The governments of Poland and Hungary are damaging the rule of law not just domestically, but with a huge risk of contagion to the EU as a whole. European leaders must step forward to defend their values.
The EU faces a disintegration threat that is much more dangerous than Brexit. The attempts by the Hungarian and Polish governments to capture core state institutions and close civil society space threaten not only democracy in their own countries, but also the community of law that underpins European integration. The European Commission and the European Parliament have tackled the threat through legal action and political pressure. But member governments are still sitting on the fence. They need to take decisive action in the Council now that the German elections are over.
The sovereignty reflex is deeply ingrained: under the EU’s treaties, every country decides its own constitutional arrangements. As a result, EU governments’ default reaction to undemocratic moves in a fellow member is first to ignore the offensive behavior. If it continues, they outsource monitoring and criticism to the European Commission, the European Parliament, and the Council of Europe. The next move is to sit out the problematic government’s term in the hope that the party will be voted out by its own electorate. But those procrastination strategies are now running out as the Polish and Hungarian governments continue to push back.
Undermining the Entire EU
The EU’s role is not to get involved in domestic political fights. But it has to ensure that its members stick to the rules and commitments they agreed to, which allow citizens and businesses to operate across borders without discrimination. If two members get away with reneging on core commitments, the contagion effect is huge. More governments, both in the EU but also in the surrounding region, will be tempted to override constitutional checks and balances, to intimidate journalists, to stifle critical voices by controlling universities and NGOs, and to defy common rules and agreements that they don’t like.
The first problem is the corruption of the rule of law within member states. From the single market to justice and home affairs cooperation, European integration depends on well-functioning, independent public institutions at the national level. If Poland’s justice minister can control every level of the court system, as the government’s proposed laws would allow, judicial rulings would be politicized, but judges in other countries would still be bound to abide by them under the principle of mutual recognition. The single market would no longer be a level playing field, as businesses could not be sure of fair treatment in that country. Political influence over the judiciary also makes other members reluctant to send their citizens for trial in that country under the common arrest warrant, so it also affects police cooperation and the Schengen area of passport-free travel.
Now there is a second challenge to EU law: reneging on an EU-level agreement. Budapest is defying a decision by the Council – in which its own minister participated – to establish a scheme to relocate asylum-seekers to other member-states in order to relieve the burden on the countries of first entry, principally Italy and Greece. The European Court of Justice ruled in September that the Council agreement has the force of law, and that the effectiveness of the relocation scheme was undermined by the failure of Hungary, Slovakia and Poland to implement it. Now the Hungarian government has pledged to continue its defiance of the agreement despite the ruling, something that previous awkward partners never did. Although the United Kingdom often fought to block agreements in the Council on measures that its public did not like, London could be relied upon to implement them once they were agreed under the common rules.
What Can the EU Do?
The Commission has done well at setting out why the measures contravene EU laws and values. Its legal approach has been consistent. Now the legal procedures need political backup from the Council.
Governments should intensify their bilateral diplomacy at two levels: in private, they must leave no doubt as to their support for the Commission’s actions. Membership of the European People’s Party still matters to Fidesz, the ruling party in Hungary since 2010. This party group has long given the Hungarian government protection, so its members bear a special responsibility.
In public, European leaders should issue unequivocal statements. They should not let US President Donald Trump have the last word in Warsaw. Ministers need to speak out, especially when the Hungarian and Polish governments make misleading comparisons to claim that their proposed legislation is similar to practices in other countries. The member states’ embassies should more actively raise rule of law concerns bilaterally.
If PiS and Fidesz do not back down, the Commission and European Parliament will have to decide whether to go through with their threats to launch Article 7 of the Treaty of the European Union. This provision was designed to ensure all member states respect the EU’s common values and includes two measures: Article 7.1 allows the Council to issue a warning to any country in violation of those values; if the violation continues for a prolonged period, Article 7.2 introduces sanctions and strips the country of its voting rights in the Council.
In considering Article 7, the Commission and Parliament must put forward reasoned proposals. The attitudes of the other 26 member countries will be decisive. If the Commission puts forward a reasoned proposal and fails to gain the sufficient majority in the Council, the EU as a whole will lose face and probably any hope of using Article 7 in the future. But if the Commission holds off only because it is not confident of gaining the member-states’ backing, PiS could also claim victory.
However, if Article 7.1 is successfully launched, meaning that all of the EU institutions agree that there is a clear risk of a serious breach, that would send a powerful political signal. This would be true even if mutual protection between Warsaw and Budapest makes it impossible to gain unanimity in the European Council to activate any sanctions.
All EU-level action must be well framed and communicated to avoid fueling nationalism and deepening the sense of an East-West divide; this rift has widened also because of the debate over the future budget of the EU and the potential of “variable geometry,” or differentiated integration for member states when there are irreconcilable differences. The Polish and Hungarian governments are using every opportunity to claim they are being unfairly targeted by the members that joined before 2004. All EU actors must therefore communicate clearly that this is about protecting core standards, and that similar steps will be taken against any offending government. Strong statements from other Central European governments would be particularly helpful. The EU can also counter claims of double standards by getting tougher on bad behavior by member states across the board, particularly on corruption and misuse of public funds.
The year 2018 will see new initiatives for EU institutional and policy reform, as well as negotiations on the next financial framework, which will open opportunities to introduce new instruments to protect the rule of law. There are plenty of options to consider. Most pertinent to the cases of Hungary and Poland are greater possibilities for judicial review by the Court of Justice to capture the cumulative effect of a series of infringements that create a systemic challenge.
Money matters, too. Germany and other countries are debating whether to introduce new conditions that would tie access to EU funds to a country’s performance on governance and rule of law. Legally and politically, this will be complicated to introduce, but it would have a powerful deterrent effect. In the meantime, more rigorous enforcement of existing rules on misuse of funds would strengthen popular support for EU action against abuse of power in all its members.
The EU has to get more active in countering false claims. Two-thirds of Hungarians have a favorable view of the EU, as do three-quarters of Poles. To try to reduce this level of support, the Hungarian government this year funded a huge campaign of anti-EU slogans and false claims about the EU’s role in deciding energy prices, taxes, and migration, among other things. To counter this propaganda, the EU’s representatives need to better communicate the facts about EU laws and policies, as the Commission did for the first time this year in a rebuttal fact-sheet. This kind of engagement helps Hungarian and Polish civil society hold their own governments to account and uphold their own constitutions – and shows that criticism of governments does not mean rejection of the people.
As unwelcome as divisions are in the EU while Brexit is underway, member governments cannot run away from a showdown now. More heads of state and government must speak up, privately and publicly, and explore new ways of ensuring high standards of political and legal governance to complement the ones on economic governance. They need to make it clear that they will exact a high price from any member – present or future, East or West, North or South – that undermines the EU’s foundations as a community of law and its soul as a community of values. They should back the warnings from Commission and Parliament to Poland and Hungary that there is a serious breach of values.
If 22 of the member governments (a four-fifths majority) agree that values are breached, that formal EU position under Article 7 of the Treaty would in itself be a strong political signal from the whole Union that it is prepared to defend its values – even if the eventual sanctions foreseen under the Treaty are out of reach because Hungary and Poland protect one another in the Council.
Even so, there is only so much that any external actor can do to rescue democracy and the rule of law in another country. The ultimate remedy lies with the tens of thousands of Hungarians and Poles who have been protesting against the attempts to capture their states. The vast majority of the people in these two countries want to stay part of the European mainstream, so they need to hear other Europeans expressing support for the rule of law that serves everyone.