If You’re Not a Democracy, You’re Not European Anymore

On Dec. 20, the European Commission activated what in European Union circles has long been known as “the nuclear option.” The commission, the official “guardian of the European treaties,” charged that the Polish government’s so-called reforms of the judiciary posed a serious threat to basic European values, in particular the rule of law. The European Council, the group of EU member state governments, will now have to take a vote on whether it shares this assessment. Ultimately, if Warsaw does not amend the laws that effectively end the courts’ independence, Poland might have its rights to vote on collective EU decisions suspended.

Such shaming and, ultimately, ostracizing of an EU government has never happened in the history of European integration. Contrary to what some observers have been suggesting, the invocation of Article 7 is not yet further evidence, together with the ongoing euro crisis and Brexit, that the union is well on the way to disintegration. If anything, the commission did the right thing for European integration by taking a stand on what exactly the EU stands for and what membership in it means. The alternative would have been turning a blind eye to a slow erosion of democracy and the rule of law in several member states — a process that calls the very core of European integration as a political project into question.

The real problem is that the commission never acted as decisively in the face of the country that originally went “rogue”: Hungary. And Hungary, Warsaw’s staunchest ally in the union, has now pledged to veto the ultimate ostracizing of Poland. No wonder Warsaw has reacted very calmly to the EU’s action so far — Prime Minister Mateusz Morawiecki knows full well that his right-wing populist government has nothing to fear as long as Budapest has its back.

The Article 7 mechanism for suspending a state’s EU membership rights for breaching the fundamental European values of democracy, the rule of law, and human rights was only introduced in the late 1990s, at the request of Austria and Italy — up until then, it was taken for granted that this was a club for stable democracies only. Both countries were apparently worried about something going wrong in the Central and Eastern European states that were set to join the Union in 2004. Ironically, the latter initially turned out to be model pupils of liberal democracy — whereas the two countries that raised major worries about the state of democracy happened to be Italy under Silvio Berlusconi and the Austrian government formed in 2000 with the participation of the far-right Freedom Party led by Jörg Haider.

The latter provoked sanctions not by the EU as such, but by the then-14 other member states, outside the framework of Article 7. These bilateral measures were mostly symbolic and had been announced even before the new government had done anything; both facts helped the Austrian chancellor to mobilize nationalist sentiments against the union. As a reaction to what was widely perceived as a failure on Europe’s part, Article 7 was modified to include a preliminary warning before actual punitive measures are taken — that is the step Brussels has now decided to trigger.

Something decisive happened between what was often called the “Haider affair” and Warsaw’s current attempt to dismantle an independent judiciary. In 2010, Viktor Orban’s right-wing populist Fidesz Party came to power in Hungary. It systematically disabled checks and balances and tinkered with election laws so as to make the vote, in the assessment of Transparency International, free, but not fair; it also massively reduced media pluralism (according to some estimates, 90 percent of the media have owners close to the government). Just this year, the government unleashed a massive attack on civil society, forcing any nongovernmental organization that receives about $25,000 or more from abroad to declare itself prominently as “foreign-funded,” a measure accompanied by Orban claiming that organizations that have backing from Hungarian-American hedge fund manager and philanthropist George Soros pose a threat to national security — even the very survival of the Hungarian nation.

The EU did not ignore such obvious threats to its core values (and the fact that the Hungarian government’s conduct also called into question the premise that gaining EU membership meant the irreversible consolidation of liberal democracy). Yet it never came close to triggering Article 7. One reason for the tame reaction was what Orban once described to a domestic audience as his “peacock dance.” His skillful dance moves consisted in making cosmetic changes in reaction to criticism from Brussels — but ultimately persisting with the overall project of centralizing all power in his hands.

Most important, Fidesz is a member of the European People’s Party (EPP), the supranational association of Christian Democratic and center-right parties in the EU, the largest grouping in the European Parliament. Leading EPP politicians have often issued stern warnings to the Hungarian prime minister — for instance, when he publicly mused about re-introducing the death penalty in Hungary, an absolute no-no for Christian Democrats in particular. But they have never come even close to excluding Fidesz from its ranks, even though it is by now blindingly obvious that Orban is well to the right of, for instance, a figure like France’s far-right party leader Marine Le Pen.

The reasons are simple: Fidesz has a relatively large number of deputies in the European Parliament, and the EPP is firmly committed to keeping its plurality in the parliament (as former German Chancellor Helmut Kohl insisted, Christian Democrats had not built Europe to then leave it to socialists). Orban has also been useful for individual Christian Democrats to achieve their short-term political purposes: Bavarian conservatives, for instance, have made a spectacle of celebrating Orban in order to mark their opposition to Chancellor Angela Merkel’s temporary opening of German borders to refugees.

