Lots of smoke & mirrors in fight over rule of law. Here's my take in @POLITICOEurope on what's really going on: "If European leaders want to escape this autocracy trap, they must begin by standing up forcefully to regimes that try to hold the EU hostage"🧵
2. First, on how we got here, it all goes back to @EPP appeasement of their pet autocrat Orbán over past decade. "The EPP has protected Orbán for political gain... But this week its pet autocrat turned against his long-time protectors" They are now reaping what they sowed.
3. As those who follow me know, I've been writing about this for years - most recently in my Article on "The European Union's Authoritarian Equilibrium" - summarized here:
4. But back to rule of law conditionality... there is something rather odd about the fight happening now. The fight centers on a proposed regulation that would provide the EU with a new tool to suspend its funding to member governments who flout the Union’s rule of law norms.
5. The regulation is itself a compromise text - much weaker than what the advocates of rule of law had hoped for. The original Commission proposal from 2018 was watered down by the Council, under the leadership of the current German Presidency.
6. Under the rule of law conditionality regulation, a states’ EU funds can only be suspended if the Commission wins the support of a ‘qualified majority’ (supermajority) of member states in the Council for this action & if the violations of rule of law norms in question....
7. risk affecting “the sound financial management of the EU budget or the protection of the financial interests of the Union in a sufficiently direct way.” This requirement for a direct link to the budget will severely limit how the regulation can be used.
8. Though adoption of the regulation would show political support for Commission action on rule of law, arguably it doesn't add much to powers Commission already had to suspend funds under existing structural funds regulations - as Scheppele & I argued verfassungsblog.de/how-to-stop-fu…
9. Also, while many people seem to assume regulation will almost automatically cut off EU funds to states who violate rule of law, that is wrong. Triggering reg is up to @EU_Commission & @vonderleyen has proven herself to be weak on defending rule of law politico.eu/article/ursula…
10. So, given that the regulation is a watered down compromise and given that @vonderleyen is an autocrat appeaser who won't be eager to trigger it, "Why are HU & PL alienating so many other member governments by threatening to hold up the funds they so desperately need? "
11. While the regulation has flaws, it does increase the chance EU could eventually suspend at least some funds to these regimes - & that is indeed something that worries them, as their regimes & clientelistic networks (esp. Orban's) depend on infusions of EU cash.
12. I discuss that in my "Authoritarian Equilibrium" article, but for more detail see this incredible thread by @panyiszabolcs or Bálint Magyar's book on Orban's mafia state ceupress.com/book/post-comm…
13. So, I think what is happening here is that by putting up a big fight now, HU & PL don't expect to stop the regulation, but they want to send a warning shot - signalling to EU leaders that if they ever dare to actually use the mechanism & suspend funds, they will go ballistic
14. Therefore, I expect HU & PL to eventually back down re: blocking #MFF budget and #NextGenEU recovery package. They just want to get some informal guarantees the mechanism won't actually be used against them.
15. They may succeed in that - after all as @ProfPech has shown, EU leaders have played a 'rule of law instrument creation cycle' for years - focusing on creating new tools to distract attention from their failure to use the tools already at their disposal.
16. To move past that futile cycle, the first step is to call the autocrats' bluff and pass the rule of law conditionality regulation which can be done by qualified majority vote. Once it is a fait accompli, their incentive to veto the budget disappears and they will cave
17. The real test will come afterward, when we'll see if the @EU_Commission - which has been derelict in its duties as Guardian of the Treaties - will finally take a stronger stand and actually trigger the mechanism to suspend funds to autocrats
18. I'm not optimistic that they will - after all - as I said above - @vonderleyen has proven herself to be an autocrat appeaser - very much in keeping with the policy of her party @CDU and mentor Chancellor Merkel
19. But first step is to call the autocrats' bluff & pass rule of law conditionality regulation by QMV: "Only once the EU demonstrates the resolve to defend democracy and the rule of law can it begin to escape the trap that its years of appeasement have created."
20. To hear more, listen in to my talk next week at @UCL_EI End🧵

