by William Nattrass
Thursday, 17
February 2022
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15:19

The ECJ ruling is a political attack on Hungary and Poland

These countries are being targeted for their social conservatism — not corruption
by William Nattrass
Polish Prime Minister Mateusz Morawiecki and Prime Minister of Hungary Viktor Orban. Credit: Getty

Yesterday’s major ruling by the European Court of Justice that the EU can link budget payments to member states’ adherence to the “rule of law” ushers in a new era for the bloc. The rule of law budget mechanism was agreed over a year ago, but its likely targets, Hungary and Poland, lodged a challenge to its legality. The removal of that obstacle means the European Commission can now consider how best to deploy its new economic weapon.  

Over recent months, many in Brussels have displayed a remarkable eagerness to punish conservative member states. An ”our way or the highway” attitude has become mainstream, leading to a bizarre frustration among many MEPs (example below) over the Commission’s failure to trigger the rule of law mechanism before yesterday’s ECJ ruling. Given their professed determination to enforce the rule of law, this lack of regard for due legal process exhibited a jaw-dropping lack of self-awareness.  

https://twitter.com/daniel_freund/status/1493284886093910018?s=20&t=rKo5HWXCmlkWjKPJJIIKlQ

Meanwhile in Hungary and Poland, doubts are rife about the EU’s intentions with the rule of law mechanism. Pushed for by wealthy western and northern member states as a way of limiting perceived democratic backsliding in the bloc, the true scope of the mechanism remains unclear. The EU insists it is intended solely to prevent the “misuse” of EU funds by corrupt or undemocratic regimes. But conservative governments in Budapest and Warsaw believe it’s actually an attempt to undermine their national sovereignty and enforce a pivot towards the EU’s progressive institutional values. 

They can hardly be blamed for coming to this conclusion, given that the EU’s new financial powers were drawn up and agreed at a time of heightened tensions over social conservatism in Hungary and Poland. Both countries have pursued pro-family agendas intended to combat worrying population decline, including policies (criticised as homophobic) such as a Child Protection Act in Hungary limiting the dissemination of LGBT-related content, and the creation of “LGBT-free zones” in Poland. Hungarian Justice Minister Judit Varga was quick to decry yesterday’s ECJ ruling as a “politically motivated judgement because of the Child Protection Act,” while her Polish counterpart Zbigniew Ziobro said the rule of law mechanism “serves to put pressure on Poland by means of ideological blackmail.” 

Indeed, if such cultural issues aren’t the real reason for the EU’s targeting of Hungary and Poland, the focus of the rule of law dispute seems somewhat arbitrary. Other countries in the region have similar problems with corruption and nepotism — the Czech parliament is currently deliberating on whether to release former Prime Minister Andrej Babiš for prosecution over alleged EU subsidy fraud, while Austria has been racked by political corruption scandals over the past year.  

It’s not corruption that makes these countries stand out in central Europe. It’s their social conservatism. This has naturally led their governments to conclude that the rule of law mechanism is, in reality, a vehicle for effecting a cultural pivot towards the EU’s institutional progressivism.   

The fact can’t be escaped that Brussels lawmakers now have the power to withhold the benefits of membership to perceived transgressors and that member states will have little power to contest such decisions outside of EU institutions. The EU insists that the rule of law mechanism isn’t a political weapon – but the potential for it to be used as such is crystal clear. And if statements from MEPs and the EU’s liberal leaders are anything to go by, so is the intention. As Ursula Von Der Leyen, President of the Commission, said: “We will act with determination… Today’s judgements confirm that we are on the right track”.

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Peter LR
Peter LR
9 months ago

These moves confirm the illusion that the EU is a democratic union of countries. It was conceived by Monnet as a rulership of unelected technocrats because ‘democracy’ throws up too many unwanteds – eg Poland and Hungary. Thank goodness we left. I wonder how Ireland will react when they come under the cosh to hike their corporation tax rates?

Dermot O'Sullivan
Dermot O'Sullivan
9 months ago
Reply to  Peter LR

‘Thank goodness we left.’

It would be nice to think stuff like this is confined to the EU but I don’t think so.

