EU courts catastrophe in wake of democratic backsliding

Though Brexit is in the European Union’s rearview mirror, the organization is only beginning to grapple with a much graver crisis: the rise of right-wing authoritarianism within its borders. In 2004, the EU conducted the most ambitious expansion project in its history, adding 10 new member states, eight of them located in Central and Eastern Europe. Each of these eight countries had been ruled by Communist dictatorships less than two decades prior. Thus, the move was celebrated as a landmark victory for liberal democracy on the continent.

Sixteen years later, this mass enlargement has not proven to be the clear-cut success many projected, and in some ways has been an outright failure. This is most evident in Hungary and Poland, where democratic norms and institutions, as well as the EU’s authority over member states, are under serious attacks by conservative, nationalist ruling parties. The EU’s response to this dire situation has been muted at best. If it is to avoid calamity and maintain legitimacy, Brussels must act urgently and decisively.

In U.S. think tank Freedom House’s “Freedom in the World 2020” report, both Hungary and Poland are cited as nations trending toward authoritarianism. Meanwhile, in the “Freedom in the World 2019” report, Hungary became the first EU member state to be designated a “hybrid regime,” instead of a democracy, and have its freedom status drop from “Free” to “Partly Free.”

Hungary’s democracy began to be chiseled away in 2010, when the right-wing nationalist party Fidesz won an outright majority in the parliamentary elections, catapulting its leader, Viktor Orbán, to the position of prime minister. Fidesz’s 2010 victory was so impactful that it gave the party enough seats in parliament to rewrite the constitution.

In the ensuing years, Prime Minister Orbán and Fidesz launced a multifaceted assault on Hungary’s seemingly vigorous democracy. Almost immediately, Fidesz went to work redrawing and gerrymandering parliamentary districts to give itself an advantage over its liberal counterparts. It also expanded Hungary’s constitutional court and forced judges older than 62 to retire. Orbán filled each of these open positions with Fidesz sympathizers. Further, the right-wing party passed a law granting citizenship to ethnic Hungarians living in nearby countries in an effort to bolster its conservative voting bloc. 

Riding a wave of xenophobia against Middle Eastern refugees and asylum seekers, Orbán had a fence built along the Hungarian-Serbian border in 2015. In 2017, he argued that the EU should thank Hungary for “protecting all the citizens of Europe from the flood of illegal migrants” by paying for the fence’s expenses.

Additionally, Orbán and his acolytes waged war on “critical civil society organizations” and private media. By 2017, 90 percent of Hungarian media was either owned by the state or supporters of the Orbán regime. Moreover, Orbán has rigged the economy to line his pockets and those of his allies by intimidating business owners into selling their companies to the state.

Meanwhile in Poland, democracy has been receding since the right-wing populist Law and Justice (PiS) party swept to power in 2015. The ideological underpinnings of PiS are rooted in far-right conspiracy theories parroted by its co-founder and present leader Jarosław Kaczyński. Initially a champion for democracy under Poland’s communist dictatorship, Kaczyński grew increasingly radicalized in the years following the dictatorship’s fall. He claimed the country’s young democratic government had compromised with Communists seeking to covertly control the nation. Aside from Communists, Kaczyński and PiS have argued that liberals and homosexuals are internal enemies of the nation. Externally, PiS has vilified foreign media and painted Poland’s historic oppressors, Germany and Russia, as hostile neighbors seeking to do damage to the Polish state. 

Since taking power, PiS has turned a number of public television networks into propaganda forums, radically altered the country’s judiciary by purging courts of independent judges and replacing them with PiS loyalists, eroded freedom of speech, launched trials targeting political opponents, and refused to admit the number of refugees required by the EU. 

One law restricting free speech has allowed judges to be punished for criticizing PiS’s changes in the courts. Meanwhile, PiS has made it a civil offense to accuse Poland of collaboration with the Nazis in World War II. Initially, the party planned to make such criticisms punishable with up to three years in prison, but changed course following swift international backlash.

While Brussels has adopted resolutions condemning breaches of the rule of law in both countries, it has done little to tangibly penalize the governments of either nation for their undemocratic actions. A pair of key developments in recent months have made meaningful action by the EU regarding democracy’s retreat in both of these countries more urgent than ever.

