The Polish government’s attack on the independence of the country’s highest court is threatening basic democratic principles and the rule of law. This is according to a leaked draft of a report due to be released tomorrow by the Venice Commission, an advisory body on democracy for the Council of Europe.
Warsaw has released a stern response to the leak, perhaps all the more furious for having requested the body’s opinion in the first place. It is likely that the strong reaction was an attempt to intimidate investigators conducting an inquiry on the same topic that was launched this year by the European Commission (the European Union’s executive body). But Warsaw needn’t worry unduly. No matter what the commission finds, it is unlikely to make much of a difference.
It has been only about 25 years since the fall of Communism, and just over a decade since most of Europe’s former Eastern Bloc joined the prosperous and peaceful EU. But today, some of the very countries that once competed to join this club are challenging its rules and values. The Polish example is only the most recent. Perhaps even more extreme have been Hungarian Prime Minister Viktor Orban’s attempts to make his country into what he himself has called an “illiberal state.” Alarm bells have rung across Europe at what looks like a democratic reversal taking place in the continent’s very heart. But, as it turns out, there’s little the EU can do about it.
The European Commission did launch three probes into problematic Hungarian legislation that came into force in January 2012. These so-called transitional provisions broke EU law by undermining the independence of the central bank, the data protection authority, and the judiciary.
But due to a lack of legal mechanisms and political will, the probes have accomplished little. Their inability to deal with what the commission later called “systematic” problems — a term Orban’s supporters deem politically motivated — has highlighted the limits of the EU’s ability to intervene in a country’s constitutional affairs.
A case in point: Orban’s government reduced the mandatory retirement age of judges from 70 to 62, essentially sacking 274 judges. While critics argued that the real motive for the measure was political, the commission could question it only on the grounds of age discrimination. In fact, Hungary lost the case in the European Court of Justice, the EU’s top court — but, in response, came up with an appeals process that reinstated only a minority of the judges. Orban got his way.
One of the reasons Orban’s tactic worked is that he faced no unified resistance. There’s no consensus within the EU that its business includes policing its members’ internal political and constitutional affairs, which, after all, are governed by democratically elected governments. With skepticism about the concept of a unified Europe on the rise across the continent, the appetite to intervene becomes even lower.
This dilemma goes to the heart of a debate that Europe hasn’t resolved: Should it be a genuine political union or simply a vehicle for its member states to promote economic prosperity?
Sergio Carrera, senior research fellow at the Centre for European Policy Studies (CEPS) argues the two goals are inseparable and must be pursued together. “The EU is an economic and political union. Safeguarding the principles of the two go hand in hand,” he said. Indeed, when countries apply to join the bloc, they must follow the so-called Copenhagen criteria, which require them to uphold values such as democracy, human rights, market economics, and rule of law.
But once a country has made it into the club, there are very few tools to force it to continue upholding these standards if it doesn’t want to. And there is disagreement among European countries and political groups about whether the EU should have such tools at all.
Those who see national sovereignty as the bedrock of any European alliance and reject the idea of a closer political union argue that the EU has done enough to safeguard democracy in Hungary — and that calls to do more are a pretext for bringing down the government.
“To say that the EU has not been able to stop countries from backsliding on democratic norms is already an ideologically loaded statement,” argues a diplomat who was close to the years of bickering between the EU and Hungary and wanted to remain anonymous because of the issue’s sensitivity.
“Those who argue that the EU doesn’t have enough tools to rein in member states actually mean they couldn’t overthrow Viktor Orban,” he adds.
As a result, for years, European resistance to Orban consisted mostly of diplomatic warnings — behind closed doors, mostly from Germany — to tone down his rhetoric and preserve European values.
The criticism did not daunt him. Instead, he exploited it to harvest additional political support at home, portraying his critics in Brussels as faceless eurocrats who were trying to meddle in Hungary’s affairs. In early 2012, he likened Brussels to Moscow, the capital of the Soviet empire, which occupied and dominated Hungary for much of the 20th century.
