Do Poland and Hungary have nothing else to fear?

meAngela Merkel said it was a huge relief when she stood in front of the cameras Friday morning after another marathon summit and looked completely rested. The heads of state and government had unceremoniously canceled the dream between the two days of the meeting. In the end, they were there with an agreement on the budget and climate protection. The heads of government of Hungary and Poland also applauded. “We can now put the champagne in the cold,” announced Viktor Orbán in a video immediately after the agreement in the dispute over the law and money. Mateusz Morawiecki spoke of a “double win”. Both countries would now receive 173,000 million euros. And this money is “safe” because the rule of law mechanism has been limited to very precise criteria.

However, the two prime ministers announced in the European Council that they would appeal to the Court of Justice of the European Communities against the budget protection regulation, as it is officially called. That was what was expected. After all, this lament gives them some air. As long as the Luxembourg judges have not ruled on the matter, the Commission will not initiate any sanctioning procedure that can block funds from the EU coffers. That was the only concession Orbán and Morawiecki were able to wrest from the German Presidency. The attached statement, in which this is stated, was adopted by the 27 chiefs without any extensive debate. They had previously asked for an opinion from the Council to allay concerns from states such as the Netherlands and Luxembourg, which insisted on an effective rule of law mechanism. The lawyers confirmed: Even if the mechanism is not applied until later, it relates to all payments from January 1 of next year, from the regular budget and from the Corona relief fund.

How long will it take for the Court of Justice of the European Communities to rule? Budapest and Warsaw must quickly file the so-called annulment action; Article 263 of the EU Treaty establishes a period of two months for this. As the European Parliament will adopt the new regulation next week, this period will run until mid-February. After that, the ECJ typically takes one to one and a half years to make a decision. So Orbán would probably have nothing to fear before the next parliamentary elections in Hungary in mid-2022.

Attentive “from day one”

But it doesn’t have to be like the Vice President of the EU Commission, Vera Jourová, responsible for the rule of law, said on Thursday: “I hope the process goes fast. In my opinion, we talk more for months than years ”. The FAZ explained this on Friday: “The ECJ guidelines allow one of the parties to request an expedited procedure.” The Council and Parliament can do it, but also the Council Calls for a commission. The ECJ agrees with such request if it considers it sufficiently founded; there should be a great opportunity here.

Jourová made it clear that the Commission would not be idle pending a decision. It will track how states use the funds “from day one” and work on guidelines for how to use the new tool. The Commission has to demonstrate in each individual case that a deficit in the rule of law affects the sound financial management of the Union. From Jourová’s point of view, this case is clear: when there are legitimate doubts that a court can judge independently in a case of corruption or fraud involving EU money. But does this only concern the specific procedure? Or are doubts enough because an appeals chamber or higher court is not independent? “It will be a great challenge for the Commission to provide sufficient evidence to withstand the scrutiny of Member States,” Jourová admitted. This includes exhausting all other means beforehand, especially infringement procedures. So the Warsaw government in particular shouldn’t feel too safe. Because the ECJ has already been convicted several times for serious legal deficiencies and has still stood firm.