Poland and Hungary’s EU membership: On not confronting authoritarian governments Free

Abstract

1. Singling out Poland and Hungary?

Many member states are persistent violators of EU law, and every one of the European Union’s twenty-seven member states appears multiple times each year before the Court of Justice of the European Union (CJEU) charged with infringing various provisions of EU law. Looking at the most recent statistics from 2020 published by the European Commission: Spain, Greece, Italy, and Belgium are among the top offenders (together with former member state the United Kingdom), followed by Poland, with Germany just behind. Eight other member states are next, followed by Hungary in sixteenth place.¹ There seem to be a great many persistent violators when it comes to flouting EU law. And while some of these violations are likely to be relatively technical, many of them are serious and deliberate violations where a member state knowingly avoids complying with EU law requirements.² So why single out Poland and Hungary for special condemnation, and why inquire about the EU’s policy of political non-confrontation?

The chorus of critical voices raised against Poland and Hungary in recent years and the questioning of their status as EU member states is not because they are more frequent violators than other states, nor even because the Polish Constitutional Tribunal has recently challenged the supremacy of EU law³—something which other national constitutional courts had already to some degree done, even if not so frontally⁴—but because what they have been challenging and violating are said to be the core values on which the European Union is founded. In other words, it is not so much that these two states have been regularly breaching binding EU laws and regulations. Indeed, there is only sparse EU law governing the requirements of “democracy,” and until very recently, when the new Rule of Law Conditionality Regulation was adopted,⁵ there was equally sparse EU law concerning the “rule of law,” although there is a fairly substantial body of EU law governing human rights. Instead, the crux of the matter is that the actions of the two states are challenging what the EU calls its basic values.

2. What are the EU’s “values” and what is their real status?

What does it mean for these states to be challenging the EU’s basic values? This is not a purely rhetorical statement, in part because since the coming into force of the Amsterdam Treaty in 1999, the early articles of the EU Treaties now contain an explicit list of the “values” (initially called “principles” in the Amsterdam Treaty but later changed to “values” in the Lisbon Treaty of 2010) on which the European Union is said to be based.⁶ Article 2 of the Treaty on European Union (TEU or “Maastricht Treaty”) asserts that the EU is based on the values of the rule of law, democracy, and human rights (as well as “equality,” “human dignity,” and “freedom”), and declares that these values are “common to the Member States.”⁷ Backing up the assertion that the values are common to EU member states is Article 49 TEU, which specifies that respect for the values set out in Article 2 is a prerequisite and a condition for accession by any state to the European Union. Accompanying Articles 2 and 49 TEU in making clear that respect for human rights, democracy, and the rule of law (as well as equality, dignity, and freedom) are basic EU values and conditions for membership, Article 7 TEU establishes a censure procedure whereby the voting rights of any member state which is found to have breached one of these values in a serious and persistent way may be suspended.

There is, therefore, no ambiguity in today’s EU Treaty text, at least, about the current centrality of these values, and their stated importance to the EU and its ongoing legal and political functioning. On the other hand, these values were certainly not always expressed as a core dimension of EU law. In fact, these principles, later renamed values, were first included in the EU treaties as late as the 1990s, initially in weak form in the Maastricht Treaty in 1993 and then more strongly in the Amsterdam and Lisbon Treaties in 1999 and 2009. But for the first four decades of European integration from 1952 until 1992, there was no reference to such principles or values in the treaties. It is generally well known that after the failure of the draft European Political Community Treaty and European Defence Community Treaty in 1952, which would (had they been adopted and ratified) have integrated a bill of rights and included political conditionality, the European Economic Community (EEC), European Coal and Steel Community (ECSC), and European Atomic Energy Community treaties made no mention of human rights as part of EU law until around 1970.⁸ At that point the European Court of Justice reversed its earlier case law in which it had explicitly rejected human rights as part of the law of the new European communities, and announced that EU law was indeed “inspired by” the general principles common to member state constitutions and by human rights treaties which they signed, and that analogous principles formed part of EU law.⁹ Apart from the early absence of any reference to human rights, there was also no reference in the original EEC treaty in 1957 to any political conditions for accession to the new European communities. The treaty article dealing with accession, Article 237 EEC, did not specify any conditions, and the only rather indirect reference to the political character of member states was in a clause of the preamble to the EEC Treaty mentioning the states’ resolve to strengthen “the safeguards of peace and liberty.” The expectation that states seeking EU membership should be democracies and should observe the rule of law was first expressed in a Declaration on European Identity in 1973,¹⁰ and again in the 1978 Declaration on Democracy,¹¹ later to be developed in greater detail as the so-called Copenhagen Criteria in 1993.¹² However, compliance on the part of candidate member states with these criteria was not included in the EU treaties as a constitutional requirement until the adoption of the Treaty of Amsterdam in 1997.¹³

I will return, towards the end of the Reflection, to this issue and to the question whether the early reluctance and delay in making explicit the EU’s political and legal commitments to democracy and the rule of law is in some way linked to divisions within the EU today; and further, to ask whether there is any reason to doubt the assertion in the EU treaties that it is these values, and not others such as economic liberalization or market integration, that are core to the EU’s identity and raison d’être today. But at the very least, the history of the expression of these values in European primary law suggests some (at least initial) caution about making them explicit and, even more importantly for present purposes, ongoing reservations about backing the values up with real enforcement mechanisms.