Jonathan Story
Jonathan Story
9 months ago
Reply to  Peter LR

Monnet did not think it up. The person who did is Arthur Salter, Monnet’s colleague, a British civil servant, later a Conservative MP, the quintessential Fabian cross-party gradualist, who in 1931 wrote “The United States of Europe and Other Papers”. It is the blueprint for the Lisbon Treaty, ie the Giscard d’Estaing EU Constitution. This is an important point because the EU is conceived essentially as of French origin, which has become of German benefit, and non-British. Quite the contrary. The EU is a British civil service invention. In its origins, it shares all of Monnet’s disdain for the mass electorates. It favours governance by élites. The trouble with this model is that “the people” especially in the UK were very patient when the élites proclaimed they knew best; they gave them years, decades to show their worth, and then in 2016, they gave them the thumbs down. I haven’t seen any shred of Remainer self-analysis on the lines of “why did we lose”. The best we can hope for is “lies”, “ignorance”, “nostalgia”. Our Rejoiners are unreformed. They no doubt back the EU’s attempt to thump Polish and Hungarian national democracy. Most unfortunately, all this is very unlikely to end nicely. The EU is fundamentally flawed and its denizens have not even begun to recognize there is a problem, vis. see the ludicrous recent statement of the European Parliament that the UK electorate was “misguided”.

Jon Redman
Jon Redman
9 months ago

I’d like to hear from a Remainer as to how Britain would have benefited from this had we stayed in the EU.

Andrew D
Andrew D
9 months ago
Reply to  Jon Redman

tumbleweed blows…

Frederick B
Frederick B
9 months ago
Reply to  Andrew D

And? Is that meant to mean something?

Jon Hawksley
Jon Hawksley
9 months ago
Reply to  Jon Redman

We should have provided the leadership that has been missing for 50 years so that corruption was eliminated in all expenditure and that it was essentially an economic enterprise with high standards and a consensus on world affairs.

Graham Stull
Graham Stull
9 months ago

The Union as a whole, and founding Member States in particular, have lost all credibility on these matters, over their handling of coronavirus.
You cannot on the one hand criticize Poland or Hungary for breaches of the rule of law, while on the other hand openly supporting vaccine mandates and covid green passes, which go against the most fundamental principles of EU law, national law and international law.

SULPICIA LEPIDINA
SULPICIA LEPIDINA
9 months ago

All rather alarming, when you remember that Austria, the Home of H*tler has all too predictably, recently enacted draconian anti- vax legislation without a peep from Brussels.

Last edited 9 months ago by SULPICIA LEPIDINA
J Bryant
J Bryant
9 months ago

I’d like a follow up article by this author discussing how more conservative countries such as Poland and Hungary are likely to react to this law. What will they do if the EU withholds funds? What can they do?

Justin Clark
Justin Clark
9 months ago
Reply to  J Bryant

create an eastern european super-state

Bernard Hill
Bernard Hill
9 months ago
Reply to  Justin Clark

….with its administrative capital in St Petersburg. Long term peace at last. How droll.

Justin Clark
Justin Clark
9 months ago
Reply to  Bernard Hill

I still think Russia should join us in a new style (NATO) alliance

Rasmus Fogh
Rasmus Fogh
9 months ago

Has there not been a lot of press talk about Poland and Hungary putting potentially critical institutions – including the courts – under government control? Which would be one explanation for ‘the focus on the rule of law’. The article may well be right in what it says, but it would have been useful if it had at least addressed this alternative explanation too.

Dermot O'Sullivan
Dermot O'Sullivan
9 months ago
Reply to  Rasmus Fogh

I agree with you (and with the main points in the article). A pity it didn’t address these concrrns/accusations.

Jonathan Story
Jonathan Story
9 months ago
Reply to  Rasmus Fogh

Good point. The other point is that both Hungary and Poland are politicising law. The poroblem with this is that both countries are still dealing with pre-1939 political legacies, the war, and 45 years of Marxist-Leninism. Sorting out their judiciary is not a straitforward task. It is worth remembering that well into the 1970s former members of the SS ran business in Germany and were represented in politics. As someone who lived for years in France, this did not escape public attention, but it didn’t stop negotiations proceeding. In fact, these were the years where “le tandem franco-allemand” was forged. Now “le tandem” is on top, no question of understanding or of allowing complex local issues to be worked out by the locals. Of one thing we can all be sure, though, is that neother Polish nor Hungarian electorates are going to vote for dictators, let alone foreign dictators.
Who is doing the escalation? Obvious Paris, Berlin, Brussels.

stephen archer
stephen archer
9 months ago
Reply to  Jonathan Story

They are not alone in politicising law, it’s what’s been happening in the US, the pillar of democracy. It’s true that the widely supported government in Poland are pushing the boundaries of democracy by judicial appointments and control of the media. Just watching the Polish news over a two week period, the same negative articles and features on Donald Tusk and his opposition party are screened repeatedly, almost like brainwashing. The thing is, he represents the EU-friendly and obedient policies which Poland are desperately trying to oppose and who could blame them for wanting to avoid an ultra liberal EU nanny state?

