Vera Jourova on rule of law matters: We would be ready to act as soon as we can

What do you expect from the European Court of Justice judgment, expected in January? And how do you see the Advocate General's Opinion? (Usually it does not really differ from the final judgement.)

The Commission has no doubt as to the full legality of the Budget Conditionality Regulation and has expressed this very clearly to the Court in the ongoing proceedings. But of course in our Union, which is based on the rule of law, the last word belongs to the Courts. All public authorities are bound to respect Court rulings. The Commission will do so and we expect all other parties to do the same.

For now, the Opinion of the Advocate General proposes to dismiss as unfounded the actions for annulment lodged by Poland and Hungary. His position and argumentation are fully in line with the convergent positions of the defendants, the European Parliament and the Council, as well as the Commission and the ten Member States that intervened in these cases in favour of the defendants.

If the CJEU approves the regulation, will the mechanism be formally launched against Hungary?

We have already sent a letter to Hungary sharing our concerns and asking for information. This is not the formal launching of the mechanism but an exploratory possibility prior to that formal launching. I cannot speculate on the next steps nor on what will be the final decision of the Court of Justice, and we need to see the replies to our letters.

We will take into account the information received and whether the measures proposed to address concerns and remedy grievances are adequate. It is on this basis that we will decide to trigger a formal notification.

In any case, we have always said we would be ready to act as soon as we can if this is warranted by facts.

What specific steps are expected of the Hungarian government, what rule of law criteria should the government remedy in order to avoid the mechanism?

What the rule of law, as expressed also in the Regulation itself, is that all public powers always act within the constraints set out by law, in accordance with the values of democracy and the respect for fundamental rights as stipulated in the Charter of Fundamental Rights of the European Union and other applicable instruments, and under the control of independent and impartial courts.

It requires, in particular, that the principles of legality implying a transparent, accountable democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers ; effective judicial protection, including access to justice, by independent and impartial courts ; and separation of powers, be respected . Disrespect of these principles can provoke a serious risk to the sound management of EU funds. So what the Hungarian government, and all other Member States’ governments, must do is very clear.

Didier Reynders, EU Commissioner for Justice, said in the summer that the European Commission would not approve the Hungarian National Recovery Plan (funded by the EU) until the Orbán government implemented judicial reform and provided adequate guarantees that corruption cases detected by the European Anti-Fraud Office (OLAF) are properly investigated by national authorities. In the case of Hungary, the official view is that there is a lack of reform plans to tackle corruption more effectively. However, the Hungarian government communicates that they believe the country is being wrecked because of anti-LGBTQ (government language: child protection) legislation. Will the anti-LGBTQ amendment be the reason for the possible launch of the rule of law mechanism?

We do have a problem with this law. Discrimination has no place in the EU. The Commission has launched two infringement proceedings this summer for specific violations related to the equality and protection of fundamental rights of LGBTIQ people against Hungary. The replies received from the authorities have not assuaged our concerns. We have just passed to the next step and sent a reasoned opinion in both cases on 2 December.

The principle of non-discrimination in the execution of the EU budget must also be respected. We are actively monitoring compliance with this principle to ensure that, in particular for the new programmes under the Structural Funds, are correctly implemented also as regards their compliance with the Charter.

The discriminatory content of the child protection law is dealt with in the separate infringement process.

As regards the reasons for a possible triggering of the Budget Conditionality, these are clearly contained in the Regulation establishing the mechanism. These correspond to breaches of the principles of the rule of law in a Member State that affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way. Before triggering the procedure provided in the Regulation, the Commission must assess if other existing tools do not protect the Union’s budget more effectively.

For the adoption of the Recovery and Resilience Plans, we need to make sure that the Hungarian plan complies with the objectives and requirements of the Resilience and Recovery Facility Regulation. There are 11 such requirements in the regulation and they are applicable to all Member States. When assessing the plans against these criteria, the Commission must ensure on the one hand that the measures proposed by the plan address the challenges identified in the country specific recommendations under the European Semester and that they also provide adequate and credible measures of control and audit, to keep the EU money safe.

And here you will recall that Hungary had important recommendations to implement in the areas mentioned in your question. We are not there yet with Hungary, but discussions are ongoing and we keep engaging constructively to ensure that the plan is complete and compliant with the criteria.

You had previously announced that you would comprehensively examine the cleanliness of the Hungarian elections. Does this have to do with the fact that the European Commission has put forward a proposal on the transparency of political advertising as part of measures to safeguard open democratic debate?