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More from @rdanielkelemen

13 Jul
A quick, depressing 🧵 on what to expect in next steps toward autocracy in Poland. I hope @fromTGA is right and Poles will defend their democracy. However, I think things will get much worse and Poland will become an autocracy like Hungary 1/n
So far Kaczyński’s PiS government has been following the standard elected autocrat’s playbook very closely, following Orbán’s example of how to get away with building an autocracy inside the EU. Here are the steps: 2/n
As @fromTGA said, so far PiS focused on capturing the courts, turning state media into propaganda arm, & demonizing opposition. Next key steps will be to suppress vestiges of independence in lower ranks of judiciary & to establish PiS control over private media 3/n
Read 10 tweets
14 May
@ChristophMllers Hi Chistoph. Let me clarify (& this is clear in the linked articles): 1. I never say & don't mean to imply that judges of BVerfG or those supporting their position are racists or autocrats. My point is that BVerfG is advocating a nullification doctrine like Calhoun's 1/n
@ChristophMllers 2/n. also my point isn't that the esteemed BVerfG is anything like the captured constitutional courts of HU or PL (the latter isn't even a court as @ProfPech has shown). My point is that if they can nullify, it gives an excuse for those others to do the same
@ChristophMllers @ProfPech 3/n. and as i say in thread and articles, if all 27 constitutional courts can simply nullify what deem to be ultra vires EU acts/ ECJ rulings, then the EU legal order can't survive.
Read 5 tweets
11 May
1. A long 🧵 on what is going on & what is at stake in dispute between @EUCourtPress & @EU_Commission & German @BVerfG. It is a showdown over question of "Kompetenz Kompetenz", & the survival of EU legal order is at stake. The ECJ is right & BVerfG's position is untenable
2. First a quick reminder of most recent developments...a few days ago Germany's constitutional court @BVerfG issued a ruling concerning German participation in @ecb QE programs, in which it blatantly rejected an ECJ ruling. Here was my take w/ Fabbrini
3. The @EUCourtPress reacted with a highly unusual press release, not commenting on the case explicitly, but reminding everyone that its rulings are binding on national courts & that the ECJ alone has authority to rule on whether EU institutions' actions violate EU law
Read 28 tweets
4 Apr
Orbán's latest ploys using emergency powers... some quick thoughts. He will starve local govs of revenue by taking away motor vehicle tax. He can then find ways to transfer funds back to Fidesz controlled local govs while screwing opposition controlled ones like Budapest 1/n
The party funding move will cripple opposition parties' finances. His party Fidesz doesn't need the money as he uses state resources to support it in other ways - through state media, state run propaganda campaigns etc 2/n.
Smart takes on this from @panyiszabolcs & @shaunwalker7 - watch for their reporting on these developments. 3/n
Read 5 tweets
2 Apr
With his corona coup, Orbán abandoned any pretense of being a democratic leader. Given that his electoral autocracy was already secure, why did he risk inflaming tensions with the EU by moving to outright dictatorship? My take in @monkeycageblog + a 🧵 👇washingtonpost.com/politics/2020/…
Many have claimed Orban just used coronavirus to kill Hungarian democracy. But that is not quite fair, since Orbán had already killed Hungarian democracy some time ago. Still, this week’s developments do mark a profound change - from sham democracy to blatant dictatorship
Given that his grip on power in Hungary already seemed secure, why did Orban risk rocking the boat & antagonizing the EU? To understand Orbán’s latest power grab, one must consider means, motive and opportunity.
Read 15 tweets
18 Mar
Many have been rightly criticizing the EU for its disjointed response to Coronavirus, for not doing enough to help Italy etc. But note that the US federal gov, which has resources & powers far beyond anything the EU institutions have, has been doing perhaps an even worse job. 1/n
Rather than mobilizing power of fed gov to address ventilator shortage, Trump tells governors to 'try getting it yourselves': nytimes.com/2020/03/16/us/… 2/n
With no federal standards on measures to suppress the spread of the epidemic, states are going their own way. Some states, such as NY, CT, NJ, and PA, are coordinating regionally: 3/n
Read 21 tweets

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