On 7 July 2021, three legal experts (Prof. Kim Scheppele, Princeton University; Prof. Daniel Kelemen, Rutgers University; and Prof. John Morijn, University of Groningen) call on the Commission to trigger the new Rule of Law Conditionality Regulation (EU, Euratom) 2020/2092 with respect to Hungary. Their study on the case of Hungary was solicited by the Greens/EFA group in the European Parliament and backs the EP’s position that said Regulation (→ eucrim 3/2020, 174-176) has been immediately applicable since its entry into force on 1 January 2021. Applicability does neither require guidelines nor a CJEU decision on the action for annulment of the Regulation initiated by Hungary and Poland (→ eucrim 1/2021. 19).

The study states that the glaring rule-of-law deficits in Hungary (analysed in detail in the paper) fulfil the legal requirements to trigger the rule-of-law mechanism. In order to initiate sanction proceedings, the Commission must prove that a Member State has at least one of the eight rule-of-law deficits listed in Regulation 2020/2092 with an impact on the EU budget. According to the legal opinion, Hungary has six of the eight deficits. These relate to the following three areas:

• Lack of transparent management of EU funds;
• Lack of an effective national prosecution service to investigate and prosecute fraud;
• Lack of guarantee of independent courts to ensure that EU law is reliably enforced.

The legal experts also draft a written notification by means of which the Commission can initiate the suspension of EU funds pursuant to Art. 6 of Regulation 2020/2092.

Lastly, they provide a detailed analysis of Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget and its legal context which shows that the Commission should not see any hindrances to go ahead.