Von der Leyen, Hungary and Poland: Too lax towards Orban & Co.?

To analyse

Status: 11/23/2021 4:39 a.m.

The EU Commission is constantly arguing with Poland and Hungary about compliance with EU law. Numerous ECJ rulings have been issued against both states, and another is pending today. Is the Commission acting vigorously enough?

By Stephan Ueberbach, ARD-Studio Brussels

You can hardly keep up with counting. Almost every week, the European Court of Justice (ECJ) declares laws in Hungary and Poland to be incompatible with EU law. Last Tuesday, two controversial regulations were cashed in: in Poland the power of the Minister of Justice to promote or downgrade judges at will, in Hungary the criminalization of refugee helpers. And right now the ECJ is dealing with the question of whether Hungarian judges can really work independently.

Stephan Ueberbach
ARD studio Brussels

The governments in Warsaw and Budapest have tried for years to systematically undermine the rule of law in order to maintain power – the rest of the European Union largely agrees on this. The question is whether the EU Commission, headed by Ursula von der Leyen as the “guardian of the European treaties”, is doing enough against it.

Parliament sues the Commission

No, says the European Parliament particularly loudly and has since filed a lawsuit against the Brussels authority at the ECJ for “inaction”. Above all, social democratic, liberal, green and left MPs accuse the Commission President of being too gentle with Warsaw and Budapest – and point out that von der Leyen would not have been elected to office without the votes of the Polish PiS party and the Hungarian Fidesz .

Green MP Daniel Freund, who is one of the head of the commission’s sharpest critics, even speaks of “appeasement”. For years, Brussels had not reacted to developments in Poland and Hungary. Also in the opinion of Parliament’s Vice-President Katarina Barley (SPD) “the Commission reacted far too hesitantly, initiated proceedings before the European Court of Justice far too late and considered financial sanctions much later”.

With this, Barley added, “the Commission is broadcasting that it is not that bad – and this signal is also reaching other countries, for example Slovenia”. Moritz Körner (FDP) also urges swift action and says: “Those who do nothing are complicit in the disintegration of the European legal community.

Cancel funding?

Above all, Parliament criticizes the fact that the Commission has not yet made use of the so-called “rule of law mechanism”. Since the beginning of the year, Brussels has been able to cancel funding for states that violate EU principles.

However, Poland and Hungary have appealed against this instrument to the ECJ. The commission only wants to take action after the judgment. This is what the heads of state and government agreed – and a majority of them have to agree to a penalty.

The von der Leyen team cannot decide on their own. The head of the commission also promises that not a single case will be lost. All violations of the rule of law would be registered and the corresponding proceedings initiated as soon as the ECJ gave the green light.

The process gives the plaintiffs time

That is not enough for the critics. They complain that Orban, Kaczynski & Co. could in the meantime continue to dismantle democracy, curtail freedom of the media, relocate judges at will, harass minorities and put European money into their own pockets.

However, the Commission is not completely inactive. For example, it has launched new infringement proceedings. Against Hungary for a law prohibiting the representation of homosexuality; against Poland because the government tolerates so-called “LGTB-free zones” and refuses to obey the ECJ ruling to dissolve the controversial disciplinary body for judges.

A daily fine of one million euros

That is why the Polish government was sentenced by the ECJ to a fine of one million euros per day at the request of the Von der Leyen team. In addition, the EU Commission is holding back the 36 billion euros planned for Poland in corona aid. Ursula von der Leyen does not want to lift the blockade until the country “restores the independence of the judiciary”.

This is also the aim of the so-called “Article 7 proceedings” that have been running against Poland since 2017 and Hungary in 2018. But there has been no progress. A “conviction” would only be possible unanimously – and Hungary and Poland have announced that they will protect each other.

This is one of the reasons why the EU Commission is now preparing the use of the “rule of law mechanism” against both countries. The governments are asked by letter to comment on the allegations. It is about the lack of independence of the judiciary and corruption.

That should have happened much earlier, according to the EU Parliament. But critics such as the Green Daniel Freund attest to the Brussels authority that they have thoroughly analyzed the situation in Hungary and Poland and that they are asking the right questions.

Von der Leyen’s willingness to grow

Evidently, von der Leyen is more willing to increase the pressure on those who violate the rule of law. With the funding, the head of the commission has an effective lever in hand.

The time for this seems to be ripe. According to the latest report by the International Institute for Democracy based in Sweden, more and more countries around the world are moving in an authoritarian direction, including in Europe. The report names Poland, Hungary and Slovakia as particularly at risk.


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