Democracy Digest: Hungary and Poland Suffer Setback in Battle over EU Funds

Hungary and Poland lost a key battle in their fight to avoid EU funds being withheld over concerns about the rule of law, but government politicians cling to hope there is still a chance to win the war.

On Thursday, the advocate general of the Court of Justice of the European Union (CJEU), Manuel Campos Sanchez-Bordona, dismissed a request from Budapest and Warsaw to toss out the European Commission’s controversial new mechanism that would make EU funds conditional on the rule of law.

The opinion of the advocate general is non-binding, but most times the CJEU ends up following the court adviser in its final verdict, which in this case is due early next year.

The rule-of-law mechanism was adopted last December, and it enables the European Council – at the behest of the European Commission – to suspend payments from the EU budget if a member state commits a breach of the EU’s fundamental values concerning the rule of law.

The targets of this tool are, of course, the illiberal governments of Central Europe, with European institutions gradually losing patience with the blatant attempts by the nationalist-populist Hungarian and Polish governing parties to undermine the fundamental values upon which the EU is based.

As such, it was no surprise when the Polish and Hungarian governments filed a lawsuit earlier this year claiming the new mechanism lacked a legal basis, was incompatible with EU Treaties and lacked clarity, and sought for its annulment.

Yet the advocate general of the CJEU found that the regulation is designed “to ensure proper management of the Union budget” and “compliance with the principles of the rule of law may be vitally important for the sound operation of public finances and the proper implementation of the Union budget.”

The advocate general underlined that “it does not apply to all breaches of the rule of law, but only those that are directly linked to the implementation of the Union budget.”

He also found it compatible with Article 7 of the Treaty of European Union, which defines how certain rights of member states can be suspended, and did not share the view of the Polish and the Hungarian governments that the regulation lacked legal clarity of what should be accepted as breaches of the rule of law.

“This is not a verdict, only an opinion!” Hungarian Justice Minister Judit Varga declared hopefully in a Facebook post. Despite the opinion of the court adviser, she said: “The Hungarian Government maintains its position and trusts that the Court will base its judgement solely on legal arguments and common sense, not following the Advocate General’s erroneous reasoning. We say no to blackmailing with the rule of law!”

Gergely Gulyas, the minister who heads the prime minister’s office, tried to put a positive spin on the decision, telling reports at his weekly press conference that, “if the rule of law procedure is used properly, Hungary will have nothing to fear.” And like Varga, he stressed that this is only an opinion and not the final verdict.

Interestingly, the government-friendly media remained silent about the advocate general’s opinion for some time after it was published, possibly awaiting instructions from Fidesz party officials on how to frame it.

Opposition politicians showed no such hesitancy and declared the advocate general’s opinion as a win for the European Commission. “It is time for the European Commission to finally act. No more excuses, no more blah blah,” commented Hungarian MEP Anna Donath, who was recently elected president of Momentum, a young liberal-centrist party.

“Nothing can stand in the way of the EU giving the money to that which it was originally intended for – education, hospitals, average people – not Orban’s strongmen and family members. The advocate general of the Court of Justice of the EU has also stated that it is legal to make the distribution of EU money conditional on the rule of law, and it is legal to adhere to the most basic rules with all member states,” Donath wrote.

More Hungarian-Polish goings-on

Hungary’s joint opposition prime ministerial candidate, Peter Marki-Zay, travelled to Warsaw this week where he met with senior Polish opposition figures: Rafal Trzaskowski, mayor of the Polish capital, former foreign minister Radoslaw Sikorski, and former prime minister and now main opposition leader Donald Tusk.

During his visit, Marki-Zay underlined that just as Hungary is not synonymous with Fidesz, so Poland is not synonymous with Law and Justice (PiS). “There is an alternative in both countries,” he posted on Facebook, adding perhaps a little exaggeratedly that next year’s parliamentary election in Hungary will decide not only the fate of Hungary but also that of the whole of Europe.

Marki-Zay also responded to reports on Wednesday of moves to create a new European grouping of far-right parties, featuring Fidesz and PiS as well as MEPs from Austria’s FPÖ, Germany’s AfD, Spain’s Vox, Italy’s Lega and France’s National Rally, which would constitute the third biggest force in the European Parliament.

The reports said the grouping could be announced as soon as this weekend in Warsaw, but Italian sources and Hungarian Minister of Family Affairs Katalin Novak dismissed the speculation. Novak wrote that Fidesz would “cooperate only with democratic conservative parties” – a possible reference to Germany’s AfD and an indication that some in Fidesz are still not quite ready to cut remaining ties with Angela Merkel’s Christian Democratic Union of Germany (CDU), which considers AfD beyond the pale.

