Give no respect, get no money. This seems to be the new and strongest stance so far adopted by EU institutions in the face of countries violating the rule of law. Yet, is this a true commitment or mere window dressing? It would appear that, in the hierarchy of EU issues, rule-of-law violations have been put aside by the Covid-19 pandemic, the following economic downturn and the impending climate crisis. Does the EU have the capacity and the willingness to change this course of things?

Threat to the Rule of Law: Recent Developments

With regard to Poland, European institutions have been expressing mounting rule-of-law concerns for some years now. Highly worrying is the increasing political influence over Polish courts, which the ruling Law and Justice (PiS) party has progressively consolidated through a series of reforms in the justice system. Most recently, on 29 April 2020, the European Commission launched an infringement procedure against Poland for the newly introduced Muzzle Act, which ‘undermines the judicial independence of Polish judges and is incompatible with the primacy of EU law’. Indeed, several European courts are sceptical about the independence of their Polish counterparts. In July 2020, a Dutch court stated that ‘since 2017, the independence of Polish courts and thus the right to a fair trial have come under increasing pressure’ and subsequently asked the Court of Justice of the EU (CJEU) if this meant that the extradition of Polish suspects under the European Arrest Warrant had to be suspended. Similarly, in March 2020, a German court opposed the extradition of a Polish suspect due to ‘profound doubts about the future independence of the Polish judiciary’. Analogous concerns were raised by a Spanish court. In addition to the above-mentioned rule-of-law violations, the Polish government is disregarding democratic values and fundamental rights by continuously attacking the LGBTQ community, mainly for political advantage. In the run-up to both last year’s European election and the June 28 presidential election, President Andrzej Duda often made offensive comments and compared what he defined “LGBT ideology” to communism in order to mobilise his most conservative voters. According to a new Rainbow Europe ranking, Poland is the EU’s most homophobic country, with several towns making anti-LGBTQ declarations and endorsing “LGBTI-free” legislation or “family rights” resolutions. On top of these controversies, Polish Prime Minister Mateusz Morawiecki informed reporters in early August that Poland’s highest court will examine the Istanbul Convention, a European treaty aimed at fighting violence against women, which the country’s ruling party considers too liberal and views as a threat to religious and family values.

As far as Hungary is concerned, worries mainly relate to judicial independence, corruption, freedom of expression, minorities’ rights and the conditions of migrants and refugees. Since 2010, Prime Minister Viktor Orbán’s Fidesz party has in fact gradually dismantled the country’s democratic governance. Through subtle measures devised in a way that makes them hard to explain from a legal perspective, Orbán has been slowly obstructing opposition parties by taking half of their budgets, cutting tax revenues for opposition-led cities, and controlling the remaining independent online media. This last step led the democracy monitor Freedom House earlier this year to no longer classify Hungary as a democracy. Indeed, the lack of a vibrant free press in the county was fully witnessed in July, when the majority of journalists at Index, Hungary’s biggest news site, left their job after the removal from office of their editor-in-chief, who had cautioned that the publication was risking losing its independence. The end of Index comes two years after about 400 media outlets were merged into a conglomerate known as KESMA that increasingly controls the media landscape and is sympathetic to Prime Minister Viktor Orbán’s ruling party. Another recent move in Fidesz’s long-term trajectory to consolidate power was the introduction of the contentious ‘state of emergency extension’ bill on 30 March 2020 as a response to the Covid-19 outbreak. De facto, the new law gave the Hungarian government the right to rule by decree. Moreover, it also modified the country’s criminal code by introducing jail terms of up to five years for those spreading ‘fake news’ about the virus or false measures against it. Consequently, the so-called ‘Enabling Act’ has been heavily criticised by the opposition, human rights organisations and EU institutions, as they fear that the indefinite term of the prolonged state of emergency will result in a further restriction on freedom of expression and therefore also in a further erosion of the rule of law.

Upholding European Values: A Mixed Approach

EU institutions have already undertaken legal action against the two democratic backsliders. Both countries face several infringement proceedings before the CJEU and are subject to an Article 7 TEU procedure, which entails a sanctions mechanism stripping member states that violate liberal democratic values of their right to vote. However, this measure was revealed to be ineffective, as it requires the unanimous vote of all states except the state concerned, thus remaining stuck in the European Council, where Hungary and Poland have each other’s back. An alternative solution to prevent EU countries from eroding judicial independence and democratic values was advanced during the recent European Council budget negotiations. The summit conclusions read, ‘A regime of conditionality to protect the budget and Next Generation EU [the €750 billion recovery fund] will be introduced’ […]. ‘In this context, the Commission will propose measures in case of breaches for adoption by the Council by qualified majority.’ To clarify, the language seems to be tying the disbursement of EU funds to compliance with the rule of law, but the above wording is so vague that it is open to different interpretations. Polish and Hungarian Prime Ministers did not wait to declare victory in a joint press conference, as they believe that the requirement of a qualified-majority vote to impose sanctions is hardly workable due to the difficult task of assembling a qualified majority in the European Council. Conversely, advocates of tougher enforcement of rule-of-law standards claim that the leaders’ agreement has paved the way for the Council to take action previously hindered by the unanimity requirement codified in the EU treaties. An example of this is France’s European Affairs minister Clement Beaune’s announcement that Paris would fight for strong rules impeding countries that disregard democratic norms from receiving aid from the EU’s €750 billion coronavirus recovery fund. In this regard, we expect to see quite a dramatic fight in the months ahead and especially in the fall, when the details of the budget will be discussed and will have to be ratified by the European and national parliaments.

Nevertheless, even if the mechanism of withholding financial assistance becomes available to EU institutions, it may take two or three years before penalties are applied, as the debate on this issue in the European Parliament and among member states will most certainly last a while due to the lack of alignment on this matter. Indeed, though no one will ever say it loud, economically speaking, isolating a country like Hungary or Poland would not be beneficial to Western Europe either. While persisting on the legal and economic paths is necessary to reinforce the level of trust in the EU institutions of the rest of the member states, there is another way in which the EU can help respect the rule of law. By finding local partners, organisations and politicians in Poland and Hungary, the EU could play a fundamental role in empowering them to fight against illiberal governments. In other words, only local citizens and decision-makers can fully accomplish the task of upholding liberal and democratic values within their country, but their fight can and must be supported by the EU. If alignment over possible rule-of-law sanctions is difficult to achieve in a time of crisis, the coronavirus pandemic has rendered the Hungarian and Polish governments even more vulnerable to popular unrest due to their poor performance in dealing with the crisis. Crucially, this might be the right moment for the EU to help foster reforms from the bottom.