In recent weeks proposals by the Meijers Committee to suspend Hungary’s Presidency of the Council of the EU in 2024 have received support in a resolution of the European Parliament. In this RevDem Rule of Law podcast, Oliver Garner discusses these proposals in the wider context of the Rule of Law crisis with John Morijn and Alberto Alemanno.

John Morijn is the Chair in law and politics in international relations and assistant professor of European human rights law at the University Groningen. He is also a Commissioner of the Netherlands Institute for Human Rights and a mentor in the Our Rule of Law academy. Alberto Alemanno is Jean Monnet Professor of European Union law at HEC Paris and a permanent visiting Professor at the College of Europe, and the founder of The Good Lobby.

Oliver Garner: Could you summarize the Meijers Committee’s proposal to safeguard the functioning of the EU from the upcoming Hungarian Presidency of the Council that has recently received support from the European Parliament?

John Morijn: First of all, the Meijers Committee is a Dutch NGO that consists of judges, academics, and attorneys. Our mission for the last 25 years or so has been to bring a debate on how the law stands and how it is being interpreted into the policy domain. For this proposal, we are saying that the Council has decided how the Presidency of the Council should be taken up.

You have to be an honest broker, you have to make sure, as the Presidency Handbook of the Council Secretariat says, that you will behave like a person throwing a dinner party and having all the different strands of the family around the room and still make sure that no glass is broken.

We’re basically questioning whether a Member State like Hungary and Poland (which would succeed Hungary as President according to the current rotation) that, according to the Council itself is worthy of an Article 7 TEU procedure, and according to the Council itself is worthy of billions and billions of euros being suspended, is at all capable of taking up that role, as a matter of good governance. The angle is whether a Member State can be an honest broker if it has a very specific interest in a way that cross cuts all of these files.  So that’s the general context.

Then we started looking at the law as we do with the Meijers Committee. We’re not starting with an answer – we’re starting with an analysis.  We found out that this is a very curious field and one of the very, very few field in the EU setting where the European Council is actually the legislator. The Treaty lays down that the European Council should come up with a decision on how the Presidency is put into practice.  There’s a European Council decision of 2009 that says that there is an obligation to establish a trio of Presidencies. It must always be a good geographical mix and a mix between big and small states. The Presidency trios that we’re talking about here are Spain, Belgium, Hungary, and then Poland, Denmark, and Cyprus. The obligation is for the trio to make things run smoothly for 18 months. Each of the three partners in that trio will have a six-month rotation. This was eventually further elaborated in a Council decision, based on the European Council decision, that lays down the rotation schedule.

If you look at what is possible in the current framework, first of all it should really be up to the trio itself to try and figure out whether something can be done to ensure that what the three of them are co-responsible for can avoid running into trouble from an honest broker kind of perspective.  So, the first option, which doesn’t require any changes in the law, is simply for Spain and Belgium to have an uncomfortable conversation with Hungary.  As Spain and Belgium are also responsible for this period, perhaps they should have a talk about who chairs what.  If that doesn’t lead to anything, also within the current setting, the Council Decision, which lays down this rotational schedule, has also been adapted quite a number of times. There’s nothing unusual about that, and that can even be done at short notice. For example, just a day or two after the Brexit referendum the UK announced that it was not going to take up the Presidency that it was due to take up within 11 months. So, the only difference in that situation from the current situation is that the initiative has, so far, always been with the Member State that is due to take up the Presidency.

If this doesn’t lead to anything, the third option is to look at the secondary legislation itself, which in this case is a combination of the European Council Decision and the Council Decision. There you could explicate that Article 7 procedures and budgetary conditionality are so fundamental to the possibility of good governance and conflicts of interest, and also to being a credible partner towards the co-legislator of the European Parliament, the Commission, and externally for the credibility of the EU as a whole.

If a Member State is still in Article 7 territory and the budgetary conditionality issue is not solved, it should first solve that before it can take up the Presidency.

The Treaty itself says that the European Council only needs a two-thirds majority, which is much lower than the threshold in Article 7, which is 4/5 even for the first step.

