The European Union is considered a bastion of liberalism and democracy. In a world increasingly torn between an erratic America and an authoritarian China, Europe offers refreshing hope. Its leaders efficiently and transparently managed the Covid-19 health crisis, while in some states in America the virus is on the upswing and China initially scrambled to cover-up the disease. Countries all around the world look up to it for guidance on human rights and economic issues; even Americans, citizens of the world’s largest economy, think they stand to benefit from emulating some of its members’ social policies, such as universal healthcare. And all around the world, corporations adopt EU regulation as a baseline, a phenomenon known as the Brussels Effect. Yet as the dust settles after the coronavirus pandemic, the EU faces a herculean task: preserving its economic and political union in the face of increasing authoritarianism from the inside. Two of the bloc’s members, Poland and Hungary, pose an existential challenge to Europe—a threat that must be dealt with if the EU wants to remain a leader of the democratic world.
That two countries in the world’s largest democratic bloc are exhibiting authoritarian tendencies may come as a surprise. It shouldn’t. Poland’s ruling Law and Justice Party (PiS) and Victor Orban’s Fidesz party in Hungary have eroded their respective countries’ democratic foundations ever since they were swept into power. In Poland, PiS has repeatedly tried to subvert the rule of law, a key principle of liberal democracy, to various degrees of success. Under the pretext of “de-communizing” the judiciary, the government attempted to pass a law in 2018 that would, in practice, remove select judges by lowering the retirement age[1]. When the measure failed because of EU pressure, the party instead resorted to passing so-called judicial “reforms” to achieve the same effect. For example, in late 2019 it created a disciplinary chamber for Poland’s Supreme Court with the power to suspend its judges. The members of the chamber were to be chosen by the president and the country’s official jurists’ association; the catch, however, is that the nation’s president is backed by PiS and that the national jurists’ association is under control of parliament, where the party has a majority[2]. Such rules blatantly violate the independence of the country’s judiciary and undercut the democratic foundations of the legal system.
Under the leadership of prime minister Viktor Orban, Hungary’s ruling Fidesz party is also busy destroying liberal democracy. A report in 2019 by Freedom House, a think tank that compiles research on democracy around the world, found that Hungary’s ruling Fidesz party undermines the country’s rule of law, the freedom of its press, and uses its power to control the private sector, NGOs, and even the nation’s academia[3]. (Orban notoriously kicked out one of the country’s top schools, the Central European University, over a quarrel with its founder, Jewish billionaire George Soros.) These actions against democratic institutions led the think tank to downgrade Hungary’s status from “Free” to “Partly Free” on its annual reports on democracy in 2019 and 2020, putting the country on par with nations like Pakistan and Zimbabwe.
So it seems the EU finds itself in an embarrassing situation. Two of its recent members—once hailed as promising young democracies—are now increasingly undemocratic. Despite defying the EU’s constitutional commitment to liberalism and democracy, both nations preserve their EU membership and receive EU money: Hungary collected over €6bn worth of grants in 2018[4], worth almost 5% of the nation’s GDP and Poland got over €16bn that same year, more than 3% of its GDP[5]. Further, both countries reap enormous benefits from the union’s single market, which allows their companies to sell their goods to states across Europe; intra-EU trade is 80% of Poland’s exports and 82% of Hungary’s.
The EU cannot continue this way. A union that claims to safeguard liberal democracy should not tolerate flagrant violations of democratic institutions and principles by its member states. With PiS’s repeated efforts to undermine the rule of law in Poland and Orban’s crusade against democracy in Hungary, the EU has a clear mandate to act. It ought to sanction both Hungary and Poland for their illiberal actions and suspend their membership if they persist. But alas, the EU has failed in enforcing these measures. While in 2018 it tried to punish Poland through suspending its membership in the ENCJ—the bloc’s judicial network—and triggered Article 7, which can strip the country of its voting rights, little has changed in practice. The ENCJ decision does not interfere with Poland’s EU aid, and the country is still on track to adopt the euro (though the date is not specified), a sign of ongoing integration. The same goes for Hungary, who also became subject to Article 7 in 2018.
