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21st May 2022

Eastern states push back at rule of law conditions on funds

  • Budget commissioner Oettinger said the EU executive is working on several draft scenarios (Photo: ec.europa.eu)

Central and eastern European member states are pushing back against the idea of making EU funds conditional on respect for the rule of law and independence of the judiciary.

"I see enormous problems related to the implementation of that political concept, it could lead to the limitation of member states' rights guarded by the treaty," Poland's EU affairs minister Konrad Szymanski told reporters on Monday (19 February) in Brussels.

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"We need to see the legal text, not only the political idea," he added.

The issue of so-called 'conditionality' is expected to be one of the political hot potatoes at the EU leaders' summit this Friday (23 February).

Some member states, such as Italy and Germany, are losing patience with countries - notably Poland and Hungary - which are the largest recipients of EU funds and had several bruising clashes with the EU commission over democratic values and the rule of law.

Central and eastern European countries have also refused to take part in an EU migrant relocation scheme, and some have neglected rulings by the European Court of Justice (ECJ) - further irking net contributors to the budget.

One senior EU source said: "There is already an implicit conditionality in the process: you have to take the common rules, or you don't get money, this is about being a community. The debate is around whether we should make that conditionality explicit."

Diplomats insist a key issue is what will be the legal basis for such a conditionality and who will be trusted enough by member states to make an assessment on whether a country adheres to EU rules.

"If you want to assess something, you have to have objective measures," Szymanski said, pointing out that the macroeconomic conditionality for EU funds is easier to assess.

The Pole also wondered which would be a "legitimate institution" to make such a conclusive assessment with "huge consequences".

Diplomats from possibly-targeted countries argue that the notion is "totally politically motivated", because it suggests linking respect of rule of law specifically to cohesion funds, crucial for poorer countries like Hungary and Poland, which have had serious run-ins with the EU executive.

Some argue instead that conditionality should apply to all EU countries, and suggest that the assessment should not be done by the European Commission, but another organisation or through peer-review.

"It should not only concern cohesion policy," said one diplomat, adding, "we need an objective framework that is applied to everybody."

Others argue it should not focus on sanctions, but rather funds should be used to make judiciaries more independent and more effective.

Legal basis

The commission is drawing up the legal basis for what is possible and wants to hear from leaders at Friday's summit.

"It is … the moment to consider how the link between EU funding and the respect for the EU's fundamental values can be strengthened," it said in a statement last week.

The detailed criteria is only expected when the commission rolls out its proposals for the next seven-year EU budget on 2 May.

"We are working together with the commission's legal service to come up with different possible drafts for legislations that will lead to a general debate in the commission, and then within the proposal we will put it forward on 2 May," budget commissioner Guenther Oettinger said last week.

Justice commissioner Vera Jourova said recently the commission wants a "sound legal basis and a clear triggering mechanism".

"This will not be aimed at any member state," she pledged.

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