By Israel Butler (PhD Nottingham, LLM Nottingham, BA Cantab.), Head of Advocacy, Civil Liberties Union for Europe
Poland and Hungary have serious problems when it comes to respect for the rule of law, certain fundamental rights standards and the proper functioning of a healthy democracy. These form part of the EU’s fundamental values, set out in Article 2 of the Treaty on European Union (TEU) and proper implementation of these values is a prerequisite for EU membership. This blog will take a look at what the European Commission has managed to achieve so far to bring these two governments back into line and suggest what it could do in the future within its existing powers.
The traditional tool used by the Commission to secure compliance with EU law is infringement proceedings. Unfortunately, the EU does not have general competence in the field of fundamental rights. It has a negative obligation not to infringe on rights when it legislates. But it has used its legislative powers to incorporate fundamental rights standards into regulations and directives relatively sparingly and has been slow even to enforce the standards that do exist. For example, it took the Commission over a decade to begin proceedings against certain Member States under the Racial Equality Directive despite well-documented discrimination against Roma. If the Commission wishes to use infringement proceedings on issues related to the rule of law, it has to overcome its reticence to enforce fundamental rights standards, and be creative – the latter being a characteristic in short supply in the Commission Legal Service.
Early in Hungarian Prime Minister Orbán’s tenure, the Commission won cases against Hungary relating to the early retirement of judges (which it argued as an age discrimination case) and the premature termination of the mandate of the data protection ombudsman (who was replaced by a new data protection authority headed by a political appointee). However, this did not produce any changes in practice. Only around one fifth of the judges were returned to post (and not necessarily to their original positions) and the new data protection authority was created as planned. Recently, the Commission has been more adventurous in its use of infringement proceedings. In particular, by going after Hungary’s anti-NGO law using rules on free movement of capital and going after Poland’s judicial reforms on the basis of a general principle of EU law that requires effective remedies for citizens exercising their EU law rights. One might note that these were both solutions previously suggested to the Commission by civil society organisations. It remains to be seen whether these cases will make a real impact on the ground.
Infringement procedures are good for executing surgical strikes on problematic pieces of legislation. But they are not very effective against broad concerted reforms designed to destroy the division of powers. When it came to other rights-related issues, the Commission has attempted to place political pressure on Hungary in conjunction with the Council of Europe and made vague threats about Article 7 TEU. But it’s difficult to conclude that legal or political tools have prevented the regime from pushing ahead with efforts to bring state institutions under party control.
The rule of law framework
In response to a call from the Council to create some kind of new mechanism that was more powerful than infringement proceedings and more easily activated than Article 7 TEU, the Commission created its ‘framework on the rule of law’ in 2014. The framework sets out a process of dialogue to be followed in cases where a government has created a systemic threat to the rule of law. The process concludes with the Commission issuing non-binding recommendations to be implemented by the government in question. This author and many in academia criticised the rule of law framework as half-hearted and self-defeating. Mostly because it relies on the goodwill of the targeted government to voluntarily repair the situation – goodwill that is unlikely to exist if the government is deliberately and seriously sabotaging the rule of law. We have seen a clear demonstration of this weakness in the Commission’s dialogue with Poland, whose government has ignored, mocked and rebuked the Commission and its recommendations.
However, the modest rule of law framework was probably the most the Commission could hope to achieve at the time, and even then, some Member States tried to derail it. Conversations with some of the architects of the framework suggest that the Commission was trying to codify the process of dialogue, which it had had to improvise with Hungary, to avoid future accusations of ‘making it up as it went along’. The Commission also seems to have created the framework as a means of making the subsequent activation of Article 7 TEU – which makes governments very nervous – easier. The long process of dialogue gives the Commission time to gather political support among governments, time to show that a thorough and impartial analysis has taken place and time, if the targeted government is confrontational and diplomatically clumsy, for other Member States to lose sympathy.
This appears, at least, to be the case with the Polish government when, in an unprecedented move in May, the Council discussed the rule of law in one of their own Member States. Poland was again on the Council’s agenda in September. While subtle, there were signs that the Commission may be succeeding in using the framework to bring governments slowly around to the view that activating Article 7(1) TEU may become inevitable.
Why Poland but not Hungary?
The Commission has been criticised for not activating its framework on Hungary. Objectively speaking, Hungary’s situation is still worse than Poland’s. Legally, it is difficult to make the case that the difference in treatment in justified. The Commission’s line on Poland has been that the government is acting in contradiction to its own constitution in the way that it has interfered with its judiciary. This suggests that the Commission regards Hungary as a different case because everything that Orbán has managed to do (including clipping the wings of the highest courts and packing them with friendly judges) has been in line with national law. But this is because his super-majority has allowed him to change the constitution whenever he needed to. This is not only an unsatisfying distinction. It also suggests that the Commission sees the rule of law as ‘rule by law’, according to which the quality of the democratic process and the compliance of laws with fundamental rights doesn’t really matter as long as legislation is enacted according to the correct formal procedure.
