary in member states, and would give “objective” advice as to whether sanctions should be imposed on a given country.
Both Spitzenkandidaten would like the new instruments to be developed and put in place without any revision of the existing treaties. Manfred Weber’s proposal came just a week after he had met with Polish opposition leader Grzegorz Schetyna and given him his support, while criticising the Polish government, whom he accused of working against Polish interests in the EU.
A European Commissioner with a progressive agenda in charge of the rule of law
As for his socialist competitor, Frans Timmermans just happened to be in Warsaw to take part in a campaign event of a small left-wing pro-LGBT party, Wiosna (Spring), two days before the EU Council in Luxembourg on 9–10 April: on both occasions (first as a campaigning politician and second as a European Commissioner) he accused the Law and Justice (PiS) parliamentary majority and government of having weakened the independence of the judiciary with their reforms. The EU Council of April 9–10 discussed the Article 7 proceedings against Poland and Hungary. On the same day that the EC’s First Vice-President was accusing the Polish right-wing government of breaching the rule of law in front of European Affairs ministers of the EU-28, an interview with him was published on the EC-sponsored Euractiv website. In that interview, Frans Timmermans called for a coalition after the European elections between the socialist PES, centre-right PPE and liberal ALDE, to form a progressive alliance against what he calls the “far-right”.
It should be noted that as early as last January, the Hungarian secretary of state for international communication and relations, Zoltán Kovács, referring to Timmermans’ status as Spitzenkandidat, had called for his suspension as a European Commissioner, saying that: “It’s not possible for a person who is running for a European Parliament seat to be an active member of the Commission, to play an active role in the Commission.”
The suspicion that the proposal to reinforce rule of law monitoring in member states could be specifically directed at Poland and Hungary and politically motivated is not new. Věra Jourová, the European Commissioner for Justice, Consumers and Gender Equality, was the first to propose a link between the payment of European funds and strict respect of the rule of law and “European values”. In February 2018 she met the Polish foreign minister, who expressed his country’s hostility to the project and his fear that such a mechanism would only target specific countries. Jourová then told Jacek Czaputowicz, as reported by the minister himself, that subsidies paid to French farmers could also be withheld should the National Front leader Marine Le Pen win elections and “European values” cease to be respected by France.
A new regulation to suspend EU funds for countries in breach of the rule of law, adopted in April by the European Parliament
On 4 April 2019, the European Parliament adopted a new draft law under which “Governments interfering with courts or failing to tackle fraud and corruption will risk suspension of EU funds”. If this regulation of the European Parliament and 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”, proposed by the Commission and amended by the Parliament, is eventually adopted by the Council, it will be for the European Commission to propose cutting funds when it considers that a national government and its parliamentary majority are “endangering the independence of the judiciary”, are “failing to prevent, correct and sanction arbitrary or unlawful decisions by public authorities”, are “limiting the availability and effectiveness of legal remedies” or are “endangering the administrative capacity of a Member State to respect the obligations of Union membership”. To that end, the Commission will have to establish an advisory “panel of independent experts” which “shall have as their objective to assist the Commission in identifying generalised deficiencies as regards the rule of law in a Member State that affect or risk affecting the principles of sound financial management or the protection of the financial interests of the Union”.
The scope covered by the new regulation would be very wide, as it states that “the rule of law shall be understood having regard to the Union values enshrined in Article 2 TEU and in the criteria for Union membership referred to in Article 49 TEU; it includes the principles of legality, implying a transparent, accountable, democratic and pluralistic process for enacting law; legal certainty; prohibition of arbitrariness of the executive powers; access to justice and effective judicial protection before independent and impartial courts, including of fundamental rights as stipulated in the Charter of Fundamental Rights of the European Union and in international human rights treaties; separation of powers; non-discrimination and equality before the law”.
