The European Commission has caused outrage among MEPs and legal experts by turning down a European Parliament request to trigger infringement procedures against EU Member States.
Hungary and Poland are two of the Member States accused of breaching EU laws. Both have regularly found themselves at loggerheads with the EU over perceived rule-of-law breaches in various areas, including the judiciary and attacks on press freedom.
A letter sent by the European Parliament demanded that the EU Executive take legal action against such Member States through its so-called rule-of-law conditionality mechanism - a tool designed to protect EU funds from being misused by EU governments.
In response, Commission President Ursula von der Leyen said MEPs had not provided enough evidence of the breaches and that the Commission “has not been properly called upon to act".
The Commission’s response was released one day before a reply deadline set by the Parliament expired on Wednesday.
It was addressed to Parliament President David Sassoli and added that "the Commission considers the European Parliament's request" – as set out in its resolution of 10 June - as "not sufficiently clear and precise", claiming that neither the letter nor the June resolution "refer to any case [of a rule of law violation] in concrete terms".
“Instead of protecting the rule of law (and triggering sanctions against Hungary) the Commission sent us a letter today, claiming procedural errors have been made by Parliament” Daniel Freund MEP
Remarkably, the response letter makes no mention of a detailed study of rule-of-law violations in Hungary. The study, written by three eminent professors of EU law, was commissioned by Parliament's rule of law negotiation team - MEPs Petri Sarvamaa, Eider Gardiazabal, Katalin Cseh, and Daniel Freund and accompanied the letter.
The three professors - Kim Scheppele (Princeton), R. Daniel Kelemen (Rutgers), and John Morijn (Groningen) - issued a legal opinion stating that the Commission was deliberately delaying sanctions against Hungary.
This, they said, was in clear breach of six of the eight rule of law principles impacting the EU budget and in three areas: transparency in the management of EU funds, the effectiveness of national prosecution, and the independence of the judiciary.
Members of the negotiating team, two of the three professors and other MEPs concerned with the rule of law issue reacted strongly, with Daniel Freund arguing, “Instead of protecting the rule of law (and triggering sanctions against Hungary) the Commission sent us a letter today, claiming procedural errors have been made by Parliament.”
“Keep in mind that this hair-splitting is happening in the midst of a European rule of law crisis. The Berlaymont knows about the massive rule of law violations in Hungary. They require immediate action by the Commission.”
Professor Kelemen tweeted, “Dear President von der Leyen, your letter ignores that the main groups in [Parliament sent you] a report that conducted the analysis you say needs to be done and that presented a model notification under the Regulation that is ready to be sent to Budapest”.
“President von der Leyen continues her blatant dereliction of duty and refuses to act in the Hungary and Poland rule of law crisis. The reason? Countless resolutions, reports, scholarly work and citizens’ cries for help aside - she does not see a clear case. Complicity of grotesque proportions” Katalin Cseh MEP
Professor Morijn tweeted, “Shameful non-reply. Suggested reaction: Dear President von der Leyen, you took five-pages to say the European Parliament didn’t give us clear case where we should have acted. We did”, linking to the study. Other experts in EU law echoed the sentiments.
Some of the MEPs were more blunt. Negotiation team member and Hungarian MEP Katalin Cseh, tweeted: “President von der Leyen continues her blatant dereliction of duty and refuses to act in the Hungary and Poland rule of law crisis. The reason? Countless resolutions, reports, scholarly work and citizens’ cries for help aside - she does not see a clear case. Complicity of grotesque proportions.”
Meanwhile liberal Dutch MEP Sophie in 't Veld claimed, “I have seen a lot of legalistic rubbish in my time, but this is the bluntest provocation ever. The lawyers of the European Commission may be high fiving, but they miss the point: it is not an insult to Parliament. It is an insult to European citizens.”
The Commission also argued that its refusal to act as instructed by Parliament was partly based on an interpretation of EU case law. Speaking to The Parliament Magazine, in ‘t Veld said; “A reinterpretation of the law is not at the discretion of the Commission. The Commission clearly has no intention of applying the law as it was intended by the legislator.”
She also made it clear that MEPs will not let this matter lie. “The Commission needs to remember it is accountable to the European Parliament as per Art 17, 8 TEU. Parliament has a Treaty obligation to hold the Commission to account.”
She continued, “Parliament has a duty to act when the Commission fails to act and is in breach of the Treaties. The democratic rule of law has to be safeguarded at EU level as well.”
“The Commission needs to remember it is accountable to the European Parliament as per Art 17, 8 TEU. Parliament has a Treaty obligation to hold the Commission to account. Parliament has a duty to act when the Commission fails to act and is in breach of the Treaties. The democratic rule of law has to be safeguarded at EU level as well” Sophie in 't Veld MEP
The Commission and Parliament are equally at odds over whether guidelines for EU Member States on the application of the rule of law mechanism are needed. The Parliament’s influential Budgets Committee believes they are not and has asked the Commission to drop the idea. However, the Commission confirmed last week that the guidelines are currently being drafted, announcing their publication by the end of next month.
Meanwhile, the Parliament’s threat to refer the dispute to the EU court in Luxembourg, as it warmed it would do if the Commission didn’t respond to its letter by the Wednesday’s deadline, looks highly likely, despite the Commission’s response.
However, some EU observers have suggested that Parliament’s timing in launching the request to the Commission in June was ill-chosen as the Commission was already fallowing the line taken by EU Member States at their summit in December 2020, where it was agreed to await the outcome of Poland’s and Hungary’s appeal to the rule-of-law regulation at the European Court of Justice.
The Luxembourg court is expected to rule in this case by the end of this year, making a potential challenge by Parliament redundant if the Commission does indeed start applying the conditionality mechanism and if the court rules against the appeals by Poland and Hungary.