So, these are the three proposals.  The first two are just within the current framework, and the third one argues that, on a two-thirds majority within the European Council, the Member States could change the law to clarify that something has to change from the perspective of good governance and to ensure that files that are in the pipeline are dealt with credibly in the general interest of the European Union.

Thank you so much for that summary and your discussion of the legal basis of the European Council’s decisions.  Do you think that such a decision to suspend Hungary’s Presidency in some way could be vulnerable to legal challenges in the same way that Hungary challenged the budget conditionality regulation?

John Morijn: I have no doubt that there’s a 100% chance that this would be challenged in court. But the same European Court of Justice ruling on the conditionality regulation clarifies that Article 7 is not a one stop shop for Rule of Law enforcement. The budgetary conditionality judgment implicitly states that the Court of Justice welcomes explication of all the Article 2 values.  Whereas the conditionality regulation took the line of financial management, you could have a good governance line saying that, as long as you have these problems that actually lead to majority decision making in the Council having very far reaching consequences, then it is simply not credible that you will be able to fulfil your role  as an honest broker. We’re not taking the Presidency away from you, we’re just suspending it, just like we’re not taking away any money, we’re just suspending your access to it. So, this is a way to pressure  Member States.  I’m also 95% sure that it would survive a challenge in court.

Alberto Alemanno: I also suspect that this decision, or any possible decision that might question the Hungarian Presidency, and perhaps the Polish Presidency or any other country in the future, might trigger some legal actions. I think this is part of the nature of things when it comes to the attempts of the European Union to tame rebellious countries. I think we have been learning over the past few days that the toolbox that the European Union has at its disposal is much larger than we originally thought. There are probably even more possibilities for the European leaders to exercise pressure, and for the European institutions to flag some clear red warnings to a country like Hungary.  It would be a pity to be too narrow minded when it comes to envisaging the possibility for European leaders to take such action. 

I think we have been normalizing the fact of having rebellious countries in the daily operation of the Union, but when they come to the top because of our rotating Presidency, I think this normalization can no longer stand.

We need to hear more voices, as we heard in the past few days coming from a few European countries, with the leading countries being Germany and the Netherlands, saying this is a great opportunity to send a strong signal. This might show willingness from the very same countries to accept possible legal actions, questioning their decision to raise such a red flag.  So, I wouldn’t be too ideological on this, and say that this is just an attempt to exercise further pressure, but instead this is part of the normal regular exchange existing among European countries who originally decided to abide by certain rules.  If the rules of the game are no longer being supported, I think it is legitimate for any other country who is abiding by those rules to scream out loud and say that we have a problem here – we don’t feel comfortable having the Hungarian government formally running the European Union  when it comes to the Council of the European Union.

You mentioned, Alberto, that this proposal is part of the toolbox to tackle backsliding on EU values. So is the purpose of the proposal defensive, in order to safeguard the Council and ultimately the EU from the consequences of an illiberal Presidency?  Or is it pro-active in order to apply pressure on Hungary and maybe then Poland to drop policies that threaten the rule of law?

Alberto Alemanno: I think it’s both. Like many instruments that are used in a situation of pathological conditions in the relationship between individual countries and the European Union, there is a moral and legal imperative to intervene in order to mitigate the negative consequences that impact the overall integration of the Union. But there’s also this desire to prevent further degradation that those countries are having vis-a-vis the European Union’s institutional and constitutional integration.  The concern, and I think the major rationale for envisaging the possibility of a suspension of the Presidency, is that Hungary, or in the future, Poland, running the show at the European level might further damage the international reputation and standing of the Union on the external stage. Here we should remind our listeners that, at the moment, the Hungarian position vis-a-vis the Russian invasion of Ukraine is very ambiguous, so there is this external dimension.  

And then there is the internal dimension, which of course is even more important.  What kind of agenda setting will happen under those two presidencies?  Hungary and Poland are supposed to follow one another at the beginning of the new policy cycle, and they will be defining the next European Commission legislative working program. How much inter- institutional fighting might occur? I think that this might bring us to an absolutely terra incognita, an unknown area.