Frustrated by the lack of action, the foreign ministers of Denmark, Finland, Germany and the Netherlands wrote a joint letter to the EU Commission in 2013, urging it to come up with more effective tools to safeguard the rule of law. With a gentlemanly touch, they never mentioned Hungary by name as the case that inspired their concerns.
But the new “rule of law framework,” which was adopted partly in response to this letter in 2014, did not introduce any new sanctions or any new mechanisms to hold EU states accountable. Instead, it simply codified the political dialogue between Brussels and the offending member state. This is the mechanism the European Commission has been applying against Poland since the beginning of this year.
But that’s also why the outcome is unlikely to be any different from the earlier investigation of Hungary. Since the “rule of law framework” adds no new tools to help the European Commission oversee a country’s internal workings, “there is no proper procedure [or] way to ensure a different outcome” than in the case of Hungary, Carrera says. He argues that there should be regular health checks on the rule of law for all EU member states.
Besides these so-called infringement procedures, which are triggered when the EU Commission thinks a member state has breached a specific EU law, the bloc has one more powerful tool to wield against a misbehaving member state.
The so-called Article 7 procedure was cooked up in 1998 and reinforced after the EU tried and failed to sanction Austria in 2000 when the far-right Freedom Party, led by Joerg Haider, who is known for praising the Nazi war machine, joined its government.
Activating Article 7 requires a unanimous decision by the member states to establish that there is a “serious and persistent breach” of values such as freedom, democracy, equality, the rule of law and respect for human rights. If activated, the procedure paves the way for suspending some of the member state’s rights — for example, voting rights in EU decisions. What other benefits might be suspended is open to interpretation.
Dubbed the “nuclear option,” the ultimate “weapon” against a member state, Article 7 has never been used. Nor is it likely to be in the near future. Article 7 “is unusable now, as it requires unanimity among member states. It was the product of the optimism of the beginning of the century,” argues Rui Tavares, a former member of the European Parliament who worked on a report on the state of democracy in Hungary in 2013.
As this demonstrates, tools at the EU’s disposal require its member governments to decide to sanction a fellow member. And that is unlikely to happen, thanks to a “gentlemen’s club” agreement that Taraves sums up as “If you don’t talk about my case, I don’t talk about your case.”
This is because the EU is designed to ensure that the ultimate decision-makers are its member governments. The European Commission, its executive organ, can make proposals, execute decisions, and oversee compliance with EU law. But as an unelected body, it lacks the legitimacy enjoyed by the member states themselves.
Orban has also received support from his ideological allies across the continent. His political family — the conservative European People’s Party, which he shares with German Chancellor Angela Merkel — has supported him in numerous debates and resolutions in the European Parliament. In 2014, the group’s president spoke at a Fidesz campaign rally, endorsing Orban’s re-election. Similarly, European socialists defended former Romanian prime minister Victor Ponta from criticism when he challenged the rule of law in his own country in 2012.
Today, the EU essentially communicates its years of bickering with Hungary as a success story. Last December its justice commissioner, Vera Jourova, told the European Parliament that there are no clear indications of a systematic threat to the rule of law in Hungary. A commission spokesman who did not want to be named noted that the dialogue with Hungary has “produced concrete results.”
“I am sure that without the EU Commission the illiberal way of doing things of Viktor Orban would have been faster and gone further,” another EU official said. “Slowing the pace of the enemies of democracy is important.”
Making sure the EU’s member states adhere to the principles they were required to adopt when joining would require collective political will. But with deep divisions in the face of geopolitical challenges from Russia, a migration crisis, and continued economic problems, it’s hard to imagine where it might come from.
Part of the problem is that there is no unified European electorate – the continent’s politicians are accountable only to their country’s voters, leaving no one clearly responsible for European values as a whole.
More and more EU member states are opting for national solutions to the migration crisis instead of unified answers, and with populist politicians solidifying their recent gains in the electorate, there is little chance Brussels is about to get new powers. Illiberal tendencies have been and will be curbed — but not stopped — by the EU. That will remain the citizens’ job.
In the photo, Hungarian Prime Minister Viktor Orban and German Chancellor Angela Merkel speak to the media before talks at the Chancellery in Berlin on May 8, 2014.
Photo credit: Sean Gallup/Getty Images