For decades, Brussels could at best refer to the European Court of Justice and impose fines on recalcitrant member states in dribs and drabs. Is this still the case?
Against the backdrop of common indebtedness and conditionality, the EU may well have acquired a legal arsenal that amounts to exorbitant and arbitrary power. At a time when accusations of blackmail against countries exercising their veto rights are flying thick and fast, and when the notions of the fight against corruption and the rule of law are too often brandished as totems to stifle debate, the question deserves to be asked. For it is one thing to fight against the fraudulent use of European funds, it is quite another to turn the European budget into a political or ideological weapon.
As is now usual, two countries are making headlines with this controversy with far-reaching consequences. Poland, where the 35 billion euro Recovery Fund is still blocked until Warsaw agrees to amend its judicial reform in accordance with Brussels' injunctions. And Hungary, whose Recovery Plan has finally been approved but remains subject to numerous conditions. In addition, the Commission launched the conditionality bomb against Budapest, two days after the last legislative elections: the suspension of certain European funds to "protect the Union's budget".
Some will be surprised that these funds are blocked despite the economic recession, the energy crisis, inflation and the war in Ukraine (a country for which Poland has bled its veins). However, these criticisms of circumstances should not mask the serious structural problems raised by this latent politicisation of European budget, the implementation of which could well lead to possible abuses.
First of all, what exactly are we talking about, fraud or the rule of law? Well, both. Specifically, "the rules necessary to protect the Union's budget in the event of a breach of the principles of the rule of law in a Member State". Mixing of the two? That the EU is concerned about preventing the misappropriation of its funds is the least it can do, and this is the role of OLAF, its anti-fraud agency established in 1999, and of the European Public Prosecutor's Office created in 2021. On the other hand, the fact that it is taking it upon itself to interfere in, or even have the final say on, the organisation of the judiciary in the Member States on the pretext that it is a potential danger to the EU budget, poses a major problem.
Is this the case? The example of the negotiations with Hungary is revealing. European money will only be paid out in dribs and drabs of 27 "super milestones" which include the strengthening of audit mechanisms or transparency in public procurement (which is quite understandable), but also the modification of the competences of the Constitutional Court and the Supreme Court. Thus, changes of a constitutional nature, nothing less. This is a power grab that relegates debates on the primacy of European law to petty academic squabbles. Imagine for a moment the outcry if the EU summoned France to change the mandate of the Council of State or the Constitutional Council, and for such a reason.
And by what right was the organisation of the judiciary transferred to the Union? This goes back to the unfortunate tendency of the EU to assume competences by "ricochet", without an explicit Treaty mandate. Worse, the recommendations of the European Semester (an exercise in economic and budgetary coordination between Member States but which also covers judicial independence without really knowing why) seem to have become "milestones" for obtaining Recovery Plan funds. Mandatory recommendations, in short? Or the technocratic art of navigating in a grey area in order to attribute competences to itself. And to use them on a case-bycase basis?
It should be remembered that the Commission has absolute discretion to pursue a State...or not to do so, without giving any justification. It is true that in terms of conditionality, the final decision lies with the Member States, but the fact remains that they only decide on cases selected and investigated by the Commission. Is there a risk of political "bias"? Probably, in the first place, because a hysterical European Parliament puts the brakes on any agreement with Warsaw and Budapest. An assembly sabotaging any compromise, full of itself, throwing out the anathema of corruption at the very moment when the Belgian police discover suitcases full of cash in the flat of its vice-president, is not the least of the ironies. Nevertheless, her power to intimidate a pusillanimous Commission that fears a motion of censure at the worst possible moment remains, and forces the latter to retreat into maximalist positions against some... while being strangely lax towards others.
To give just a few examples, how can it be explained that, since the adoption of the Recovery Plan, only one country has been scrutinised to the point of forcing constitutional changes, while billions have flowed into so many others without any real scrutiny? How can it be explained that Budapest is obliged to strengthen the powers of its Judicial Council (although it is entirely appointed by judges) while in Spain, the blocking of this body, which is majority appointed by the Parliament, is hardly the subject of a few remonstrances? This absolute discretion of the Commission, a vestige of a time when the guardian of the treaties was a technical entity, is now a vector of arbitrariness and double standards which no longer has any place.
All this is in addition to the growing ideologisation of the European budget. There are countless examples of projects financed by European funds being awarded to Salafist NGOs (some of them close to the Muslim Brotherhood) on the grounds of combating "discrimination" and "Islamophobia". And what about a regulation as technical as the one on the common provisions for certain European funds, which prescribes that the "gender perspective" and "gender mainstreaming" must be taken into account in all stages of financial programming? Or that the very substantial European research funds are subject to these same politically correct conditions?
Under no circumstances can these notions be used as a pretext for a hold-up of competences and the sanctification of margins of discretion that lead to à la carte procedures. So, who is blackmailing whom, the Member States availing themselves of an explicitly recognised right of veto, or the European institutions that transform the European budget sotto voce into a tool for political pressure? These days, the Union should do without this debate. But if it does, then let us put all the cards on the table and learn to read between the lines of principles and values that are as respectable in outline as they are unclear in implementation.
