The EU Is Letting Hungary and Poland Erode Democracy

Media capture is one of the great causes of democratic backsliding in Central and Eastern Europe. Next month’s elections in Poland, despite a burgeoning cash-for-visas scandal rocking the incumbent administration, is largely being framed around a nonsensical referendum question on supposed EU efforts to push illegal migrants into the country.

Jaroslaw Kaczynski, the chairman of the country’s ruling Law and Justice party (PiS), is borrowing from the playbook of his Hungarian counterpart, Prime Minister Viktor Orban, by stoking fears of foreign interference and by harnessing informal power, which could undermine the fairness of the elections.

These governments used a threefold informal toolkit to consolidate control over the state and the society. First, clientelist corruption is central to controlling economic power by keeping political and economic opponents sidelined. Second, media capture is the linchpin of these regimes, used to boost the government’s support and undermine dissident voices. Third, the government is tilting the playing field with vote-buying as well as economic and policy coercion that has a negative effect on the integrity of the elections. This all comes against a backdrop of ongoing legal action taken by the EU against Poland for its persistent disregard for democratic standards and the core values of the European bloc.

For the first time, last year, the European Commission triggered the rule of law conditionality mechanism against Hungary in response to democratic backsliding. This new instrument aims to protect the budget and financial interests of the EU in the face of rule-of-law breaches, such as systemic irregularities in public procurement.

Brussels is withholding nearly 28 billion euros from Orban’s government; this includes the country’s entire share of the bloc’s cohesion funds for the 2021-2027 period, amounting to 22 billion euros, and 5.8 billion euros under the Recovery and Resilience Facility. In the meantime, Poland has been blocked from accessing more than 35 billion euros in COVID-19 recovery assets.

Both Orban’s Fidesz and Kaczynski’s PiS are tilting the playing field illegally and behind the scenes, in ways that are hard to detect.

This, admittedly, represents a scaling of activity by the EU. But this determination to use funds as leverage, though a novel development in European governance, is not a path that is likely to bring either Orban’s Fidesz party or PiS to heel.

The reason lies in a lack of political will by the European Council and European Commission to enforce the rules. Both Orban’s Fidesz and Kaczynski’s PiS are tilting the playing field illegally and behind the scenes, in ways that are hard to detect, in order to sideline their opponents and silence critical views.

The extent to which both administrations have weakened checks and balances and undermined democratic institutions in their countries is little known to many in Europe. And this is not surprising, given that neither employs openly oppressive methods in pursuit of their aims: Instead, they both instrumentalize the law to fit their authoritarian goals.

Meanwhile in Hungary, state resources are largely distributed in a top-down fashion, and they are centered around Orban’s personal network. The outcome is full monopolization of state and key economic sectors. What’s more, foreign companies in Hungary are increasingly complaining about hostile takeover attempts by the government. It reportedly intimidates them with various tactics, including by using the captured prosecutor’s office.

There is commonality between the two parties in that they both exercise power informally through media capture, and they use powerful individuals and state companies to silence or neuter media outlets independent of the government. PiS, for example, has turned Poland’s public broadcaster into a state propaganda instrument, underpinning the move by having state oil giant PKN Orlen take over Polska Press media organization. As a consequence, Daniel Obajtek, a close political ally of Kaczynnski, now controls 20 out of Poland’s 24 regional newspapers, more than 120 local magazines, and 500 online news portals. These two media empires are working together to push a narrative that the principal opposition challenger in next month’s election, Donald Tusk, is collaborating with Germany and Russia to destroy the Polish state.

In Hungary, the situation is worse still. Origo and Index, the country’s largest online news portals, were independent before being taken over by pro-Orban interests linked to businessman Miklos Vaszily. Origo is now staunchly pro-government and is often accused of publishing conspiracy theories and fake news. Index, after a leadership change that resulted in swathes of its staff resigning en masse, has now ceased any overt criticism of the Hungarian government. The independent Klubradio station, meanwhile, was forced off the air, on dubious grounds relating to its license, by a state organization packed with Fidesz-aligned decision-makers.

In both countries, too, national competition authorities and politically captured media councils are used to amplify pro-government media—in many cases by approving mergers and acquisitions in a way that favors the government. The formation of the Central European Press and Media Foundation in Hungary in 2018 exemplifies this: a body through which 476 media outlets have been transferred to a pro-Fidesz foundation.

Those who do try to go it alone or sustain their position have, in turn, become government targets. Just ask Zoltan Varga, one Hungary’s last remaining media chiefs independent of the government, who has endured a sustained period of harassment from allies of the prime minister, and who has, reportedly, been surveilled with Pegasus spyware at the instruction of government officials.

Brussels has responded by backing formal institutional changes to European directives. And it is in the difference between the letter of the law and how it is being implemented that Fidesz and PiS have expanded their attacks on independent democratic bodies within their countries, free of any fear of repercussions.

For example, on media regulation in both countries, the EU’s Audiovisual Media Services Directive imposes formal requirements that apply on a pan-EU level. However, these are easily met by the text of a well-designed national law, and they are effectively akin to a boxticking exercise in their current form—as evidenced by the configuration and functioning of the Hungarian Media Council, which, while formally adhering to EU requirements, is essentially captured by the government and biased in its activity.

This means that as things stand, and as the democratic foundations of these two countries wilt, the EU is stuck in a loop. Both Orban and Kaczynski are happy to maintain their facade of adherence to the EU’s rule-of-law framework, claiming that they are complying with national legislation. But the legislative process lacks the basic tenets of democracy by fostering the nontransparent fast-tracking of legislation and misusing national consultations and biased referendums to legitimize certain measures.

The EU’s position is therefore unsustainable, insomuch that it addresses certain aspects of informal power but ignores others. It is cherry-picking when it should be responding in absolute terms, and it cannot reasonably claim that it is making every effort to ensure that there is a standardization of values across the European bloc.

A multifaceted and sustained approach by the European Commission is required if Poland and Hungary are to be brought back from the brink. This should include immediate legal action against the governments of both countries, an indefinite suspension of all EU funds, and a more effective enforcement of conditionality.

The Hungarian government promised to reduce the proportion of single-bidder tenders to below 15 percent. While it was taken as a significant step, this will not undercut systemic corruption in Hungary. The EU needs to take into account that Orban’s allies can still circumvent the authorities informally: Fake bidders can show up to imitate “competition” on the market, and public procurements can end up with the prime minister’s allies once again.

Many in Brussels will argue that the EU does not have sufficient powers to counter democratic backsliding. This is not true; it has a whole host of tools at its disposal.

In the context of media capture and the EU regulatory framework, the European Commission must be more specific in defining informal power to better protect the integrity of the common market and freedom of speech. And it should use its very clear competencies around competition law and state aid to step in, on scale, with infringement proceedings to address the politicization of media ownership and the abuse of state advertisements.

Many in Brussels will make the argument that the EU does not have sufficient powers to counter democratic backsliding. However, this is not true. It has a whole host of tools at its disposal, and it does not need to engage in a perpetual doctrinal innovation each and every time there is a flash point in an offending member state.

It is creating its own problems by allowing a networked system of de-democratization to flourish in Poland and Hungary and by maintaining its current, flawed approach of drip-feeding funds upon the apparent fulfillment of specific conditions. This allows both PiS and Fidesz to superficially remedy issues while informal power systems are left unchecked—and free to maintain their attack on the democratic fabric of each country.

The EU cannot be half in and half out in its engagements with administrations that have no intention of playing by the rules of the European bloc. It has to play hardball and use every tool at its disposal if it is to safeguard the democracy of these two countries.