It is yet to be seen whether this new grouping of far-right parties will actually materialise, but it is no secret that Hungarian Prime Minister Viktor Orban has been working behind the scenes on its creation by building bridges between PiS and Italian and French far-right parties since Fidesz was effectively forced out of the centre-right European People’s Party, dominated by the CDU, in the spring. A meeting in Warsaw with Polish Prime Minister Mateusz Morawieczki on Saturday is still apparently on, but it is unclear who else, besides Orban, will attend.

Marki-Zay warned about the possible emergence of such a large, Russia-friendly bloc in the EU. “The aim of these parties is to weaken the European institutional system and undermine our common security. This is against both Polish and Hungarian national interests,” he said.

Silence of the shams

President Milos Zeman finally appointed Petr Fiala as the new Czech premier on Sunday, seven weeks after the five-party Democratic Bloc coalition won the election. The only trouble is that the country now has two prime ministers.

Fiala’s appointment was initially delayed by Zeman’s ill health, the head of state unable to perform his ceremonial duties after being rushed to hospital with liver complications the day after the vote finished on October 9. The president was released after a month, promising to meet the incoming prime minister, only to bounce straight back into hospital on November 25 with a bout of COVID-19.

Welcoming Fiala on Sunday, the president was sat in his wheelchair sealed in a plastic enclosure. That sparked a host of memes, most comparing the scheming populist to Hannibal Lecter.

Fiala was handed a disinfected decree before he left the meeting. Yet he won’t take office until Zeman officially appoints the rest of the cabinet. That means that Andrej Babis still runs the prime minister’s office and government on a day-to-day basis.

Fiala and his 17 nominated ministers are desperate to get to grips with several urgent issues, not least the growing pandemic threat. However, Zeman has already said he plans to object to one nomination – most likely that of Jan Lipavsky of the Pirate Party as foreign minister.

On the one hand, Lipavsky’s track record marks him out as an obvious target for the president and his Russia- and China-linked circle. However, Zeman’s real purpose is to test how far he can push Fiala. The president has no power to block ministerial appointments, but he twice managed to cause chaos for Babis’s minority government by doing so.

Unlike his predecessor, Fiala’s Democratic Bloc commands a parliamentary majority (108 seats in the 200-seat lower house), but Zeman is betting that his urgent need to take office could be enough to convince him to agree to postpone the foreign minister’s appointment. The hope in the presidential office is that this would provide the first hit to the unity of the five diverse parties in the incoming coalition.

Despite Zeman’s mischief making, Fiala has maintained his image as the “Captain Sensible” of Czech politics. On Tuesday he held a joint press conference with Babis to encourage more of the country to get vaccinated. Just 58 per cent of Czechs have had a jab, and new COVID-19 infections have hit record highs in recent days.

“There are moments when we need to show our common will,” Fiala said, standing beside his long-time political foe.

Babis’s management of the pandemic has been roundly criticised for putting politics before the nation’s health. But since losing the election he has new fish to fry. The populist billionaire has ditched the hot-headed outbursts and accusations of the past four years as he eyes a bid to replace Zeman via presidential elections in January 2023, or perhaps sooner if the president’s health deteriorates.

Showing off his new found statesmanship, Babis told the press that: “the pandemic doesn’t know any political barriers.”

Perhaps, but the response does. In what many view as his first sensible comment in years, Zeman this week called for Czechia to make vaccination mandatory, “because it seems like the only way to end the COVID crisis”.

“All the politicians are afraid to say that mandatory vaccination is the only solution because they would lose votes. I can do it because after ten years, my presidential mandate is coming to an end,” the president said, noting that many of his populist, libertarian supporters would be infuriated by the suggestion.

Likewise, with his premiership about to end, Babis’s outgoing government is flirting with the idea of mandatory vaccination for healthcare workers as well as those over 60 and other high-risk groups.

But the incoming government has stated that it is staunchly opposed to any such measure. In fact, Fiala and his team have disappointed many supporters by unveiling pandemic plans that clearly smack of populism.

Weaker asylum rules for Poland; media on tight leash; government fiddles while COVID burns

The European Commission announced on Wednesday that it was ready to temporarily set aside the EU’s asylum rules to make it easier for the Polish and Baltic governments to deal with the influx of migrants coming into the EU via Belarus.

Under the new “emergency” system, which still needs to be approved by EU heads of state, governments on the EU’s eastern border will be allowed to accept only asylum applications lodged at specific points, have more time to process the requests (meaning they can also detain migrants for longer), and be able to return faster people whose requests are rejected.

Human rights groups slammed the proposal, saying it would contribute to the erosion of the international protection system for refugees. “We are not talking about a major crisis here – we’re talking about a few thousand migrants,” Agnès Callamard, secretary-general for Amnesty International, told Politico. “We are [taking away] bit by bit all the rule-of-law system infrastructure that has been built over the last decades.”

