by R. Daniel Kelemen*
On Wednesday, December 20, the European Commission took a historic step to defend the rule of law in Poland. For the first time ever, the Commission triggered Article 7(1) of the Treaty on European Union, the EU’s sanctioning mechanism for member governments who violate the union’s fundamental norms, such as democracy, human rights, and the rule of law. This move comes after two years of failed dialogue, which saw Poland’s government, controlled by the populist Law and Justice (PiS) party, ignore Commission warnings and push through a series of reforms designed to establish total political control over the country’s judiciary.
In the face of such blatant defiance of EU norms, the Commission concluded that there was a “clear risk of a serious breach of the rule of law in Poland” and asked the national governments in the Council of the EU to vote on whether they agree. This could eventually lead to the suspension of Poland’s voting rights in the EU and to other sanctions, including the withdrawal of EU funding.
The Commission’s defense of rule of law in Poland is a welcome move. Politics, however, may yet prevent the EU from taking more decisive steps to prevent Poland from sliding down the path to autocracy. As Mitchell Orenstein and I wrote nearly two years ago in this magazine, in Poland’s crisis, the EU is reaping the consequences of its inaction against Hungary’s drift toward authoritarianism. That remains true today, and Hungary has vowed to veto any sanctions against Poland, which would require a unanimous vote from EU member states.
For the time being, EU politics is trapped in an authoritarian equilibrium. In this half-baked steady state, the union has become politicized enough that the EU-level allies of these semi-authoritarian governments have both the tools and the incentives to protect them from censure; but the EU has not become sufficiently politicized for the opponents of these governments to intervene in order to rein them in or break their grip on power. Ironically, the EU, which has done so much to promote democracy across Europe—indeed it won the Nobel Peace Prize in 2012 partly for that reason—now provides a safe haven (and ample funding) for semi-authoritarian regimes such as those in Hungary and Poland. The Commission’s latest action on Poland is a step in the right direction, but the EU will not escape this authoritarian equilibrium until it addresses the situation in Hungary as well.
Why has the EU more forcefully countered attacks on the rule of law in Poland than in Hungary? In part, the difference can be explained by the blatantly unconstitutional nature of the PiS government’s attack on judicial independence and its brazen dismissal of the Commission’s efforts at dialogue. Although President Viktor Orban has successfully taken over the judiciary in Hungary, his government had a legislative supermajority that enabled it to amend the constitution to allow for the takeover. And when the European Commission did challenge aspects of Hungary’s judicial reforms, the Orban government at least pretended to take these complaints seriously and make some superficial changes to address them.
PiS, by contrast, has lacked a constitutional supermajority and so has had to pursue its judicial takeover in a blatantly unconstitutional manner—including illegally packing the Constitutional Tribunal and enacting a recent bill that would force 40 percent of the judges on the country’s Supreme Court to retire. Rather than playing legal cat-and-mouse with the European Commission, moreover, Warsaw has either ignored or casually dismissed the Commission’s concerns. Jaroslaw Kaczynski, the head of the PiS and the de facto leader of the Polish government, commented this summer that he found the EU’s threats concerning the rule of law “amusing.”
But the EU’s softer response to attacks on the rule of law in Hungary is also a matter of partisan politics. Orban’s party, Fidesz, is a member of the EU-level coalition of center-right parties, the European People’s Party (EPP). The EPP holds a plurality of seats in the European Parliament; leaders tied to the coalition, such as President Jean-Claude Juncker, dominate the European Commission; and EPP-affiliated heads of government, led by German Chancellor Angela Merkel, form a powerful bloc within the European Council. Fidesz itself has long been a loyal EPP member, delivering votes in the European Parliament that help the party dominate EU lawmaking. In turn, EPP leaders have consistently defended the Orban government from criticism and the threat of sanctions. And although the Commission has at times been critical of Fidesz, it has never launched Article 7 proceedings against Hungary or even taken the more preliminary step of triggering the so-called Rule of Law Framework, which would start a dialogue with a member government about threats to the rule of law. Indeed, as recently as December 14 Juncker stood side by side with Orban and thanked his “good friend Viktor” for his cooperation.