Poland’s Law and Justice party (PiS) has from the beginning been unashamed about wanting to follow what it calls the “Budapest model.” But it has done without the “peacock dance.” It also does not command a sufficiently large majority at home to change the constitution at will; Orban, by contrast, had such a majority throughout his first post-2010 term in office and could proceed in a formally legal manner. PiS has had to dispense with legal niceties and frontally attack the third branch of government, using ordinary legislation and a whole range of tricks to give the ruling majority the right to hire and fire judges. Such vandalism in dealing with highly respected institutions — unprecedented in the history of postwar European democracies — has made it easier for the EU to make the case against Warsaw.

Like Orban, though, PiS leaders have skillfully recast what should be a conflict about institutions as one that is merely about political ideals and more or less subjective values. PiS’s foreign minister complained that Brussels wanted to implement “a new mixing of cultures and races, a world of bicyclists and vegetarians, who … fight every form of religion.” In other words, it is what Orban calls the “liberal nihilists” running the EU who are intolerant of diversity and who wish to stamp out the genuinely Christian, more nationalist approaches being pursued in relatively conservative member states such as Poland and Hungary. Yet what we are witnessing today is not a pan-European Kulturkampf about moral issues — it is a crucial fight to preserve the very institutional infrastructure of democracy as such. Alas, many Western European politicians have taken the bait and criticized Poland and Hungary for specific policies that they dislike — instead of claiming that Fidesz and PiS are guilty of trying to capture the state as such and in effect make transitions of power extremely difficult.

The PiS government has one other decisive disadvantage compared to Orban: The party is not a member of the EPP, but of the much smaller and relatively marginal European Conservatives and Reformists. This grouping of euroskeptics is dominated by the British Tories — Prime Minister Theresa May, remaining faithful to the dictates of supranational party loyalty, promptly told a Warsaw audience yesterday that constitutional matters were Poland’s own business. But the Tories are, of course, to disappear from the European party scene with Brexit. Warsaw is thus simply not as firmly protected in the way Budapest is, and, perversely, the EPP can now partly distract from its own failings by being as stern as possible with Warsaw (and issuing statements such as “the rule of law is non-negotiable in the EU” — translation: non-negotiable, unless subverted by an EPP ally).

In order to move toward actual sanctions against Warsaw, a unanimous decision by the other EU member state governments is required — and Orban has made it absolutely clear that he will veto such a step. Hence, in effect far-right governments in the union will protect each other, and the commission has to pay a steep price for its inaction vis-à-vis Budapest. The only way forward might be triggering the next step of Article 7 against Hungary and Poland simultaneously — an approach suggested by my Princeton University colleague Kim Lane Scheppele, but one that would still require the EPP to abandon its hypocritical stance.

In any case, it is important to recognize that Article 7, strictly speaking, is not really a form of “intervening” (or “meddling,” as PiS and Fidesz representatives will put it) in a country. Rather, it is a way for the rest of the EU to insulate itself from a particular government having a hand in decisions that are binding for all EU citizens. This has a certain logic: EU citizens have a right not to be governed, however indirectly, by a nondemocratic government. But it also means that, in theory, such a government could simply say: “So be it that we have lost our votes in the European Council, we persist with the restructuring of our state as we see fit.”

What would be much more likely to actually change a rogue government’s behavior is financial pressure. The EU makes enormous contributions to Polish and Hungarian infrastructure. At the same time, at least in Hungary, there is no doubt such European funds are the equivalent of oil for Arab dictatorships: They are a free resource to buy political support, while at the same time enriching oligarchs close to the government. French President Emmanuel Macron has openly said that the EU is not a supermarket where one gets access to the common market and subsidies but can leave the rule of law on the shelf. The question is whether Angela Merkel is willing to use the next EU budget as leverage or not.

German companies like Audi and Mercedes are very well treated in Hungary — they receive generous subventions and do not have to deal with pesky unions. Merkel allies such as Bavarian Prime Minister Horst Seehofer and EPP leader Manfred Weber have invested a lot of political capital in protecting Orban. As the political scientist Daniel Kelemen has pointed out, as long as mainstream European conservatives pay no real political price for supporting soft authoritarianism in Europe’s midst, the union is likely to remain powerless. Meanwhile, it is ordinary Polish and Hungarian citizens who actually pay a price for the hypocrisy of Europe’s center-right.