Following the abandonment of the 1953 draft European Political Community Treaty (which had contained explicit human rights conditions for accession¹⁴) and up until the time of the 1973 declaration, although the question had from time to time arisen, and particularly when Spain under Franco sought an association agreement and eventual admission to the European communities,¹⁵ the idea that the new project of European integration was open only to democracies remained at best implicit. But with the prospect of eastward enlargement after the fall of the iron curtain in 1989, the references to EU fundamental values including democracy, human rights, and the rule of law became increasingly explicit and prominent in primary EU law, culminating in the eventual inclusion of what are now Articles 2, 7, and 49 TEU. By the time that Poland and Hungary joined the EU, the requirement that member states should respect democracy, human rights, and the rule of law both at the time of their accession and on an ongoing basis had certainly been made fully clear and explicit.

3. How seriously have Poland and Hungary breached the European Union’s stated values?

In what ways have Poland and Hungary undermined these stated values to a degree that goes beyond the array of substantial breaches of EU law and human rights violations for which all EU member states are responsible at times? The essence of the response to that question is that while the two states formally retain various characteristics of majoritarian electoral democracies, the ruling parties in each of the two countries over a number of years have acted to consolidate their power and to undermine many core elements of their country’s liberal democratic political system in a wide range of ways, moving them—albeit in different ways and to different degrees—closer to the authoritarian end of the political spectrum. These ways include:

• (i) Poland and Hungary subjecting the courts to political control including by reducing the retirement age of existing judges and replacing them with government-friendly appointees;¹⁶ and appointing government-friendly figures to other supposedly independent institutions such as the public prosecutor’s office;

• (ii) establishing government-approved disciplinary procedures (and, in Poland’s case, a special “disciplinary chamber”) and using these to discipline or terminate the appointment of judges who question aspects of the government’s agenda or who refer cases on the independence of judges,¹⁷ or on other topics to which the government objects, such as asylum law in Hungary,¹⁸ to the CJEU;

• (iii) repressing and de-funding civil society groups who challenge or question aspects of governmental policy (Hungary in particular,¹⁹ but also Poland²⁰);

• (iv) exercising increasing control over media freedom and dismantling media pluralism (Hungary²¹ and Poland²²);

• (v) smearing and harassing critics, including through civil and criminal defamation actions,²³ and repressing freedom of expression (e.g. seizing equipment of investigative journalists without warrant);²⁴

• (vi) repression of particular disfavored groups and minorities, including LGBTQ+ communities (Hungary and Poland),²⁵ targeting asylum seekers—e.g. by denying them food and rejecting EU laws on reception and treatment,²⁶ escalating anti-migrant rhetoric (Hungary and Poland); introducing laws to permit pushbacks of asylum seekers in breach of international law (Poland);²⁷ and (Hungary) blocking or (Poland) proposing to withdraw from the Istanbul Convention on Preventing and Combating violence against women;²⁸

• (vii) using the apparatus of law and order, and in particular the public prosecution offices, in a highly selective way to protect ruling elites; refusing to investigate prominent cases of corruption and illegality, and using the police and powers of prosecution to discipline and harass political opponents (Poland);²⁹

• (viii) using COVID as an opportunity to introduce wide executive and Prime Ministerial powers; for example, to declare a state of “medical” emergency, to avoid scrutiny of government (Hungary in particular).³⁰

These are not unsubstantiated allegations, but well-documented practices, policies, and laws which have been confirmed by many observers from both within and outside the two states in question. The Council of Europe’s Venice Commission for Democracy through Law, a highly reputable body with representatives from sixty-two states and composed of constitutional experts from universities, supreme and constitutional courts, national parliaments, and civil services, has expressed ongoing concern about the undermining of the independence of the Polish judiciary;³¹ the EU’s Commission has brought numerous “infringement proceedings” against both Poland and Hungary for many of the actions listed above and has condemned these actions in its annual rule-of-law report;³² and the CJEU has found infringements in virtually all of those cases.³³ The EU’s European Parliament has adopted resolutions condemning the actions of both member states, and formal censure proceedings under Article 7 TEU have been initiated by the EU Commission in the case of Poland, and by the European Parliament in the case of Hungary, against both member states.³⁴ Civil society groups within Poland and Hungary, as well as multiple external and international human rights organizations (including Amnesty, Human Rights Watch, the International Bar Association, the International Federation for Human Rights, and many more³⁵) have repeatedly condemned many of the different laws and changes introduced by the governments in both states, as well as their combined effect in undermining democracy.