In Hungary, the COVID-19 pandemic gave Orbán a unique opportunity to tighten his grip on power, and the prime minister did not squander it. On March 30, 2020 Hungary’s National Assembly passed an unprecedented special authorization law granting Orbán the power to rule by decree for an indefinite period of time during the pandemic. Though this law was lifted on June 18, 2020, a new law was passed that gives the government the authority to rule by decree without a parliamentary vote whenever it declares a state of public health emergency. For all intents and purposes, democracy is now dead in Hungary.

Meanwhile, on July 12, 2020, Poland’s incumbent president, and PiS ally, Andrzej Duda won reelection in a tightly contested race that split sharply along urban and rural lines. The election results were especially disturbing due to Duda’s campaign being rife with homophobia and tinged with anti-Semitism. During the campaign, Duda suggested a constitutional amendment banning same-sex couples from child adoption, argued that gay rights activism is worse than communism, and pledged to create “gay-free zones.” Duda also has publicly opposed a property restitution law for descendants of Polish Jews who lost their homes or businesses during the Holocaust. Meanwhile, during the campaign, pro-PiS state media claimed that Duda’s opponent, Rafal Trzaskowski, would sell Poland out and “fulfill Jewish demands.” Poland’s transition from liberal democracy to authoritarian state is several years behind Hungary’s. Nonetheless, with Duda winning a second term, and PiS still controlling parliament, Poland’s democracy appears destined for a fate similar to Hungary’s.

Through a combination of indecision and constant focus on the drawn-out Brexit process, the EU frittered away years of opportunity to deal early on with Hungary’s and Poland’s dictatorial turns. Still, while the EU’s response to the decline of democracy in Hungary and Poland has been lackluster, the two nations’ actions have not gone entirely unnoticed. In December 2017, responding to PiS’s attacks on Poland’s judiciary, the European Commission initiated Article 7 of the Treaty on European Union (Maastricht Treaty) for the first time, leaving Poland vulnerable to possible sanctions and the suspension of its membership rights. Meanwhile, the European Parliament took a stand against Hungary in September 2018, triggering Article 7 against the country due to Orbán’s totalitarian power grabs. However, only in recent months have Hungary and Poland begun to be met with increased resistance from the EU’s ultimate legal authority, the Court of Justice of the European Union (CJEU). 

In April 2020, the CJEU ordered Poland to immediately suspend operations of a disciplinary chamber for judges created in 2017 or pay large fines. The chamber has been used to punish judges critical of PiS’s efforts to strip the country of an independent judiciary. Later in the month, the EU’s highest court ruled that, along with the Czech Republic, Poland and Hungary breached EU law by refusing to accept their mandated shares of the 120,000 asylum seekers who had entered Italy and Greece in 2015. Then, in May, the CJEU ruled against Hungary again, this time for restricting asylum-seekers’ “freedom of movement” by holding them in “unlawful detention” at camps in terrible conditions during the 2015 refugee crisis. While these long overdue rulings are better than nothing, it remains to be seen how effective they will be at deterring flagrant disregard for the rule of law in either Hungary or Poland. 

Also in April 2020, the European Parliament voted overwhelmingly to adopt a resolution calling out Hungary’s “rule by decree” law and Poland’s initial decision to not postpone its May presidential election despite pandemic safety concerns as “totally incompatible with European values.” However, parliamentary resolutions such as this not only lack enforcement power, but ring hollow in the broader context of European appeasement of Hungary and Poland. To illustrate, Fidesz has been allowed to remain a member of the EU’s multinational center-right European People’s Party (EPP) in spite of its undemocratic actions. Though Fidesz has been suspended by the EPP, allowing it to remain a member implicitly endorses Orbán’s regime. Additionally, prominent EPP individuals such as the party’s leader in the European Parliament Manfred Weber, President of the European Commission Ursula von der Leyden, and former President of the European Commission Jean-Claude Juncker have rarely voiced opposition to Orbán’s moves. Furthermore, the EPP’s two preeminent national parties — Germany’s CDU/CSU and France’s Les Républicans — have not joined other EPP national parties in formally reprimanding Fidesz. Perhaps most dishearteningly, the European Commission’s joint statement in response to Hungary’s “rule by decree” law failed to mention Hungary once and was so general in its wording that Hungary had no qualms signing the statement itself. 

