14 December 2023
The Future of the Rule of Law in the EU
With systemic threats to and violations of the rule of law not subsiding, notwithstanding the expected end of backsliding in the case of Poland, the future of the rule of law in the EU is likely to be one of retrenchment accompanied by increased gaslighting to mask an increased gap between EU rhetoric and EU action. This means that the Commission’s decision to unlock € 10 bn of EU funding previously frozen on rule of law grounds to “sway Viktor Orbán on Ukraine” should not be seen as a once-off aberration but as prefiguration of a new abnormal normal. Continue reading >>
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13 December 2023
Taking Revenge for Dissent
Hungary’s latest judicial reform in May 2023 came in response to EU decisions to suspend the country’s access to funds due to serious rule of law concerns. The reform aimed, among other things, to strengthen the independence of the Kúria, the Supreme Court of Hungary. Experience to date shows that while on the level of formal legal rules, some improvements towards the rule of law have been made, in actual daily practice, the opposite is happening: While steps have been taken to restore the independence of the Kúria, the Chief Justice is working on further eroding the independence of individual judges. Continue reading >>
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12 December 2023
Trick and Treat?
Almost a year has passed since the European Union decided to block the payment of EUR 27 billion in union funds to Hungary under several instruments. Access to the largest part of the frozen funds - altogether EUR 13 billion - depends on whether Hungary complies with its undertakings to strengthen judicial independence. The government claims to have met all four of the so-called super milestones by adopting a judicial package in May 2023 and requests access to the blocked funds under Hungary’s Recovery and Resilience Fund (RRF) and ten different operative programmes. However, upon taking a closer look at the preconditions to the payments and the nature and implementation of the proposed reforms, it becomes clear that Hungary is still playing tricks to avoid compliance. Continue reading >>
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10 July 2023
Restoring the Rule of Law By Breaching It
The judicial reform recently passed by the Hungarian Parliament ostensibly seeks to restore the independence of the judiciary and the rule of law in Hungary. Crucially, it is also a vital step for the government to gain access to the 27 billion in frozen EU funds. While some might think that the EU’s strategy has been successful, a closer look shows that while the reform has the potential of improving judicial independence, the procedure leading to its adoption shows that there is no real commitment to restore the rule of law. In particular, throughout the law-making process the government consistently flouted the principle of legality, including the requirement of transparent, accountable, democratic and pluralistic law-making. Continue reading >>
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23 June 2023
Can the Hungarian Council Presidency be Postponed – Legally?
By now, it is commonly agreed that Hungary is no longer a democracy. I will offer in this blogpost some legal underpinnings to the argument that occupying the Council presidency must rotate only among those states that are in compliance with Article 2 TEU values including the rule of law, those that are fully fledged representative democracies in line with Article 10 TEU, that have been in line with Article 49 TEU at the time of accession and never regressed. Continue reading >>
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07 June 2023
An Inconvenient Constraint
On 1 July 2024, Hungary is set to take over the Presidency of the Council of Ministers. The European Parliament and the Meijers Committee issued reports questioning whether Hungary should be blocked from doing that. These proposals raise questions of political feasibility, however, especially as one may doubt if a Hungarian Council Presidency can do much practical damage to the EU. In addition, they also raise questions of legal feasibility. A logical prerequisite for preventing Hungary from holding the Presidency as long as it breaches the rule of law is that doing so is consistent with the EU’s own rule of law. I doubt it is. Continue reading >>03 June 2023
Institutional Corsets and the Question of Timing
There has been a lot of noise around whether Hungary should, and legally could, be blocked from taking over the Council presidency in the second half of 2024, considering the state of the rule of law in the country. On 1 June, the European Parliament adopted a resolution, questioning Hungary’s ability to “credibly fulfill” the tasks of a Council presidency and asking the Council to “find a proper solution as soon as possible”, else Parliament could take “appropriate measures”. Such concerns are legitimate, but another question seems to be sidelined in the debate: How much practical damage can the upcoming Council presidency under Hungary actually do in the EU? Continue reading >>01 June 2023
An Honest Broker?
A characteristic of the functioning of the EU is that the Presidency of the Council of Ministers rotates between Member States every six months according to a previously agreed order. The EU Presidency is responsible for driving forward the Council’s work on EU legislation. In the second half of 2024, Hungary will take over the Presidency, followed by Poland in the first half of 2025. Given their rule of law record, it is highly questionable whether they will act in the Council’s general interest. In order to avoid damage, there are three avenues available to the Council and the Member States. Continue reading >>
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04 April 2023
Frozen
After years of inaction, the European Commission and Council jointly acted to freeze EU funds totaling more than €28.7 billion for Hungary and more than €110 billion for Poland at the end of 2022, citing rule-of-law violations. Surprisingly, the decisions were taken not just (or even primarily) using the new Conditionality Regulation designed for that purpose. Instead, they used a variety of other legal tools to which rule-of-law conditionality was attached. It remains somewhat mysterious, however, precisely which funds and what proportion of those funds have been suspended, and how those suspensions have been legally justified. This post, a shorter version of a SIEPS paper that will be published soon, describes what we know about the complex set of funding suspensions intended to make EU Member States pay for their rule-of-law violations. Continue reading >>
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28 March 2023
The Council’s Conditionality Decision as a Violation of Academic Freedom?
On 15 December 2022, the Council’s suspended various EU budgetary commitments towards Hungary, the first application of the so-called Rule of Law Conditionality Regulation. The measure also froze access to Erasmus+ and Horizon Europe funds for 21 Hungarian universities that remain under the management of public interest trusts, thereby effectively denying access to these funds to a large pool of scholars and students. The decision raises important questions regarding the scope of protection afforded to final beneficiaries of EU funds. We suggest that a deeper engagement with the rights and interests of final beneficiaries in the context of the Conditionality Regulation necessitates a reconceptualisation of the EU’s understanding of and responsibility for academic freedom. Continue reading >>
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