Beside the situation in Poland and Hungary, the Council reviewed the evaluation of the rule of law dialogue it established in 2014. The annual rule of law dialogue was on the agenda of the General Affairs Council on 19 November 2019. A resolution was proposed to replace the current rule of law dialogue in the Council with a new one according to which the European Commission would produce an annual report on each EU member state. As commented by the Finnish Minister for European Affairs Tytti Tuppurainen, this annual dialogue should be seen above all as a way of “uniting” Member States on common values (Agence Europe 19/11/2019).

The negotiations on this matter advanced slowly as both Poland and Hungary opposed the proposal made by the Finish presidency (Agence Europe, 19/11/2019). Member States under the Article 7 procedure insisted that references to political traditions, national identities, and constitutional structures should be included in the evaluation of the annual dialogue on the rule of law. Hence, the proposal makes reference to a series of principles such as “objectivity, non-discrimination, and equal treatment of all Member States; a non-partisan and evidence-based approach” (Council of the European Union 14173/19).

Unsurprisingly the bone of contention remains. And the bone of contention seems to be the role of the Commission. Member States supporting the annual dialogue agree that it could make use of the Commission’s new annual rule of law reports. But the power of the Commission – which is gardienne des traités – has been repeatedly contested by the Hungarian and Polish authorities. According to Agence Europe, the Hungarian and Polish governments want to minimize the role of the Commission and its evaluations, and want their own assessments to be included in the overall evaluation (Agence Europe, 6/11/2019). Judith Varga, Hungarian Justice Minister, recently stated that the current toolbox “gives such a big power for the European Commission without any kind of treaty basis,” she said. “Too much political attention is around rule of law. Rule of law is a constitutional principle. It needs more legal attention and less political attention” she declared for FT. Varga stated that the Hungarian government does not support the idea of authorizing the Commission to carry out rule of law assessments. In other words, Hungary supports an intergovernmental dialogue which allows member states to provide their own assessments on the state of the rule of law (Hungary today). “Hungary would only allow to experts of member states to investigate its state of democracy, but not for EU specialists in Brussels” after the hearing in the LIBE committee in the European Parliament in September 2019”, she said (see Euronews, 17/09/2019).

In the absence of consensus, the text discussed by the General Affairs Council was supported, or not objected to, by 26 delegations (Source: Council of the EU).

The Council will hold a hearing on Article 7 proceedings against Hungary on 10 December 2019 under the Finish Presidency (Euractiv, 22 November 2019). Hungary expects to close discussions on Article 7.

Judit Varga, the Hungarian justice minister, told the Financial Times that the so-called Article 7 proceedings against Budapest were “absurd” and that a resolution of the case within months would be “timely”.

Is this another reflection of the classical tensions between supranational vs. intergovernmental integration?

My answer is no. This goes far beyond traditional debates and different visions for Europe. As Viktor Orbán stated on many occasions, this is an attempt to dismantle liberal democracy, and with it some form of EU integration. “Liberal democracy has no future”, said Viktor Orbán. He seeks to legitimize what he calls “illiberal democracy”, which is unquestionably something that does not exist. As many authors argue, one thing is clear: political regimes that refuse to promote human rights, the independence of the judiciary, the limitation of government power, and pluralism of opinion cannot be described as democracies, (see for example Yascha Mounk 2018).

The Hungarian and Polish authorities are not inclined to compromise.

The limits of intergovernmentalism have been reached; nonetheless, more intergovernmentalism seems to be the solution proposed by both Poland and Hungary while it is obvious that a turkey won’t vote for Christmas (metaphor borrowed from Grabbe 2014).

The Polish and Hungarian authorities have repeatedly argued that the ways in which judicial systems are organized is a sovereign competence of Member States. As recently stated by the Court of Justice the fact remains that, “when exercising that competence, the Member States are required to comply with their obligations under EU law” (Judgment in Case C-619/18 Commission v Poland). The role of national courts and tribunals in the application of EU law is crucial as they are the first ones responsible for it.

While waiting for the Council and European Council meetings in December, attention is directed to Luxembourg where judges shed light on this complex debate.

Strong disagreements in the Council are not unusual. However, the history of the integration process tells us that discussions and deliberations usually lead to conciliations, says Prof. Mario Telo. In the case under consideration and at this stage at least there is no realistic hope for compromise. Or the question is “which compromise”?