Further, it remains to be seen whether the EU can do much to directly enforce legal norms in the two countries. Ever since Germany’s Constitutional Court declared the ECB’s quantitative-easing program partially unconstitutional, the EU’s legal order is up in the air; it is unclear whether a federal court can challenge an EU order and vice versa. Thus, even if the EU’s courts put pressure—like the ECJ did this week when it ruled against a Hungarian NGO law[6]—they might not get anywhere if local courts give their approval. For now, the only certain measure the EU can take is triggering the next step of Article 7: imposing sanctions and freezing voting rights, which requires a two-thirds majority in the European Parliament and the unanimous consent of the European Council[7], which comprises all of the EU’s heads of state. Continuing with Article 7 is often dubbed “the nuclear option”, yet today it seems necessary: neither Poland nor Hungary has stopped its wrongdoing since Article 7 was first invoked in 2017 and 2018 respectively. In fact, Freedom House’s 2020 report indicates that Hungary’s democracy has worsened since 2018[8], and Poland’s illiberal judicial reform came into law in 2019—two years after the first step of Article 7 was triggered.
Therefore, the EU needs to organize a vote in parliament as soon as possible on whether it should continue with the rest of Article 7. To avoid either Hungary or Poland vetoing against the process in the council—as Orban promised to do in 2018[9] when only Poland was subject to Article 7—the EU should not hold two separate votes but rather a general vote concerning all countries that repeatedly breach the EU’s democratic standard—in this case, Hungary and Poland. Since both members would be subject to the same vote and are hence unable to deploy their veto power, this removes the chance of them tag-teaming against the EU. Though the process may be politically painful for the union, it is the only way the EU can maintain its constitutional commitment to safeguarding political and civil liberties. Both Poland and Hungary benefit enormously from EU aid; it is highly unlikely either of them would leave the union, avoiding a political quagmire. So with abandoning EU membership off the table—and faced with potential economic sanctions and no voting rights—continuing with Article 7 would force Hungary and Poland to relinquish their assaults on democracy, and remember their democratic obligations to their citizens.
Europe’s leaders from France’s president, Emmanuel Macron, to the European Commission president, Ursula Von der Leyen, often claim “European Sovereignty” in international affairs. They seek a unique voice for Europe in an increasingly perilous world—one dominated by an autocratic China and a newly isolationist America. But for Europe to assume a strong position in the diplomatic roundtable, it first needs to safeguard liberalism and democracy at home. With two member states flirting with authoritarianism, its image as a protector of democracy and a rules-based entity will weaken, undermining its message. It must force Hungary and Poland to comply with EU standards, even if it requires suspending their membership and curtailing grants. ECJ rulings and the current state of Article 7 are not enough; the only way to reform these two countries is by leveraging the economic advantages provided by the EU. If Europe seeks recognition as a world power that can rival China and America, it should first safeguard what makes it unique: a reputation as a beacon of liberalism and democracy.
Works Cited:
- “Poland’s ruling party should stop nobbling judges.” The Economist, January 25, 2020.
https://www.economist.com/leaders/2020/01/25/polands-ruling-party-should-stop-nobbling-judges
- “Europe confronts Poland over its trampling on the rule of law.” The Economist, January 25, 2020.
https://www.economist.com/leaders/2020/01/25/polands-ruling-party-should-stop-nobbling-judges
- R. Daniel Kelemen, “Hungary’s democracy just got a failing grade.” Washington Post, February 7, 2019.
- “Hungary.” European Union website, accessed June 17, 2020.
https://europa.eu/european-union/about-eu/countries/member-countries/hungary_en
- “Poland.” European Union website, accessed June 17, 2020.
https://europa.eu/european-union/about-eu/countries/member-countries/poland_en
- Benjamin Novak, “Top E.U. Court Rules Against Hungary’s N.G.O. Law.” The New York Times, June 18, 2020.
https://www.nytimes.com/2020/06/18/world/europe/hungary-eu-ngo-law.html
- Ginger Hervey, Emmet Livingstone, “What is Article 7.” Politico Europe, January 13, 2016.
https://www.politico.eu/article/hungary-eu-news-article-7-vote-poland-rule-of-law/
- “Hungary.” Freedom House, accessed June 21, 2020.
https://freedomhouse.org/country/hungary/freedom-world/2020
- Soraya Sarhaddi Nelson, “How Poland And Hungary Are Forming A Powerful Tag Team Against Brussels.” NPR, March 12, 2018.