Poland and the Baltics were anyway not respecting either international law or European law on asylum, argue human rights groups, which have accused these governments of conducting systematic mass pushbacks.

The crisis at the Belarusian border has been cooling recently, with Polish border guards reporting a total of 8,900 attempts to illegally enter the territory of the country via Belarus, compared with 17,500 in October. Thousands of migrants are reportedly still in Belarus, with around 1,500 amassed in a hall next to the crossing point Kuznica-Bruzgi.

Meanwhile, the Polish government passed new rules this week for journalists reporting from the border. A state of emergency declared two months ago – which created a 3-kilometre-wide stretch of land along the border with Belarus that prevented journalists and human rights groups from entering the zone – expired. The Polish Constitution does not allow for it to be extended, so the government is using instead different legislative tools to create a very similar system, which critics say will still exclude the media from reporting properly from the area.

Under the new rules, journalists can apply for accreditation to enter the zone right next to the border but, if their request is approved, they can only visit at a time and place decided by the Polish authorities, with a route established by the officials; they can only take images where permitted; and they have to comply with border guard instructions at all times.

Journalists in Poland claims the new rules are merely a de facto continuation of the previous ban. Human rights groups will continue to be excluded from the perimeter formerly known as the emergency zone.

In pandemic news, Poland has reached over 27,000 new daily cases and over 500 daily deaths from COVID-19, a situation comparable to last autumn, yet the authorities seem to have learned few lessons from previous waves.

Just like previously, hospitals across the country are reporting a lack of beds and waiting times for ambulances have reached hours. Despite the rise in the new variant Omicron, the government’s newly announced restrictions are mild compared to those of other countries, and mostly concern limits on the numbers of people allowed in shops or other crowded places. The government refuses to discuss restrictions for the unvaccinated.

New Slovak criminal code; vouchers for vaccinated

As the coronavirus-related death toll of anti-vaxxers and COVID-19 deniers continues to mount in overstretched Slovak hospitals, Justice Minister Maria Kolikova unveiled plans for a sweeping overhaul of the criminal code, with tackling and outlawing the spreading of hoaxes at the fore of the announced changes.

New laws introducing prison time of up to 10 years for creators and spreaders of disinformation are set to put more power in the hands of the police, who are powerless to act in the face of a tide of medical disinformation.

Failure to deal with the deluge of hoaxes about COVID-19, stemming from members of the public, a number of celebrity doctors and even some politicians, has been a thorn in the authorities’ side since the beginning of the pandemic. Prosecutors and police are rarely able to charge individuals over spreading disinformation, as they lack the legal means to do so.

The proposed amendment also softens the currently draconian punishments for possession of drugs and revisits the long-standing issue of historic crimes.

The new code wants to dial back on the harsh sentences handed out to people in possession of drugs for their own personal use. Those caught with just a few grams of marijuana today risk a prison sentence of up to 15 years – an approach that Kolikova considers heavy-handed.

“I want us to look differently at someone who is charged with possession for the first time,” the minister told the SME daily, in reference to her proposal to introduce probation or house arrests instead of a mandatory jail sentence in minor instances.

Kolikova’s draft amendments now face a challenging comment period followed by a cabinet negotiation and several rounds of parliamentary readings. Optimistic estimates expect the new legislation to come into force in June next year.

Meanwhile, Finance Minister Igor Matovic concocted another way to try to boost Slovakia’s woeful vaccination campaign in the form of vouchers worth 500 euros to be redeemed by those aged 60 and over who decide to get fully vaccinated. Only those registering for a vaccine by Christmas will be eligible to apply. They or their family members will then be able to redeem the coupons in selected shops, restaurants, cinemas, hairdressers and other services.

The cabinet is set to allocate 500 million euros for Matovic’s idea, but the plan lacks vital political support, the Slovak Spectator highlighted, with coalition MPs from the SaS party announcing their intention not to support the plan in parliament. The original intent was to issue vouchers worth 150 euros, SaS members said, adding that Matovic’s inflation of that figure is a violation of a coalition-wide agreement. The missing SaS votes could prove to be crucial in the upcoming parliamentary vote on the vouchers.

Matovic, who chairs OLaNO, the biggest coalition party, previously failed to boost interest in vaccination against COVID-19 after introducing a contentious lottery for the vaccinated.

Elsewhere, local meteorologists have warned of continuously decreasing surface and underground water levels in Slovakia for the past decade – an alarming development for a country known for its biggest natural underground repository of drinking water in Central Europe.

In its response, the Environment Ministry pointed its finger at climate change and deforestation as the primary causes of the lower water levels. While the government has published an “action plan” seeking to adapt the country to a changing climate, including a long-term water policy tackling management and drought problems, many environmentalists remain unconvinced of the plan’s sustainability.

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