The European Commission could interfere with virtually every national law thanks to a new instrument meant to put pressure on Poland, Hungary and Romania
This would in fact give the European Commission a say in virtually all laws enacted in member states, and allow the European Commission and the European Parliament to put pressure on member states without having to comply with the strict conditions of Article 7 of the Treaty on the European Union when they see “a clear risk of a serious breach by a Member State of the values referred to in Article 2”. Not only does the proposed regulation clearly go much beyond what is enshrined in the existing treaties, but it would also allow the European Commission to sanction Poland on its perceived misapplication of the Charter of Fundamental Rights, and resort for that purpose to the European Court of Justice when necessary to confirm its right to suspend the payment of EU funds, in spite of Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, which clearly states that “The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms”. Admittedly, this Protocol already seems to be largely ignored by both the European Commission and the Court of Justice in their proceedings against Poland for its recent reforms of the judiciary.
All this is happening at a time when Article 7 has been activated against Poland and Hungary with virtually no chance for the proceedings to pass the Council for lack of a sufficient qualified majority to “determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2”, let alone the unanimity required to “decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question”.
The rule of law breached at EU level
The consistent effort by the European Commission and the European Parliament, and also by some member states, including France and Germany, to find “workaround solutions” for the EU to be able to interfere – with respect to certain countries only – in fields which the Treaty of Lisbon reserves for individual states, raises in turn very serious questions about the EU’s ability to abide by the rule of law itself. As we can read in Euractiv’s report on the proposed regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States, “The bill is seen as a new tool to fight threats to the independence of the courts and corruption in countries like Poland, Hungary and Romania.” Indeed, these countries receive a great deal more funds than they contribute to the EU budget, and this leaves them much more exposed to the proposed monitoring mechanism than, for instance, Germany or France, who are net contributors.
It should also be recalled that in order to start the Article 7 procedure against Hungary in September 2018, the chair of the European Parliament had to change the rules and exclude abstentions from the final count of votes – otherwise the two-thirds of votes required by the Treaty on the Functioning of the European Union would not have been obtained. For this reason, the Hungarian government decided to contest the validity of the vote at the European Court of Justice. As for the European Commission, it showed its own contempt for the rule of law when it appointed Jean-Claude Juncker’s Chief of Staff as its Secretary-General in February 2018. The European Parliament itself “believes that the Commission failed to respect the principles of transparency, ethics and the rule of law in the procedure it used to appoint Martin Selmayr as its new Secretary General” and called last December for Selmayr to resign and for “the Commission to adopt a new procedure for appointing its Secretary-General, ensuring that the highest standards of transparency, ethics and the rule of law are upheld”, but the Commission has failed to comply.
When the rule of law is an excuse to address ideological issues
The new regulation linking the payment of EU funds to perceived adherence to the rule of law and to the principles listed in Article 2 of the Treaty on the European Union also carries the risk of the European Commission putting pressure on Central European member states to legalise “gay marriage”. Indeed, in the same way as the general principle of the rule of law listed in Article 2 is used by Timmermans to argue that the European Commission can and should interfere in Polish reforms concerning the judicial system, the general principle of non-discrimination listed in the same Article 2 could be used to claim that the European Commission should press on member states to legalise what the LGBT lobby refer to as “equal marriage”. Among other declarations of a similar kind, EC First Vice-President and socialist Spitzenkandidat Frans Timmermans is reported to have said at a gala organised in Brussels by the international LGBT organisation ILGA-Europe in 2015 that “the commission should go forward and try to get all member states in the EU to unreservedly accept same-sex marriage as other marriages”.
And there is yet another reason to fear that a new mechanism linking EU funds to the rule of law could lead to abuse. The report on whose basis the European Parliament voted for Article 7 proceedings against Hungary was indeed very political and went far beyond the principles enshrined in the European treaties. The so-called Sargentini Report, from the name of its author, Dutch Green MEP Judith Sargentini, presented to the Committee on Civil Liberties, Justice and Home Affairs (LIBE) just five days after the April 2018 Fidesz landslide third-in-a-row victory in Hungarian legislative elections, in fact asks the renewed parliamentary majority to roll back all its main reforms carried out since 2010, and seems to be based mainly on information received from the Hungarian opposition and left-wing organisations. The way the LIBE Committee prepares its reports could be seen in September 2018 in Warsaw, when a delegation led by British Labour MEP Claude Moraes was working on a “Moraes report”, on which basis the European Parliament is supposed to give its support to the Article 7 proceedings launched against Poland by the European Commission in December 2017. 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 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.
