LUXEMBOURG (CN) — The EU’s top court wrapped up two days of hearings Tuesday into Poland and Hungary's complaint about a new measure that would allow the bloc to withhold funds from countries that fail to follow the rule of law.
Poland and Hungary complain that the mechanism is impossible to fairly enforce, and that each member state has the right to design its national institutions as it sees fit. But even the Polish judge on the panel was skeptical of this argument.
“Is it really the case ... that rule of law is linked to national identity?” asked Judge Marek Safjan, one of 27 members of the European Court of Justice considering the case.
The Luxembourg-based court has repeatedly sided against both Poland and Hungary in a series of rulings over attempts by their far-right governments to bring courts under political control. Increasing tensions, the Polish Constitutional Court concluded just last week, responding to a question from the country’s prime minister, Mateusz Morawiecki, as to whether the EU could stop Poland from reorganizing its judiciary system, that Polish law supersedes EU law.
But now Warsaw and Budapest want the union's top court to find fault with a 2020 regulation that ties funding from the EU to the independence of member states' judiciary and their anti-corruption measures — two areas that are increasingly coming undone in the central European countries as they shift toward autocratic authority.
“The Court of Justice has rejected these arguments," Judge Manuel Campos Sánchez-Bordona told the representatives of Poland and Hungary. "Can you see any differences in your arguments or are you asking the court to review its own case law?”
During opening statements on Monday, Miklós Zoltán Fehér, a senior official at the Hungarian Justice Ministry, said the mechanism was a “political procedure with the political intent.” Poland and Hungary argue the regulation is an end-run around Article 7, the provision of the Treaty on European Union that allows the EU to punish members.
Member states can be stripped of their voting rights under the Article 7 procedure, but that process requires unanimous support, and Poland and Hungary have promised to block any resolution targeting the other. Budgetary approval meanwhile requires only a qualified majority.
The rule-of-law mechanism was included in the five-year budget approved last year by the EU, which includes the bloc's 800 billion euro ($925 billion) Covid-19 support package. Hungary and Poland vetoed the budget last November but ultimately conceded if the rule faced judicial review. They filed a complaint with the Court of Justice alleging the mechanism violates EU law.
At stake for Poland are 57 billion euros ($66 billion) in EU grants and cheap loans, while Hungary could lose up to 7.2 billion euros ($8.3 billion) from the pandemic relief package. But if it survives the legal challenge, the rule-of-law mechanism would apply to all funding going forward, including the EU’s considerable Common Agricultural Policy, the largest section of the union’s 160 billion euro ($189 billion) budget.
A 2019 investigation by The New York Times found that this funding is used to prop up Hungarian Prime Minister Viktor Orban and Polish Prime Minister Mateusz Morawiecki, among others, by enriching friends and punishing enemies.
The court is considering the case in an expedited procedure, with an opinion due from a magistrate on December 2 and a final ruling expected early next year.
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