Far from home, at Princeton University in late September, Ursula von der Leyen faced an uncomfortable situation. A fellow conference attendee at the prestigious US institution warned her that “people close to Putin” could be victorious in the upcoming Italian elections that week. The EU Commission President felt compelled to reply. “We will see. If things go in a difficult direction — and I’ve spoken about Hungary and Poland — we have the tools.” In short: The EU will cut off money to states which do not comply with common decisions. It was meant to show the strength of the EU in defending the rule of law.

But given the Commission’s track record, the message was likely of little concern to Italy’s incoming government or its new EU allies in Hungary and Poland. In reality, von der Leyen has for years demonstrated that she is not willing to take consistent action against the breach of constitutional principles with which Hungary’s Victor Orban and Poland’s Mateusz Morawiecki cement their autocratic power.

Yet the Commission actually has a strong legal hand. With the so-called rule of law mechanism, the commissioners can demand the blocking of payments from the EU budget to governments guilty of violations, which the Council of EU governments can then confirm with a qualified majority. The corresponding law has been in force since January 2021. But von der Leyen and her commissioners did not utilise it for 18 months. Instead, they waited to see whether the European Court of Justice would give in to a – rather hopeless – complaint against the law by the rulers in Budapest and Warsaw. After all, the judges had already declared the Polish judicial reforms and the disciplining of politically dissenting judges illegal several times.

Even after this was decided last February, von der Leyen has not made use of the “tools” she so praised in Princeton. Instead, she approved Poland’s €35 billion Covid recovery plan, making only a few reforms declared as “milestones” a condition for doing so. However, the reinstatement of the Polish judges was not included. Many have fallen victim to a 2019 ruling allowing Poland’s Supreme Court to punish magistrates for their rulings, with several being dubiously suspended since. Von der Leyen had seemingly ignored the calls of the EU’s highest court which had urged her to intervene. The Commission did request Poland to hold hearings with the suspended judges, although it is not mandatory for them to reinstate those involved. Now, in further embarrassment, four European judges’ associations have filed a complaint with the EU court, saying the decision “harms the European judiciary as a whole and the position of every single European judge”.

Judges and lawyers from across Europe protest judicial takeover in Warsaw at the March of 1000 Gowns, January 2020.

Von der Leyen is also deliberately weak against the Putin-friendly regime of Viktor Orban, who has funnelled money to his followers on a grand scale, with the EU believing no other member state has misused funds as much. The EU’s anti-fraud office estimated in 2016 that suspect spending by the ruling Fidesz Party topped €850 million. It is true that the Commission has now decided to propose to the Council to block a next payment of €7.5 billion from Brussels to Hungary. But this corresponds to less than one fifth of the funds earmarked for the country. Moreover, von der Leyen and her budget commissioner Johannes Hahn opened a back door for the regime. With a new anti-corruption authority and better tenders, they should still be able to avert the blockade. But this would not change the core problem, the chronic inactivity of the Hungarian judiciary. Its judges are “under attack from multiple directions” and judicial independence is “severely undermined”, campaigners have said, but still, judicial reforms are absent. While the investigative powers of the European Public Prosecutor’s Office are of no use against Orban’s regime, either. Out of all EU member states, Hungary, Poland and Sweden are the only non-members of the EPPO. But Orban and his government are happy to maintain this status quo. Otherwise, their wrongdoing would be officially prosecuted.

This reluctance to bite the autocrats is not simply a private fault of von der Leyen. Rather, “it may well be her calculation to act very cautiously with regard to the rule of law with a view to the next European elections in 2024”, suspects Green MEP Daniel Freund. This alludes to the structural weakness of the head of the EU executive: Von der Leyen is not elected, but only appointed by the governments. And for her to secure another term as president and for her confirmation in the EU Parliament, she is dependent on votes from Hungarian and Polish right-wing populists – a constellation that is highly dangerous for the EU. The fight against the saboteurs of the rule of law should not depend on the career plans of the Commission President.

Biting inhibition against the autocrats in Hungary and Poland

EU Commission inaction on the rule of law is leaving Europe’s judiciary increasingly exposed to oppressive domestic powers.

Historias de una Europa en movimiento

Historias de una Europa en movimiento