EU and national policymakers clash during European Parliament Rule of Law debate

Situation of the Rule of Law in the EU at heart of most troubling EU constitutional confrontation since French ‘Empty Chair Crisis’ of 1965

By Andreas Rogal

Andreas Rogal is a senior journalist at the Parliament Magazine

10 Dec 2021

The second ever interparliamentary committee meeting hosted by the Committee on Civil Liberties, Justice and Home Affairs (LIBE) on Thursday was a “particularly important” one, insisted chair Juan Fernando López Aguilar (ES, S&D) in his introductory remarks.

 

He suggested that “the situation of the Rule of Law in the EU” went right to the heart of the arguably most troubling constitutional crisis of the Union since France withdrew from European community meetings during the “Empty Chair Crisis” of 1965.

 

At the time, this crisis was solved after six months by the “Luxembourg Compromise” which introduced a veto into Council votes. The current crisis has been going on for a lot longer than half a year, and neither Luxembourg nor any other Member State has so far come up with a compromise that could solve it.

Dutch Socialist MEP Thijs Reuten commented that the discussions in Council are “a bit of a black box” and wondered “perhaps we can learn a bit more about them in future?”

If anything, the historical remains, veto powers in the Council, albeit diminished since then, are seen by many as a major stumbling block in moving forward.

 

For the outgoing EU Council Presidency, Slovenian Secretary of State Dovzan Gasper opened the exchanges by duly reminding the national and European legislators present that the Rule of Law had been a presidency priority.

 

The General Affairs Council had the issue on the agenda “four or five times”, Gasper said, and had discussed the European Commission’s annual report on the issue twice during Slovenia’s term, in a “general horizontal debate” in October, and, addressing the findings for five Member States – Croatia, Cyprus, Italy, Latvia and Lithuania – in November.

 

Gasper briefly described the debates as useful, but, like most Council meetings, they are not made public, a fact long lamented by MEPs and transparency activists.

 

Dutch Socialist MEP Thijs Reuten commented that the discussions in Council are “a bit of a black box” and wondered “perhaps we can learn a bit more about them in future?”

 

And on the one issue where the ball is firmly in the Council’s court at the moment, the Article 7 sanctions procedures against Poland and Hungary, “no progress has been made by the presidency”, Luxembourgish EPP Group MEP Isabel Wiseler-Lima explained with regret.

Fundamental rights issues should be a central pillar in the Commission's annual report, “because we see it so often that they are linked to the Rule of Law, like in the cases of sexual self-determination rights and sexual reproduction rights.” Terry Reintke MEP

Before delving into the very core of the crisis, let us consider the reactions to the Commission’s 2021 Rule of Law report, the second of its kind.

 

Justice Commissioner Didier Reynders stated that he would not have to dwell on the details too much, as it hadn’t been the first time this report was put to the debate in the European Parliament or most national assemblies either.

 

With two unsurprising exceptions, the report was praised, even if it was also deemed worthy of improvement for the future.

 

Parliament’s rapporteur on the 2021 exercise, Terry Reintke (DE, Greens/EFA) highlighted the inclusion of fundamental rights issues as a central pillar of investigation, “because we see it so often that they are linked to the Rule of Law, like in the cases of sexual self-determination rights in Hungary and sexual reproduction rights in Poland”.

 

Cypriot, Greek, Italian and Maltese MPs reported from their parliaments’ efforts to address the faults identified for their countries in the report.

 

Demetris Demetriou, for example, a member of the Cypriot parliament’s legal affairs committee, listed three laws about to be presented to the plenary: on the creation of an independent body to fight corruption, on the protection of whistleblowers and on the reform of lobbying rules.

 

Malta’s Jonathan Attard, a member of his parliament’s Public Accounts Committee, assured the meeting that the lessons of the assassination of investigative journalist Daphne Caruana Galizia had been learned, and a free press was now being safeguarded, corruption taken seriously and tackled.

 

In his response, Didier Reynders acknowledged the examples of Cyprus, Italy, Luxembourg, Malta and Spain as Member States where report findings had led to reforms being worked on.

 

While notably the introduction of country specific recommendations for the next annual report was welcomed by most MPs and MEPs, fundamental criticism of the whole exercise took on strongly worded forms in Polish and Hungarian interventions.

The Commission's report reveals a “system of double standards where the Germans are allowed to do things and the Member States in Central Europe are not. This is racism and reflects a colonial attitude,” Patrik Yaki MEP

However, Kacper Płażyński, a member of the Polish Sejm’s EU Affairs Committee, found the report “full of falsehoods and misinformation”, illustrating his claim by referring to criticism on Poland’s recent anti-abortion law. “There is no total ban on abortion”, he said, adding, “why not talk about anti-Semitism in France? I know many French Jews who love coming to Poland because it is such a welcoming and tolerant country”.

 

Płażyński continued to accuse the Commission of corruption and double standards, concluding that he expected the report to be corrected. “Poland is simply exercising its sovereign rights”.

 

The idea of EU institutions themselves being in breach of the Rule of Law, rather than Poland, was taken up by Płażyński’s MEP colleague, Patrik Jaki (PL, ECR) who accused the European Court of Justice of being “corrupt” and “not independent”.

 

The Commission’s Rule of Law report revealed a “system of double standards”, Jaki claimed, referring to the judiciary and challenges to the primacy of EU law, “a system where the Germans are allowed to do things and the Member States in Central Europe (…) are not. This is racism and reflects a colonial attitude”, he concluded.

 

Hungary’s intervention came from Hajnalka Juhász, Vice Chair of the Foreign Affairs Commission of the National Assembly, and was couched in more legal terms, focusing on the argument of institutional overreach and a much narrower definition of the primacy of EU law than adopted by the Commission, the ECJ and Parliament’s and Council’s majorities.

 

It also failed to highlight “properly” the positive developments in her country, she found.

 

The contributions by French and German national legislators clearly signaled a firmer stance towards nationalistic interpretations of EU remits and values.

“When judges are punished because they are applying EU law, then the whole of the EU is under attack”.  French Senator Jean-Yves Leconte

“We cannot allow governments to break away from common agreements and use all the benefits of the EU regardless”, insisted Johannes Schraps, Social Democrat member of the Bundestag.

 

With reference to the new German coalition government’s outlook, he expressed Berlin’s explicit support for the Commission in acting against systemic breaches of the treaties, and its hope that the instruments at the Commission’s disposal will be used “in a timely manner. The conditionality mechanism plays an essential role”, he said.

 

Coralie Dubost, rapporteur on Rule of Law in the Assemblée nationale and a member of President Emmanuel Macron’s REM party, spoke of the need to “beef up” the tools to protect the Rule of Law in Europe, and Socialist Senator Jean-Yves Leconte stated, referring to Poland’s Disciplinary Chamber:

 

“When judges are punished because they are applying EU law, then the whole of the EU is under attack”.

 

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