The European Commission will hold an ‘orientation debate’ today (13 January) on the rule of law in Poland, after the new government pushed through changes to the judiciary and media.
But a European Parliament rapporteur warned that the debate would lead “nowhere” if the situation in Hungary is not discussed in parallel.
The first decision of the executive this year was to discuss the state of the rule of law in Poland, after the country’s hard-right government gave itself the power to directly appoint the heads of public broadcasters, and put in place a controversial law reforming the country’s constitutional court.
It is expected that the Commission members in charge of fundamental rights, justice and media – Frans Timmermans, V?ra Jourová and Günther Oettinger – will report to the College before it decides how to proceed.
The European Commission may decide to make use, for the first time, of a punitive mechanism for addressing “systemic threats” to the rule of law in any of the EU’s 28 member states.
EurActiv spoke to Rui Tavares, author of the Report on the situation of fundamental rights: standards and practices in Hungary, adopted in June 2103. At that time, Tavares was an independent MEP sitting with the Green group. This report has been the European Parliament’s contribution to a co-decision process, which ended up with the adoption in March 2014 of the mechanism to address systemic threats to the rule of law.
With his report, Tavares proposed a more intrusive mechanism to address breaches to the rule of law in member states. A more diluted mechanism was adopted, which is in fact very hard to use, as the former rapporteur explained.
‘One option doing nothing, second option unusable”
Before 2014, the EU tools to deal with systemic threats to the rule of law were very few, Tavares pointed out. The Union had the choice of doing nothing, or use Article 7 of the Lisbon Treaty. Under this article, serious breaches to the values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights by a member state can result in a suspension or loss of voting rights in the EU Council of Ministers.
“Article 7 is very difficult to use, because you need to have two thirds of the votes in Parliament, and four-fifths of the votes in the Council, only to activate its first part, to engage in a preliminary warning to the country, before you actually use article 7.2, which is referred to as the “atomic bomb” and results in stripping the country of its voting rights. This decision is taken by unanimity by the Council minus the vote of the country concerned,” Tavares said.
“And as we have two countries concerned, Hungary and Poland, this means that unanimity is not possible,” he stressed.
A diluted proposal
The adopted Rule of Law mechanism is in fact a “pre-article 7 procedure” and a diluted version of parliament’s proposal, Tavares explained. The European Parliament had proposed a so-called Copenhagen Commission, named after the pre-accession Copenhagen criteria, which strangely stop to apply once a candidate country obtains membership. This Commission was expected to consist of prestigious judges and personalities from around the EU, the integrity of which is beyond any doubt. It was also expected to push the alarm button when EU institutions did nothing to respond to breaches to fundamental values in a member state.
Lawmakers also proposed an “article 2 trialogue”, according to which the three EU institutions would sit with the country concerned and have permanent dialogue with that country. (Article 2 of the Lisbon Treaty reads “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”)
Something similar to the European Parliament proposal was ultimately adopted in the Rule of Law mechanism, but with the European Commission playing the central role. Tavares argued that a government that is trying to concentrate power would prepare well with big legal teams. If they had to justify themselves with three institutions, that would be a much more demanding task, he said.
MEPs also suggested an “article 2 alarm agenda” that would make an identified deficiency in a member state take priority in the EU agenda and make everything else wait. Every day, a member state makes demands on the European Commission, be it because they want to appoint a director general, or obtain funding for a certain project. Under the “article 2 alarm agenda mechanism”, the executive could respond, “First, we have to deal with the rule of law and democracy.”
Similarities and differences between Hungary and Poland
At the time when the Rule of Law mechanism was adopted, the situation in Hungary was very similar to the one of today’s Poland. There was pressure on the media, pressure on the constitutional court, and lots of institutional change that were introduced in a very quick way, Tavares said.
Asked why the EU has been so unsuccessful in dealing with Hungary, Tavares responded that this was not a completely fair assessment. He said that there had been a check on Hungarian Prime Minister Victor Orbán and concrete achievements – for example, a reversal of decisions concerning the retirement age of magistrates, and stopping the arbitrary reassignment of court cases from one court to another.
“The problem in my view resided in the Council, and that Orbán leveraged a lot of power inside the EPP,” Tavares said.
Indeed, Orbán’s Fidesz party is affiliated with the powerful European Peoples’ Party, while the ruling party in Poland PiS (Law and Justice) is affiliated with the much less influential European Conservatives and Reformists group.
Tavares said that this gives Poland an argument to stress that there is a certain unfairness, because the Hungarian government had made many more controversial decisions in many years, compared to the Polish government, over the last couple of months.
Although there were some EPP members who did warn about Hungary, the EPP was “not up to the task” to warn about European values when violations occurred, Tavares said, adding that the European Parliament warned that inaction in Hungary would create other problems.
“And now since you have two countries now, identified with the same kind of Article 2 problems, we have a question on the implementation of article 7. Which is that if you have a veto of one country, you cannot implement Article 7 in the other country,” he stated.
“So the only way to go about would be, if the situation does warrant the use of Article 7, it is to use it for both countries at the same time,” Tavares stressed.
The former rapporteur noted that at the time he made his report, he took the position that Hungary was not yet an Article 7 case.
“But after what happened during the refugee crisis, with the Hungarian government using prisoners to build the border fence with Serbia, violating European law by pushing back refugees, or criminalising the act of the refugees crossing borders, Hungary is violating the principles of human dignity and is now an Article 7 case,” Tavares said.
“The Commission is meeting on Poland, but everybody knows the two are connected,” he added.
“If the Commission fails its mission of being guardian of the treaties, this is the crisis inside the EU. All the other crises people talk about, even the Eurozone crisis, are nothing if you compare it to an unwillingness to act on questions of rule of law. If the Commission is unable to act on rule of law, it is just another international organisation, like the Arab League, where violations of human rights in member countries regularly occur and the organisation does nothing,” Tavares said.
Looking to the future
The problem of systemic threats to rule of law would be solved if we went to the Charter of Fundamental Rights of the European Union and got rid of article 51, which is stopping the European Court of Justice from applying directly the Charter in the member states, Tavares said.
The article of the Charter, which was adopted in 2000, reads: “The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.”
The former Portuguese MEP, who now works as a scholar in his native Portugal, and is a columnist for Público, compared the situation in Europe with the US before the Civil War, when there was a Bill of Rights applied federally, but in the states there were gross violations of human rights.
“This is the big issue that we need to solve in the EU for the next years. If the Commission doesn’t act about Poland and Hungary, it is failing badly in its obligations towards European citizens. I would hope that at least some citizens that do see the problem will start demanding changes, such as starting to apply directly the Charter of Fundamental Rights to the member states,” Tavares concluded