Tuesday

1st Dec 2020

Opinion

Why German presidency is wrong on rule of law

  • Viktor Orban and other would-be kleptocrats must be rubbing their hands in anticipation of all the new funds (Photo: Council of the European Union)

Early next year, all going well, Brussels will turn on the taps and €750bn in funds designed to help Europe's recovery from the coronavirus pandemic will start to flow into every corner of the EU.

Together with over a trillion euros that has been earmarked for the EU's seven-year budget, this money will shore up temporary work schemes, help construct critical health infrastructure and boost medical and vaccine research.

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These funds are badly needed, but sadly history teaches us that they are sometimes badly spent.

Mismanagement, waste, fraud and corruption siphon funds away from where they are most needed and into the pockets of grafting businessmen and politicians, frequently working hand in glove.

That is the reality of corruption in large parts of Europe today.

It is not simply a matter of a few bad apples or a handful of rogue politicians, but systematic links between politics and business that aim to divert public funds to enrich individuals and entrench power in too many member-states.

Transparency International's most recent assessment of public sector corruption scores six EU countries – Bulgaria, Croatia, Greece, Hungary, Romania and Slovakia - at 50 or below (out of 100) which indicates serious or endemic problems on the scale of those in as Argentina, Belarus and South Africa.

What binds such otherwise diverse countries together is the failure of their public institutions – notably the judiciary and law enforcement agencies – to get a grip on widespread corruption.

That is no accident of history, but a result of a deliberate policy of enfeeblement by political actors who resent independent checks on their power.

The hyper-partisan nature of contemporary politics as seen in countries such as Hungary, Poland and Romania, has accelerated this trend in recent years.

Hungary remains the stand-out case in the EU.

Over 10 years of unbroken rule, Fidesz has compulsorily retired judges and replaced them with hand-picked successors, while ensuring that the prosecutor-general, national judiciary and state audit offices are staffed with party faithful.

The effects are plain to see. In the most recent report of the EU Anti-Fraud Body Olaf, Hungary once again tops the charts in terms of number of investigations that recommend criminal prosecution and other actions.

A New York Times investigation last year uncovered how EU farm subsidies are diverted to enrich members of Viktor Orban's close family, including his son-in-law.

Hungary is the subject of an ongoing special 'non-compliance' review by the Council of Europe's anti-corruption watchdog over its failure to address key recommendations that protect public prosecutors and judges from political interference. Unsurprisingly then, the Commission's rule of law report notes that "there has been no prosecution of high-level government officials in recent years".

All this was well understood by the European Commission two years ago, when it published its proposal to suspend EU funding if a country was found to have 'rule of law deficiencies'.

It understood that you cannot protect the EU budget in a country where the judiciary is rigged, the police are pliant, and the biggest threat to the integrity of the funds is unchecked executive power.

Teutonic climbdown

Sadly, two weeks ago, EU member states led by the German presidency, have decided that this is over-reach on the part of the commission. They only want to trigger suspensions of funds where clear evidence of systemic corruption emerges, such as final convictions in a court of law.

And yet the whole point of systemic state-sponsored corruption is precisely to prevent such cases ever reaching court. The changes to the proposal made by the German Presidency, perhaps based on an understanding of how corruption happens in a German context, will render the whole instrument toothless for any purposes.

Viktor Orban and other would-be kleptocrats must be rubbing their hands in anticipation of all the new funds.

The only thing between standing between this bad proposal and a useless law is the European Parliament's resistance in the negotiations that are taking place the next few weeks.

MEPs' assent is necessary and so far they are holding firm in defending the need for clear rule of law safeguards and the ability to use this instrument quickly and without too many hurdles. In doing so, the parliament is staying true to its role of defending the interests of EU citizens, in this case our collective interest in seeing our taxes well-spent.

It is strange to see the German government and its allies in council argue for the contrary position, one that lets serial abusers of EU funds off the hook.

They should forge a common position with the parliament and rally around the commission's original proposal.

Author bio

Carl Dolan is head of advocacy at the Open Society European Policy Institute

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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