Hungary triggers rule of law 'debates' in EU council

BRUSSELS - Telling an EU member state that its laws are undemocratic is a tricky affair. Especially if the country's government has a broad majority in its national parliament. And if the prime minister still enjoys the respect of some of his fellow EU leaders.

Such was the case with Hungary, whose Prime Minister Viktor Orban i in 2012 put in place a series of constitutional changes using his super-majority in the national parliament. They affected media freedom and the independence of the judiciary and prompted the EU to start looking at the laws and even take the country to court.

Last year, four foreign ministers, including the then Dutch foreign minister and now EU commission vice-president Frans Timmermans i, wrote a letter to the EU commission asking for a new "rule of law mechanism".

It would be a type of monitoring system before the triggering of the "nuclear option" of article 7 of the EU treaty, the suspension of voting rights in the EU council.

The EU commission put out a discussion paper looking at the options, but was immediately told by the EU council’s legal service that it was overstepping its powers. The "discussion was all but killed," according to one diplomat.

But Italy revived the debate by making the issue one of the priorities of its six-month presidency of the EU council.

Following Rome’s push, EU affairs ministers on Tuesday (18 November) agreed to hold “regular debates” on the rule of law in member states.

Italian EU affairs minister Sandro Gozi said it was a matter of the EU’s "credibility" that it does not become "a Union that is so thorough on economic parameters and forgets that the reason why it exists is the rule of law."

EU citizens "are asking why we are so demanding on the rule of law when we have a candidate country and once it becomes a member it becomes a black box, no questions are asked about the rule of law," he added.

According to the Italian presidency paper, seen by EUobserver, the council debates will be based on a series of "principles": the powers of EU institutions, the respect of "national identities, inherent in their political and constitutional structures" and the principle of "sincere cooperation".

The paper says ministers should agree on how many times these discussions should take place "e.g. once per year, within the General Affairs Council", what "sources of information could be considered worthy and reliable" and how to best observe the principles agreed.

A final decision may be taken in December or be left for the upcoming rotating EU presidencies - Latvia and Luxembourg - to pick up.

Timmermans vs. Timmermans

Meanwhile, Frans Timmermans i, in his new capacity as vice-president of the EU commission, avoided giving a clear answer on whether he will continue with the "rule of law mechanism" he requested as foreign minister.

On Wednesday, he welcomed the decision to hold regular talks and said it was "extremely important" for member states to have a place for "political discussions" on the rule of law after they join the EU.

Timmermans added that the council debates will be "complementary" to what the commission can and will do.

A spokeswoman for the EU commission said the "mechanism" proposed by ex-justice commissioner Viviane Reding i stays in place and can be activated at any time, despite the negative legal opinion of the council.

But the debate suffers from a lack of political will given that no country wants to be put in the spotlight, says Sergio Carrera from the Centre for European Policy Studies, a Brussels-based think tank.

"For me it’s not a surprise that the council concluded just to have discussions on the rule of law. But the first step is political willingness and even in the European Parliament there is no consensus on it," Carrera noted.