scholarly journals The Rule of Law Conditionality Under Regulation No 2092/2020—Is it all About the Money?

2021 ◽  
Author(s):  
Justyna Łacny
Keyword(s):  
Rule Of Law ◽  
Financial Incentives ◽  
European Parliament ◽  
European Council ◽  
Council Meeting ◽  
Member States ◽  
The Rule Of Law ◽  
Link Type ◽  
Many Instruments ◽  
European Values

AbstractSome say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, inter alia, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the benefits of EU membership, specifically the financial ones, while their commitment to European values, including the rule of law (Article 2 TEU), has been lacking. Since many instruments applied by EU institutions to improve this situation have proved rather insufficient, halting transfers of EU funds to these recalcitrant Member States has been touted as the way that might solve this crisis. Accordingly, a draft regulation was put on the table that authorised the EU institutions to suspend EU funds if a Member State is found to be in breach of the rule of law. This draft aimed to make the transfer of EU funds to the Member States conditional upon their continuous respect for the rule of law (and therefore became known as ‘the rule of law conditionality’). This paper comments on this draft as first proposed by the Commission in 2018 (Proposal for a regulation of the European Parliament and of the Council on the protection of the Union budget in the event of generalized gaps in the rule of law in the Member States [COM (2018) 324 final).], amended in 2019 by the European Parliament [European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324–C8-0178/2018–2018/0136(COD)); https://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/04-04/0349/P8_TA-PROV(2019)0349_EN.pdf. A draft version of these provisions was presented in von Bogdandy and Łacny (Suspension of EU funds for breaching the rule of law - µ a dose of tough love needed? European Policy Analysis 2020, No 2, p. 1–15, https://sieps.se/en/publications/2020/suspension-of-eu-funds/, 2020).], and finally adopted by the European Parliament and the Council as Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [Hungary and Poland voted against it and it is expected that its validity will be challenged before the CJEU via an action for annulment (Article 263 TFEU).] (henceforth called ‘Regulation 2020/2092′). This Regulation, containing 29 recitals in the preamble and 10 articles, entered into force on 1 January 2021 (Article 10 Regulation 2020/2092.). In the conclusions of the European Council meeting in December 2020 it was however accepted that it will be applied only in relation to budgetary commitments starting under the new Multiannual Financial Framework (MFF) 2021–2027, including Next Generation EU [Conclusions of the European Council meeting, 10 and 11 December 2020, para I (2) (k) https://www.consilium.europa.eu/media/47296/1011-12-20-euco-conclusions-en.pdf.]. This paper provides the legal characteristics of rule of law conditionality established under Regulation 2020/2092 and aims to determine whether financial incentives can restore compliance with the rule of law in Member States. Or in other words, is it all about the money?

scholarly journals Hungary’s Latest Experiences with Article 2 TEU: The Need for ‘Informed’ EU Sanctions

2021 ◽  
pp. 35-69
Author(s):  
Beáta Bakó
Keyword(s):  
Rule Of Law ◽  
European Parliament ◽  
Comprehensive Analysis ◽  
Member States ◽  
The Rule Of Law ◽  
Constitutional Level ◽  
Legislative Proposals ◽  
Legal Uncertainty ◽  
Significant Patterns

AbstractThis contribution will concentrate on the Hungarian situation by analysing the generalised practice of targeted legislation and the different causes for legal uncertainty on the constitutional level. The European Parliament initiated an Article 7 TEU sanctioning procedure against Hungary in September 2018 and several infringement proceedings have been launched by the Commission. Unfortunately, these EU responses were not able to grasp the gist of the Hungarian developments. Even the so called Sargentini report of the European Parliament—intended to be a comprehensive analysis of the rule of law deficiencies in Hungary—could not identify the most significant patterns of the Hungarian rule of law decline. This reveals a central shortcoming of EU sanctioning mechanisms employed against ‘backsliding’ Member States: the need for ‘informed’ sanctions. Some recent legislative proposals for measuring the rule of law illustrate, that the need for such informed sanctions has been realised by EU institutions. However, the question of ‘how’ is still unanswered. Taking the case of Hungary as an example, I will finally recommend some aspects to be considered in order to grasp the patterns of ‘systemic’ rule of law decline.

scholarly journals Coronavirus Test of the European Union’s Policy on the Rule of Law

2021 ◽  
Vol 6 (1) ◽  
pp. 19-33
Author(s):  
Ákos Bence Gát
Keyword(s):  
Rule Of Law ◽  
European Parliament ◽  
Fundamental Rights ◽  
Political Agenda ◽  
Member States ◽  
The Rule Of Law ◽  
History Of ◽  
Current Article ◽  
Set Up ◽  
The Eu

