An interview with MEP Sergey Lagodinsky (Greens/EFA) on the protection of the rule of law in the EU, the European Commission’s proposals and the demands of the European Parliament.
This interview is part of our dossier on the Rule of Law in the EU.
Eva van de Rakt: Sergey, there has been a lot of talk about the rule of law mechanism in recent weeks. It has not always been clear that this term refers to different EU procedures to protect the rule of law in the Member States. At the end of September 2020, the European Commission presented its first Rule of Law Report. The European Commission sees this report as the foundation of the new “EU rule of law mechanism”, to provide an annual dialogue between the European Commission, the EU Council and the European Parliament. What is your opinion of the report and the procedure?
Sergey Lagodinsky: To begin with, we need to clarify which different legal instruments in different contexts constitute the “rule of law mechanism”. One of my main points of criticism is that we are constantly launching new instruments and at some point, the citizens lose track of them – and so do some politicians. Basically, we have various instruments that allow us to detect infringements against the fundamental values of the EU in the first place. At the level of the European Parliament, there is the Democracy, Rule of Law and Fundamental Rights Monitoring Group (DRFMG) of the LIBE Committee, of which I am a member. There is also an annual parliamentary report on the fundamental rights situation in the EU. The EU Council, in other words the assembly of governments of the Member States, has introduced the so-called “Peer Review”, a regular rule of law self-evaluation exercise conducted between Member States. There are also two well-known “older” instruments, which are geographically and sectorally specific: the Cooperation and Verification mechanism for Bulgaria and Romania, focusing on justice reform and the fight against corruption, and the EU Justice Scoreboard, which evaluates the health of the justice systems in all EU countries.
With its 2020 Rule of law report, the European Commission has now for the first time taken stock of the rule of law in all Member States. New thematic areas are selected every year; this year it was the justice systems, anti-corruption framework, media pluralism, and other institutional issues related to checks and balances. On the basis of this report, the European Commission has entered into consultations with the Member States and other EU institutions and hopes that this will trigger voluntary changes in the Member States. The European Commission calls this annual process the “rule of law mechanism”. My feelings about the rule of law report are ambivalent. On the one hand, none of us found out anything new from the evaluation, which was basically a compendium of known facts. But on the other hand, many NGOs in particularly affected countries, such as Hungary and Poland, considered it a victory that the situation in those countries was described in such detail at all. I am critical of the fact that due to its selective focus, the report shows only certain areas of the overall problem. The safeguarding of fundamental rights and anti-discrimination were both left out. Additionally, listing shortcomings in the hope that those responsible for them will change their ways seems wildly naive these days. In my view, the methodology and tone of the report belong not so much to the tried-and-tested principle of international cooperation that is “naming and shaming”, but to the principle of “naming without shaming”. It contains barely any conclusions. The Hungarian and Polish governments have already repeatedly shown that they are not intimidated by such things. Moreover, a proposal of the European Parliament on an inter-institutional and effective rule of law mechanism, to which I contributed, has been on the table since the autumn. It would provide for the three institutions (EU Council, European European Commission and European Parliament) to work together on a consolidated and holistic identification of shortcomings. The findings should lead to genuine and effective follow-up measures, including financial cuts.
Sergey Lagodinsky
Sergey Lagodinsky is a Member of the European Parliament for The Greens/EFA since 2019. His specialist expertise lies in transatlantic relations, international and constitutional law, as well as law and politics of diversity and integration. In the ninth legislative term, he has been serving on the Committee on Legal Affairs (JURI). In this capacity, he is also a member of the Democracy, Rule of Law & Fundamental Rights Monitoring Group.
Until June 2019 he was the Head of European Union and North America Division of the Heinrich-Böll-Stiftung. Before, Sergey worked as a lawyer and for the Berlin Office of the American Jewish Committee. In 2014, he published his book "Contexts of Antisemitism," where he explores the relationship between anti-Semitism and freedom of expression in Germany and in international law.
