Something has clouded the skies in the European Union, questioning its credibility that is now tied with the approval of Multiannual Financial Framework 2021-2027 and Next Generation EU.  Without the votes of Hungary and Poland, budgetary decisions cannot be reached in the EU. And the issue is crucial also for the final outcome of Germany’s presidency of the EU: despite the “phone diplomacy” of the last days between Berlin, Budapest and Warsaw, no compromise solution appears to be on the horizon, setting up the possibility of a major clash at the upcoming European Council summit on December 10-11.

Poland and Hungary, in Coreper, used their political veto blocking the adoption of the EU’s 1,8 trillion euro Mff, including the 750 billion euro Recovery plan, highlighting that the link between access to EU funds and rule of law was a tool by Brussels to blackmail them over migration and other issues.

Several, maybe too different topics, are at stake ranging from migration to abortion and Lgbt rights. The Polish and Hungarian Prime Minister, Mateusz Morawiecki and Viktor Orban strongly reaffirmed their intention to sustain the veto of the Recovery fund over concerns about linking EU funds to the rule of law. “We have decided to align our positions on these issues. Neither Poland, nor Hungary will accept any proposal that is deemed unacceptable by the other,” the two head of governments stated in a written declaration adopted on 26th of November in Budapest.

“There are a number of issues where we have a dispute with the other EU countries, like on migration and gender, and this would mean they could force their interpretation on us in all these questions. Therefore, it is my patriotic duty to defend Hungary and its vital interests,” Orban said at a press conference after his meeting with Morawiecki.

The Hungarian prime minister recalled that the EU summit in July witnessed one of the longest and sharpest debates in EU history, where member states were not able to close the debate, but we gave an opportunity to the Germany presidency to produce some cohesion among the member states on the topics of migration, the EU budget, and rule of law; but it did not happen. “We need neither the Union of two interpretations nor a Union of two speeds”, said Morawiecki adding that “accepting conditionality in this form can change the face of the Eu irrevocably”.

Slovenian Prime Minister Janez Jansa on 18 November backed the criticisms made by Poland and Hungary when they vetoed the EU budget over plans to tie funding to respect for the rule of law. “Some political groups… are openly threatening to use the instrument wrongly called ‘rule of law’ in order to discipline individual EU Member States through a majority vote,” Jansa said in a letter to EU Council President Charles Michel  “The ‘rule of law’ means that disputes are decided by an independent court and not by a political majority in any other institution,” he said. “We need EU institutions that will not be involved in Member States’ internal political conflicts,” Jansa added.
After Slovenia’s intervention, also the EU Commission President Ursula von der Leyen highlighted some point related to Courts intervention in this sensitive issue.  According to her, Hungary and Poland should ask the European Court of Justice to assess the rules linking budget funds to respect of rule of law, instead of blocking the new Mff. “They can go to the European Court of Justice and allow the new rules to be tested there,” Von der Leyen said during the EU Parliament’s plenary session  “That is the place where difference of opinions about legislative texts are usually settled, and that is not done at the expense of millions and millions of European citizens who are urgently waiting for our help,” she added.

But in the joint declaration, Poland and Hungary said that they “are seeking solutions which make the necessary financial resources available as soon as possible for all Member States”. “The present situation that prevents the quick conclusion of the legislative process is created by those who established a link between the Rule of Law and the EU budget”, they reiterated.

Through the joint declaration, Poland and Hungary suggested either limiting the scope of budgetary conditionality in line with the European Council conclusions of July, or convening an intergovernmental conference to make modifications to EU treaties. The latter, maybe the most welcome solution, would obviously be a very time-consuming exercise with an unclear ending.

For these reasons the EU should consider to drop conditionality in order to unblock funds urgently needed during this extraordinary emergency, while on the other hand should define a clear strategy to delimitate competencies concerning rule of law between Member State and Union itself. This include changing the EU Treaties, in a way that doesn’t allow anymore Poland and Hungary to assert that they are “committed to our common values as enshrined in Article 2 of the Treaty on European Union”. Otherwise, if rule of law keeps on being susceptible of several interpretations, the issue could only be solved before the EU Courts.