The issue of the rule of law has been on the European Union’s (EU) agenda since the beginning of the 2010s. The legal history of the EU shows that the EU’s approach to the topic of the rule of law underwent significant changes. Initially, the Member States called for guarantees of fundamental rights in EU institutions. This trend began to change in the late 1990s and early 2000s, when the possibility of European rule of law control over Member States and the predecessor of the current Article 7 of the Treaty on European Union (TEU) were introduced by the Treaty of Amsterdam. However, the idea that the EU institutions can constantly monitor the Member States in the name of the rule of law has only emerged and started dominating the European political agenda since the early 2010s. Over the last decade, the EU institutions have continuously expanded their toolkit for monitoring Member States in this regard.Following calls from some Member States and the European Parliament, in 2014 the Commission set up the new EU framework to strengthen the rule of law. In the same year, the European Council introduced an annual rule of law dialogue. In 2016, the European Parliament proposed the establishment of an annual rule of law report that monitors all Member States. At first, the European Commission was reluctant to accept this idea, but finally it introduced an annual rule of law report in 2020. However, the EU’s policy on the rule of law suffers from fundamental shortcomings, which were especially visible during the first wave of the coronavirus crisis in the spring of 2020. In the pandemic situation, it has become even more apparent that the EU’s policy on the rule of law raises a significant issue of EU institutions exceeding their competences and stands on a questionable legal basis.Criticisms formulated against Hungary during the pandemic have revealed that the EU institutions do not provide sufficient guarantees for an objective examination of the situation of the rule of law in the Member States. The situation brought about by the coronavirus has also raised a number of questions regarding the lawful functioning of EU institutions, which shows the need for a rule of law mechanism capable of verifying that the EU institutions themselves also properly respect the rule of law.

scholarly journals Rule of Law vs. Poland and Hungary – an Inconsistent Approach?

2021 ◽  
Vol 60 (3) ◽  
pp. 236-259
Author(s):  
Nasiya Daminova
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Judicial Reform ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
European Arrest Warrant ◽  
European Values ◽  
Multiple Challenges ◽  
The Eu

The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.

scholarly journals Democratic Backsliding in the European Union

2019 ◽  
Author(s):  
Nick Sitter ◽  
Elisabeth Bakke
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
European Parliament ◽  
The Other ◽  
Political Will ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
The Eu

Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.

scholarly journals Linking EU Budget Allocations to the Rule of Law: the Case of Poland and Hungary

2021 ◽  
pp. 38-48
Author(s):  
S. Kuvaldin
Keyword(s):  
Rule Of Law ◽  
Relative Effectiveness ◽  
Governance Mechanism ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
External Relations ◽  
European Values ◽  
The Eu

The article discusses the possible introduction of the rule-of-law conditionality, linking the provision of payments from the EU budget with the observance of the principles of the rule of law by the Member States. It is noted that some other tools previously used to achieve integrity of values in the EU have proved to be inefficient. In particular, all attempts to impose sanctions provided for by Article 7 of the Treaty on the European Union for violating the principles of the rule of law against Poland and Hungary have not yet led to any result. At the same time, one can see how different conditionalities for receiving funds or other benefits from the EU are becoming an increasingly common internal EU governance mechanism, although initially this tool was used mainly in building external relations. It should be noted that the possibility of budgetary sanctions is spelled out in the draft budget, but the mechanism for their introduction is not precisely defined. This is partly due to the need to reach a consensus at the EU summit, which agreed on the budget in July 2020. European leaders opted for vague language for the budget sanctions mechanism to be approved in principle. This once again shows the complexity of making tough decisions within the EU. Nevertheless, one can see the consistent actions of European structures and Member States to provide a new mechanism for the protection of European values. The economic nature of this mechanism, as well as its relative effectiveness in other areas, may increase the interest of a number of EU Member States in it. This creates a potential risk for the authorities of Poland and Hungary, which may lose some of the subsidies from the EU. However, it cannot be ruled out that the EU approach of seeking a compromise will prevail even after a new sanctions instrument appears at its disposal.

Non-arbitrariness, rule of law and the ‘margin of appreciation’: Comments on Andreas Follesdal

2021 ◽  
Vol 10 (1) ◽  
pp. 139-150
Author(s):  
GIANLUIGI PALOMBELLA
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Member States ◽  
The Rule Of Law ◽  
Internal Organization ◽  
Positive Law ◽  
Margin Of Appreciation ◽  
Principle Of Legality

AbstractCan citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

Russia and EU Countries: Partnership for Modernization

2013 ◽  
pp. 54-61
Author(s):  
T. Romanova ◽  
E. Pavlova
Keyword(s):  
Rule Of Law ◽  
New Classification ◽  
Member States ◽  
The Rule Of Law ◽  
Normative Power ◽  
Eu Member States ◽  
The World ◽  
The Difference ◽  
The Eu

The article examines how the normative power, which the EU puts forward as an ideological basis of its actions in the world, manifests itself in the national partnerships for modernization between Russia and EU member states. The authors demonstrate the influence of the EU’s normativity on its approach to modernization as well as the difference in the positions of its member countries. It is concluded that there is no unity in the EU’s approach to democracy, human rights and the rule of law, and the new classification of EU member states, which is based on their readiness to act in accordance with the Union’s concept of normative power, is offered.

scholarly journals The EU after Brexit: Key Geopolitical and Geo-Economic Challenges

2020 ◽  
pp. 30-44 ◽  
Author(s):  
Petr YAKOVLEV
Keyword(s):  
European Union ◽  
European Commission ◽  
European Parliament ◽  
European Council ◽  
The Political ◽  
The European Union ◽  
Member States ◽  
Before And After ◽  
Union History ◽  
The Eu

The decision on Britain’s secession from the European Union, taken by the British Parliament and agreed by London and Brussels, divided the Union history into “before” and “after”. Not only will the remaining member states have to “digest” the political, commercial, economic and mental consequences of parting with one of the largest partners. They will also have to create a substantially new algorithm for the functioning of United Europe. On this path, the EU is confronted with many geopolitical and geo-economic challenges, which should be answered by the new leaders of the European Commission, European Council, and European Parliament.

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