Rasmus Fogh
Rasmus Fogh
9 months ago
Reply to  stephen archer

Arguably that has been happening in the US since the sixties. As an outsider one speculates that there are some peculiar problems in the US system, viz a constitution specifically designed with competing centres of power that keep each other in check, to avoid strong government. Which then came up against the post-civil-war need to force a large minority (the south) to stop doing what it wanted (to wit: keep the blacks in subjugation). In the end that gave a lot of power to the Supreme Court, as the only power centre that was impossible to block, which resulted in a lot of the biggest decisions (like abortion) being taken by the courts. In the long run it is impossible not to politicise the courts if it is the courts that take all the most important political decisions.
You ought to be careful about your ‘who could blame them’, though. By the same logic, you would get “Who could blame the Republicans for rigging the system so that the Democrats can never win, or for keeping their man in the Oval Office even after he lost the election”? OR, if you prefer, “Who could blame the woke for silencing their racist opponents or for using the state education system to indoctrinate the country’s children into supporting their benign beliefs”? If you do not show some respect for the democratic rules of the game, all you end up with is winner-takes-all, civil war by other means.

John Pade
John Pade
9 months ago

There is a law operating here but I can’t describe it very well nor do I know it’s name if it has one. Besides the EU it applies to the UN, the US, and even seemingly unrelated organizations like power pools. Once entities create an entity above them in the excercise of a power, no matter how limited that power may be originally or how well it may be hemmed, it will get more powerful until it controls every aspect of the entities that created it.

Jon Hawksley
Jon Hawksley
9 months ago
Reply to  John Pade

One reason for not replacing the Queen with an elected president. The tendency to grab power applies all granting of autonomy, including devolution.

Last edited 9 months ago by Jon Hawksley
Samuel Ross
Samuel Ross
9 months ago

So, Poland and Hungary, two decidely “unwoke” countries, will not kowtow to the new wisdom of the west (i.e. LGBTQ+, BLM, etc.). They must be punished, says the west. The west can go to blazes, says I.

William Shaw
William Shaw
9 months ago

The EU is a cancer that has spread across Europe.

Daniel Holt
Daniel Holt
9 months ago

Their country, their schools, their children. My only regret with Brexit is that it prevents me from easily visiting these countries.

Brendan O'Leary
Brendan O'Leary
9 months ago
Reply to  Daniel Holt

Brexit makes no difference, unless your visit will be longer than 90 days in any 180, since UK was never in Schengen.

Anna Bramwell
Anna Bramwell
9 months ago

Wont you need a visa now?

Jon Hawksley
Jon Hawksley
9 months ago
Reply to  Anna Bramwell

Not for 90 days in a rolling 180 days though you will soon need to register online before travelling to the EU and you can be asked to evidence health cover and the ability to support yourself.

Patrick Fox
Patrick Fox
9 months ago

Reading all the comments especially those on “ the law” I am somewhat disappointed that the blame for these issues is not pointed at the ECJ and lets not forget the biggest culprits the judiciary or courts of the Member States.
The setting up of the EU and the self proclaimed « superiority of EU law » by the ECJ in the 1960s and its exclusive right of interpretation has been a blessing in disguise for the judges of the Member States to impair the political and thus undermine democracy in their own States.

So one should not be surprised if governments like that of Poland are trying to reverse the trend and even then their own judges who disagree with them go to the ECJ and they always find the most tenuous link to the EU treaties and the EU Charter of fundamental rights to question the ECJ knowing that the latter will always develop the necessary arguments ( I would not call them legal arguments) to claim their competence.

Slowly but surely all Member States are drifting or have drifted to « a government by judges » and this is terrifying taking into account that today’s politicians are more interested in governance than government the latter having been left to the EU.Unfortunately Brexit has not changed this in the UK where governance is still the master but this time it is self inflicted.