In November, following months of negotiations, the European Commission, the EU Council and the European Parliament agreed on the introduction of a rule of law conditionality, in other words linking compliance with the principles of the rule of law to the EU budget (Multiannual Financial Framework MFF 2021-2027) and the “Next Generation EU” (NGEU) recovery fund. This conditionality is a sanctions mechanism. How do you assess the compromise?
This brings us to the second and most important level – the level of consequences. What are the consequences of the findings in the framework of the instruments mentioned above? What can the critical assessment even achieve? Up to now, the EU Council and the European Commission have put their faith in judicial proceedings, making rule of law infringements transparent and in the political Article 7 procedure set out in the EU treaty. We are a long way past the first “therapeutic route”, in other words ongoing dialogue. Proceedings before the European Court of Justice (ECJ), for instance against attacks on the independence of the judiciary, are unbelievably important, but are very time-consuming and piecemeal. And the Article 7 procedure keeps getting held up, because it is a political process strewn with obstacles. In the meantime, the shared European area of common values is disintegrating under systematic attacks in certain EU countries. What can be done about this? The only remaining option is the one that always gets results – cutting the money. This proposition is sometimes referred to as the rule of law mechanism, but it is more correct to call it the conditionality mechanism. Infringements of EU values can, under this mechanism, lead to reductions in EU financing for the national governments in question. The mechanism is to be decided upon alongside the EU budget 2021-2027, which has still to be agreed upon, as well as the Covid-19 recovery instrument, which is also linked to the multiannual budget.
The question is, however, how this conditionality should be set out and how it should be triggered in the first place. The European Commission has made a bold and correct proposal on this, under which financial penalties could be introduced by the European Commission unless a qualified majority of Member States vote against. This is what is known as a reverse qualified majority decision. The proposal sets the threshold very low for such measures and the European Commission would be responsible for the assessment, which would make it highly effective. No wonder that the proposal was watered down by the EU Council and reduced to practically nothing by Member States. Hungary and Poland are doing all in their power to pull the teeth of this potential conditionality tiger.
The European Parliament has hurried to the rescue of the rule of law conditionality. Our position is clear and shared by all political families: there must be no weakening of the instrument. As is so often the case between EU institutions, a compromise was born of long, arduous negotiations. Under this compromise, the conditionality mechanism is not, as certain Member States had hoped, limited to misconduct in the spending of EU funds. Nonetheless, it can be triggered only by a qualified majority of Member States rather than by a more realistic decision of the European Commission. I therefore consider that the mechanism is barely effectual. In reality, it will be impossible to gather the necessary majority of states. Who is willing or able to organise this majority in the first place? We have to be realistic – in a situation in which the states affected by it share the decision on a mechanism of this kind, there was really no other option. It is quite an achievement that this kind of conditionality might have been possible at all. Realistically, however, I do not hold out much hope. I believe that the European Commission should decide instead to focus more on the legal route and more proactively and boldly refer states to the European Court of Justice for infringement of EU values.
The MFF and NGEU should have been already approved weeks ago; amidst the pandemic, many Member States are relying on resources being paid out. However, the governments of Hungary and Poland are currently blocking agreement on the MFF and NGEU because they do not agree with the negotiated compromise on the conditionality mechanism. What do you think Orbán and Morawiecki hope to achieve by their blackmailing attempt?
Yes, anybody who thought that what we have just been talking about was the final act in the drama must be bitterly disappointed. It appears that Orbán and Morawiecki cannot even accept the toothless conditionality mechanism. But I think that it is not so much about resisting conditionality as engaging in yet more blackmail. Even during the difficult negotiations over the summer, there were reports on a verbal agreement between Chancellor Merkel and Prime Minister Orbán that would have dropped the ongoing Article 7 procedure against Poland and Hungary as part of the deal. My assumption is that the actual objective is now to hold off agreement on the conditionality mechanism and the budget for as long as it takes for the EU Council to agree to close down the Article 7 procedure.
What is the current status of the Article 7 procedures against the governments in Warsaw and Budapest?
