Rule of law mechanism: Poland and Hungary threatened with defeat at the ECJ

Status: 02.12.2021 2:53 p.m.

Poland and Hungary are facing a legal defeat before the ECJ: The Advocate General recommends that both countries’ actions against the rule of law mechanism be dismissed. But he also names limits for the instrument.

By Matthias Reiche, ARD-Studio Brussels

The motion of the Advocate General of the European Court of Justice (ECJ) to dismiss the case does not come as a surprise: in the opinion of many European law experts, Poland and Hungary have no chance of winning this case. Both countries are primarily concerned with buying time. Because as long as the ECJ is concerned with the issue, the so-called rule of law conditionality cannot be set in motion by the EU Commission.

Matthias Reiche
ARD studio Brussels

With the request of the European Court of Justice General Advocate, this should now be possible, says Moritz Körner, the domestic policy spokesman for the FDP in the European Parliament: “The time for excuses is over. Von der Leyen must finally allow the rule of law mechanism to apply,” says he. Hungary and Poland’s heads of government only aimed to avoid being held accountable for as long as possible: “Anyone who continues to play this delaying maneuver by the would-be autocrats is complicit in the disintegration of the rule of law.”

When the mechanism is allowed to take effect

The Greens and Social Democrats are also calling for the EU Commission to finally take action against Poland and Hungary. The argument of both countries that the application of the new regulation is completely arbitrary is now off the table, says Katarina Barley, Vice-President of the EU Parliament: “So there is no longer any reason for the Commission to postpone the application of this rule of law mechanism any longer”, she says.

From the point of view of the Advocate General, the rule of law mechanism is a special regulation within the framework of EU budget management. Therefore, the procedure cannot be used for all violations of the rule of law, but only when there is a threat of misuse of EU funds.

The verdict could be in early 2022

An important point, says Daniel Caspary from the EPP, the largest group in the EU Parliament: In his view, a lot has been mixed up so far. Deficits in dealing with sexual minorities or the freedom of the press are worthy of criticism, but not always a case for the new rule of law mechanism: “In recent months in Parliament we have very often had the situation that representatives of other parliamentary groups put political issues in connection with questions of the rule of law This endangers the whole process. ”

Since this is an accelerated procedure, the judgment could be announced as early as the beginning of next year. The advocate general’s final motion is not binding on the court, although it has so far followed this recommendation in the majority of cases.

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