Committee on Legal Affairs
Chaired by Marek Jankovský (CZ)
Far-right political parties are on the rise in many EU Member States, including Poland, Hungary, and countries such as France, Italy, and Sweden. Core ideas expressed by the far-right are chauvinistic and ethnic nobleness of the nation, anti-immigrant xenophobia, and anti-establishment populism. The ideas promoted by the far-right are often in contradiction with the underlying values of the EU, contained in Article 2 of the Treaty on the European Union (TEU)1. This includes the rule of law principle, which ensures legal certainty2, prevention of abuse / misuse of powers3, equality before the law and non-discrimination4, and access to justice5.
The EU has mechanisms to tackle breaches of the rule of law, such as the infringement proceedings, the conditionality mechanism, or proceedings under Article 7 of the TEU. However, the existing mechanisms require qualified majority or unanimity6, and tend to last long, reducing the actionability of the EU.
- The EU is based on fundamental values, namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, along with pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men;
- The fundamental EU values are threatened by far-right movements and far-right extremism;
- Far-right parties promote protectionism and welfare chauvinism7, anti-immigrant discourse based on fear and hatred, traditional family and religious values, and direct participation.
- Many far-right parties criticize the EU , wish to leave it, or at least strongly reform it.
- The EU has mechanisms in place when EU values are breached. However, they are not always effective and actionable.
- Proceedings under Article 7 of the TEU, the strongest mechanism to tackle the violation of EU values by Member States, can easily be blocked, making it unusable in most cases.
In 2010, Viktor Orbán became Hungary’s prime minister and his political party, Fidesz, gained a two-thirds majority in the Hungarian parliament. What followed has resulted in the European Parliament declaring Hungary a hybrid regime of electoral autocracy, which can no longer be defined as a democracy, in September 2022.
During his 12 years in power, Viktor Orbán’s party has adopted a new constitution and changed hundreds of laws. By reducing the retirement age, Fidesz forced the departure of one quarter of Hungary’s Supreme court judges and hundreds of judges of lower courts. These judges were later replaced through a newly-introduced procedure, in which the president, also from the Fidesz party, plays a major role.
Through new media laws and pressuring media owners, Fidesz has transformed Hungary’s media landscape. Approximately 55% of Hungarian media outlets are now state-owned, while over 500 other media outlets are concentrated by Fidesz supporters through the Central European Press and Media Foundation (KESMA) In the World Press Freedom Index, Hungary now ranks 92nd in the world, compared to 23rd in 2010.
Hungary has also been heavily criticized for introducing discriminatory laws on immigration, curbing academic freedoms and introducing stricter rules for Non-governmental organisations (NGOs). Moreover, Orbán’s policies have been targeting both religious and sexual minorities. Fidesz has redefined marriage as the union between one man and one woman in the constitution, and limited gay adoption and transgender rights. In 2021, Hungary’s parliament has passed a law that outlaws sharing information with under-18s that the government considers to be promoting homosexuality, or gender change.
The European Union is built on fundamental values, enshrined in Article 2 of the Treaty on the European Union (TEU). These values include respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, along with pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men.
While not well known to the general public, the rule of law in particular represents an underlying principle for the functioning of the EU. Simply put, it means that governments are subject to existing laws as much as its citizens are. More precisely, the Venice Commission has introduced the Rule of Law checklist – a document which defines the 5 fundamental elements of the rule of law. These elements are legal certainty, prevention of abuse / misuse of powers, equality before the law and non-discrimination, and access to justice.
There are, however, movements and political parties within Member States that do not share the core EU values, including the rule of law principle, and either violate them, or directly call for their abolition.
Today, this is especially true for far-right movements and political parties. While far-right parties can be divided into different groups, political scientists agree that the far-right is based around three core ideas, those being chauvinistic and ethnic nobleness of the nation, anti-immigrant xenophobia, and anti-establishment populism.
The policies proposed by the far-right often concern protectionism and welfare chauvinism in the economic area, an anti-immigrant discourse based on fear and hatred in the social areas, and an emphasis on traditional family and religious values at the cultural level. In politics, far-right parties often promote direct participation and are unwilling to compromise. Many far-right parties also criticize the EU , wish to leave it, or at least strongly reform it.
