European justice has given on Thursday the first step to allow Brussels to punish Hungary and Poland for not respecting the rule of law.
The General Lawyer of the Court of Justice, the Spanish Campos Sánchez-Bordona, has today dismissed the resources presented by Warsaw and Budapest against the Mechanism of Law Approved in December 2020, considering that it was adopted on an adequate legal basis, it is
Compatible with article 7 TUE and respects the principle of legal certainty.
The opinion of the lawyer is not binding, and will be the magistrates that within a few months are ultimately pronounced, but the experience shows that the judges often follow the reasoning of the lawyers in a very high percentage of the time.
If the sentence confirms this opinion, the European Commission will finally have hands-free to activate the mechanism and freeze even tens of billions of euros in European funds, key to the economies of both countries.
The tension between the three parties comes from afar and the best example is that Brussels has not yet given green light to the recovery plans of Hungary and Poland, so they still do not have access to Community funds to reactivate economies after hack
of the Covid and the confines.
But a blow to the structural and cohesion funds would be much more painful.
The case goes back to the summer of last year, when the Union was profiling both this recovery fund, up to 800,000 million euros with a joint issued debt, such as the multi-year financial framework, the EU budget for the period 2021- 2027. As part of the latter, the EU launched a mechanism of law, an instrument that will freeze the disbursement of funds to countries that are not respecting the Community rules. In the case of the aforementioned countries there are dozens of open records, from minority respects at the closure of private universities going through the interference of political power over the judicial. Something that neither repeated decisions of the Tjue itself has been able to order, given that the EU does not have many effective mechanisms when disputes reach the highest level. There is Article 7 of the Treaties, which allows a country to deprive a country, but the ‘nuclear option’ is not only dangerous but very difficult to start up, because it demands unanimity.
In the summer of 2020, the Heads of State and Government agreed for that multi-million dollar fund, and also for the financial framework 2021-2027, of more than a trillion euros.
And they gave green light to the mechanism of rule of law.
Hungary and Poland opposed, but as the procedure did not require unanimity they could not block it.
His answer, however, arrived through the recovery fund, whose processing required the approval not only of the 27 governments, but of the national parliaments, who had to approve the instrument that allows the Commission to unite on behalf of all.
And there came the veto.
For months both governments said no.
In the end, the agreement arrived in December 2020, with a complicated and controversial pact.
The Recovery Fund was approved, and then ratified by all parties, but in exchange for the European Commission undertaken not to activate the Rule of Law Meaning until European Justice will be pronounced on the resources that Budapest and Warsaw announced that
They were going to present.
And so it has been.
Something delicate because the Commission, Guardian of the Treaties, stressed that ‘Knight Pact’ to its legal and political obligations, which led a few weeks ago that the Eurocámber will denounce the Ursula Von der Limen for Dejation of Functions.
This Thursday, however, the court of Luxembourg has begun to pave the way.
Lawyer Campos Sánchez-Bordona estimates that the challenges, which are based among other reasons in the absence or inadequacy of the legal basis chosen for the Regulation, in its incompatibility with Article 7 of the EU Treaty and in the violation of the principle of
Legal security are not sustained.
In its conclusions, Spanish recalls that the purpose of the Regulation is to create a specific mechanism to ensure the correct execution of the Union budget, especially when a Member State incurs violations of the common principles “that endangers the good management of Union funds or their financial interests “. In this context, the lawyer general emphasizes that the Regulation “does not intend to protect the rule of law through a sanctioning mechanism similar to that of Article 7 of the Treaties, but establishes an instrument of financial conditionality to preserve this value of the Union”, already His judgment “The appreciation power of the institutions of the Union protects this legislative option, which can not be described as manifestly erroneous, since respect for the principles of the rule of law may coise a fundamental importance for the proper functioning of public finances And for the correct execution of the Budget of the Union, “explain from Luxembourg.
The ‘Visegraduate Rebels’ consider that the mechanism is an arbitrary weapon in the hands of Brussels, which could cut funding for political reasons, but the lawyer recalls that the regulation is very specific and that it requires a link to be “sufficiently direct between the
Vulneration of the rule of law and budget execution “, so that it is not applicable to all violations of the rule of law, but to those that have a direct connection with the management of the Union budget.
The lawyer general believes that both the purpose and the content of the Regulation show that this constitutes a financial rule within the meaning of Article 322, paragraph 1, letter a), and that, consequently, that article could constitute an adequate legal basis for
its adoption “.
The opinion has not sitting well at all.
“This is a robbery against the Rule of Law they want to defend,” the Secretary of Justice of Justice of Poland, Sebastian Kaleta, said in his Twitter.
“It was naive to trust that EU institutions would be capable of self-limiting,” he added.
But the European lawyer does not see the same problems.
It is aware that as Share Poland, Article 7 of the Treaty would not authorize the legislator in any case to establish an analogous mechanism that had the same objective of protection of the rule of law and that applied similar sanctions, but there is nothing that prevents “that
It provides this protection through other instruments outside those of this provision, provided that its essential characteristics differ from the protection guaranteed by said article, “and there are different precedents that endorse it in other cases.
Finally, Spanish also enters the thorny terrain of almost philosophical reach.
Recognizes that the notion of the rule of law as a value of the Union is broad, but it considers that the legislator is enabled to “specify it in a specific material field, such as the budget execution, for the purpose of establishing a financial conditionality mechanism”
, and recalls that the Regulation lists seven legal principles that should be interpreted in the light of the other Union and Union principles enshrined in Article 2 TEU.
According to the lawyer general, “the characterization of the rule of law through reference to these principles complies with the minimum requirements of clarity, precision and predictability demanded legal security” and given that Member States “have a sufficient level of knowledge of obligations
They derive from them, especially if it is considered that, for the most part, they have been developed by the jurisprudence of the Court of Justice, “no other than recommending the court that dismisses the annulment resources interposed.
