European Council ends in unanimity after watering down rule of law conditionality

European Council ends in unanimity after watering down rule of law conditionality
Ursula von der Leyen, Angela Merkel and Charles Michel at the press conference on 11 December, credit: EU

The Council adopted a number of conclusions on the budget for next period and the recovery fund, COVID-19 and vaccinations, climate change, security and external relations.

The summit, which started on Thursday (10 December) and continued throughout the night to Friday, was described by European Council President Charles Michel as a “marathon” with difficult topics on the agenda and intensive discussions.

At a joint press conference on Friday with Commission President Ursula von der Leyen and German Chancellor Angela Merkel, the three leaders expressed satisfaction with the Council conclusions in all areas and described the results as the outcome of their good team work. The controversial issue of the rule of law conditionality was taken into account but hardly mentioned at the press conference.

“The biggest issue was the budget and it was a huge task to agree on it,” Merkel said. On the issue of relations with Turkey, another topic on the agenda, she was disappointed and admitted that the German presidency left “unfinished business” to its successor Portugal.

“We demonstrated EU’s ability to act together,” von der Leyen said at the press conference, highlighting EU’s response to the coronavirus crisis while preserving the rule of law conditionality in the budget.

On COVID-19, the Council agreed that a coordinated approach to vaccination certificates should be developed. The European Medicines Agency will approve the vaccine from Pfizer-BionTech by the end of this year while approval of the vaccine from Moderna is expected towards mid-January. She called on the member states to step up the preparation of the vaccinations.

In a message to the member states, the Council underlined “the importance of preparations for the timely deployment and distribution of vaccines, including the development of national vaccination strategies, to ensure that vaccines are made available to people in the EU in good time and in a coordinated manner.”

On climate change, the Council endorsed a binding EU target of a net domestic reduction of at least 55% in greenhouse gas emissions by 2030 compared to 1990. “The new 2030 target needs to be achieved in a way that preserves the EU’s competitiveness and takes account of Member States’ different starting points and specific national circumstances and emission reduction potential.”

In a concession to member states that still are heavily relying on fossil fuels, the Council recognised that they “have a right decide on their energy mix and to choose the most appropriate technologies to achieve collectively the 2030 climate target, including transitional technologies such as gas.”

On security, the Council stated that, “We are united in the fight against radicalisation, terrorism and violent extremism. In the face of these attacks on fundamental rights and freedoms, the EU will uphold the common values that underpin our pluralist societies and continue to pursue with determination its joint efforts to defend them.”

On external relations, the Council described the relations with Turkey as tense but reconfirmed that, “The offer of a positive EU- Turkey agenda remains on the table, provided Turkey shows readiness to promote a genuine partnership with the Union and its Member States and to resolve differences through dialogue and in accordance with international law."

At this stage, the Council did not decide on any new sanctions besides “additional listings” based on a previous decision concerning restrictive measures in view of Turkey’s unauthorised drilling activities in the Eastern Mediterranean. The Council will await a report on state of play concerning its political-economic relations with Turkey.

Rule of law conditionality

In his invitation letter to the Council meeting, Michel wrote that he was confident that an agreement on the EU budget would be found and he was proven right. In fact, the Special European Council in July agreed by unanimity on the multi-annual financial framework (MFF) for next period (2021 – 2027), including the recovery package and a rule of law mechanism.

But the rule of law conditionality continued to be an issue and threatened to derail the adoption of the budget because of the opposition of Hungary and Poland.

The rule of law mechanism was supposed to allow for the suspension or reduction of EU funding to member states that do not respect the principles of the rule of law. The compromise solution adopted by the European Council on Thursday requires further legal clarification and focuses on financial irregularities.

The concept of the rule of law and its principles, such as the independence of the judiciary and media freedom, is hardly mentioned in the Council conclusions besides in brief statement that the EU and its member states are “committed to promoting and respecting the values on which the Union is founded, including the rule of law”.

The objective of the new regulation is described as protection against “any kind of fraud, corruption and conflict of interest. "The Regulation does not relate to generalised deficiencies."

While the regulation will apply as from 1 January 2021, it will apply only to the new budget (MFF), including the COVID-19 recovery fund, and not retroactively to outstanding payments from the previous budget. To clarify the application of the regulation, the Commission will seek the advice of the European Court of Justice and the guidelines will be finalised after its judgment.

“Until such guidelines are finalised, the Commission will not propose measures under the Regulation.” At the press conference, von der Leyen assured that the Commission will look at possible cases already from the very start and that no single case will be lost in the process.

Hungary’s Prime-Minister Victor Orban was visibly triumphant at a joint press conference with his Polish counterpart. “We achieved our target and saved the unity of the Union,” he said and underlined that the power centre of EU are the member states and not the EU institutions. According to Orban, the new mechanism cannot be used for rule of law issues or what he calls “political targets.”

The Hungarian Prime-Minister argues that his country, like other countries that suffered under Communist rule, is building up its own form of democracy in what he considers to be a nation state with its own values, contrary to the older democracies in the Western Europe. EU for him is basically an economic union and not a union based on common European values.

However, opinion polls show that a majority in most member states, including Hungary and Poland, accept a link between the respect of the rule of law and EU payments. Reacting to the news about the Council decision on the rule of law conditionality, citizens groups in both countries felt betrayed and expressed disappointment.

In a joint statement, spokespersons for the Hungarian citizens organisation aHang (the Voice) and Polish citizens movement Akcja Demokracja said, “Today’s agreement is a political decision to push through the budget and sadly, the rule of law mechanism has been sacrificed. It’s almost toothless now.” Both organisations have petitioned decision-makers to preserve the rule of law conditionality.

Their concerns are also shared in the European Parliament. "We regret that the EU has to wait for the European Court of Justice's ruling on the imposition of sanctions and that the rule of law mechanism will not apply as early as next year,” commented MEP Ska KellerPresident of the Greens/EFA Group in the Parliament. “Breaches of the rule of law are going on as we speak.”

The party is critical against the German presidency for its passivity when it comes to the rule of law situation in Hungary and Poland. The article 7 process against the two countries has virtually come to a standstill. If it would have proceeded, Hungary and Poland might have lost their voting rights in the Council and not been able to threaten to veto its decisions.

M. Apelblat

The Brussels Times

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