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2nd Dec 2022

EU top court slams Poland and Hungary again

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Hungary and Poland were both slapped down again by the EU's top court on Tuesday (16 November) for violating the bloc's rules - in a further sign that the rule-of-law dispute between the EU and the two countries has become structural.

The European Court of Justice (ECJ) said that Hungary violated EU law with its 2018 anti-migration policy and by "criminalising" civil society organisations in their efforts to help asylum seekers.

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  • Hungary's government ran a campaign against US billionaire George Soros, and dubbed its anti-migration legislation 'Stop Soros' (Photo: Lydia Gall/Human Rights Watch)

The court also said Hungary failed to fulfil its obligations under EU law, with its rule that considered asylum applications inadmissible if the asylum seeker arrived in Hungary via a third country considered safe.

During the 2015 migration wave and afterwards most asylum seekers arrived in Hungary via Serbia.

In a separate case, EU judges said that Warsaw illegally gave its justice minister too many powers to decide on promoting or demoting judges.

EU law "precludes the regime in force in Poland" under which the minister recommends the appointment of judges to higher criminal courts, "secondments which that minister - who is also the public prosecutor general - may terminate at any time without stating reasons," the court said.

Escalation

The rulings are the latest twist in a long-standing dispute between the nationalist governments in Hungary and Poland and the EU over the rule of law. Both countries are under EU scrutiny for concerns over judicial independence.

Poland's controversial Constitutional Tribunal has last month challenged the supremacy of EU law over domestic law.

Last month, the EU court hit Poland with a record €1m daily fine for not implementing an earlier court ruling on disciplining Polish judges. The commission has also asked for fine against Hungary over not implementing a different migration court ruling.

Hungary's justice minister Judit Varga in February also asked the country's top court whether the implementation of an EU court ruling on migration would be compatible with Hungary's constitution, and a decision is pending.

The clashes over judicial independence has led to the EU Commission delaying the approval of Poland's €36bn EU recovery money, and €7.2bn for Hungary.

Negotiators are ongoing between the EU executive and the two governments over the Covid-19 recovery funds.

Meanwhile, ina joint letter , five European Parliament groups - from centre-right to far-left - called on EU Commission president Ursula von der Leyen to defend EU law and take all necessary measures.

The commission said it would send letters soon to Poland and Hungary asking for responses over concerns that funds provided by the bloc could be subject to corruption or fraud.

Intimidation

The European Court of Justice on Tuesday said that the 2018 Hungarian legislation restricted the right of access to applicants for international protection and the right for asylum seekers to be able to consult a legal advisor.

It threatened anyone with prison sentence who, for instance, distributed leaflets to asylum seekers on their rights, or provided other legal help.

While no-one was imprisoned since the legislation came into force, critics said it was intended to serve political aims with targeting migrants and NGOs and intimidate civil organisations.

"The court considers that such a restriction cannot be justified by the objectives relied on by the Hungarian legislature, namely the prevention of the assistance of misuse of the asylum procedure and of illegal immigration based on deception," the court said in a statement.

The ruling was expected as the ECJ said the same thing to a question asked by a Hungarian judge Gabriella Szabo, who said she was later pushed out of the courts for asking the EU top court on migration.

The criminalisation of any civil organisations that extended help to asylum seekers was dubbed 'Stop Soros' legislation by the government of prime minister Viktor Orbán.

Orbán, who is facing elections next April after spending a decade weakening democratic institutions, claims organisations partly funded by US billionaire philanthropist George Soros want to flood Europe with migrants.

Government spokesperson Zoltán Kovács said "Hungary acknowledges the judgment", but "reserves the right to take action against the activities of foreign-funded NGOs, including those funded by George Soros".

"Hungary and the Hungarian Stop Soros Act continue to stand in the way of pro-immigration plans. And Brussels still wants Hungary to give free passage to migrants and the Soros organisations managing migration," he added in a statement.

One of the NGOs targeted by the 'Stop Soros' legislation, the Hungarian Helsinki Committee, welcomed the ruling.

"The CJEU [ECJ] made it clear: threatening people with imprisonment who assist asylum-seekers to claim asylum violates EU norms," said the committee which said it helped over 1,800 asylum-seekers since July 2018 under the threat of criminal sanctions.

New Hungarian opposition head seeks Orbán 'regime change'

Péter Márki-Zay said winning will be an uphill battle, as Viktor Orbán's moves to redraw constituencies, stifle free media, erode the independence of the judiciary, and "unlimited" financial resources, all favour the illiberal incumbent.

Poland vows not to give into EU 'blackmail' at summit

Dutch prime minister Mark Rutte suggested Poland's Covid-19 recovery money should not be approved until Warsaw respects the rulings of the European Court of Justice and dispels doubts about the independence of its judiciary.

Analysis

EU Commission letters to Poland, Hungary: too little, too late?

The EU Commission has made a first move in the battle that could result in financial sanctions against Hungary and Poland over rule-of-law issues. However, this initial step has irritated those arguing for quicker action.

Portugal was poised to scrap 'Golden Visas' - why didn't it?

Over the last 10 years, Portugal has given 1,470 golden visas to people originating from countries whose tax-transparency practices the EU finds problematic. But unlike common practice in other EU states with similar programmes, Portugal has not implemented "due diligence".

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