Kaczynski has fewer friends. His PiS government does not enjoy the protection of a powerful EU-level party such as the EPP—it is a member of a small, marginal group of nationalists called the European Conservatives and Reformists (ECR). The ECR’s only other significant party is the British Conservative Party, which left the EPP in 2009 for being insufficiently euroskeptic. The Tories have attempted to protect their PiS allies, supporting them even as the vast majority of the European Parliament—including most EPP members—voted in November to condemn Poland’s attack on the rule of law. British Prime Minister Theresa May has also done her part: during a visit to Warsaw on December 21, she hinted that her government might support Poland against the European Commission, saying, “These constitutional issues are normally, and should be primarily a matter for the individual country concerned.” But with the United Kingdom soon to leave the EU, May has little leverage and PiS finds itself nearly isolated.
Yet PiS is only nearly, not totally, isolated. Breaking with his EPP allies, Orban has pledged to veto any sanctions against Poland at the critical second stage in the Article 7 procedure, which requires a unanimous vote of EU governments to proceed. (For Orban, solidarity among elected autocrats apparently trumps EPP loyalty.) Thus the EU’s refusal to tackle democratic backsliding and attacks on the rule of law in Hungary—a failure largely traceable to party politics—now renders it incapable of imposing meaningful sanctions on Poland.
Confident that his friends in Budapest will veto any sanctions, Poland’s PiS-affiliated President Andrzej Duda blithely signed into law two of the very bills the Commission objected to—which together would give PiS control over the National Council of the Judiciary and the Supreme Court—just hours after the Article 7 procedure was launched. All indications suggest PiS will plow ahead with its judicial takeover in the months to come, dismissing sitting judges and replacing them with party loyalists, just as Orban has done in Hungary.
Until the EPP is willing to confront its own strongman in Budapest, the EU will remain trapped in this authoritarian equilibrium. EU-level partisan politics follows a kind of inverse Goldilocks principle: not too cold, nor too hot, but just wrong. There are powerful incentives for European parties to protect semi-authoritarian governments who deliver votes to their coalitions. But because the citizens of most countries do not pay attention to EU-level politics, other member parties of these coalitions, such as Merkel’s Christian Democrats in the EPP, pay no political price whatsoever for supporting leaders such as Orban.
The EU, meanwhile, continues to hand over tens of billions of euros in funding to these governments, in essence subsidizing their soft authoritarianism. But thanks to rules about EU-level political parties, allies of the beleaguered opposition parties in Hungary and Poland are legally prohibited from providing any financial or material assistance to them.
By invoking Article 7, the European Commission has taken a major step toward protecting the rule of law in Europe. But to break out of its authoritarian equilibrium, the EU will have to do far more. History, sadly, suggests that state-level authoritarian enclaves can persist for many years in otherwise democratic federations. Before the EU can hope to effectively defend constitutional democracy in Warsaw, center-right leaders such as Merkel, Juncker, and European Council President Donald Tusk will need to put principle above politics and begin to challenge—or at least decide to stop protecting—their ally in Hungary.
For a start, they might expel Fidesz from the EPP, making a clear political statement that the party’s attacks on the independent judiciary, the free press, civil society organizations and the media have no place in the alliance of the democratic center-right. They should also make it clear that in the next multi-annual EU budget, beginning in 2021, EU funding will be tied to respect for democratic values. Finally, they could take the long overdue step of triggering Article 7 against the Orban government as well, a move that could prevent Hungary from vetoing sanctions against the Polish government.
*R. DANIEL KELEMEN is Professor of Political Science and Law at Rutgers University.
This article was originally published on ForeignAffairs.com.