What is going to happen if we have rebellious countries running the Presidency leading to internal tensions that might, as the European Parliament has been saying over the last few days, lead the parliament  into boycotts? We are going get into a situation of institutional impasse that might chronically delay and question the daily operation of the Union.

That’s something that the rule of law crisis hasn’t necessarily affected or led us to but now, all of a sudden, the calendar of the Council, and all the possible work that happens on a daily basis, might be questioned.  So this is what is at stake.

John Morijn: Yes, I agree with Alberto.  What makes this feel different in my view from other Rule of Law failings is that the concern is really within the EU setting itself.  If you are talking about budgetary conditionality, you’re really worried about what’s happening on the ground in Hungary, but here we’re seeing that it could spill over in all sorts of ways, in all three of the major political institutions because we are talking about a Council that has itself set clear rules. It’s very unlikely, given the fact that the Council has been critical of these two countries on at least two fronts, that the role of honest broker can be fulfilled. But what is absolutely crucial is to see that the Presidency is also a very important player for its cooperation with the European Parliament and Commission. Let’s start with the Commission because that has not been that much in the limelight, but it’s absolutely crucial as the main engine for any sort of legislative proposal which will be very much happening during the Hungarian Presidency and at the beginning of the Polish Presidency. Every single piece of legislation needs to be given to both co-legislators; if the Presidency of one of the co-legislators is in the hands of a Member State with which the Commission typically has very difficult conversations then is it going to be able to rely completely on the Presidency to conveys its message accurately?  It’s an open question.  Regarding the European Parliament, it’s a co legislator. Specifically during the time of trilogues, where both institutions have taken a position and you will have a negotiation on any file,  it’s absolutely crucial for a Council President to really embody the majority within its own institution before entering into negotiations with the European Parliament. But it’s also absolutely crucial that the European Parliament has a reliable partner to convey the message of the negotiations back to the Council because otherwise it’s the other Member States that will have no idea to what they’ll be saying yes or no.  So it’s absolutely reasonable for the European Parliament, if only for good governance and efficiency reasons, to ask for guarantees that what is being verbalized by that Member State in the chair is actually representative of the majority that’s currently there in the Council.

If there are such huge conflict of interests there, and real tension on absolutely crucial files, concerning billions and billions of euros, then it’s simply unreasonable to expect that role to be fulfilled. So it’s a much wider institutional problem than just one of external credibility.

We’ve discussed the potential dangers to the functioning of the Council of a illiberal Member State holding the Presidency, but do you think there could be unintended consequences if there were a suspension of that Presidency, such as Hungary and or Poland threatening to boycott Council votes in the same way that the United Kingdom did in reaction to EU bans on beef exports during the ‘mad cow disease’ epidemic?

John Morijn: There are always unintended consequences.  But frankly I don’t think that Hungary can be any more difficult as a partner in the Council than it already is. It blocks everything that has a unanimity requirement. It has even backtracked on sanction packages that were already agreed: there was an oligarch that was on the sanction list and then had to be removed from it. Of course, you will always see a tendency to try and link unanimity files to qualified majority files – the conditionality regulation was a good example of that.  Of course, Hungary won’t be happy, but that is simply the state we’re in. We have intervened much, much too late and allowed this to happen. One of the things that is so surprising and baffling to me about this proposal is that nobody raised it earlier. Hungary’s Presidency was already in the rotational schedule for a very long time, and it could be seen that this was coming.  One of the things that we now hear in public debate is that Hungary’s Presidency is not that problematic because of its timing during a politically dull moment.  This is a strange argument to make because it means that Poland’s Presidency, which is next on the current rotation, is even more problematic.

I don’t think that we can avoid a backlash from Hungary, but it’s important that only a two-thirds majority in the European Council is required, which is much more reasonable. We had a two-thirds majority in the European Council to block funding to Hungary, and we’re talking about the very same issues.

But I would argue that, in the case of the Presidency, there’s much, much more at stake for the Member States themselves because of all of the files that are important to them. That was less the case with the conditionality vote, which was more a vote on principle.

