“Rule of law – we rely on Chancellor Merkel’s word on that”

Minister, something was agreed at the latest EU Summit in July but what? Your government believes that the requirements of the rule of law do not apply for the coronavirus aid but others say exactly the opposite. Who is obscuring things here?

You have to read the text – points 22 and 23 of the conclusions – precisely. It says that member states value the protection of the EU’s financial interests greatly. This is one sentence. Member states are looking at the rule of law as a basic value. This is the second sentence. Another one follows, which says that a conditionality will be introduced in order to protect the EU budget. However, these are three different sentences, stated in two different points. The conditionality does not serve the enforcement of the rule of law criteria; it will rather be of financial nature.

Really? Point 22 places “special” emphasis on Article 2 of the European Treaty about the basic values of democracy. Then it says: “The European Council stresses the importance of protecting the Union’s financial interests.” And: “The European Council stresses the importance of respecting the Rule of Law.” And Point 23 says: “With this background a conditionality regulation will be introduced in order to protect the budget and the Next Generation Fund” –  which is the coronavirus aid.  – The term “with this background” is making a connection between the “rule of law” and “conditionality”, isn’t it?

The term “with this background” could only be interpreted this way if it would be written in connection to Point 22. Those who believe in this explanation are trying to enter the wrong end of a legal one-way street.  The way we interpret Point 22 is that any new budget-related conditionality must be created according to the values fixed in Article 2 of the European Treaty and the resulting legal principles. The European Union’s Court of Justice identified legal certainty, proportionality, non-retrospective and non-discrimination principles as such in its case law.

So it’s not the “rule of law” principle as a term that should be considered but its legal derivations?

Legal certainty already prohibits using such vague expressions as “rule of law” as a condition. This is not a clear, tangible norm that can be applied in business as usual, as offences that need to be sanctioned cannot be defined clearly. For a well-functioning system you need clear norms and definitions. The proposal presented by the Commission in 2018 did not meet this condition. The government leaders decided at the summit that the problem needs a solution that is in harmony with the EU values. Of course, fiscal controls and guarantees will be necessary. We need to discuss in detail how it will look.

However, the Council President, Charles Michel, who led the negotiations, is speaking about introducing a mechanism to “protect the rule of law”.

Government leaders will be meeting again in autumn to work out the details and to define and establish clear norms, and also how to sanction their violation. This will require the unanimous decision of the government leaders. They will surely be discussing the meaning of Article 2’s basic values, such as democracy, rule of law, equal chances – all of the member states agree with these values. However, the conclusions drawn on 21 July decided definitively that sanction systems cannot be built upon these hard-to-define concepts. There will be a different, objective system of criteria to prevent financial abuse. In order to establish that, we are working closely together with our German friends, since we are also interested in making this and Germany’s Council presidency a success.

The think tank titled “European Stability Initiative”, which formulated the basic idea for the refugee deal with Turkey once, suggests to make the European Court of Justice the highest instance in matters of the rule of law. If the European Court of Justice makes a verdict under Article 19 of the European Treaty related to the rule of law, and this verdict is not implemented, the money tap must be turned off.  All of this on top of the Commission’s previous proposal about punishing “general deficiencies” in the rule of law.

It has always been our positions that an Article 7 process is only justified if the concerned member state violated a European Court of Justice decision. Hungary never violated a Court of Justice decision. Our position is: Specific allegations must be related to specific legal provisions. By the way, the EU already has a very sophisticated system of requirements and controls for the use of cohesion funds, which already allow withdrawing the resources.  According to the Commission’s annual report this system is effective. However, if for any reason it should prove insufficient, the system can be further developed, of course. The solution cannot be introducing spongy terms concerning the respect of basic values though, such as “general defects”. This reminds me of communism.

Are we going to hear again that the EU is just like the Soviet Union?

People used to be punished back then in the same way, not for having violated a specific law but since they had not been “ideologically conscious enough”. One of the greatest results in our change of regime is that today people in Hungary can be sentenced only for breaking the law. So the way that the debate about the rule of law is currently conducted is also very reminiscent of the times before the political turn.

Still, there should indeed be a specific mechanism. Charles Michel mentioned that a proposal from 2018 should serve as a basis for negotiation, which foresees an “inverted majority” – in this case Hungary would need a qualified majority to prevent sanctions – instead of a majority being required to decide on sanctions. That would be extremely unfavourable for Hungary, wouldn’t it?

It will be crucial how the European Council will decide in the end. Unanimously. Although in the conclusions of the summit the “inverted majority” was not mentioned anymore. This means that the government leaders already decided to turn down such a rule.

Is it possible that the whole package will fail in autumn because in the end the details cannot be agreed on?

It will probably already fail at the European Parliament. The Covid-19 crisis was already part of the problem and not part of the solution. Instead of taking care of the epidemic, the representatives were busy attacking specific countries for their protective measures, especially us, of course. You could hear the fake news even at the EU Parliament that our Parliament was suspended. We have little reason to believe that the Parliament will live up to its responsibility and accept the historic deal that the government leaders agreed on.

You are criticising the Parliament, which represents the European citizens. Would you prefer having a European Union without democratic European elections?

The European Parliament’s political legitimacy will never be the same as the one of the member states’ governments. The basic problem is that European elections are mostly playgrounds for protest voters and often such protest parties get into the Parliament, which do not have to bear governing responsibility at home. Government leaders are the ones who have to take the responsibility for every decision made in front of their own electors at home, and this is why the Council of the government leaders is the best forum for the most responsible decisions to be made. On the other hand the European Parliament could be similar to the governments of the member states, which are trying to solve problems instead of generating them. Unfortunately I have not seen many indications for that to happen yet.

The dominant party families, such as the Christian democrats, social democrats and liberals, do carry governmental responsibilities in numerous places. But let’s talk about the Article 7 proceedings against Hungary. Your government claimed that at the Brussels summit Chancellor Angela Merkel promised to end the process until the end of the year, so still under the German Council leadership period. The German side claims that there has not been such a promise. Which one is right?

Chancellor Merkel promised to do everything in her power to help with the process. We are content with her word. Of course, she is not able to end the process by herself.

How should that work technically?

You would need a four-fifths majority in the Council to determine that the clear danger of serious violation against a basic value is present in one of the member states. When such a majority is not achieved, the process, according to my understanding, is closed.

And what if the vote does not happen, since the members cannot agree on it or the present Council presidency does not schedule a vote?

Then the process might take until the end of times. It would be good though to have the vote as soon as possible and finish this whole miserable case. Even because, if I understand correctly, the European Parliament, the Commission and many member states want the same thing as we do: to speed up the process.

So the Germans, being Council president, could already offer assistance by simply scheduling a vote?

Yes.