Hungary will say, bye 40 billion euro? The Union will apply the rule of law to them

Ursula von der Leyen, the head of the European Commission, announced on Tuesday (April 5, 2022) in the European Parliament that a decision had already been made to use the “conditionality mechanism” (this is the official name of the rule “money for the rule of law”). “We will now send a letter of formal notification to Budapest,” said von der Leyen. She added that Johannes Hahn, the EU budget commissioner, had already informed the Hungarian authorities about this. “This starts a routine that has deadlines, so the process is already starting,” emphasized von der Leyen.

At the end of November 2021, the European Commission sent written questions to both Hungary and Poland regarding violations of the rule of law in the context of “money for the rule of law”. However, according to our information, Brussels currently does not intend to apply this rule to Warsaw. Instead, it intends to continue to fight for the respect of the rule of law in Poland through ordinary anti-infringement procedures (with the final), under the National Reconstruction Plan (KPO) and through the procedure of Art. 7, which currently boils down to political discussions between EU ministers in the EU Council.

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From the outset, the “money for the rule of law” provisions were considered much more risky in relation to Budapest, as they allow for cuts in funds only under two simultaneous conditions – serious violations of the rule of law and the impact of these violations “in a sufficiently direct manner” (or such a serious risk) on “due diligence”. managing the funds or protecting the financial interests of the Union. ” And the management of EU money by Poland is still assessed in Brussels as correct.

– For Poland, these provisions should primarily act as a deterrent to further degeneration of the justice system, which may lead to corruption similar to the Hungarian one – our interlocutors in Brussels constantly explained.

The procedure will last until the fall

The procedure launched today against Hungary, where the government of Viktor Orban has been accused for years by the opposition of EU money scams, may take up to six to eight months. Budapest will be given time to respond, in which – if it wants – it can fix system errors, including in the prosecutor’s office and the judiciary, which make it difficult to prosecute corruption. If it fails to do so, the European Commission should submit a request to the EU Council to suspend EU funds (or rather a part of them considered directly at risk of corruption or other irregularities in Hungary). To approve this decision in the EU Council, you need the votes of 15 out of 27 EU countries representing 65 percent. population. Prime Minister Orban will be able to ask for a debate of the prime ministers or presidents of EU countries at the EU summit before this vote, but this does not mean introducing the requirement of unanimity.

The Court of Justice of the EU, where Hungary and Poland sought to invalidate the “money for” regulations, rejected all the arguments of Budapest and Warsaw in February this year. And it found the “conditionality mechanism” to be fully compatible with the EU treaties. – The mechanism from the regulation questioned by Poland and Hungary was adopted on the appropriate legal basis, it is consistent with the procedure laid down in Art. 7 and does not exceed the limits of the competences conferred on the Union, and respects the principle of legal certainty, ruled the CJEU in its full 27-member judge panel.

Questions about Ziobro, but no money cuts

In the November letter of the European Commission to the Polish authorities, four sets of reservations were mentioned. One concerns the impact of two decisions of the Constitutional Tribunal (of July and October 2021) limiting the supremacy of EU law. The Commission asked how Poland intends to implement detailed EU regulations on discipline in the management of EU funds under such conditions. The second problem is undermining the independence of the judiciary, although independent courts play a key role in deterring and punishing scams with EU funds. The third case concerns doubts as to the “effectiveness and impartiality of the prosecutor’s office”, which is subordinate to the prosecutor general who is also the minister of justice (i.e. Zbigniew Ziobra), which raises concerns about the reliability of, for example, corruption in which the authorities would be involved.

The fourth group of objections related to Ziobro concerned the ineffectiveness of prosecution activities. The Commission raises the argument of “institutionalized corruption”, ie cases of suspected high-level corruption which are not properly prosecuted for political reasons. The Commission requested from Poland a list of cases from 2016 in which the Polish prosecutor’s office discontinued, did not start or is still conducting proceedings in cases indicated by OLAF, ie “EU”.

However, especially reforms of the disciplinary system for judges, which Brussels is now demanding from the government of Mateusz Morawiecki as part of the KPO, would completely avert the – from the beginning and so very small – risk that Poland would start losing funds because of “money for the rule of law” in the near future. And this despite the unresolved issue of the “neo-NCJ” and the dubious status of the Constitutional Tribunal.