Last Friday (19 Nov) the EU Commission sent Rule of Law letters to Poland and Hungary. The letters are not the long-awaited “official notifications” that would trigger the rule of law conditionality mechanism against both countries, but an informal list of questions. The governments are to comment on the rule of law deficiencies by 17 Jan 2022. Both letters offer a deep insight into the dimension of rule of law violations in both countries.

The EU Commission is increasingly focusing on two problem areas: the independence of the judiciary and the fight against corruption.

How independent is the judiciary in Poland and Hungary?

Unsurprisingly, in the case of Poland, the EU Commission’s questions revolve primarily around the controversial judicial reforms. The Commission for example wants to know how Poland ensures that judges in the country can still carry out their work independently in view of the judicial reforms in recent years. In addition, the Commission asks for a justification for the mass dismissal of public prosecutors from their managerial positions. But also in the Hungarian case, there seems to be a need for clarification, for example regarding the concentrated administration of courts and the possibilities for disciplinary measures against judges. The interest in the judicial system is obvious – independent courts are essential for the enforcement of EU law and at the same time for controlling the disbursement of EU funds. 

The risks to the EU budget: corruption

For the rule of law conditionality mechanism to be triggered, it is crucial that violations of the rule of law pose a risk to the EU budget. It is therefore natural that the questions deal extensively with the problem of corruption. In the Polish case, the Commission also asks “which guarantees protect the public prosecution office from undue interference from the Minister of Justice, in relation to investigation and prosecution of fraud [and] corruption”. In Hungary – where corruption is known to be more widespread and institutionalised – the Commission is more direct, asking to name “ten groups of physical persons or undertakings receiving the highest share of EU area-related direct payments from the Union Common Agricultural Policy in Hungary”. It is obvious that this is very specifically about Prime Minister Viktor Orban’s power network.

What role does migration actually play?

The Hungarian government in particular is cultivating the narrative that the dispute with Brussels over the rule of law only serves the EU’s purpose of pushing through supposed migration policies. Here we must state unequivocally: This is a smokescreen! In both letters, the word “migration” is not mentioned even once. This complex plays no role in the debate on the rule of law!

Can Warsaw and Budapest still avert the rule of law mechanism with the “right” answers?

Highly unlikely. Both letters reveal how comprehensive the EU Commission’s knowledge of the rule of law deficiencies in Poland and Hungary is. Systemic problems are addressed that cannot be denied. To remedy them, full-scale reforms of the judicial systems and the procedures for the administration and allocation of public funds would be needed. Neither Hungary nor Poland seems to have the political will to take countermeasures. The official and thorough identification by the EU Commission of serious deficiencies in the rule of law should therefore make it impossible for Ursula von der Leyen to approve the disbursement of the recovery funds this year.