The ‘rule of law crisis’, Europe’s most existential challenge

Written by Henry Goodwin on . Posted in Current features, Features

Polish Prime Minister Mateusz Morawiecki and Commission President Jean-Claude Juncker exchange pleasantries at a bilateral meeting in Brussels on January 9th.     © EU, 2018

The European Union is not unaccustomed to crisis.

At times in recent years, it has felt as though the EU is under siege from all sides. To the south, trans-Mediterranean migration continues to furrow brows across the continent’s capitals. Looking westward, Britain is midway through arranging its exit and beyond, across the Atlantic, the newest occupant of the White House has shown no love for the EU, the internationalism it represents or the institutions it holds dear. Internally, simmering Euroscepticism continues to come to the boil and make hay at the ballot box, while Angela Merkel’s electoral travails may have put ever-closer union ever-further out of reach.

Yet it is to the east that the most existential threat to the future of the EU looms large. The governments of Hungary and, more recently, Poland have flouted the rule of law – stacking their respective judiciaries, turning state broadcasting into a de facto arm of government propaganda and pushing ahead with controversial voting ‘reforms’ which critics fear will call into question the integrity of future elections. Other eastern EU member states – namely Romania and Slovakia – have started down a road that could lead to the political capture of the judiciary as well. But Poland and Hungary – both of whom rode a wave of optimism about the eastward spread of European liberalism to join the EU in 2004 – are backsliding into authoritarianism at an alarming rate.

Unlike other recent European crises, Brussels has been unable to muster a coherent response to the broadsides being fired across its bow from Warsaw and Budapest. For Kim Lane Scheppele, the Lawrence S. Rockefeller Professor of Sociology and International Affairs at Princeton’s Woodrow Wilson School, Europe’s so-called ‘rule of law crisis’ is exposing an uncomfortable truth about the EU: it is either unwilling or unable to discipline its own member states.

Can’t, or won’t?

The EU’s problem is one of impotence rather than reluctance. Speaking at a School of Transnational Governance event on January 12th, Professor Scheppele suggested that Brussels is hamstrung by its own treaties when it comes to enforcing the rule of law. According to Article 2 of the Lisbon Treaty, the EU ‘is founded on the values of respect for human dignity, freedom, democracy, the rule of law and respect for human rights’. It goes on to explain that these values ‘are common to the member states’, a line which leaves very little legal wiggle-room if a member state no longer upholds the rule of law.

Speaking to EUI Times after her lecture, Professor Scheppele pointed out that when the Lisbon Treaty was signed in 2007, democracy was ‘the only game in town’. ‘There was a widespread assumption that once a country was a constitutional democracy it would never go back,’ she explained. Moreover, the EU at its inception was little more than a common market, meaning issues which now look fundamental – the independence of domestic democracy-checking institutions like ombudsmen and electoral commissions, for example – ‘were not particularly crucial’.

That vagueness has been especially pounced upon by Viktor Orbán’s archly right-wing Hungarian government, which is entering its eighth year in office and is expected to win re-election in April. Winning over two-thirds of the seats in Hungarian parliament gave Orbán a mandate to change the country’s constitution, which he duly did in 2011. That was accompanied by over 800 new laws between 2010 and 2014, in moves which completely changed the face of the Hungarian justice system.

Poland’s conservative-nationalist government, led from behind the scenes by strongman Jaroslaw Kaczynski, head of the Law and Justice party, has ruffled feathers in Brussels since 2016 by pursuing an Orbán-esque reshaping of the country’s judiciary and media. At a bilateral meeting in Budapest at the start of January, Poland’s newly-elected prime minister Mateusz Morawiecki proclaimed that ‘like-minded nations like ourselves together can influence Europe’s future in a very positive way.’

Who’s to blame?

Hungarian President Viktor Orbán has sought to create an ‘illiberal democracy’ in the country. © EPP, 2014

The EU has been more assertive in dealing with Warsaw than it has been with Budapest and, in the dying days of December, the Commission invoked Article 7.1 against the Polish government, triggering the so-called ‘nuclear option’ – a process that warns a country that it is ‘at risk of a breach’ of European values. If Articles 7.2 and 7.3 are subsequently invoked to put actual sanctions on the table, it could eventually lead to the suspension of Poland’s voting rights and a potential loss of EU funds.

But Article 7.1 is a largely symbolic gesture which does not guarantee the invocation of Articles 7.2 and 7.3 if things get worse. Even if Warsaw were to continue down its current path, stripping it of its voting rights would require a unanimous vote from the Union’s 27 other members, and Orbán has already promised Hungary’s veto. As Professor Scheppele puts it, ‘if your most serious sanction is saying “no you can’t come out and play with us,” then it’s not that serious.’

Yet, she points out, the Commission ‘can only act in areas that have been delegated to it by the member states, and domestic constitutional structures are not one of those.’ Member states, she continued, have been reluctant in letting the EU taking a more assertive stance against perceived rule of law violations simply because they do not want those tools used against them at some point down the line.

‘Most governments do things that aren’t nice, and no government wants to be scrutinized. I put the fault at the feet of the member states. The Commission and European Parliament have done the best they could do with the powers they were given,’ she added, ‘but it’s the member states which give them the limited powers that they have.’

The solution, the professor believes, is for Brussels to get creative. If the EU does not have the means to bring rogue member states into line, it must ‘invent new instruments to do so.’ There have been signs in recent months that the EU is ‘building some instruments to actually require changes in the constitutional structures of its member states’. The Commission is reportedly drawing up plans to ensure that member states which benefit from its next budget have a ‘functioning and independent judiciary’, a gambit which will likely put it at loggerheads with Poland and Hungary.

‘Beyond repair’

So, what does this mean for Poland and Hungary moving forward?

Hungary, Professor Scheppele believes, is ‘almost beyond repair’. Roughly 700,000 Hungarians have emigrated since 2010, an astonishing number for a country of just 10 million people. Most of Hungary’s well-educated, multilingual young people have left the country and, as a result, the ‘pool of talent’ to rebuild the country’s political system is very shallow. With little credible political opposition, and Orbán’s Fidesz entrenched in almost every aspect of public life, Hungary appears to be ‘locked down’ for the foreseeable future.

Poland, however, is a different story – for now. Civic Platform, the country’s main liberal opposition, remains a functional party, despite a clear divide between it and Modern Poland on the left. Professor Scheppele says that there are still ‘functional parties and leaders, and a bunch of talented politicians with the country’s interests at heart’. Authoritarianism may be creeping in Poland, but its victory is not yet final.

As for Brussels, it might be natural to assume that Poland and Hungary’s open contravention of Europe’s institutions and ideologies is reflective of a public dislike and distrust of the EU, yet that is not the case. A recent poll indicated that 92% of the Polish population wants to remain part of the EU, a record high. Similarly, polling from 2017 showed that support of EU membership among Hungarians was 67%, a higher figure than in Sweden, the Netherlands and France.

Be that as it may, the examples set forward by Poland and Hungary make one thing clear: if the EU is unable to find the means to bring divergent members into line, the shared values and interests which have underpinned the European project could begin to unravel.

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