On Wednesday (14.09), EU Commission President Ursula von der Leyen will outline the priorities of her political work in Strasbourg. Her third State of the Union (SOTEU) address is expected to be the last major speech she gives to the European Parliament before formally seeking re-election in 2024. European values, democracy, and above all the protection of the rule of law in the European Union have been at the center of von der Leyen’s speeches in recent years. Her vehement defence of European fundamental values has earned her many sympathies in Parliament. But her promises – which have been repeated in nearly identical terms over the years – hardly stand up to critical scrutiny. The situation in both Hungary and Poland has deteriorated significantly. The Commission has used the tools at its disposal inadequately and too late. Ursula von der Leyen has promised a lot – but she has delivered little. An overview:

The promise: “Zero tolerance for violators of the rule of law”?

“That is why there can be no compromise when it comes to respecting the rule of law. There never will be. (…) The Commission will always be an independent guardian of the Treaties.”

– Ursula von der Leyen’s candidate speech, 16.07.2019

“The rule of law is our foundation and can never be compromised. We must ensure that it is respected and upheld everywhere, with every country treated equally.”

– Ursula von der Leyen’s inaugural speech, 27.11.2019

“The Commission attaches the highest importance to the rule of law.”

– Ursula von der Leyen’s State of the Union address, 16.09.2020

Did she keep her promises? A look at the situation in Poland and Hungary:

Poland: Leaving the EU-legal order without tangible consequences

After years of the Polish government systematically undermining the rule of law, Poland seriously questioned the EU-legal order in October 2021. The politically appointed, so-called “Constitutional tribunal” ruled that Polish law was superior to EU law, calling into question a cornerstone of European integration. Von der Leyen’s Commission reacted by initiating an infringement procedure in December 2021. While the procedure is still ongoing, the Polish ruling is still in force. In the meantime, the Commission decided that the Polish case did not meet the conditions for triggering the rule of law mechanism. Even though the independence of the judiciary had factually been eviscerated, the Commission claimed that the rule of law deficiencies did not pose a serious threat to the protection of the EU budget and the developments in Poland did not justify sanctions proceedings. In June 2022, the Commission approved the government’s recovery and resilience plan, clearing the way for 34.5 billion euros of Corona recovery funds to be disbursed once relevant milestones are met. However, no money has been transferred yet as Poland refuses to implement the necessary reforms. It seems that at the very least, the Commission is continuing to exert pressure in this area. Meanwhile, the penalty payments to which Poland is subject due to its failure to implement an ECJ ruling now add up to more than 300 million euros. Nonetheless, these are tiny amounts compared to the payments from the EU budget Poland continues to receive and will not make the Polish government rethink its position. 

Hungary: Viktor Orban’s EU-financed re-election

Over the past twelve years, Viktor Orbán has systematically undermined Hungarian democracy. His power is based on nepotism, corruption, and misuse of public funds, including billions in payments from Brussels. In April 2022, his government once again secured a two-thirds majority in parliament – partly thanks to misappropriated EU funds. At the time of the election, von der Leyen already had over a year to trigger the rule of law mechanism against Hungary and prevent EU funds from financing Orban’s re-election. Ultimately, the procedure was triggered three weeks after the election. While the process is moving forward, there are indications that the Commission will recommend freezing only a fraction of EU funds to the Orban government. In addition, negotiations over 7.2 billion euros in Corona recovery funds are still ongoing. Recently, the Hungarian government claimed that there was a breakthrough even though the reforms announced so far are merely sham measures far from abolishing Orbans corrupt system. If the Commission is satisfied with these fake reforms and releases the Corona billions it is to be feared that the rule of law mechanism will also be aborted at the last minute and ultimately no financial penalties will be imposed. 

Second term for von der Leyen thanks to leniency on the rule of law?

The Commission’s stance toward the rule of law troublemakers has been marked by restraint and hesitation. The repeatedly promised zero-tolerance policy never materialised – which is one of the reasons why the rule of law mechanism could not develop its full preventive effect. Despite the fact that neither the Polish nor the Hungarian governments have moved significantly away from their authoritarian paths, von der Leyen has avoided confronting their disregard for European values directly. The path back to the full implementation of rule of law principles is currently blocked as there is a huge gap between von der Leyen’s self-postulated claims and her actions, which is unlikely to close in the foreseeable future. It is more than questionable whether von der Leyen will change course in the coming months.

Most recently, influential PiS party leader Jaroslaw Kaczynski has threatened not to support von der Leyen for possible re-election if Poland does not receive money from the recovery fund. If von der Leyen relies on the governments in Warsaw and Budapest for her re-election in 2024, she will make herself vulnerable to blackmail. It is to be feared that fundamental European values will be further undermined in this scenario – with fatal consequences for European democracy.