On Monday and Tuesday, the European Court will hear a petition challenging the Polish and Hungarian governments against the so-called rule of law legislation. Both Budapest and Warsaw are opposed by the institutions of the European Union and the governments of ten member states.

This is the RegulationHowever, its adoption by member states at the end of last year was hampered by the prolonged blockade of the seven-year budget and €750 billion recovery fund by the Hungarian and Polish governments. Eventually, Budapest and Warsaw withdrew their veto and then filed a lawsuit to overturn the rule of law mechanism. This trial shall be conducted under an expedited procedure and in an exceptional manner before a panel of judges attended by all 27 national judges.

In the first part of the session, representatives of the Hungarian and Polish governments presented their legal arguments, and on the other hand, half of Europe lined up to refute all this. The contested legislation is represented by the European Council and the European Parliament, which brings together the leaders of the member states, as co-legislators, but also by the European Commission as the EU’s executive and preparatory body. As intervening, 10 governments indicated that they sought to drop the case and preserve the rule of law mechanism. The following countries are also implicated in the lawsuit: Ireland, the Netherlands, Germany, France, Finland, Sweden, Denmark, Luxembourg, Belgium and Spain.

Polish Hungarian surrender The parties list their legal objections in nine bullet points. It can be grouped around the following topics:

  • Inadequate legal basis for regulation, lack of adequate legal basis,

  • Violation of the rules of Article 7,

  • Violation of the principles of legal certainty and clarity of law, recognized as a general principle of European Union law.

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More specifically, according to the complainants, the EU treaties “enable the EU legislator to adopt budget rules for the implementation of the EU budget, but the Regulation does not contain such provisions”, so the legal basis for the Regulation is inadequate. In the view of both governments, this measure in fact duplicates or circumvents a specific part of the existing Article 7 procedure, which is still pending against the two governments. While it gives the European Commission more freedom and “eliminates” the consensus, it means that there is no veto. Finally, it is argued that “the basic concepts used by the contested organization are partly indeterminate and it is impossible to define them partly uniformly.” The latter can often be heard from the Hungarian government, for example, regarding the rule of law.

The opposing parties demanded the rejection of the Hungarian-Polish measure and gave reasons for their position. According to courtroom information, a representative of the Danish government said it was sad in itself that lawmakers consider such a tool absolutely necessary.

After all, all member states are free to make all the commitments of the European Union

they added. The Irish MP said the regulation of the rule of law policing contradicts Hungary and Poland’s claims

It does not violate the principle of equal treatment among member states, but helps to ensure that this principle is applied.

During the day, Justice Minister Judith Varga wrote on the community page that “EU rule of law actions have now become an ideological persecution of political witches, dividing member states.” He hoped the court would overturn the ruling due to

The hearing will resume Tuesday morning when members of the court can ask questions to the parties. At a later date, not yet known, the prosecutor will present his legal position, after which the judges will make their decision. A verdict is expected by the end of the year at best.

All this is important because the European Commission begins the first actions in view of the ruling, which can be completed within 6-8 months. If, at the end of such action, it is established that the relevant government is using or attempting to use EU funds in violation of the rule of law and causes/may cause material harm to the EU, the EU funds may be withdrawn, reduced or suspended.

There is a great deal of discussion between the Commission and Parliament about the timing of the commencement of the proceedings. The vast majority in the European Parliament believes the regulation can be implemented as early as January, and the Commission is only delaying the time. For this reason, Commission President Ursula von der Leyen has been threatened with lawsuits.

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