The procedures are on ice. What is particularly unfortunate is that the European Parliament, which actually initiated the procedure against Hungary itself, has no involvement at all in the process. Where parliamentarianism is thwarted, political ambition also runs aground. The proceedings have degenerated into formal discussions at ministerial level. They appear to lack ambition, precisely because the European Parliament has remained on the outside. But it is for precisely that reason that these procedures must continue. The worst thing that could happen now is for the procedure to be put to the vote and wrapped up with no useful results. That is precisely what the Hungarian and Polish governments are hoping to achieve with their blackmail. The German Presidency of the EU Council cannot allow this to happen. As things stand at the moment, I would go so far as to say that the bird in the hand, in other words the sub-standard but nevertheless ongoing Article 7 procedure, is much better than the two in the bush of the watered-down and practically impossible to trigger conditionality mechanism. If Hungary and Poland do not want money from the recovery fund, then this money should be distributed between the more cooperative states. Yes, that entails a risk for the EU, but there is also a risk of the EU disintegrating over the stubborn illiberalism of Budapest and Warsaw.
President von der Leyen has called on the governments in Budapest and Warsaw to lift their blockade and take their complaints to the European Court of Justice if they have any legal concerns. What do you think of this proposal?
That is one of the ways out of deadlock. More than anything else, this proposal is a step in the right direction. For a long time now, the Hungarian and Polish governments have been making themselves out to be the victims of a targeted campaign and claiming that the EU is blackmailing them with money. Now the masks are falling – it is these two governments that are blocking much-needed help in the crisis. Almost everybody involved has made concessions so that the crisis programme can be financed and at least some action can be taken against infringements of fundamental law, the dismantling of the rule of law and corruption. But this tiny bit of enforceable democracy is enough of a threat to the openly illiberal leaders in Warsaw and Budapest for them to block assistance to all other states in desperate need of it. I cannot see the logic of a declared long-term own interest on the part of the two governments. Budget talks come and go, but the other EU Member States are not going to disappear, even after this stir caused by Orbán and Morawiecki. Without question, the time will come when the two governments need the solidarity of the others. Their extremely short-term actions are squandering the solidarity they will one day be depending on.
Why is the EU so powerless against authoritarian heads of government? How can we avoid a situation in the future in which two governments hold the entire EU hostage in a cynical power game? How can we shape European cooperation in the future in such a way that the EU’s fundamental values are not violated?
We need to put an uncomfortable truth into words. This is an area in which the EU is structurally under-developed and any improvement requires the agreement of the very people who have slid into authoritarianism. For this reason, we have left it too late to build in a firewall, but are condemned to firefighting and putting out the flames one at a time. For me personally, this means that I would focus much more on legal action before the European Court of Justice and the European Court of Human Rights, but also on helping selected representatives of civil society. As a European Parliament rapporteur for association and non-profit law, I am committed to building a pan-European and protected civil society. We should also look for more opportunities to offer artists and activists from Poland and Hungary the freedom to come to our cities and municipalities. For many of them, the situation in both countries is now barely tolerable.
How can the European Parliament’s role in rule of law matters be strengthened in the future?
We must consolidate all the instruments I mentioned at the beginning. Preferably within a single system, but certainly with increased involvement of the European Parliament. This is the only way of avoiding deals or false considerations between Member States on the back of democracy. With regard to this, the Parliament is, furthermore, the most progressive institution and we should make use of that. Our parliamentary proposal for an inter-institutional rule of law mechanism would be the right option here.
Sergey, thank you very much for the interview.
Dr. Sergey Lagodinsky, Member of the European Parliament, is vice-chair of the Committee on Legal Affairs, member of the Democracy, Rule of Law and Fundamental Rights Monitoring Group of the LIBE committee and rapporteur on association and non-profit law.
The interview was conducted by Eva van de Rakt, Director of the Heinrich-Böll-Sitftung European Union office in Brussels.
You can find the original German version on boell.de (published on 1 December 2020).
