Didier Reynders (Liège, 62 years old) is one of the most experienced politicians in the Cabinet of the President of the European Commission, Ursula von der Leyen. After having been a minister in several Belgian executives, this liberal politician is now a European Commissioner for Justice. Reynders receives EL PAÍS a few days after having published the first report on the rule of law in the European Union, which once again points to a deterioration in judicial independence and information pluralism in Poland and Hungary.
Question. Have the extraordinary powers that governments have assumed to deal with the pandemic led to a decline in the rule of law in the EU?
Answer. The pandemic has been a test of the resilience of countries to the rule of law. During the pandemic we have seen a transfer of powers from parliaments to governments. And it makes sense when you have to make quick decisions. In some countries there was a control of the Parliament, which could be refused, and even of the courts. In others, we have expressed concerns. In the case of Hungary, the state of emergency had no time limit and we had problems with some penal provisions adopted to punish alleged misinformation. In Poland there was the intention to hold presidential elections without there being a real campaign. But a way out was finally found thanks to pressure, not just from the European Commission.
P. But the pandemic is not over. Have you detected any other drift?
R. We are following the situation in all countries, because there are still states and emergency measures. It is important that parliaments and the judicial system are alert and react, if necessary. And our job is to go to court if it is too. I remember that it was during states of emergency when some states have violated European law, specifically that which protects passenger rights, which forced us to intervene.
P. He has referred to Hungary and Poland, which are the two countries with the most cracks in their rule of law. What kind of democracy are they building?
R. It cannot be said that they are not democracies because there is a democratic process. In some Member States we have concerns, but in others more than that. It is a broader systemic problem. In Poland it is about judicial independence and discrimination, for example, against transgender people or the LGTBI + collective. The concerns are more important because we are certain that there is a systemic risk.
P. We have already seen the difficulty of sanctioning both countries through Article 7. Do you think it can be done through the EU budget?
R. We have several instruments and we want another one to protect the European budget from fraud or corruption through the EU attorney general’s office.
P. But the prosecutor will not be able to act in Hungary or Poland because those countries have not joined that institution …
R. For this we have yet another proposal from the Commission to protect the budget against a general breach of the rule of law. Okay, we have problems in some member countries. But we have seen reforms, for example, in the Maltese judicial system that we are going to follow. It is difficult to appreciate because it has occurred as a result of the coup for the murder of a journalist, the political turbulence in the country and pressure from Brussels and civil society. I’m not saying it’s perfect, but change is possible.
P. In the case of Spain, they point to the lack of renewal of the General Council of the Judiciary. Do you expect the Spanish Parliament to take steps to address it?
R. I hope so. I understand that it is difficult to reach an agreement between the main political parties on renewal, but we have been here since 2018. We have expressed greater concern about this situation in other member countries. That means that if that persists, when the situation in Hungary or Poland is debated, the governments of those countries will be able to hide behind the fact that this issue in Spain has not yet been resolved. And in the case of Spain it is not the same systemic problem, but it is very specific.
P. In Spain, the increase in attacks on journalists stands out. What do they attribute them to?
R. In Europe there is a negative trend on press freedom and the place of the media and journalists. There are several reasons. The first one we should pay attention to is economic, due to the emergence of new platforms or the role of Google and the cost of digitization. That means that to protect pluralism you may have to help the press, in an equitable way. Beyond this, we have seen attacks, intimidation and killings in Malta or the Czech Republic. And also how in some countries there are between 20 or 30 open proceedings against the same investigative journalists.
P. Can the Commission do something?
R. We are mapping the situation, but also thinking about legislative measures, if necessary. Or in creating a pool of lawyers and experts at European level to make it available to those affected.
P. In the report on Spain there is not a word about the trial of the you process. Does that mean that there is no concern in the Commission?
R. We have followed it very closely, but it is an internal matter. And we have full confidence in judicial independence and in the Spanish constitutional order. And as the report shows, it is not a country where there is a high degree of concern about judicial independence, except for the question of the attorney general.
P. Carles Puigdemont MEP has denounced that he has not included any of the 13 contributions that were sent to him about the trial …
R. We have received comments from interest groups in this regard and have published them because we wanted to be transparent. They are not in the report because we do not consider it to be a systemic problem. It is an internal problem of Spain, which must be managed in accordance with its constitutional order.
P. Is reforming the euro order among your plans?
R. With the numbers we have, we see that the orders rise, but also the positive responses. I know of Puigdemont case, but it is an exception. And a very specific case cannot lead us to say that it does not work. I am open to taking the matter to the Council if there is a parliamentary majority for reform. But I’m scared to open Pandora’s box and a lot of changes will arrive for one of the best instruments we have.
P. Do you think the countries would not be as ambitious as they were in the scope of the order?
R. It is the risk. So we are more about implementation than opening the door to general discussion for some changes. And that is where the rule of law also has to do. For example, the judges in Amsterdam rejected extraditions to Poland and now Warsaw does the same. Without trust, it will be difficult to organize cooperation between countries, but in recent months we have received comments from several companies that tell us that they do not invest because they do not trust to go to the justice of a State in case of problems with the authorities.
P. Is the Commission preparing a case against Germany for the judgment against the European Central Bank’s debt purchase program?
R. The president has said that we must guarantee the primacy of the Court of Justice of the European Union (CJEU) and the independence of the European Central Bank and has asked legal services for advice because to go to the CJEU we need to have a solid legal basis. So you have to see it.