Far-right political parties are on the rise in many EU Member States. In the French presidential elections of April 2022, far-right and anti-EU candidate Marie Le Pen gained over 41% of votes. Far-right party Brothers of Italy won the Italian parliamentary elections with almost 26% of the vote, and in the September general election, the far-right party Swedish Democrats with neo-Nazi roots has gained 2nd place with over 20% of the vote.
European Commission (EC) is the executive body of the EU responsible for drawing up proposals of EU legislation, allocating EU funding, and enforcing EU legislation. The EC is in charge of the The Rule of Law Framework, initiates Infringement Proceedings and may initiate proceedings under Article 7 of the TEU. It also proposes measures under the Conditionality mechanism.
Council of the European Union (Council) is the body of the EU composed of government ministers from each Member State. The Council coordinates Member States’ policies, negotiates and adopts EU legislation, and adopts the annual EU budget, together with the EP. The Council takes decisions proceedings under Article 7 of the TEU and may also initiate them. It also approves measures proposed by the EC under the Conditionality mechanism.
European Parliament (EP) is a directly-elected EU body composed of members from each EU Member State. It negotiates and adopts EU legislation, along with the Council, supervises other EU institutions, and approves the EU’s budget. It may initiate proceedings under Article 7 of the TEU.
The Court of Justice of the European Union (CJEU) is the judicial body of the EU, which interprets, enforces, and annuls EU’s legal acts. It decides on infringement proceedings against Member States brought before it by the European Commission or another Member State.
European Union Agency for Fundamental Rights (FRA) is an EU body promoting fundamental rights in the EU through collecting & analysing information on fundamental rights’ development, advising EU institutions and governments on fundamental rights, and raising awareness of rights. It takes part in the The Rule of Law Framework.
The Rule of Law Framework of the EC is a three-stage process in which the EC assesses the risk to the Rule of law in Member States, provides recommendations to prevent or eliminate such risks, and monitors how the Member State reacts to the EC’s recommendation. If the Member State fails to take the necessary steps, the EC may initiate proceedings under Article 7 of the TEU.
Proceedings under Article 7(1) of the TEU, also referred to as the preventive mechanism, allow the Council to hear the Member State in question and determine that there is a clear risk of a serious breach of EU values as defined in Article 2 of the TEU. During the proceedings, the Council may make recommendation to the Member State on how to prevent the risk of the breach.
Proceedings under Article 7(2) of the TEU come into place if proceedings under Article 7(1) do not resolve the risk to EU values. In such case, the Council, after hearing the Member State in question, may unanimously determine the existence of a serious and persistent breach of EU values under Article 2 of the TEU. A serious and persistent breach of EU values needs to be approved by all members of the Council, except for the representative of the Member state in question.
Proceedings under Article 7(3) of the TEU allow the Council to suspend the rights of a Member States, including voting rights of their representatives, once a serious and persistent breach of EU values under Article 2 of the TEU has been determined. Any suspension needs to be approved by a qualified majority of the Council.
Infringement proceedings allow the EC to monitor the application of EU law and take legal action against a Member State that fails to properly apply EU law. During the proceedings, the EC engages in a dialogue with the Member State. Then, if the EC sees fit, it may send a reasoned opinion to the Member State, which serves a formal request to comply with EU law. If the Member State fails to comply with EU law, the EC may refer the matter to the Court of Justice. If the court finds that a country has breached EU law and the Member State still fails to take steps to eliminate the breach, the EC may refer the Member State back to the court. This time, if the ECJ finds that there is an ongoing breach of EU Law, it can impose financial sanctions. The Member State will be obliged to pay the financial sanctions until it complies with EU Law.
The Regulation on a General Regime of Conditionality for the Protection of the Union Budget, also known as the Conditionality mechanism, allows the EU to, inter alia, suspend payments to Member States in cases where there is both a breach of rule of law principles and the said breach presents a risk to the EU’s financial interests. If only one of the criteria is fulfilled, the mechanism will not apply. The EC proposes the measures under the Conditionality mechanism to the Council, which has to approve the measures by a qualified majority.
The European Rule of Law Mechanism, established in 2019, provides a process for an annual dialogue between EU institutions, Member States, and other national stakeholders on issues related to the rule of law. Based on its findings and the discussion with stakeholders, the EU issues annual Rule of Law reports on the development of the rule of law across Member States.
The Rule of Law checklist is a document of the Venice Commission of the Council of Europe, which defines the core elements of the rule of law.The Rule of Law checklist is used as a reference criterion for the European Rule of Law Mechanism.