Alberto Alemanno: There is no doubt that not taking a stance in these particular circumstances means basically being an accomplice to this Presidency.  I think this applies to Spain, and it applies to Belgium.  It might apply to Cyprus and Denmark in the next round when you look at the trio functioning.  I think that this is where we should look at the issue of unintended consequences. And then much will depend on the modalities of this altered Presidency: are we talking about simply stripping the chairmanship of certain working groups that have some relationship with the rule of law away from Hungary? This might be a compromise that perhaps they would be willing to accept.

By the way, this might also have important legal implications for the possibility to challenge that act. If Hungary will accept a rearrangement in the way in which these 18 months are organized by common accord, then this is going to weaken any challenge.  Instead, if we are talking about a more radical and maximalist intervention by two-thirds majority, then obviously this might trigger a more violent response. We have already got a taste of this because, in the last few days, we have heard both the Minister of Justice Judit Varga but also the Prime Minister from Poland saying that this is “nonsense”.

This shows a hypersensitivity to the issue. They realize how bad that would be for their international standing and reputation, and the challenge of how they would explain this to their own constituency, notably in Poland where elections are coming up.

All this will certainly raise the stakes in this conversation.  Sorry for being so positive – I have some difficulties in identifying unintended consequences – but it will also show that we need to break the impasse of Article 7 conditionality. These are instruments that we see at play with all the limitations and their potential, but we need to enlarge the perspective and to show how much more leverage different tools, that play on the reputational dimension, can have in making a difference.  That’s what I like about this current debate – it is somehow moving our conversation from the traditional, conventional tools to more unconventional ones which are in the Treaties, but that nobody has really thought about, or has been willing to explore.  That’s the kind of merit that the proposals of the Meijers Committee and John Morijn have brought about.  It’s just incredible that, in a matter of few days, an idea that has been confined to the academic realm has really moved to centre stage where all heads of state and government, the Commissioners, and the MEPs had to take a stance: are you favorable to a Hungarian Presidency – yes or no?  This is very powerful as a dynamic. So regardless of whether the suspension of Hungary’s Presidency is going to happen or not, this alone will change the conversation.

The Council of the EU is also facing another more proximate challenge with Spanish snap elections in July taking place very soon after that Member State assumes the Presidency.  Do you believe that the time may have come to scrap rotating presidencies in order to ensure that internal events in the Member States do not affect the stability of the EU’s functioning?

John Morijn: I’m going to answer in two different ways. I used to be a diplomat myself, and I used to work for the Dutch Presidency.  It’s tremendously helpful, especially to a relatively Euroskeptic country like the Netherlands, to have that rotating Presidency every 13.5 years to get Europe on the map internally, and to really formulate what it is that we want from the European Union.   It’s also a matter of burden sharing – the Presidency is very hard work, and you need to recover for six weeks after you do such a tour of duty, and I wouldn’t wish that on anybody.  But the fact that it is so energetic also means that there’s a permanent impetus and energy in the whole situation, and politically that drives the European project forward. So, I think it’s an important engine.

That’s one part of that story. Apart from that, in my four years in Brussels I’ve seen governments fall during the Presidency, or there was no government at all during the Presidency, so it was purely technical.  What’s now happening in Spain is just a coincidence in timing – early elections were proposed by the current Prime Minister who then realized that Spain has the Council’s rotating Presidency and this may hamper his priorities.  It’s also the opposition party that thinks that the issue is being politicized in a way.

I think that the Spanish issue is a debate of a different nature, so I wouldn’t call into question the whole benefit of rotation.  Our paper for the Meijers Committee was very much focused on Member States that have such fundamental problems that the good governance and effectiveness of the chairmanship of one of the institutions is under threat. In that case something must be done. But that’s something different from a fully democratic country changing governments and doing what democracies do, namely kicking out the people that the electorate no longer wants and electing new ones. But maybe Alberto has a different perspective.

