In recent years, Europe has been forced to acknowledge that the union is facing an existential crisis as some member states backtrack on democratic standards. The two most egregious criminals in the eyes of the EU are Hungary and Poland, which in recent years have restricted press freedoms, cracked down on critics and eroded judicial independence.
The emergency fund, first proposed by French President Emmanuel Macron and German Chancellor Angela Merkel in May, had always been controversial, as the money would be raised against the EU’s mutual debt and then distributed as a mix of loans and donations.
Despite the controversy, it was clear to most member states that some kind of Covid response at the EU level was inevitable. This created the opportunity to use these funds as an incentive to pull countries like Poland and Hungary over the edge.
The EU has historically struggled when it comes to attracting criminal members. The much-discussed Article 7 of the EU Lisbon Treaty, which provides a mechanism to sanction member states by revoking their voting rights, has always been flawed. The process is cumbersome and ultimately requires unanimous action by all other Member States to punish an offender, which was never likely. There have been active discussions in Brussels since 2018 to create some kind of external mechanism outside of the treaty, to make the process more effective.
Tuesday’s agreement refers to said mechanism. But critics believe it doesn’t go far enough: An earlier version of the deal released Monday night contained stronger language than the final document. Instead of a straightforward and easy way to withhold funds from offending countries to member states, officials in Brussels are left with a sweet, debatable and open to interpretation. The only clear line on the rule of law in the outcome document says: “The European Council underlines the importance of protecting the Union’s financial interests. The European Council underlines the importance of respecting the rule of law.”
Some felt that the final text had been severely diluted. “The original text was much more promising. [But] It seems that the Hungarian government was in a very good negotiating position, “says Petra Bard, visiting professor at the University of Central Europe.” They wouldn’t have minded delaying the entire deal for a couple more months. That meant that other Member States had little choice but to agree to this vaguer wording that can be interpreted in many different ways. “
This result was probably always inevitable. This EU summit has been described as the most bitterly divided in recent memory.
French authorities said Macron “hit his fist on the table” in anger (although the Elysee later tried to say he was “metaphorical”); Hungarian Prime Minister Viktor Orban said that his Dutch counterpart Mark Rutte hated him “because Hungary, in his opinion, does not respect the rule of law, should be financially punished.”
So Tuesday morning’s fudge didn’t surprise observers in Brussels. “The EU has always been reluctant to act when there is a democratic setback,” says Daniel Keleman, president of Jean Monnet in European Union Policy at Rutgers University. “They have previously hidden behind the fact that Article 7 doesn’t work and that they don’t have the right toolkit, so try to create new mechanisms. The problem with this new agreement is any mechanism that Hungary and Poland will vote for will be so watered down and irrelevant in reality. “
This could mean that by obtaining this initial agreement, the EU has put out a fire in a burning house while looking at the embers further down the street.
“People often forget that the EU is not a state unto itself with its own powers to enforce laws. The EU’s legal architecture holds everything together in some respects. If member states ignore the ECJ’s decisions, they threaten to judges who implement EU law, it not only threatens democracy, it threatens to undermine the entire union, “says Keleman.
Ronan McCrea, professor of European Law at University College London, agrees that this represents a fundamental threat to the integrity of the entire union. “The EU bureaucracy is really small compared to that of an English local council. This means that the EU depends on national judges and officials to implement EU legislation in their own countries.”
Earlier this year, Poland passed legislation that allowed the government to discipline judges who issued rulings with which the government disagreed. “In any European democracy, judicial independence is crucial. However, if judges fear they will be disciplined for ruling against their government, how can they independently defend EU law,” says McCrea.
Keleman goes further: “If judges are in the pocket of the government, how can another EU state extradite a criminal to another member state? They cannot guarantee that this person will receive a fair trial, especially in countries where cracking down on political dissent. ” in.”
However, with many leaders in Brussels toasting European unity on Tuesday morning, it is simply a fact that leaders with these instincts are becoming firmer at the EU level. And as Hungary showed, they are getting good at playing politics in Brussels.
“His goal now is to exert influence within the EU while collecting money from the EU to administer his regimes with him,” says Keleman. The bitter reality for those who value the EU the most is that those who seek to twist its values no longer seek to flee it, but rather direct the show.
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