Fiscal rules already used by the Commission to favour good Europeans and punish bad ones
Another example of how new rules can give the EU huge leverage on decisions which should normally be taken at national level, and of how such new powers can be used by the European Commission with ideological motives, is given by the way the 2013 European Fiscal Compact was used last year to reject Italy’s budget. According to the Fiscal Compact, each year, Eurozone member states have to submit their budget plans for the next year to the European Commission. For 2019, the European Commission rejected Italy’s budget plan with a deficit at 2.4% of GDP, while it accepted France’s plan with a deficit at 2.8% of GDP, and later even accepted a deficit above the 3% Maastricht ceiling in response to the “Yellow Vest” protest. In the case of Italy, it was the first time the EC had refused a national budget, threatening to ask the European Council to adopt financial sanctions against that member state and causing interest rates on Italian debt to rise on financial markets, thus forcing the government of Giuseppe Conte to review its plans. One may wonder whether this was linked to the fact that Italy also had a “populist” government for the first time, given that French Socialist Commissioner for Economic and Financial Affairs, Pierre Moscovici, makes no secret of his aversion to one of the two coalition partners governing in Italy, namely the right-wing League. Among other things, he has compared League members to Mussolini’s blackshirts, called them “fascists” and said that he would “fight those people till the last breath”. Interestingly, in an interview broadcast in October last year on the French public television channel Public Sénat, European Commissioner Pierre Moscovici explained that he sees two main divides in the EU: “The first divide is between pro-Europeans and anti-Europeans. It is the divide between those who are attached to liberal democracy and those who are opposed to liberal democracy. And from this point of view, Mr Orbán, Mr Kaczyński, Mrs Le Pen, Mr Salvini are those whom we have to fight politically, because if they win Europe will change. But there is a second divide: I don’t think it is enough to be pro-European to be a progressive. Being a progressive is more than that. It means proposing politics for progress, it means trying to reduce inequalities, and it also means being willing to struggle against climate change.”
This in itself does not prove that the divergent approach to the budgets of France and Italy was motivated by ideology, but it is still worth recalling that the German CDU Commissioner for Budget and Human Resources, Günther Oettinger, argued last November in favour of accepting a greater deficit for France for 2019, up from 2.8% to 3.2%, on the basis that president Emmanuel Macron “remains a strong supporter of the European Union”. Together with Czech Commissioner Věra Jourová, Günther Oettinger is a strong proponent of the idea of a mechanism linking European funds to the rule of law, which Poland and Hungary oppose.
Beware: “The privileges of the Union furnish more elements of discord than of power”
It is therefore to be feared that such a mechanism will be used against countries with conservative, right-wing governments opposing a federal Europe, such as Poland and Hungary today, and also, given Brussels’ views on immigration, against countries that refuse to take their share of illegal immigrants. Ultimately, such a mechanism could very well further weaken the European Union, and even put an end to its existence. Advocates of such a mechanism would be well advised to read Alexis de Tocqueville’s Democracy in America, where the 19th-century French diplomat, political scientist and historian compared the American federation to confederations more similar to today’s European Union, without their own tribunals, police and army to enforce their laws, meaning that they had to rely on their member states in that respect. In his work, published in 1835, Tocqueville noted that traditionally in such confederations “the privileges of the Union furnished more elements of discord than of power, since they multiplied the claims of the nations without augmenting the means of enforcing them: and in accordance with this fact it may be remarked, that the real weakness of federal governments has almost always been in the exact ratio of their nominal power.”
 In Characteristics which distinguish the federal constitution of the United States of America from all other federal constitutions, Chapter VIII of Volume I