ECJ told to dismiss Poland and Hungary rule-of-law challenge

While this opinion is non-binding, the Luxembourg-based European Court of Justice (ECJ) usually follows the advice in its final ruling. The ruling in this case is expected in early 2022.

Hungary and Poland have argued that the new and highly-fought over mechanism that links EU funds to the rule of law is too vague, and goes beyond what the EU treaties allow for the bloc.

The advocate general said, however, that the conditionality mechanism does not indent to replicate the Article 7 sanctions procedure based on the EU treaty, but "rather to establish a financial conditionality instrument to safeguard that value" of the EU.

The governments in Warsaw and Budapest both immediately criticised the advocate general's opinion.

"It was a naivety to trust EU institutions would be capable of self-restraint," Poland's deputy justice minister, Sebastian Kaleta said.

Hungary's justice minister Judit Varga argued in a Facebook post that the opinion "ignores" that the conditionality regulation has several "obvious legal errors", which would already justify its annulment.

"Its legal basis is incorrect, it bypasses the treaties, and violates the rule-of-law requirements, especially the principles of legal certainty and clarity," Varga wrote, calling for scrapping the new tool.

"We say no to blackmail the rule of law!", she wrote.

Clearing the way

A ruling, in line with the opinion, would clear the way for the EU Commission to launch the mechanism against Poland and Hungary. It has been reluctant to trigger the new tool before a court ruling.

The EU executive have sent letters last month to the two countries asking questions on specific rule-of-law concerns.

Liberal Dutch MEP Sophie in't Veld said that the claims of Hungarian prime minister Viktor Orbán and Polish prime minister Mateusz Morawiecki against such conditionality are "bogus".

"[EU Commission president Ursula] von der Leyen has run out of excuses for not applying it. Except for a lack of political courage, of course," she tweeted.

The European Parliament has taken steps to sue the commission for failing to act on the regulation which was adopted by legislators a year ago and came into force in January 2021.

Slovak liberal MEP Michal Simecka said Orbán and Morawiecki "play for time. "The EU Commission should finally put an end to the delay and 'ostrich' politics," he tweeted.

The conditionality mechanism was last year hailed as a long-awaited effective tool for the EU Commission to clamp down on governments that repeatedly breach EU rules and values.

The EU executive has struggled for years to discipline the two countries. The Article 7 probe is already under way against both Poland and Hungary, but failed to produce tangible results.

In the meantime, the commission has also withheld the approval of the two countries' national Covid-19 economic recovery plans, blocking payments from the EU's €800bn recovery fund.