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“Why the Court of Justice of the European Union is not ideologically neutral”

FIGAROVOX/TRIBUNE – After the rejection by the Court of Justice of the European Union (CJEU) of the appeal of Budapest and Warsaw against a European law, on February 14, the former ambassador of Hungary in France considers that the institution has left its role of judicial instance.

Georges Karolyi is a former Hungarian ambassador to France.


On February 14, the Court of Justice of the European Union ruled. The actions of Hungary and Poland against “theRegulation instituting a conditionality mechanism which makes the receipt of funding from the Union budget subject to compliance by Member States with the principles of the rule of law” were rejected “in their entirety“. Cries of joy were immediately uttered by those in whom the prospect of a punishment from these two States provokes an unhealthy enjoyment. Urgent calls to “wait no longer” have been made. They have just been heard: 48 hours after the Hungarian general elections which, to the chagrin of all the self-proclaimed prosecutors, re-elected the outgoing conservative government with record turnout and majority, the President of the Commission announced the next start of the procedure, to the great jubilation of the same prosecutors. An elegant way of recognizing the democratic decision of the Hungarian people, an original way of showing European solidarity while war is raging on our doorstep and is fundamentally upsetting the economy, society and politics of our Union.

All of this was planned. But is this indecent euphoria justified? Not necessarily. What does the Court’s decision actually say?

According to her press release n°28/22, she indicates (emphasis added) that “the regulation provides that a real link must be established between a breach of a principle of the rule of law and harm or a serious risk of harm to the sound financial management of the Union or to its financial interests, and that ‘such breach must relate to a situation or conduct … relevant to the proper implementation of the Union budget.She also points out that “the protective measures that may be adopted must be strictly proportionate to the impact of the breach found on the Union budget.»

It is as if, while playing the game expected of it, the Court had wanted to put all the brakes possible on a procedure that is beyond its control and in which it senses a risk of an avalanche that could drag the whole Union into a fatal discord.

Georges Karolyi

Two conclusions follow from these quotations: the first is that it is first necessary, as a preliminary step, to establish an objective breach of the rule of law, which is not the role of the regulation: the Court states that “the purpose of the regulation is to protect the Union’s budget against attacks resulting in a sufficiently direct manner from breaches of the principles of the rule of law, and not to penalize, in themselves, such breaches» ; and the second is that it will be necessary, in order to apply the regulations according to the wishes of those who expect the redemption of the world, to show that the situations or the behavior complained of correspond without any possible challenge to the criteria of “link real”, of “relevance”, of “strict proportionality” prescribed by the Court.

It will not be easy, and we must wish good luck to those who try to do it, because they are very likely to be shipwrecked, especially in the case of a country like Hungary which the Court of Auditors of the EU itself ranks among those who make the best use of European funds. The Court of Justice has “finally” opened the long-awaited toolbox, but instead of finding the absolute weapon that can be used right away, we discover a naked puppet, which will still have to be dressed from head to toe. to pull its strings in the way that will suit the public thirsty for thrills. It is as if, while playing the game expected of it, the Court had wanted to put all the brakes possible on a procedure that is beyond its control and in which it senses a risk of an avalanche that could drag the whole Union into a fatal discord. If the conditions laid down by the Court are actually met, the regulation must apply. But if they are not, or if they are only by contortions dictated by partisanship and political ideology, it should not apply, and it will not apply.

This last risk is not negligible. Departing from the role of a judicial body, the Court in fact ventured to teach the two applicants a lesson: it reminded them that “respect for these values ​​cannot be reduced to an obligation to which a candidate State is bound with a view to joining the Union and from which it could free itself after its accession.” Thanks, we knew that.

In civil law, in criminal law, the parties confront their positions, and the judge decides who is right. The judge is the representative neither of the delinquent nor of the victim. However, in the European Union, the judge is paid and maintained by one of the parties to the proceedings.

Georges Karolyi

And she goes further: seeking to settle the difficult problem of what in fact is the “rule of law” – the supposed violations of which are at the heart of the implementation of this whole mechanism – she declares that legal certainty is perfectly ensured on the grounds that ” the notion and the principles of the rule of law appearing in the regulation… have been amply developed in its case-law, that these principles find their source in common values ​​recognized and applied also by the Member States… and that the States -members share “. Enter this into an Excel spreadsheet, and you’ll instantly receive a “circular reference” alert message. Legal certainty is therefore ensured because it is the Court that has said so? Quia nominor Leo…

We are told that in a state of law, court decisions must be respected. It’s true. But on one condition: that they be rendered by a body that meets the basic criteria of a judicial body. The most important of these criteria is that the court or tribunal be institutionally neutral with respect to the parties to the proceedings. In civil law, in criminal law, the parties confront their positions, and the judge decides who is right. The judge is the representative neither of the delinquent nor of the victim. However, in the European Union, the judge is paid and maintained by one of the parties to the proceedings. The very symbol of justice – the two carefully balanced pans of a scale – is flouted. If we want to preserve the fiction of a “judicial power” of the Union, we must note the flagrant violation of the principle of the separation of powers. It is therefore not surprising that 90% of the applications submitted are rejected. This is what the system wants. The applicant therefore leaves, at the very least, with the disadvantage of playing with the opponent. Or worse, he is forced to enter the bear’s cave to seek justice from the bear himself.

Far be it from me to contest the legitimacy or the raison d’être of this Court. But it is more of a legal service than a court. This is not insignificant when we talk about justice and the rule of law.

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