The pitfalls of the new Rule of Law mechanism

Hurray, the mechanism is coming! Even the European Parliament is celebrating the compromise negotiated by the German EU Presidency as a success. At the same time, it makes the “RoL” (“Rule of Law”) plan a sham.

For years, the protagonists have been promoting the mechanism that ties payments from the EU budget to the RoL.

But with the compromise now on the table, this will not succeed. According to the compromise, the reduction or cancellation of EU funds will not take effect as long as there is no judgement by the European Court of Justice in the case of a complaint against them.

Such proceedings usually take one to one and a half years. Nothing happens before then.

Moreover, the EU Commission is not supposed to make any such decision until it has adopted guidelines for implementation. This is likely to take several months.

As a result, the mechanism will not take effect on 1.1.2021 – as planned – but months, if not years, later. And even then, there are still some pitfalls:

Legal: Even now, lawyers are arguing about the legal value of the planned EU summit declaration. Some consider it completely non-binding, others illegal.

A good overview is given by the jurist A. Alemanno (see tweet below). Of course, as in any proper legal dispute, there are also various counter-opinions.

It is remarkable that even the former German Justice Minister K. Barley still has doubts – and suggests that the European Parliament itself goes to the European Court of Justice to have them cleared…

Financial: The new mechanism does not apply to past violations of the rule of law, but only to future ones. But even then, the simple finding of a breach will not be sufficient, as the draft states:

“The mere finding that a breach of rule of law has taken place does not suffice to trigger the mechanism”.

Only violations that have a direct impact on the budget should count. This would hardly be the case with a restriction of press freedom as in Hungary.

And even if cuts were to be made, they would affect the entire state, not the political class. Cities and regions in Hungary would be punished, but not those responsible like the Hungarian head of government Orban.

Political: The compromise sends a fatal political message that everything was not meant so seriously and that there is no hurry at all. The deal was negotiated behind closed doors – with the rule-of-law offenders, not against them.

It is to be applied by an EU Commission that has proven for years that it does not take timely and effective action against violations of the rule of law.

Under von der Leyen, things have become even worse – she has not yet taken any action at all!

All in all, the whole thing is reminiscent of the Stability Pact for the euro. There, too, there were years of wrangling over deficit criteria that later turned out to be unrealistic and inapplicable.

And Germany was one of the first to break the pact…

Who actually says that the rule of law is only trampled on in Hungary and Poland?

The original post (in German) is here