“Rule of law could be replaced with any other value”

The national institutional system or the judiciary could provide grounds for concern in almost all member states. The European Commission – were it to apply the same standards to all EU countries – could place these issues on the agenda and in the focal point of scrutiny, Orsolya Kurucz, expert from the Hungarian Centre for Fundamental Rights, told V4NA.

The expert also points out that critical cases and events often come to light in the very countries which are keen on criticising the situation of the rule of law in Hungary. However, these EU member states do not question the current directions the European Union is taking or its centralisation efforts. This may be the reason why we do not hear about the controversies in those countries, Orsolya Kurucz added.

The expert from the Centre for Fundamental Rights said that the experience gained in rule of law procedures in recent years prompted the Hungarian and Polish governments to refuse to consent to creating an instrument linked to the EU budget which would again solely scrutinise countries which too often run counter to the directions of the policies formulated by the European Union.

If it were not the case, that is, if the EU did not only attack countries that too frequently go against its policies, then the European Commission would certainly have initiated proceedings against, for example, Finland, Orsolya Kurucz said.

In 2017, Finland’s prosecutor general was convicted of abusing power after the office he headed had regularly hired services from a consultancy firm owned by his brother, the expert recalled.

Ms Kurucz also mentioned Greece as an equally good example. In early 2020, the Greek parliament adopted an amendment which required setting up a register of employees working with NGOs in the field of migration and social integration. This amendment has not received any critical comments either.

In the Netherlands, the justice ministry faced accusations over using its influence to initiate criminal proceedings against opposition leader Geert Wilders because of his remarks about the local Moroccan communities, the expert of the Centre for Fundamental Rights highlighted.

Regarding the current rule of law debate, V4NA has also asked Tymoteusz Zych, the vice-president of the Polish Ordo Iuris Institute for Legal Culture. He highlighted that double standards are much deeper rooted than one would imagine. He said that member states fail to respect precisely defined provisions of the treaties, let alone when it comes to more abstract requirements regarding adherence to values, with the rule of law being the most prominent example of this.

A case in 2016 illustrates clearly just how flagrantly EU leaders are biased in favour of the main EU member states. At that time Jean-Claude Juncker, then President of the European Commission, was asked in an interview why they were turning a blind eye to the French infringement of budget deficit regulations. Juncker’s reply was because it was France they were talking about. In his opinion, fiscal rules are not to be applied blindly in the European Union.

Four years ago, the debate in the EU centred on how best for member states to comply with fiscal regulations. Among these rules, for example, was keeping the budget deficit below 3 per cent of GDP. Over the years this particular Maastricht criterion has been a problem for several Member States, including France, the expert told V4NA. The country was given two years in 2015 to bring its deficit below the critical threshold, but no progress was made in the first year.

In fact, France’s difficulties in grappling with the financial regulations continued. According to currently available data for 2019, problems related to exceeding the required budget deficit were present in two countries, Zych recalled. One was France, where the budget deficit was at 3 per cent last year; the other country was Romania at 4.3 per cent,  exceeding the threshold.

There were problems in the way of general government debt as well. At the end of 2019, government debt as a percentage of GDP was above the 60 per cent limit in eleven EU member states. The list began with France, Belgium, Italy and Spain.

Zych also points out that in addition to the easily identifiable double standards regarding the budget, there are also open political attacks on the separation of powers issue. The expert continued that one of the most frequently cited criteria of the rule of law is the independent functioning of the legislature and judiciary. However, in the Netherlands, for example, there is no constitutional court and in Ireland there is no clear-cut line between judicial interpretation and legislative process due to the Anglo-Saxon common law legal system.

He also discussed the fact that in some countries they [the government] plays a role in the election of judges. In Spain, for example, for a long time members of the judiciary were elected by a 3/5 majority, which always forced the lower house of parliament to reach a consensus. The Spanish government has since abolished this rule, reducing it to 50 per cent plus one vote. “This essentially means that the government elects the judges,” Zych points out.

Regarding the Polish and Hungarian vetos of the budget, Zych described the intention of the EU to introduce a rule of law mechanism without a concrete definition of the concept as the worst thing they can do. “At this point, any attempt at clarification would be better, because political actors can misuse and take advantage of the broad interpretation,” he noted. Zych added that since there are several legal systems in Europe, he did not see much chance that there would ever be a consensus on the matter. Moreover, it is not in the interest of the EU either, as this way they can easily launch political attacks against states which disagree with them. “The concept of the rule of law could actually be replaced by any other commonly agreed European value, be it freedom or human rights. The effect would be just the same.”