THE STATE OF THE EUROPEAN UNION. Reforming Europe in a time of war

THE STATE OF THE EUROPEAN UNION 66 EU” 41 . They take note of the Commission’s decision to develop and adopt guidelines on the way in which the Regulation must be applied, as well as a methodolo- gy for carrying out its assessment, in close consultation with the Member States. In addition, in the event of the presentation of an action for anulment, as was the case in view of the bringing of separate actions by Hungary and Poland on 11 March 2021, it was decided that the guidelines would be finalised after the judgment of the Court of Justice 42 . It was the bringing of separate actions for annul- ment by Hungary and Poland 43 alleging: the lack of an appropriate legal basis; that the use of Article 322 TFEU was purely instrumental to circumvent the procedure laid down in the Treaties, that is, Article 7 TEU, thus ex- ceeding the powers conferred on the EU and infringing the principle of legal certainty, that led to the possible application of this Regulation being suspended through- out 2021, until the Court of Justice flatly rejected the allegations of the two applicant states on 16 February 2022 44 . Because of that, following the judgment of the Court, which is not open to appeal, not just procedurally but also from the point of view of legal foundation, this Regulation can now become a binding and operational instrument for ensuring that infringements of the rule of law do not go unpunished in the EU for political reasons and understandings between states. If the Court of Jus- tice has spent years fully performing its function as guar- antor of respect for Union law with the consolidation of a case law that sets the limits of the political noncompli- ance of the states on matters relating to the infringement 41  EUCO 22/20. 42  For an expansion of this political decision by the European Council see: LOUIS, Jean-Victor: op. cit., pp. 15 and ss. 43  See note 38. 44  For further expansion, apart from the previously mentioned article by De Gregorio Merino, Alberto, see the commentary by Fernández Rozas, José Carlos in his blog: https://fernandezrozas. com/2022/02/16/mecanismo-de-condicionalidad-que-supedita-el- acceso-a-la-financiacion-de-la-union-al-respeto-por-parte-de-los- estados-miembros-de-los-principios-del-estado-de-derecho-stj-gs- 16-febrero-2022-asunt/ of the values of Article 2 TEU, this Regulation will allow the institutions to assume their responsibilities applying our well-known “community method”. The situation in 2022 To conclude this study, 2022 can be considered the start- ing point for a much more proactive policy with more ap- propriate instruments to defend the rule of law resolutely and coherently in the EU. In this respect, three developments in the institu- tional life of the EU must be the elements that mark this change of course in 2022: − The implications of the judgment pending from the Court of Justice on Case 204/21, Commission/Po- land. − The development of the budget conditionality mech- anism following the Court of Justice judgment of 16 February 2022 dismissing the actions for annulment brought by Hungary and Poland. − The implementation of the recommendations to the states in the third annual report on the Rule of Law in the EU of 13 July 2022. On the first point, little more can be said on the re- solve shown by the Court when it comes to imposing a penalty payment on Poland with retroactive effect from 15 July 2021 of 1 million euros a day. Awaiting the final judgment, anticipated in the first quarter of 2023, this demonstrates that we have an effective weapon and a consolidated case law to impose penalties for breaches of the values of Article 2 TEU, even though it has proce- dural requirements in keeping with the concept of “fair and impartial trial” and it limits its effects to the specific case being judged. However, it is no accident that on 15 July this year (that is, two days after releasing the annual report on the rule of law in the EU) the Commission should have opened two infringement proceedings against Hun- gary at the Court of Justice for discriminating against LGBTIQ people and for restricting the freedom of the