While Viktor Orbán has famously asserted that Hungary is an “illiberal democracy”—suggesting that it is democratic but not liberal, in eschewing most of the liberal constraints on power including independent institutions and many elements of rights protection—Hungary has been moving closer to an elective autocracy in many respects. Elections take place, but several of the important preconditions for free and fair elections—a free and pluralistic media, freedom of association for civil society groups, and other independent institutions, as well as absence of government tampering with the electoral system—have been significantly undermined.³⁶ In other words, even the electoral component of democracy is weakened by the fact that the party in power increasingly controls the state, quashing and punishing political and civil society opposition; shutting down, expelling, or controlling independent institutions, silencing critical voices; and funneling money towards loyalists.³⁷ And while there is some hope at present that a united opposition, despite these restrictive circumstances, might nonetheless manage to defeat Orbán’s ruling party in elections in April 2022, many of the changes his government has introduced have been enacted into the Constitution, making it more difficult for any future opposition parties that may come into government to undo them without a two-thirds majority.³⁸

In Poland, a greater degree of freedom of association and civic space remains, and while the public media are increasingly under governmental control, there has not yet been a takeover of the private media in the way there has in Hungary. Nevertheless, an attempt by a state-owned company to buy out a large number of regional newspapers,³⁹ and a proposal for a controversial tax on the private media which would exempt state media,⁴⁰ represent steps in that direction. The systematic undermining of judicial independence and attempts to bring other independent institutions under the control of the ruling party have seriously corroded Poland’s formerly consolidated democratic system. According to the rankings of Freedom House in 2021, Hungary is no longer a democratic system, while Poland is no longer a consolidated democracy but has fallen to being “semi-consolidated.” It has also fallen sharply in the democratic and rule-of-law rankings compiled by other organizations such as the World Press Freedom Index and the World Justice Project, as well as the Economist Intelligence Unit.

4. No power of expulsion?

What has been the consequence for their EU membership of Hungary’s move from being a democracy into an authoritarian system, and the steep decline in the quality of Poland’s democratic system, particularly with regard to judicial independence? The answer is that both states retain full EU membership, with all the rights and privileges that entails. In the remainder of this Reflection, I consider how and why this is the case, given that neither member state would currently fulfil the criteria for membership, and what that means for the EU.

The first and simplest answer to the question why their membership remains unaffected is that there is no formal mechanism to expel a member state from the European Union contained in the EU treaties. Indeed, until the enactment of Article 50 TEU by the Lisbon Treaty in 2010, there was no express provision for a member state to leave the EU voluntarily, either. Nevertheless, even in the absence—prior to 2010—of a treaty provision on leaving the EU, few doubted the political reality of the fact that if a member state wanted to leave, it would do so, even if the political process would be messy. Could the same perhaps also be said about an implicit power of expulsion of a “rogue” member state? In other words, if there was an implicit power of exit before the enactment of Article 50 TEU, why not an implicit power of expulsion too, before—and perhaps even after—its enactment?

Several arguments can be made against such an implied power. In the first place, Article 7 TEU sets out the contours of a power of suspension of voting rights in the Council for any state found to have seriously and persistently violated the values of democracy, human rights, or the rule of law, and the inclusion of this power of suspension arguably excludes any implied power to expel. Article 8 of the Statute of the Council of Europe (a larger Europe-wide organization of forty-seven states), by comparison, includes a power to suspend the rights of a member state which has seriously violated the obligation to respect human rights and the rule of law and the obligation to collaborate sincerely with the Council of Europe, as well as a power to request such a state to withdraw from the Council of Europe, and the power to expel a state which refuses in these circumstances to withdraw.⁴¹ Indeed, Russia was recently expelled from the Council of Europe on 16 March 2022. However, a similarly explicit power to expel an EU member state was proposed but rejected during the drafting process of the precursor to Article 50 TEU, during the Convention on the Future of Europe.⁴² This seems to point to a deliberate decision having been taken not to provide for an expulsion option. The European Court of Justice in the Wightman case concerning Brexit also took the view that no such power to compel a Member State to leave the EU exists.⁴³ Finally, commentators have argued that, even in international organizations which do enjoy a power of expulsion, the move to expel is generally seen as a very last resort, rarely to be used,⁴⁴ and particularly in an organization as closely integrated as the EU.⁴⁵ Among the many negative effects that expulsion could have on the citizens of the member state, being expelled would mean the likely revocation of their EU citizenship, a status which the EU conferred by virtue of their holding the nationality of a member state.

Others, however, have argued that it cannot be the case that an international organization whose founding instruments do not explicitly provide for expulsion could never expel a state no matter how bad the circumstances, and that it is important that an organization like the EU should be able to avail itself of residual rules of international law such as the “material breach” provision of Article 60 of the Vienna Convention on the Law of Treaties to terminate the treaty as between a persistent rogue state and the other parties to the treaty.⁴⁶ Indeed, Dutch Prime Minister Mark Rutte in 2021 raised the question, when Poland and Hungary tried to block the adoption of the EU budget, including an extensive pandemic relief fund, because of the proposed “rule of law conditionality” Regulation which accompanied it at the time, whether it would be possible to establish an alternative European Union organization without those two member states.⁴⁷ Even short of a formal power of expulsion, of course, an EU member state could presumably be requested to withdraw. The absence of a formal expulsion mechanism would not necessarily prevent a political move of this kind, although there would be no way of compelling the requested state to exit.