Moreover, despite their disregard for the rule of law, both Hungary and Poland went unpenalized in the EU’s recent 750 billion euro coronavirus recovery package. The EU bowed to pressure after the two nations pledged to veto the package in its entirety if member states were required to meet certain democratic standards in order to receive funds. Adding insult to injury, Poland, one of the EU nations least impacted by COVID-19, was one of the biggest beneficiaries of the recovery package. An anonymous diplomat blasted the move, claiming “Poland is making a mockery of our values and gets rewarded for it.” On the other hand, after the package was announced, Orbán asserted that Hungary and Poland had “fought it out and … won” and “protected our national pride.” Brussels’ tacit approval of absolutism in Hungary and Poland emboldens Fidesz and PiS and communicates to bad actors in other member states that they can act undemocratically with relative impunity. 

It is clear that the EU’s attempts to rein in Hungary and Poland have largely been impotent. It is already too late to save democracy in Hungary and probably too late to save it in Poland. Even so, Brussels can still take measures to punish both nations’ governments for their violations of the rule of law. Doing so would discourage other member states from going down similar paths, pressure both Hungary and Poland to eventually reject autocracy, and send a message of organizational strength and resilience. Unfortunately for the EU, its options going forward are limited.

One might argue that the EU should simply expel Hungary and Poland if they continue to disrespect democratic norms and challenge the EU’s authority. However, there is no protocol in any of the EU’s treaties or institutional bylaws for expelling a member state. Additionally, even if there was, Brussels would much prefer reform to expulsion. 

Though expulsion is categorically not an option, the EU can theoretically use the Article 7 process to meaningfully punish both rogue members. Hungary and Poland have each had Article 7 invoked against them for posing “a clear risk” to the EU’s fundamental values of “human dignity, freedom, democracy, equality, the rule of law and respect for human rights” as outlined in Article 2 of the Maastricht Treaty. Yet neither nation has faced tangible punishment through the Article 7 process and almost certainly neither will. The procedure could theoretically end in sanctions and the stripping of voting and representative rights for both countries. However, a unanimous vote by all member states — not including the one under scrutiny — must occur for any of these penalties to be applied. Hence, it is essentially a given that Poland would block any motions against Hungary and that Hungary would do the same for Poland.

Still, the EU can and must do more than it has so far if it is to triumph over the existential threat authoritarianism poses to the organization. The time for accommodation passed long ago. If the EU wants to see democratic reform in Hungary and Poland, it must adopt a policy of financial coercion. In February 2020, the European Commission adopted an enlargement policy that utilizes a “carrot and stick” system that offers prospective member states in the Balkans access to the EU’s European Structural and Investment Funds depending on a given nation’s respect for the rule of law. Though sure to spark controversy, the European Commission should work to apply this “carrot and stick” system to its current member states. Doing so would place immense pressure on both Hungary and Poland to liberalize or face harsh economic consequences. 

However, the EU’s institutions cannot on their own put an end to despotism inside its borders, especially while dealing with the continuing fallout from the coronavirus pandemic. Thus it is essential that non-institutional actors within the organization do their part. For one, the leaders of the EU’s most powerful member states — such as German Chancellor Angela Merkel and French President Emmanuel Macron — must take hard stances against Hungary’s and Poland’s autocratic regimes. This would mean publicly condemning Fidesz and PiS as undemocratic parties hostile to the European project. If the governments of Germany and France vocally challenge Hungarian and Polish authoritarianism, they will provide cover for the many national governments presiding over less influential countries in the EU to do the same. In addition, the EPP must strip Fidesz of its membership in the transnational party, thereby delegitimizing Orbán’s voice in the European political dialogue. 

In 2018, following Orbán’s reelection, Luxembourg’s Foreign Minister Jean Asselborn warned of severe consequences if the EU failed to soon firmly rebuke authoritarianism in Hungary and Poland. “Today it is Hungary and Poland, tomorrow others in Eastern and Central Europe – even a major founding member country of the EU could develop a taste for undermining values and scaremongering,” he darkly warned. It might seem easy to dismiss Asselborn’s comment as alarmist.

Yet, democratic backsliding continues throughout much of Europe and, amid the pandemic, signs have emerged that democracy in yet another member state, Bulgaria, may be under siege. 

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