The European Court of Justice spent two days negotiating the actions brought by Poland and Hungary against the so-called rule of law mechanism, with which payments from the EU budget can be suspended.

This is laid down in the regulation “to protect the Union budget”, which all other member states and the European Parliament agreed on at the end of last year.

Thomas Gutschker

Political correspondent for the European Union, NATO and the Benelux countries based in Brussels.

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The EU Commission wants to wait for the judgment of the ECJ before taking action against member states, but is under pressure from Parliament, which threatens to bring an action for failure to act. The Legal Affairs Committee will vote on a lawsuit this Thursday, and a narrow majority is expected. The Commission is likely to avert this, however, by sending the first letters shortly asking states for further information.

When the ECJ will decide cannot be precisely predicted.

The Advocate General responsible for the case will submit his final motion on December 2nd;

The court must wait for this step.

The earliest possible time for a judgment would then be the end of December.

At the request of the EU institutions, in this case the defendants, the court is already applying an accelerated procedure.

How seriously the matter is taken in Luxembourg is also reflected in the fact that the entire Court of Justice decides with all 27 judges - this rarely happens.

The hearings of those involved in the process also took place in this configuration.

Also noteworthy: ten EU member states took part on the defense side, including Germany.

Polish law over EU law?

The negotiation itself essentially revolved around two questions.

First, whether the regulation is lawful.

Poland and Hungary rejected this with the argument that deficits in the rule of law could be pursued under Article 7 of the EU Treaty alone.

Corresponding proceedings are in fact already running against Warsaw and Budapest, but they can protect each other against sanctions with a veto.

On the other hand, the EU institutions argued that the rule of law under Article 2 is a fundamental principle of the Union and Article 323 provides a legal basis for protecting the Union's financial interests.

Second, there was a question of how to apply the regulation and how to maintain proportionality.

Here the court is expected to provide guidelines.

The President Koen Lenaerts sent a clear signal to Poland.

He asked his representative whether the inadequate implementation of ECJ decisions should be seen as a serious rule of law deficiency.

The representative replied that it was a theoretical question - whereupon Lenaerts interrupted and rebuked him: It was an eminently practical problem.

This was to be understood as an allusion to the most recent ruling by the Polish constitutional court, which contested the primacy of EU law.

This judgment was published in the Polish Official Gazette on Tuesday and is therefore final

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