The ‘serious concerns’ are not new, but they only increased in the past year. In its annual ‘rule of law report’, the European Commission concluded on Tuesday that the rule of law has been further compromised in both Poland and Hungary. The findings have no direct consequences, but they do contribute to the increasing tension on the file that will lead to new escalations this autumn.
With regard to Hungary, the Commission notes that the ‘risk of clientelism, favoritism and nepotism in high-level public administration, as well as risks arising from the link between companies and political actors’ remains high. In Poland, the „system of checks and balances” continues to be under “significant pressure” and reform of the judicial system remains a “source of serious concern”.
The criticism comes at a spicy moment, as both countries are waiting for approval by the European Commission of the ‘recovery plan’ with which they want to call on the European recovery fund. The deadline for assessing the plans has now passed, but negotiations between Brussels and Budapest and Warsaw respectively are still very difficult. According to EU officials, both countries should make clearer how they want to address risks of corruption and fraud. Stakeholders expect the discussion to get high in September.
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On Tuesday, the Commission also took the next step in criminal proceedings against Poland for the disciplinary chamber set up there for critical judges. Last week, the European Court in Luxembourg upheld a verdict that Poland must stop punishing independent judges. Because Poland doesn’t seem to care much about this, the ball is now back in Brussels. The Commission will give Poland four weeks to explain how it intends to implement the verdict. If Poland does not or insufficiently do this, the Commission will subsequently demand a penalty payment from the Court. This could potentially be high, but months could pass before a financial sanction actually comes into effect. It would be the first time: although the Commission has launched several cases against Poland in recent years for the destruction of the rule of law, it has never resorted to financial sanctions.
The ‘rule of law reports’ are a new way for Brussels to monitor the situation in all the different Member States. Last year the annual ‘examination’ took place for the first time and all 27 EU countries were screened on four aspects: the organization of the judiciary, the fight against corruption, media freedom and pluralism and the presence of sufficient ‘checks and balances’. The reports do not address the protection of minorities, so controversial legislation that restricts the rights of LGBT people in Poland and Hungary is not mentioned.
The purpose of the annual review is to monitor developments in all Member States, to be able to make better comparisons and thus to conduct the discussion more ‘objectively’. Skeptics see above all another bundle of paper that is added to the already considerable pile of analyzes on the rule of law developments
This criticism is unjustified, according to European Commissioner Didier Reynders, because the reports would indeed advance the European discussion on the rule of law. In a press conference, the Belgian emphasized on Tuesday that the first reports last year had a demonstrable effect. For example, the national debate on constitutional reforms in Malta has gained momentum after criticism from the Commission.
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But now that the reports are published for the second time, it is also clear that the situation in some Member States is deteriorating further. For example, the Commission points out that the journalistic climate in Poland has deteriorated since 2020 and access to information in Hungary was ‘tightened through emergency measures during the pandemic’. Concerns also remain about Romania, for example, where the Constitutional Court recently called into question a decision of the European Court of Justice. Or about Bulgaria, where politics continues to interfere with the legal system and corruption investigations rarely lead to convictions.
In the report of the Netherlands, Brussels points for the second consecutive year to concerns about the financing of legal aid. The Netherlands also lacks clear rules on lobbying and transparency of the financing of political parties. According to Brussels, the recent murder of Peter R. de Vries fits into a worrying pattern in which the press and individual journalists in various EU countries are coming under further pressure.
A version of this article also appeared in NRC on the morning of 21 July 2021