Hence the first and clearest answer to the question why Poland and Hungary are both still member states despite their growing authoritarianism is that there is, at present, no explicit EU power of expulsion, and at the very least some doubts about whether an implicit power of expulsion could exist under international law, or whether a request to leave would have any effect.

5. Political reluctance to confront Poland and Hungary

Setting aside the dramatic option of expulsion, however, the contention of this Reflection is that there has been a notable political unwillingness to confront Poland or Hungary in a robust way, a reluctance to challenge their actions or to impose a real political cost. In particular, despite sharp and continued criticism from civil society groups, from international organizations and independent bodies over several years, and despite the extensive array of actions corroding democracy in both states, there has been little by way of response from the Council of Ministers, the European Union’s main intergovernmental institution.

After considerable prevarication and delay, the first step in the censure proceedings under Article 7 TEU (which could eventually lead to a suspension of the voting rights of a member state) was initiated against each of the two states, but in neither case was the procedure initiated by the Council of Ministers. In the case of Poland, it was the European Commission, a body which is relatively independent of the member states, which triggered the Article 7 procedure in 2017, and in the case of Hungary the European Parliament eventually moved to open the procedure in 2018. But only the first step towards initiating these proceedings has been taken, and they have remained effectively frozen since that time. The reason for the deadlock is that despite multiple “discussions” in the Council (in which Hungary and Poland apparently made lengthy and unenlightening PowerPoint presentations without much by way of real engagement), the requisite next step under Article 7(1) TEU, which would be a decision by four-fifths of the twenty-seven-member Council that there is “a clear risk of a serious breach by a Member State of the values in Article 2 TEU,” has not been taken. In other words, there appears to be little political appetite among member state governments, or at least among a sufficient number of them, to censure Hungary and Poland, despite extensive and increasingly comprehensive departures from democratic standards. Part of the reluctance—but certainly only a part—can be explained by the fact that even if the next step were to be taken under Article 7(1) by a majority decision of the Council of Ministers that a risk of serious breach of EU values existed, a further step involving a unanimous decision by the European Council under Article 7(2) that such a serious and persistent breach actually did occur is ultimately required before any move to suspend voting rights under Article 7(3) could take place. And since there are currently two offending member states, it is virtually certain that each would block the requisite unanimity required to censure the other. It is also possible that the member state representatives in the Council of Ministers consider that it is not worth spending the small amount of political effort needed to move to the next step of the Article 7 procedure if it will stall at that stage, or perhaps they do not want the inability of the EU to use its censure procedure effectively to be so sharply highlighted. Nevertheless, the fact remains that they have chosen to eschew the opportunity afforded by the availability of a majority vote under Article 7(2) to express the European Union’s political opposition to Poland’s and Hungary’s attack on the EU’s supposedly fundamental values.

A second and potentially robust mechanism for confronting Poland and Hungary is that of funding conditionality—i.e. making the grant of (extensive and much-coveted) cohesion and structural funds dependent on compliance with EU values. Not only would the denial of such funding be unwelcome to the governments in its own right, but the denial of funding could also undermine the popularity of the governments which arguably rests at least in part on their EU-backed domestic spending. While certain forms of budgetary conditionality—including macroeconomic conditionality but also social conditionality—existed already under EU law,⁴⁸ it was only in 2020 that a Regulation adopting a rule-of-law conditionality mechanism for EU funding was adopted.⁴⁹ At the time it was being adopted, Poland and Hungary threatened to veto the entire EU budget, including the post-Covid stimulus known as the Next Generation EU Fund, due to their opposition to the new rule-of-law conditionality regulation.⁵⁰ The Regulation was already quite limited in scope, in the sense that it links rule-of-law conditionality firmly to the protection of the EU’s financial interests,⁵¹ but the heads of state and government of the member states within the European Council weakened it further by adopting a declaration specifying that before the measure could be applied in relation to any member state, the Commission would have to first adopt guidelines on its application, and that these guidelines should not be concluded until after the Court of Justice had ruled on any action for annulment of the Regulation.⁵² This highly unusual political intervention by the European Council to soften and delay any activation by the Commission of the budgetary conditionality mechanism drew extensive criticism.⁵³ Hence, while the EU member states did eventually agree to adopt a form of rule-of-law conditionality, it was enacted in rather a limited form which may be difficult for the Commission to use, and it was further postponed and softened in order to alleviate the threatened Polish and Hungarian veto.