Alberto Alemanno: I tend to agree. The reasons behind this Presidency change are very different, so these two situations are not comparable. On the one hand, we’re thinking about a pathological situation in the relationship between that government and the EU, so there is an external pressure to try and reframe the situation. On the other hand, there is a more proactive voluntary approach in which the Spanish government, given the circumstances, is asking to delay the speech by the Prime Minister because he’s not very well placed to say what is going to happen in the six months Presidency because he’s, most likely, not going to be in power.  So, in a way, it’s very humble for the Prime Minister to say “I’m not going to sell a story that I’m not going to be able to abide by”. So these are very different stories.

However, what the Hungarian and Spanish cases have in common is the fact that the nature and role of the Presidency has changed over time, and all of a sudden it is at stake. It has become an object of politicization either from the outside or from the inside.  So, I think the time has come to have the public debate about whether these Presidencies should still play a role.

What kind of role should they play? Should they be rethought in terms of institutional design? Should they be reconsidered?  At the time of the Constitutional Treaty, and then the Treaty of Lisbon, we simply thought that the creation of a permanent President of the European Council might have replaced the need for a rotating Presidency of the Council.  Most of us in academia assumed that the creation of a permanent President would automatically, almost mechanically, replace the rotating Presidency by assuming that this would create confusion at the political level, and it would not have created much added value. This was the expectation.

Then it turns out simply that the nature of the exercise has changed. As John was saying, based on his own insider perspective, holding the Presidency of the Council carries a lot of domestic implications, and external implications, that really matter. Agenda setting matters.  That’s why we are talking about this. That’s why we are considering the suspension for Hungary and perhaps for Poland. That’s why the Prime Minister of Spain is not considered to be ready because these rotating Presidents still matter. The Presidency of the Council probably matters a lot, but it plays a different role that is complementary to the role of the President of the European Council, who at the moment is Charles Michel. This is a role that might have been interpreted differently, and might be interpreted differently in the future.

So this is a work in progress. We don’t really have a well-crafted position for what a rotating Presidency is – instead there are guidelines prepared in the Council, that say more or less what  a President is supposed to do. The Netherlands played a role in raising the bar very high.  But we see other countries, and perhaps in the future we will see Hungary and Poland, taking a very different stance on what the rotating Presidency is, and how they use it internally.

Countries, starting from Ireland, have been using the rotating Presidency as an instrument of power vis-a-vis their own constituency – this is the sponsorship issue.  This was about positioning within their own internal capitalist system to create favor in order to establish new power dynamics that have very little to do with the European Union.  But they’re also part of the story of the Presidency.

So we probably need to be more complex about what is our understanding of the Presidency, and what our expectations are. There might be a case for creating more consistency in how countries should exercise the Presidency.

This would clarify what they can do and what they shouldn’t do in order not to act ultra vires, because this is a space in which judicial review is very limited. So how much can other countries do to step in?

I think what John said earlier is absolutely spot on – there are a lot of scenarios that we cannot envisage with a rebellious country running the Presidency because we don’t even have oversight mechanisms enabling us to exercise control if something goes wrong.  I think that this is an extra argument for why we should be more proactive in saying, well, perhaps we need to suspend the Presidency, or we need to alter its functioning, because if something goes wrong then we are not really in control. That country will be the public face, and the supposedly honest broker, in defining the agenda of the Council in its interaction with the other institutions.  This is probably the part that scares me the most.

For our final question, I thought that we could zoom out and reflect more broadly on the Rule of Law crisis and particularly the impact for democracy. The other major development we’ve seen in the last weeks has been the signing by the Polish President of a law establishing a commission to investigate links to Russia, the so-called “Lex Tusk”, which critics fear will be used to target opposition politicians before elections in Poland in the autumn.  Do you think this suggests that, contrary to optimism around the impact of financial conditionality in terms of Hungary and Poland adopting legislation on the judiciary,  that this new development might suggest that backsliding regimes will entrench themselves around the time of elections to ensure their survival, thus worsening the crisis?

John Morijn: It’s an interesting question, Oliver – I hadn’t thought about it like that. My intuition is that, rather than a contrast, it’s actually an extension of the same development. I think that if we would have had this interview a year ago, then we would have still been talking about how the Commission is too slow and that it is bringing too few infringements.  We’re now in a situation where, in fact, the Commission is blocking, on three different grounds, billions and billions of euros. We have often criticized the Von der Leyen Commission, but it has done this excellently, even if you can criticize the details. They were very firm on this.