The reasons for why the Commission proposed a legislation on political adverts are manifold:

Political advertising online is increasingly used in Europe, including across borders. Currently it is regulated by Member States with a specific focus on traditional media (television, radio, newspapers), and serious gaps and loopholes exist. The fragmented legal framework creates costs for service providers and acts as a disincentive to the provision of political advertising services across borders.

As a result, it is not always easy for people to recognise whether they are looking at a political ad, especially when such ad appears online. This means that citizens cannot fully exercise their democratic rights and national authorities monitor the correct application of the rules.

Moreover, high standards of transparency of political advertising support accountability of those behind such advertisements and the right for citizens to be informed in an objective, transparent and pluralistic way.

Finally, personal data is also used to target and amplify political advertising, which can create negative effects on citizens' rights including their freedoms of opinion and of information, to make political decisions and exercise their voting rights.

It was already stated in the Rule of Law report that the Commission was concerned about the creation of private foundations receiving significant public funding, which in most cases were run by members or confidants of the Orbán government. But what could the new regulation start with if GONGOs (governmental non-governmental organizations, pseudo-civilians) paid from Hungarian public funds advertise, as they do today, conveying messages from the government?

Anybody who will be paid for producing or disseminating ads for or on behalf of political actor will be subject to the new Regulation and would have to fulfil the obligations for transparency. Such ad would have to be labelled as political ad and there will have to be visible link to more information: like who paid for it, why this ad is shown to this particular person etc.

What new tools does or will the Commission have to protect freedom of the press? Especially in Hungary?

The situation of media freedom and pluralism has never been so high on the agenda of the Commission. It is indeed due to the fact that the situation has been heavily deteriorating in several Member States, starting with Hungary.

We are acting when we can. For example we have started an infringement procedure against Hungary related to the decisions of the Hungarian Media Council to refuse renewal of Klubradio's rights. We found this was disproportionate and non-transparent and thus in breach of EU telecoms rules. If Hungary does not bring its decision in line with EU telecoms rules within 2 months, the Commission may decide to refer the case to the Court of Justice of the European Union.

However, in many cases, we cannot act because we do not have rules at EU level. This is why we are working now on a European Media Freedom Act. We want to address situations such as KESMA.

Neither on the basis of competition law nor on the basis of freedom of the press, has the Commission succeeded in taking action in the KESMA case, and you admitted that they were powerless. Are any further procedures planned in this regard?

Yes, this is exactly what we want to address with the Media Freedom Act. We want to have rules at EU level on media freedom, so that we will be able to act in the future.

The Act could set out common standards for national scrutiny procedures of all types of media market transactions from a media pluralism standpoint.

This could be underpinned by an EU-level ‘warning and response’ mechanism. It should be an independent mechanism. It would be empowered to issue opinions on the impact of media market transactions on media pluralism. Such opinions could include recommendations to minimise risks to media freedom and pluralism.

The Act could also address restrictions based on protectionist motivations, putting unjustified burden on some media actors. The initiative could include measures to increase transparency in the EU media market. This is for the first pillar.

Second, we could look deeper at the governance of public service media in order to minimise risks of political interference. Public service media should contribute to the fulfilment of the public service remit, serve the whole society and not partisan interests. This is why they receive public funding. We could also ask Member States to take measures to guarantee transparency in allocation of state advertising with the aim of ensuring more fairness in such allocation.

Finally the Act could strengthen cooperation among national regulators. It could also recognise the importance of strong self-regulation and explore measures to stimulate new, sustainable business models.

Have you been in talks with any Hungarian government player since Gergely Gulyás announced in March that the Hungarian government will not be in any contact with you?

No, but this does not mean the Commission is not in contact with them. From my part, I am always open to dialogue and ready to talk. But I will also always say what I think about the situation.

What is your opinion on how the Hungarian government and its affiliated organizations communicate about Brussels, the EU institutions and its decisions?

We all remember outrageous campaigns against the EU and continuous attacks. This makes it even more important to ensure that at least some independent media can survive in the country and report the facts.

A Hungarian version of this article is available at Telex.
This article is part of a V4 newspaper collaboration organised by Visegrad Insight and the Res Publica Foundation and included the Czech Denik.cz, the Slovak DennikN.sk, the Polish Res Publica Nowa, Onet.pl and the Hungarian Telex.hu.