Signal Berlaymont: The EU is troublingly poor at policing the rule of law in Member States

A major exchange of prisoners last week between Russia and the West included Pablo González, a Spanish freelance journalist who turned out also to be a Russian state operative.

Since 2019, he lived in Poland, and worked for Spain’s EFE news agency and Voice of America, among other news outlets. In 2022, Polish authorities arrested González, saying he was an agent of Russia’s GRU military intelligence agency, and had been “participating in foreign intelligence activities against Poland”.

This claim now appears correct: President Vladimir Putin welcomed him back to Russia personally, saying “I want to thank you for being faithful to your oath, to your duty and to your country, which has not forgotten you.”

Before his warm welcome home as a hero, there were some who questioned Poland's espionage claims about González, despite his Russian nationality. He had been born Pavel Rubtsov in 1982, in the Soviet Union, where his family fled after the Spanish Civil War. When he was nine, he moved to Spain with his mother, adopting a new name. For a freelance journalist, he also seemed curiously wealthy to those who knew him.

Russia fooled the European Commission

One particularly prominent critic of Poland’s arrest of González was the European Commission. In its 2023 rule of law report on Poland, it listed him as an example of how "journalists have continued to encounter difficulties in their activities". 

The case illustrates how difficult it is for a supranational bureaucracy like the European Commission to discover what is actually going on, while still making grand claims about breaches of the rule of law in EU member states. 

The European Commission’s failure to correctly assess González’s case is more troubling given in 2022, the head of the UK's MI6 foreign intelligence agency, Sir Richard Moore, had already  declared González was an “illegal” who had been “masquerading as a Spanish journalist.” Spies operating under non-official cover are referred to as “illegals”, which indicates they lack diplomatic immunity. Sir Richard also explained González “was trying to go into Ukraine to be part of their destabilising efforts there”.

Following the revelation Poland had been right and the Commission wrong, members of Poland’s previous government reacted with fury towards Brussels and NGOs that had campaigned for the release of González. Former foreign minister Zbigniew Rau stated “many foreign observers have been, and still are, incapable of grasping Poland’s legal order and practices.”

Policing the rule of law in Member States 

While Poland can come in for justified criticism on some aspects of rule of law, the fact EU institutions have clashed with Poland and Hungary, but not with Romania, Croatia, Greece, and Bulgaria, should raise eyebrows among impartial observers. The World Justice Project, an NGO with the mission of "working to advance the rule of law around the world", ranks all six countries at the bottom of its “rule of law” index for Europe, from which it excludes Russia and Ukraine. 

Assume these six are indeed the most problematic countries. Also assume you wanted the EU to police the rule of law. Wouldn’t you then find it troubling that the EU somehow doesn’t clash over the rule of law with counties run by EPP and S&D politicians, while it does with Poland and Hungary, which are not? There have been occasional hiccoughs with Romania but nothing more. 

When Donald Tusk, an EPP politician, became Polish PM last year, the EU Commission released funds frozen over “rule of law” concerns, even though Tusk’s new ruling coalition had not fulfilled the rule-of-law “milestones” which Brussels insisted the formerly governing PiS implement to receive the funds.

Worse, the EU decided to provide billions to the Polish government despite its highly controversial takeover of state-owned media outlets at the end of 2023. That involved legally questionable loopholes to purge PiS-appointed managers. According to Polish journalist Daniel Tilles, the result is “State broadcaster TVP (...) is still biased, but now in favour of Tusk’s government.”

The EU undermining the rule of law  

It isn’t hard to conclude making the EU responsible for policing member states' rule of law quickly leads to accusations of double standards. Perhaps a better path for the EU is not aiding and abetting its member states' violations of the rule of law. Because that is the unfortunate effect of the enormous financial injections of EU cash into countries that score poorly in corruption indices.

We are not talking only about the post-Soviet space here. In 2021, Italian criminal law Professor Vincenzo Musacchio warned “between 2015 and 2020, the EU has allocated around €70 billion to Italy in structural & investment funds. Half of these funds ended up in the hands of organised crime.” 

Musacchio is a top expert in his field, who has devoted his career to struggling against organised crime in his home country. He is associated, among other affiliations, with the well-regarded Rutgers Institute on Anti-Corruption Studies in New York. 

Gert Jan Koopman, Director-General of the European Commission’s “EU Budget” department, took issue with Musacchio’s claim at the time, responding “This is certainly a worrying statement but where is the evidence? Fraud concerns less than 1 per cent of the EU budget; the error rate is about 2.5 per cent and most of this is corrected when the programmes are closed.” 

The EU’s own spending watchdog, the European Court of Auditors (ECA), then admitted “the Commission’s fraud numbers regarding EU spending — compiled using figures forwarded to [EU anti-fraud body] OLAF by member countries — are incomplete” and that “cases of fraud can be difficult to identify during standard audit procedures”. 

An inadequate EU

Perhaps we need more EU bureaucracy to combat wasteful and corrupt EU spending, as Brussels appears to believe. The solution has been proven inadequate. OLAF, the EU’s supposed anti-fraud body, has a very poor track record. In 2019, the EU Court of Auditors noted when it comes to dealing with misuse of EU expenditure, “OLAF’s results are truly, very surprisingly weak.”

One of OLAF’s former heads, Giovanni Kessler, even received a one-year suspended prison sentence over his handling of a bribery probe involving a European Commissioner, John Dalli.

None of Professor Musacchio’s warnings were taken seriously in 2021, when EU leaders decided to push through with their terrible idea for an €800 billion Covid recovery scheme, financed with jointly issued EU debt. The first major scandals with this scheme have already been revealed, with arrests in Italy, Austria, Romania, and Slovakia earlier this year. 

Again, the EU Court of Auditors warned about potential misspending. Its head, Ireland's Tony Murphy, said “The big issue and reputational risk is that the payments are fine when they’re being made but the Commission is not sufficiently controlling subsequent expenditure.”

Would anyone genuinely concerned about the rule of law put the EU institutions, who are responsible for all this mess, in charge of assessing their own track record? The answer is self-evident.