I think that the Polish government has not internalized that new reality wherein it is now negotiating from a position of weakness rather than from a position of strength.  You can see that position of weakness in the fact that it is still surprised by the enormous backlash that any sort of proposal causes not only on the streets in Warsaw, but also from the EU and in the USA.

It’s not a surprise that the President, within two or three days after signing the law, has already approved adaptations.  So that’s my glass-half-full reply to the question.  

More generally, I think that what happens in these elections in October and November in Poland is  absolutely crucial.  Part of the reason why the Polish government is trying to limit those who have the biggest chance of taking power from them is that they’re worried that this may actually happen. So that’s another sign of weakness. I would argue, and this has already been said by NGOs like Free Courts, is that the Commission should be very proactive in fighting the “Lex-Tusk” because it has a direct implication for European democracy and not only for who might be in the chair in the Presidency in the beginning of 2025.

Imagine that you are now a voter sitting in some small town in Poland, and you will be stripped of the possibility to vote for any politician that you like simply because there is some sort of witch hunt in place that has a clear political purpose, without judicial review.  It’s clear that your rights as an EU citizen are directly affected by that because you will not be able to vote for those whom you want in power.

That is already the case irrespective of the fact that you’re not able to inform yourself properly because much of the state-owned media in Poland is very one-sided. 

I think that this shows just how interconnected all these things are – you cannot just focus on the institutions of judicial independence, you need to look also at the budget, and you need to look at the Presidency of the Council, and you also need to look at democracy. So, I would argue that what your question concerns is a rally cry to have a holistic view of what we’re trying to defend and that democracy is very much a part of that.

Alberto Alemanno: Yes, I agree that PiS feels growing pressure mounting both internally and externally from the Union, and this “Lex Tusk” might be seen as a desperate attempt to prevent the opposition from scoring points and putting forward good credible candidates.

The opposition is clearly gaining ground – we saw the protests in Poland all over the country and that suggests that something is happening, and that the opposition is finally revitalized as opposed to what was happening only a few months ago. 

At the same time, I would consider the need to contextualize this “Lex Tusk” within a broader trend of using external interference, or external influence, including at the European Union level, to potentially create extra forms of control that have historically had a lot of negative consequences rather than beneficial ones.  I’m referring here to the forthcoming Foreign Influence Directive, also called the Foreign Agents Law, that the European Union has been preparing.  This is part of the same narrative – it is an anti-NGO, anti-civil society narrative that is legally very questionable. First of all, foreign influence is allowed under public international law – countries can influence the policy process happening in another one as a matter of principle.  We often forget about this. That’s what the European Union is doing in the US Congress. That’s what the Americans are doing vis-a-vis the European Parliament and the Commission every single day.

This does not detract from the need to create some transparency, in particular when it comes to the electoral processes, but how are those rules are going to be designed? In this case, when you look at the “Lex Tusk” you clearly see that this spectre of foreign interference is simply being used as an entry point in order to say that Poland needs to do this because the European Union is doing the same.

Clearly this will have political consequences because, as we all know, there is currently a reshuffling of the European political system, and the Polish elections could be potentially the most consequential because we could see  the leading conservative party potentially losing control, at the time in which the very same European political grouping, the European Conservatives and Reformists (ECR), seem to be engaging with the European People’s Party (EPP).

So in a way, the ECR of Poland is the EPP of the EU – it is the country that is set to lose, and it looks desperate for new allies to create the conditions to not lose and to expand their own repertoire in order to be able to preserve the position. They are trying all the possible ways to preserve their power. I’m sure that until the Polish elections outcome is clear in early 2024 it will be very difficult for the ECR – chaired by the current Prime Minister of Italy Giorgia Meloni together with PiS –  to position itself in the future with Vox, their member in Spain, which is also becoming very, very big.  So there is a pretty favorable wind supporting some of those countries.  These will play a role in the positioning of the very same countries along the European electoral spectrum ahead of 2024.

The transcript has been edited for length and clarity.

In collaboration with Karen Culver.