The following is a repost of a piece by Daniel Hegedüs which originally appeared 25 July on Visegrad/Insight.

The Juncker Commission changed the rules of the game for the EU’s autocrats; the question is whether or not the von der Leyen Commission will follow suit?

The violation of European values like rule of law became a menace for the Juncker Commission. Juncker and Timmermans struggled for five years with countries like Orbán’s Hungary or Kaczynski’s Poland with rather mixed results.

On one hand, the Commission challenged the undermining of judicial independence in Poland in a rather straightforward and effective way. On the other hand, it was soft on Hungary, partly due to the leading party’s membership in the EPP, which resulted in the country’s rather unopposed autocratisation.

However, desiring to leave behind a positive legacy, the Juncker Commission apparently decided for an impressive overhaul of its rule of law toolkit in the very last months of its tenure.

The new institutions that might be introduced, according to the Commission’s new rule of law communication, can be real game changers in the conflict with the EU’s rouge member states. They will allow the new Commission to play hardball with Warsaw and Budapest, at least if the new Commission led by Ursula von der Leyen respects continuity and is not going to please Orbán and Kaczynski, whose parties provided the badly needed support for her election.

Timmermans’ balance

As guardian of the treaties, the Commission was desperate to harmonize three, hardly reconcilable goals when it came to rule of law issues during the past five years. These were the protection of EU values in the affected member states, the preservation of the Commission’s own institutional prerogatives, and the maintaining of cooperative relations and minimising political tensions with capitals like Warsaw and Budapest.

However, this strategy fell apart under the pressure of political realities, which explains the Commission’s recent turn. It became obvious that illiberal governments, especially those in Warsaw, are not interested in maintaining a constructive rule of law dialogue with the Commission, or if they pretend engagement, as has often been the case with the government in Budapest, they do it to defy the Commission.

Furthermore, the Commission’s vice-president responsible for rule of law and fundamental rights, Frans Timmermans, must have realised that the Commission needed institutional partners in this fight.

Certain prerogatives, like the Commission’s high margin of appreciation and selective approach in deciding which rule of law violations it pursues started undermining the credibility of the guardian of the treaties. The involvement of the EU Court of Justice (CJEU), that the Commission tried to avoid for many years, became inevitable, and to garner the political support of the European Parliament, the Commission must start listening to the Parliament’s demands.

Juncker’s last minute punch

The rule of law issue gained significant importance in 2019. It matured to a mainstream campaign topic in the 2019 EP elections and candidates to the commission presidency had to pay lip service to the issue to secure the necessary parliamentary support.

The ground-breaking decisions of the CJEU in the Portuguese judges and Polish Supreme Court cases demonstrated that the Commission can count on the Court’s backing in issues of judicial independence.

Last but not least, Juncker must have realised that at the end of his political career he had nothing to lose anymore in a conflict with Poland and Hungary, in this regard Orbán’s tasteless billboard campaign attacking Juncker had a strong persuasive power, and decided to let Timmermans enact plans conceived of previously.

When it started in April 2019, the Juncker Commission’s last rule of law consultation appeared to be a weightless routine exercise, but ultimately it turned out to be a game changer.

The Commission’s new rule of law communication introduces a new, annual and compulsory rule of law monitoring procedure that covers all EU member states. With that noteworthy move, the Commission satisfies a long-standing demand of the Parliament while making its own monitoring work more credible and transparent.

Most importantly, in the long-term it establishes detailed and uniform rule of law standards for all member states, thus eliminating the impression of double standards the Eastern member states have repeatedly complained about. This monitoring mechanism, if set up properly, can be the most important progress in the field since the introduction of Article 7 procedure in 1997 in the Treaty of Amsterdam.

Furthermore, the communication also promised a new, strategic approach to infringement proceedings. That could mean a conscious interplay with the EU Court, promoting and enforcing the standards set by CJEU’s fast developing, ambitious case-law.

After years of softball, the new Commission initiative corrected important shortcomings of the EU’s legal framework. It appears to be capable to constrain rule of law related autocratisation in member states.

The new political and legal setup might even dishearten Warsaw and Budapest and withhold them from further attacks on the independence of judiciary. It might also seal the fate of the Polish law on ordinary courts or the Hungarian administrative court reform that was recently suspended by the government in Budapest.

Von der Leyen’s dilemma

The intention of the outgoing Commission to bind the hands of its successor is to be appreciated. However, whether the new Commission is going to follow suit is the big elephant in the room.

Thus far, Ursula von der Leyen already made important commitments to an effective protection of rule of law. That being said, the governing parties in Warsaw and Budapest did not leave it unnoticed that their support was crucial to von der Leyen’s successful election and might demand a high price for their backing.

On 16 July, the Polish Prime Minister, Mateusz Morawiecki, demanded key Commission posts and a more cuddling approach by the new Commission toward Poland, in exchange for the badly needed support PiS provided to the election of von der Leyen.

Warning signs that the expulsion of Fidesz from the EPP seems politically off the table.

Concerning Orbán, his positions within the EPP appear to be stabilised. In spite of the previous opposition and the postponement of elections, this week the European People’s Party nominated the very same Fidesz candidates in the vice-president positions of several important parliamentary committees including, among others, the civil liberties committee, which it could not win a majority for last week.

Under these circumstances, von der Leyen would be well advised if she left the siren songs of party politics unnoticed. She is now elected. PiS and Fidesz indeed supported her with their votes, but she is not dependent on their further support in the future. Furthermore, she should not risk losing her credibility by promptly making gestures to Warsaw and Budapest or by backtracking on the rule of law.

She is the first president of the European Commission in the history of European integration who has the appropriate tools at disposal and enjoys a favourable political climate to discipline EU’s autocratising rouge states at the very beginning of her mandate.

Therefore, she should exploit the situation Juncker and Timmermans created her yesterday and promptly embrace the new rule of communication. Her presidency should introduce a new era of compliance with European values, instead of reintroducing the old EPP patterns of coddling conservative autocrats.

This article is part of the #DemocraCE project organised by Visegrad/Insight. It has also been published in Polish on Oko and will be published in Slovak on SME. We thank Visegrad/Insight for their kind permission to publish this article at ruleoflaw.pl