The toothless Article 7
While Article 7 hypothetically allows the suspension of the rights of a Member States, an agreement between Poland and Hungary makes it impossible to be utilized. Therefore, with the far-right in the EU on the rise, it is unlikely that Article 7 will ever be applied.
In order to amend Article 7, however, the consent of all Member States’ parliaments, including Poland and Hungary would be needed. Moreover, any change to the now-strict rules may pose a threat in the future, making the EU even more vulnerable to the rise of the far-right.
Effectivity and actionability of existing legal instruments
While the EU has instruments to enforce its legislature, the proceedings usually last long and thus, the EU is unable to swiftly react to new changes in Member States’ policies. As of the end of 2020, infringement proceedings regarding the Single Market, the most common area of infringement proceedings, lasted 37.3 months on average.
While the CJEU may at any time introduce an interim measure, such a suspension in executing the legal act in question, the measure is difficult to enforce as Member States are usually reluctant to pay both sanctions introduced through interim measures, and sanctions imposed by a final judgement. Thus, it may take years before a Member State feels the effects of EU’s law enforcement measures
Tackling rule of law breaches v. principle of conferral
While the violation of the rule of law principle is to be taken very seriously, Member States still remain the so-called “Masters of the Treaties”. Thus, another fundamental principle of the EU should be borne in mind – the principle of conferral8.
Since the EU can then only act within the limits of the competences conferred upon it by the Member States, the question remains whether any further measures can be taken within the scope of the EU’s competences. The Regulation on a General Regime of Conditionality for the Protection of the Union Budget, for example, was brought before the CJEU, since Hungary and Poland believed that the EU was acting beyond its competence. While the CJEU held that the regulation is in line with EU law, the principle of conferral needs to be borne in mind while adopting further measures.
The EU is preparing to apply the new Conditionality mechanism for the first time.
On the 18th of September, the EC proposed to suspend €7.5 billion, which amounts to one-third of the cohesion funds allocated to Hungary unless it sufficiently addresses its rule of law shortcomings in the coming two months. On November 30th, the EC found that Hungary has not progressed enough in its reforms and the suspended funds will not be released until 27 “super milestones” including 17 remedial measures against corruption are met. Following the recommendation of the EC, , the Council has decided on December 12th 2022 to suspend some €6.3 billion from funds dedicated to Hungary. Hungary may regain access to these funds if it manages to implement all the proposed remedial measures within the following 2 years.
Similarly, the EU threatens to freeze payments of regional aid to Poland under the Conditionality mechanism due to threats to judicial independence in Poland. Payments will be held back by the EC until the matter is resolved. Poland is entitled to a total of €76.5bn, if it fulfils the conditions set out by the commission.
With new measures in place and the pressure towards reforms, we are yet to see if the EU can effectively resolve the breaches of the rule of law in Hungary and Poland. However, with the far-right in the EU on the rise, it is clear that further steps need to be taken in order to ensure that EU values and the rule of law are upheld in the future.
Rule of Law Report 2022 Toolbox – a short visual overview of the EU’s Rule of Law Framework
Definitions & Questions
- The Treaty on the European Union (TEU) is one of the EU treaties, binding agreements approved voluntarily and democratically by all EU Member States. Along with the Treaty on the Functioning of the European Union (TFEU), it sets out EU objectives, rules for EU institutions, how decisions are made and the relationship between the EU and its Member States.
- Legal certainty is represented by the accessibility of the law. The law must be certain, foreseeable and easy to understand.
- Preventing the abuses of powers means having limits in the legal system to prevent arbitrariness
- Equality before the law and non-discrimination guarantees the absence of any discrimination on grounds such as race, colour, sex, language, religion, political opinion, national or social origin, birth etc.
- Access to justice means the existence of an independent and impartial judiciary and the right to have a fair trial.
- A qualified majority is reached when 55% of Member States representing at least 65% of the total EU population vote in favour. This procedure is also known as the ‘double majority rule’.
- Welfare chauvinism represents the political idea that welfare benefits should be restricted to certain groups, particularly to the natives of a country as opposed to immigrants.
- Under the principle of conferral, the EU can act only within the limits of the competences conferred upon it by the Member States in the Treaties to achieve the objectives set out by the Treaties. Competences not conferred upon the EU in the Treaties remain with the Member States.