The EC’s proposal to link EU budget payments with rule of law compliance is opposed by Poland as being in violation of EU treaties.
The Polish Justice minister Zbigniew Ziobro believes that the proposal is in violation of existing treaties as it gives powers to European institutions that the treaties never envisaged. He believes that this limits the sovereignty of member states and would lead to the exercise of arbitrary power.
The draft of the EC’s proposal has a definition of the rule of law in its preamble. However, it allows the EC to intervene on the basis of “general deficiencies in rule of law compliance, giving the Commission the arbitrary means to stop, reduce or suspend a member state’s funding and to return them only on the basis of its own judgement.
Poland feels that the EU already has instruments at its disposal which are adequate for the purpose of protecting the EU budget, including penal sanctions and cooperation on prosecutions. The justice ministry also points to the fact that budget control should not be mixed up with sanctions.
Legal counsel to the European Council has in the past criticised attempts to introduce sanctions by the back door. They pointed to the fact that the Treaties only envisaged the imposition of sanctions under the regime of Article 7 of the Lisbon Treaty and gave that power to the European Council and not the Commission. The EC proposal does not envisage any European Council participation in decisions to defund, only allowing them to be overturned by qualified majority voting against the Commission’s decisions.
This is why the EC’s rhetoric has now changed. In justifying its budget proposal the Commission is currently accentuating the concern that the lack of an independent judiciary could make it much harder to combat corruption or cronyism in the distribution of funds at member state level.
But if financial propriety and effectiveness of funding are to be the objectives then reviewing current systems for distribution and spending of EU funds rather than rule of law compliance should be the priority.
Poland, along with Hungary has been taken to task by the EC under Article 7 of the treaty. However, the Commission never secured the necessary majority on the European Council to conclude any action to impose sanctions or those countries' right to vote in the Council. The EC has therefore turned to the stratagem of attempting to secure rule of law compliance via controlling EU budget flows.