A further and somewhat shameful concession made by the EU member states to Hungary was to yield to Victor Orbán’s opposition to the nomination as EU Commission President of Franz Timmermans, an EU official who had shown himself to be unintimidated and willing to challenge Hungary and Poland firmly on rule of law issues.⁵⁴

It is worth noting, however, that while member state governments have chosen not to take the next step with Article 7 TEU proceedings, and have not been willing to bring infringement proceedings themselves under Article 259 of the Treaty on the Functioning of the European Union against either Poland or Hungary, some individual governments have more recently begun to show their support for the actions of the other EU institutions challenging Poland and Hungary.⁵⁵ The legal representatives of five member states supported the Commission in its infringement action against Poland in relation to the Disciplinary chamber,⁵⁶ while the legal representatives of ten member states appeared in court to support the EU Regulation on Rule of Law conditionality in response to Hungary and Poland’s challenge to the validity of that measure.⁵⁷ Further, during a Council meeting in June 2021, Hungary was challenged and openly criticized by multiple member state representatives in relation to its new law banning the portrayal or “promotion” of homosexuality among those aged under eighteen.⁵⁸ And it is clear that some governments are more concerned than others about democratic erosion in Hungary and Poland. Yet there is a continued unwillingness on the part of the member state governments, whether alone or within the EU Council of Ministers, to take firm political action, and they have continued to avoid confronting Hungary and Poland directly with the fundamental unacceptability and incompatibility of their authoritarian practices and policies with EU membership.

6. Supranational confrontation of Poland and Hungary

On the other hand, while the EU’s intergovernmental bodies—the Council and the European Council—have remained mostly silent or unwilling to take firm action against Poland and Hungary, the supranational and independent bodies, particularly the Commission and the Court of Justice, have been more active.⁵⁹ While the Commission has not as yet followed the advice of some scholars advocating for “systemic” infringement proceedings to be brought against the two states,⁶⁰ and has been slower to act against Hungary than against Poland particularly in relation to judicial independence,⁶¹ it has nevertheless brought multiple infringement proceedings against both Hungary and Poland, including cases seeking urgent interim measures, and seeking the imposition of a penalty payment.⁶² The Commission has also used the proposed disbursement of EU pandemic funding, and its supervision of member state national recovery plans, to put pressure on Poland and Hungary to respect the rule of law,⁶³ and has suggested that it may soon invoke the new rule of law conditionality Regulation to withhold other forms of EU structural funding too.⁶⁴ The CJEU has given rulings in many infringement cases and also in multiple other preliminary references from national courts involving authoritarian-style measures adopted by Poland and Hungary. Infringement proceedings have been brought to the Court against Hungary in relation to its forced closure of the Central European University in Budapest, its imposition of restrictions on civil society organization and funding, forcing the early retirement of judges in order to fill the courts with government-friendly appointees, violation of EU asylum rules, and criminalization of support for refugees, among others. Numerous rulings have also been given by the CJEU against Poland in relation to its interference with the independence of the Supreme Court and the ordinary courts, by forcing the early retirement of judges, significantly increasing the number of judges, and filling the tribunals with political appointees; and the establishment of a government-friendly Disciplinary Chambers of the Supreme Court to discipline judges whose rulings displease the government, for example by making preliminary references to the Court of Justice on issues related to judicial independence. The CJEU has so far condemned both Poland and Hungary in all of the many infringement cases brought by the Commission.

Similarly, in multiple cases referred to the CJEU via the preliminary reference procedure from various Hungarian and Polish courts, which raised questions about the compatibility with EU law of measures taken to undermine their independence and subject them to disciplinary action, the CJEU reaffirmed the obligation to maintain an independent judiciary as a core requirement of EU law.⁶⁵ The CJEU also imposed a pecuniary penalty of EUR 1 million per day on Poland for failing to implement an interim order of the Court to suspend the judicial disciplinary mechanism which had been condemned in earlier CJEU proceedings.⁶⁶ Most recently, the CJEU has upheld the validity of the Rule of Law Conditionality Regulation in a challenge brought by Poland and Hungary, and ruled that the values inArticle 2 TEU “define the very identity of the EU as a common legal order” and that they “cannot be reduced to an obligation which a candidate state must meet in order to accede to the European Union and which it may disregard after its accession.”⁶⁷

The European Parliament too—another supranational EU body, although a more political one than the Court or Commission—has been active in condemning the actions of the Polish and Hungarian governments. While it has mainly done so through resolutions, debates, and oral condemnations, the Parliament also played a key role in triggering Article 7 proceedings against Hungary, and more recently brought proceedings against the Commission to condemn it for failing to institute “funding conditionality” proceedings designed to withhold EU funding from member states which are violating the rule of law.⁶⁸

The Polish and Hungarian governments, however, have been active and creative in denying, blocking, delaying, challenging, or watering down various possible confrontational measures, sometimes by using the EU’s own legal and political toolkit against it. Their conduct in relation to the EU has not always been characterized by an aggressive or hostile response (although there have also been numerous of these, as with Orban’s poster campaign against then Commission President Juncker,⁶⁹ or Poland ruling party members comparing the EU to the Soviet Union or the Nazi occupation⁷⁰), but usually by a well-calibrated set of legal reactions which may often mislead external observers. Both Poland and Hungary have played a cat-and-mouse game with the European Union, regularly introducing what appear to be reforms in response to CJEU rulings, for example on Hungary’s “transparency law” which sought to restrict civil society funding,⁷¹ or Poland’s reaction to CJEU rulings about forcing the retirement of Supreme Court judges, when in fact the reforms largely avoid the implications of the rulings and continue the substance of the violation in a slightly different way. Similarly, the Polish government proposal to address the EU’s objections to the judicial Disciplinary Chamber was another example of an eleventh—or perhaps more accurately thirteenth—hour tactical retreat in order to avoid the forfeiture of EU pandemic relief funding.⁷² The move by the Polish Prime Minister in 2021 to ask the government-friendly constitutional tribunal to rule on the compatibility with the Polish Constitution of the EU treaties was a more openly confrontational stance on Poland’s part, reflecting perhaps a decision to call the EU’s bluff in the expectation that no real political censure would follow while gaining credit with Law and Justice Party (PiS) supporters at home.⁷³

