Poland and Hungary play for time in 'symbolic' EU court case

The new rules allow the suspension of EU funds if there are breaches of the rule of law in a member state which risk seriously affecting the sound management of EU subsidies in a "sufficiently direct" manner.

The debate during the Luxembourg hearing was a condensed summary of the ongoing rule-of-law dispute between the EU and the two member states run by nationalist governments.

EU institutions have lined up to defend the new rules and they have been backed up by 10 member states - Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, the Netherlands, Spain, and Sweden.

The court hearing came only days after Poland's controversial Constitutional Tribunal challenged the primacy of EU law, the foundation of European integration.

And the EU Commission recently asked for a daily fine against Poland for refusing to adhere to ECJ rulings, all marking an escalation in the legal battle between Warsaw and the EU.

'Unclear'

On Monday and Tuesday (12 October), during the ECJ hearing ,representatives of Poland and Hungary argued that the new rules were unclear, unpredictable and duplicated existing monitoring.

A lawyer for Hungary argued that the legal basis for the new rule was illegal, and lacked proper legal basis.

Lawyers for the two governments said that the minimum standards of the rule of law had not been defined either by the treaties nor by case law, and obligations were not clear.

The two countries also said that protection of EU funds was sufficient under existing financial regulation rules, and that rule of law was adequately defended through the Article 7 sanctions procedure. Hungary and Poland have both been put under the Article 7 sanctions procedure.

"It was impressive to see how many member states, that usually don't show up, supported EU institutions ," John Morijn, a law and politics professor at the University of Groningen, told EUobserver.

Morijn - who was in Luxembourg for the hearing - said it was "impressive" how ECJ president Koen Lenaerts took the floor on Tuesday and asked whether a member state refusing to implement ECJ judgements was a serious rule of law violation and would qualify as such under the new rule - a clear reference to Poland.

"I think that was a very powerful signal to the EU Commission and Council [of member states] that the whole notion of the binding nature of the ECJ rulings is non-negotiable, which is the most important message here," Morijn pointed out.

Morijn said the hearing, where the 27 judges asked questions and made statements rebutting the notion that the rule of law was an undefinable political concept, was "hugely symbolic".

On the Hungarian and Polish arguments, Morijn said it was like being on "two different globes".

"What was worrying to see is that there was no attempt by Poland and Hungary to engage, the purpose was to stall the application of the mechanism," he said.

Next steps

The EU top court's advocate general is expected to deliver his opinion on 2 December, putting it into doubt if the EU top court will rule on the issue this year.

Meanwhile, the European Parliament has accused the EU Commission of delaying the implementation of the conditionality mechanism against Poland and Hungary and has threatened to take the EU executive to court.

The commission has repeatedly said it was preparing cases and would send out the first inquiries to EU members concerned during the autumn.

EU funds at stake not only concern subsidies from the bloc's budget, but also from the €800bn Covid-19 recovery fund.

Hungary and Poland's plans to unlock those funds have not yet been approved by the commission because of concerns over judicial independence and corruption.