The real reason Hungary’s government has escaped the pressure facing Poland is that the ruling party, Fidesz, belongs to the largest political grouping in the European Parliament, the European People’s Party (EPP). This group has shielded the Hungarian government from criticism. Splits are now emerging in the EPP, but the German government (also part of the EPP group) has been unwilling to sanction steps against Hungary. This is because the German government’s junior coalition partner is supportive of Fidesz. And Germany’s recent election has only deepened the ruling party’s dependence on that junior partner. This situation has hitherto meant that the Commission knew it probably would not have support among the Member States in the Council if it triggered Article 7(1) TEU. In Poland’s case, however, the ruling Law and Justice party belongs to a relatively small group in the European Parliament, the European Conservatives and Reformists group (ECR), which has been unable to protect it. This has allowed stronger criticism of the Polish government to emerge from the Commission and the European Parliament.
So what’s next?
For the EU to adopt any kind of sanction against Hungary or Poland, the Council would have to activate Article 7(2) TEU, which requires unanimity minus the Member State under examination. Some see this as a dead end because Poland and Hungary will protect each other with their vetoes. But there is still a way that Article 7(2) TEU could be triggered against both governments. The European Parliament is currently working on a resolution to trigger Article 7(1) TEU in relation to Hungary. If the Commission triggers Article 7(1) TEU on Poland, then both governments could land on the Council’s agenda at the same time. And it’s been suggested that a vote to activate Article 7(2) TEU could be taken on both countries simultaneously. That would exclude both of them from the vote and prevent either from using their veto to protect the other.
There are other possible measures. The EU could cut off structural funds, which are seen as vital to the economies of both countries. Current rules allow funding to be stopped if the government does not have an administrative and judicial system in place to ensure money is spent according to national and EU law. For Hungary it’s arguable funding could be suspended because of corruption. For Poland, because the courts are no longer independent and so cannot be presumed to ensure the proper application of national and EU law. The risk is that suspending funding may have negative consequences for the general population: the very people the EU is trying to protect.
Broader reforms to safeguard against right wing populism in the EU
There are two other steps the EU could consider, though these should be measures that apply generally across the EU. Both Hungary and Poland are democracies, which suggests that many of the retrogressive reforms have taken place with the consent or acquiescence of a significant proportion of the population. This is probably partly due to two things. First, the control that the Hungarian and Polish governments have over the media, which gives them significant influence over the population’s understanding of public affairs. The EU could change rules relating to the media market to guarantee the independence of public service media from government, but also to guarantee media plurality. The latter would prevent a small group of owners with political links or agendas from dominating the news.
The second factor is that, as well as silencing the media and hobbling the judiciary, populist authoritarians also target NGOs, for example by weighing them down with spurious administrative burdens or interfering with funding. This is because NGOs, like the media, help to inform the public about current affairs. They also uphold the rule of law by taking governments to court. And they tend to work on issues such as democracy, fundamental rights, anti-corruption, environmental protection and the rule of law. This makes NGOs natural enemies of right-wing populists. The EU could do much more to support organisations that promote its fundamental values. Like the media and the judiciary, NGOs are an essential pillar of a healthy democracy.
Unfortunately, the Commission seems to have a tendency rather to treat them as subcontractors on short-term projects helping to implement EU law, for example, through research or delivering training. To support NGOs the EU could, for example, create an EU statute for associations. This would allow organisations being strangled by national administrative rules to escape restrictions by registering and forming an association directly under EU law. The Union could also replicate the way it supports NGOs in foreign policy by creating a European endowment for democracy to fund NGOs to carry out public education, litigation and monitoring in support of its fundamental values.
The Commission has failed in spectacular terms when it comes to Hungary, perhaps in part due to being naïve about Orbàn’s commitment and audacity to create an authoritarian state and in part due to political factors that led the Commission to completely discount Article 7 TEU as an option. Its willingness to use infringement proceedings more creatively to protect the rule of law has come rather too late in the day. Now the European Parliament has taken the hot potato of Article 7 TEU from the Commission, but the German election results mean that Fidesz is likely to continue to benefit from the protection of the EPP. On Poland, the Commission appeared better prepared and stepped up to its responsibilities promptly when the government began taking damaging measures. But the Commission is waiting too long to trigger Article 7 TEU while it canvasses national governments for support; in the meantime the Polish government continues to move quickly to enact its retrogressive reforms.
Politicians with populist tendencies in other Member States are watching what happens to Poland – if the government can backslide without facing consequences, we will see more countries head the same way. One of the reasons the EU expanded eastward in the first place was to spread democracy, rights and the rule of law. And publics in former Communist countries supported accession because they believed the EU would deliver. Unless the Commission together with governments supportive of the rule of law up their game, the EU’s legacy will be one of empty achievements and broken promises.
Israel Butler can be contacted by email at: email@example.com or Twitter: @idjbutler
The Civil Liberties Union for Europe (Liberties) is a non-governmental organisation promoting and protecting the civil liberties of everyone in the European Union. We are headquartered in Berlin and have a presence in Brussels. Liberties is built on a network of national civil liberties NGOs from across the EU. Unless otherwise indicated, the opinions expressed by Liberties do not necessarily constitute the views of our member organisations.