7. Examining the political failure to confront

What is it that explains the unwillingness of EU member governments, and the intergovernmental institutions of the European Union, to confront Hungary and Poland over their deliberate erosion of democratic and rule-of-law standards? Given how openly and continuously the two states have been defying core values asserted as foundational to the EU, why have the EU’s political institutions been reluctant to equip themselves with stronger instruments to enforce rule-of-law and democracy requirements, and reluctant to use the instruments that they had created?

One possible explanation could be that the relative lack of response of member state governments to the rejection of liberal democracy in Poland and Hungary points to Article 2 TEU being primarily a form of virtue-signaling or symbolism, rather than a real statement of the values which are fundamental to the EU. In that sense, and returning to the discussion at the beginning of this Reflection, the question is whether the fact that respect for democracy and the rule of law were added so late to the treaties as EU values and as conditions for accession was not accidental, and that these are not in fact core values for the European Union. When the EEC was founded in 1957, it was as an economic community—with the aim of ensuring peace and prosperity, to be sure, but without any central commitment being expressed or made to other political values. The fact that democracy, human rights, and the rule of law were included at a much later stage, and—most importantly—without adequate mechanisms to enforce them, would not necessarily transform them into genuinely foundational values. Indeed, some might point to the fact that the closest a member state has come to risking having to leave the European Union (and the Eurozone) was probably the case of Greece during the Eurocrisis as evidence of the priority of economic over political integration in Europe. Further, as has been discussed in detail during decades-long debates over the “democratic deficit” of the EU, the European Union’s own political system is, at best, a thin and complex form of transnational democracy which lacks some of the important dimensions that characterize national democracies, in particular responsiveness to the electorate. The fact that the EU is a transnational organization composed of states rather than being itself a nation state means that its own democratic qualities do not easily map onto those of fully politically integrated nation states, and this may give rise to skepticism or at least doubt about what the commitment to democracy in Article 2 entails for the organization itself.

Nevertheless, for a number of reasons, including the discussion in Section 2 of these political values being assumed if not formally expressed, in the early years of European integration, I am not convinced by the argument in the previous paragraph that the declared EU commitment to human rights, democracy, and the rule of law is symbolic only. However, it is unquestionably the case that EU member states have always been reluctant to give the EU a role in monitoring these values, and such mechanisms as have been created to monitor them—including Article 7 TEU—have been made deliberately cumbersome and difficult to use. The consequences of this reluctance on the part of member states to be held accountable to the European Union for the quality of democracy, human rights, and the rule of law within their own political systems, and hence their reluctance to establish robust monitoring mechanisms for the European Union’s declared values, have become all too obvious in recent years in relation to how the EU has addressed the erosion of democracy and the rule of law in Hungary and Poland.

Below I suggest various reasons, some of which are related, as to why the European Union’s political institutions and many member states have been unwilling to confront Poland and Hungary in a more robust way about their authoritarian drift.

The first reason relates to the typical reluctance of states within international organizations to sanction one another. Compare, for example, the small number of interstate complaints and cases brought within the European Convention on Human Rights system with the hundreds of thousands of individual complaints brought.⁷⁴ Such interstate enforcement is reasonably rare, in the absence of armed conflict or other significant adverse externalities imposed on a state by the breaches of human rights by another state. And within the European Union, the functioning of the Council of Ministers is dominated by inter-governmentalism, not only in the sense that Poland and Hungary will support one another against criticism or action by others, but that other governments too are often reluctant to openly censure a fellow Member State. Governments may well fear that if they act against another member state government, there could later be retaliation against them in another form. These considerations have been referred to in the EU context as arguments of “reciprocal deference” and “state self-preservation.”⁷⁵ And indeed the modus operandi—what might even be called the DNA—of the European Union is such that it has tended always to avoid confrontational strategies as between its members, and to prefer legal to political action. Confrontation, in the shape of legal enforcement actions, is frequently left to the Commission, enabling the member state governments to operate like a club. This reflects the European Union’s long-term self-understanding, even in the absence of explicit early conditionality requirements for membership, as a community of “like-minded” states, and it may be that they are reluctant to abandon or modify this understanding even when the “like-mindedness” is no longer there.

