A short read worth the time for those who want to get the facts behind the EU’s rule-of-law rhetoric.
For years, and more precisely since the election of conservative governments in Poland (2015) and Hungary (2010), the European Commission (EC), together with the European Parliament and, more recently, the Court of Justice of the European Union (CJEU), has been on a crusade against both Central European countries. This battle is supposedly over the issue of their alleged violations of the European Union’s standard of the rule of law.
One factor is that those standards have evolved over time, based on their interpretation by unelected members of the European Commission as well as the unelected judges of the CJEU. But another is that these same EU bodies are often accused of applying different standards to different countries.
A report commissioned by the Center for European Studies at Hungary’s Mathias Corvinus Collegium (MCC) is now bringing some new evidence of this by comparing how judges are appointed in a number of EU countries: Poland, Hungary, the Netherlands, France, Spain, Sweden, and Germany. This 20-page report authored by the French-Hungarian lawyer Yann Caspar and published on September 7 under the title of Comparative Study on the Appointment of National Judges can be downloaded here:
The appointment of judges has been a central point in Brussels’ fight against Viktor Orbán’s government in Hungary, but even more so against the governments of the United Right coalition led by Jarosław Kaczyński’s social-conservative Law and Justice party since Poland’s 2017 reform of the judiciary.
To this day, this issue is offered by the European Commission as a primary justification for continuing to withhold the disbursement of Poland’s share of the Next Generation EU post-Covid recovery funds, of which both Poland and Hungary have not yet received a single euro.
Concerning Poland, the European Center for Law and Justice gave a fairly good description three years ago of how the European Commission’s drive against the Polish reforms unfolded, starting from the first months after the conservatives’ first electoral victory in the fall of 2015, and what the Commission’s reproaches were, as well as how the appointment of judges has become central to that struggle since the 2017 judiciary reforms.
MCC’s new report on the appointment of judges in several EU countries is now bringing clear confirmation of the fact that what has been presented by mainstream politicians and media outlets in Western Europe as a struggle for the rule of law and democracy in Poland and Hungary is in fact a push from Brussels in favor of an EU-wide government by judges that is subverting national parliamentary democracy.
In this struggle, Poland and Hungary, both big net beneficiaries of the EU budget and still in need of EU funding three decades after they toppled their communist regimes and ousted the Soviet army, can more easily be blackmailed by EU institutions than wealthier countries in Western Europe that are net contributors to the EU budget, such as France and Germany.
The election in both countries of conservative governments hostile to the idea of making the EU more federal by transferring ever more sovereignty from the national capitals to Brussels makes them an obvious target for federal-minded Eurocrats. And their financial position vis-à-vis the EU makes them better suited than net contributors to the EU budget to become instruments in the EU institutions’ drive to change the nature of the bloc through case law – i.e. by setting new precedents.
One can hardly find another explanation as to why the European Commission, as well as the European Parliament and the CJEU, have been so indifferent to the way in which judges are appointed in countries such as Germany, France, Sweden, Spain, and the Netherlands, as is revealed in the MCC report, whereas they are closely following the appointments made via similar procedures, or sometimes procedures that offer even better guarantees of the judiciary’s independence, in Poland and Hungary.
As said in the MCC report’s summary, and as anyone can see when looking at the way judges are appointed in various EU member states as revealed in the report itself:
“The Commission invokes respect for the values of the Union cited in Article 2 of the Treaty on European Union, Article 47 of the Charter of Fundamental Rights, and the standards set by a consultative body of the Council of Europe, the Venice Commission, to urge the Member States to reform their systems for appointing judges and reduce the role played by the legislative and executive powers. The Commission’s policy of standardization poses a problem of legal basis, however, given that a number of Member States do not comply with the relevant standards but are not exposed to the same scrutiny as Poland and Hungary.”
This report is a short read worth the time for those who want to get the facts behind the EU’s rule-of-law rhetoric.