A second and related reason for political non-confrontation may be that, although Poland and Hungary are the two member states which have moved furthest towards the authoritarian end of the political spectrum, there are other member states in which institutions of democracy or the rule of law have been weakened or undermined in recent times. Serious rule-of-law problems in Malta were brought to light with the murder of Daphne Caruana Galizia; and the European Parliament has expressed concerns in relation to judicial independence in Malta, as well as in Slovakia and Romania. Freedom of the press has been under attack in Bulgaria (which in 2021 was ranked 112 out of 180 in the World Press Freedom Index published by Reporters without Borders). In Slovenia, populist Prime Minister Janša, an outspoken admirer of Hungarian Viktor Orbán, has also approved and echoed Hungary’s anti-migrant platform and rhetoric, and government challenges to freedom of the press there as well as to the European Union’s anti-corruption efforts have raised serious concerns. Many other examples could be given, which highlight some additional reasons why a number of EU member governments may be at best reluctant to confront Poland and Hungary for their anti-democratic attacks on institutions such as judicial independence and press freedom.

A third possible reason is that member states—and possibly other EU actors—may believe that tough confrontation including through suspension of rights or withdrawal of EU funding will not help to resolve the problem of growing authoritarianism in Poland and Hungary, and might even escalate or further entrench the situation, and increase domestic support for those two governments. The hope may be that these governments will eventually be defeated despite their attempts to control their electoral systems. The uniting of the Hungarian opposition to challenge Orbán temporarily raised the possibility of his defeat in the April 2022 election, for example.⁷⁶ The calculus on the part of the European Union may be that it is better to wait it out, not to risk alienating the government in question, or pushing it to consider leaving the EU, but rather to hope that political change will come from within these states despite the ruling parties’ efforts to retain power through limiting democratic opposition, controlling the media, and punishing political adversaries. Relatedly, since the population of both Hungary and Poland appears divided, with a significant percentage of the citizenry both supporting EU membership and opposing the antidemocratic actions of their current government, other member state governments may fear that taking robust action such as suspension of rights or refusal of EU funding might weaken the position of those parts of the population or abandon them, rather than helping them mobilize to defeat the authoritarian government.

A fourth possible reason for avoiding confrontation, censure, or sustained political pressure on Poland and Hungary could be the recent and damaging experience of Brexit. Following the departure of the United Kingdom, member states may well fear further fracturing or fragmenting of the EU, with the concomitant risk of additional weakening and dilution of its global standing and influence, and they may be willing to overlook the steep democratic decline within these two member states in order to avoid that. Angela Merkel’s urging of EU leaders to avoid confronting Poland and to find a compromise which would keep the European Union united has reflected this kind of position.⁷⁷

A final possible reason for avoiding tough political action is the fear of driving states like Hungary closer towards actors like Russia, creating further geopolitical instability or security risks for the European Union. While this has been a concern for some time, the brutal Russian invasion of Ukraine in February 2022 has dramatically exposed the dangers posed by Russia to European security and peace.

None of these reasons necessarily implies that the EU collectively or even the majority of member state governments individually are indifferent to the sharp decline in democracy in Hungary and Poland. The values expressed in Article 2 TEU may well reflect a sincere commitment on the part of most EU member states, even if there are laggards and challenges from populist governments from time to time. But there are, as argued above, likely to be several and in some case interwoven reasons why the EU’s intergovernmental actors have refrained from imposing real pressure on Poland and Hungary. Apart from their longstanding reluctance to engage in mutual or collective monitoring of (anti)democratic policies and practices, the reticence of the European Union’s intergovernmental actors in this respect reflects in part a kind of calculated gamble that the situation might not be improved by confronting, seeking to suspend the rights of, or denying EU funding to states like Hungary and Poland; and that treating them as “normal” member states and seeking to persuade them through diplomatic and other softer means to reform, while leaving attempts at limited legal enforcement to the Commission and Court, is likely to work better in the long run. This strategy may reflect an assumption that if a long game is played, the autocratic systems may eventually fall and the “rogue” states will return to democracy through their own internal political processes. Other member states may hope that repeated Commission actions before the Court of Justice, penalty payments imposed by the CJEU, rule-of-law reports from the Commission, monitoring of EU pandemic funding, and condemnations by the European Parliament will be sufficient to induce reform or domestic political defeat for the authoritarian political parties, and a renewed domestic commitment to constitutional democracy.⁷⁸

8. Criticizing the political unwillingness to confront

But what if the gamble is mistaken? What are the risks for the EU of failing to confront its increasingly authoritarian member states?

An initial assumption on the part of member state governments may be that there are few externalities or costs for other member states to bear from the authoritarian direction of Poland and Hungary. Most of the costs of authoritarian systems may seem to be borne by that state’s own population, and particularly by those segments of the population who do not support, or are not in favor with, the authoritarian government and its program. However, there are significant costs and risks associated with the strategy of political non-confrontation. In the first place, there are risks and costs for the European Union in failing to confront the turn away from liberal democracy in Hungary and Poland. Second, there are costs for its individual member states and their populations. Third, there are also risks to the values themselves, to the meaning of democracy, and to the rule of law in the European Union.

In the first place, the stature and authority of the European Union as a promoter of democracy and human rights elsewhere and its authority to speak out against authoritarianism in other parts of the world are weakened significantly by the fact that two of its own members have become increasingly autocratic. The distinctiveness of the European Union as a regional organization in the world has become bound up with being not just a wealthy economic bloc but a liberal democratic one committed to the values of human rights, democracy, and the rule of law. Further, the European Union’s policies of neighborhood and enlargement, both of which are premised on respecting human rights and democratic conditionality, are undermined by the existence of member states with increasingly authoritarian political systems. It is difficult for EU negotiators to remind prospective candidates about the Copenhagen criteria if it is quite evident to them that those criteria are not taken seriously or enforced within the Union.

In the second place, the EU is damaged in other ways by the decaying democratic standards in Hungary and Poland. National courts in states across the EU including the Netherlands,⁷⁹ Germany,⁸⁰ Ireland,⁸¹ and Spain⁸² have recently questioned the independence of the Polish judiciary, and have hesitated or refused to surrender suspects to Poland under the European Arrest Warrant system. The more this practice spreads, and not only in the context of the Arrest Warrant system, the more the EU’s functioning as a legal system and a single market is likely to be undermined. The operation of the European Union relies on a significant degree of trust between member states, including trust between their judiciaries and other institutions, and this is likely to break down if there is increasing refusal by national judiciaries to cooperate with their counterparts in member states in which the judiciary is politically controlled. A somewhat different example of the risks to member states of the erosion of judicial independence in another member state was highlighted in a recent Irish case which concerned not an arrest warrant, but a custody dispute over children whose Polish mother refused to return the children to Ireland (where they were born and where their father lived) after a vacation in Poland. A Polish court had ruled in favor of the father and declared that the children had been unlawfully kept in Poland, but this judgment was overturned after the Minister for Justice, who is also the Public Prosecutor, intervened to make an “extraordinary complaint” to the Supreme Court to annul the lower court ruling.⁸³ The reporting of this case in Ireland drew attention specifically to concerns about the erosion of judicial independence and of Polish governmental interference in the legal system, and to the impact even on citizens elsewhere in the European Union, including in cases which have no obvious political dimension.

In the third place, the EU institutions themselves are composed of representatives and nominees from the member states—this includes the Council of Ministers, the Commission, the Court of Justice, the European Parliament, and multiple other EU institutions and agencies. To the extent that the representatives from Poland and Hungary are supporters of the ruling party and reflect or implement authoritarian and illiberal values, the EU and its institutions are brought under pressure to move in the same direction. This is not a far-fetched or implausible scenario. To give just two examples: the Polish government recently nominated as its candidate to fill a vacancy at the European Court of Justice Mr. Rafal Wojciechowski, who was one of the judges on the contested Constitutional Tribunal who ruled, at the government’s request, that provisions of the EU treaties were unconstitutional;⁸⁴ and Olivér Várhelyi, who was nominated by Hungary as Commissioner for Enlargement, has been sharply criticized for compromising rule-of-law standards.⁸⁵

Finally, there is as much chance that by “playing the long game” and failing to confront Hungary and Poland, authoritarianism will spread rather than abate. Slovenia is currently run by a right-wing demagogue and conspiracy theorist, Janez Janša, who is a close ally of Orbán’s. The independence of the judiciary in Romania is seriously compromised.⁸⁶ Far-right and extremist parties have gained in popularity in various other member states. All EU member states, including Hungary, may now have united in opposition to Russia’s aggressive invasion of Ukraine, but the risks of ignoring or underestimating the dangers of authoritarianism whether within or outside the EU have been highlighted again.⁸⁷ If it is clear to emerging autocrats in other member states that no effective action will be taken against them by the EU, they have every incentive to continue and to expand their anti-democratic actions.

These, then, are the risks of non-confrontation, of having asserted democracy, human rights, and the rule of law as foundational EU values, but having created weak political enforcement mechanisms, including a difficult-to-activate suspension clause that requires unanimity at a crucial stage, and a funding conditionality procedure that requires rule-of-law concerns to be linked to the European Union’s financial interests. The gamble that EU member states are taking in failing to confront Hungary and Poland is that the nature of the European Union itself will gradually change, both with the breakdown of mutual trust and mutual recognition on which the internal market and the area of judicial cooperation depends, and with the spread of authoritarianism both within the EU institutions and in other member states. Even the values themselves—the meanings given to democracy, the rule of law, and human rights within EU law and policy—are constantly weakened and eroded by the toleration of and the failure to challenge authoritarian practices.

The temptation to stand back and let things unfold and assume they will gradually resolve over time may be strong, and national governments have to some extent given in to this temptation. But the risk to be contemplated is a European Union which is not just one with small reversible pockets of illiberalism and clear paths out of authoritarianism over time, but an entity which is primarily a large regional market and is little different from other free trade areas and regions dominated by politically authoritarian systems. And in that case, the assertion of values in Article 2 TEU would indeed be little more than the flimsiest of window dressing, a relic of more optimistic times.

I am grateful to the participants at the Cambridge Centre for European Legal Studies Webinar in February 2021, and at the Global and Comparative Public Law Colloquium at NYU in November 2021, as well as to Wojciech Sadurski and all members of the I•CON editorial team for their comments.

Footnotes