EU has limited options to combat “illiberal democracy”
“State of the Rule of Law in the EU: EU’s limited options against democratic erosion in Hungary and Poland”
By Aneta Navrátilová, courtesy of Europeum
At the end of September, the European Commission published an EU-wide law report on the rule of law situation in the European Union. It is a very first report of this kind adopted at EU level. The report includes 27 country chapters presenting the Member state-specific assessments and identifying the rule of law trends in aforementioned states, as well as it endeavours to help prevent problems from arising supporting the EU countries in recognising and addressing their rule of law challenges at an early stage. These problems encompass but are not limited to for instance widespread corruption (observed in Malta or Hungary), shortfalls in regulating lobbyists (case of the Czech Republic) or even poor engagement of citizens in the decision-making process (traced in Croatia).
According to Věra Jourová, the EU Commission’s vice president for values and transparency, the report was presented as a “preventive mechanism” based on dialogue with all Member States aiming to identify potential rule of law problems. This year’s report will help the European institutions to develop the new European Rule of Law Mechanism, which will be based on an annual evaluation of the condition of fundamental principles of the rule of law in each Member State. However, it will not be a sanctioning mechanism.
On the grounds of the Commission report, it was found out that Member States’ constitutional, legal and political systems generally reflect high rule of law standards, although many challenges persist. The focus of this article will be put on two Member States, which, according to the report, are failing to respect EU laws, its fundamental values, and principles the most. Unsurprisingly, they are Hungary and Poland.
The rule of law in the EU
The rule of law is one of the fundamental values upon which the European Union is founded. It is enshrined in Article 2 of the Treaty on European Union and it is a prerequisite for the protection of all other EU values – including the fundamental rights and democratic principle. For the functioning of the Union itself, respect for the rule of law is essential.
Under the EU’s rule of law, framework countries are obliged to follow principles such as separation of powers, judicial independence, non-discrimination towards minorities and other groups, implying a transparent and pluralistic process for enacting laws and many more. Nevertheless, as the Commission emphasizes, many countries struggle with complying with even the most elementary principles – especially Hungary and Poland. In Hungary, for instance, violations of media freedom and biased judicial system remain to be addressed, whereas in Poland the main concerns regarding the rule of law are lack of independence and legitimacy of the Constitutional Tribunal and policies discriminating various sexual minorities.
As a rather growing tendency of illegal and undemocratic actions can be observed in a couple of EU countries, the Commission’s recent concerns about the state of the rule of law across the continent are therefore legitimate – and it is greatly observable on our two examples, Hungary and Poland. But the EU Commission has simultaneously been cautious about the fact that, yet there is no legal mechanism for securing the compliance of the Member States (also referred to as MS) with the rule of law. Especially these two countries have been disregarding the legal state principle in the past years and even led a dispute with the Commission and the Court of Justice of the EU.
Thus, the EU Commission is coming up with new initiatives related to the strengthening of the rule of law EU-wide. Firstly, with the annual report which shall serve as a “preventive mechanism” and secondly, it recently proposed a regulation authorising the EU institutions to suspend the transfer of the EU funds to those MS breaching the rule of law. If adopted, this regulation would become a new “legal mechanism,” which is currently missing.
The Commission Report – Hungary and Poland
In July 2019, the European Commission labelled strengthening of the rule of law as “a key objective for all,” and subsequently conducted a Eurobarometer survey, which showed great support for the rule of law among European citizens. This September, the EU Commission came up with a comprehensive report which focuses on four main pillars (the justice systems, anti-corruption frameworks, media pluralism, and other institutional checks and balances), which are at the heart of the respect for the rule of law in our democracies. In the report presented, the Commission evaluates both positive and negative trends of the state of rule of law.
From the report, it is obvious that as far as justice systems are concerned, both Hungary and Poland are failing in providing for effective judicial protection and review in compliance with the EU law. The Commission, among other things, emphasizes that independence of the prosecution is a relevant issue for discussion as it has important implications for tackling crime and corruption. Poland is quite problematic in this regard as the Minister of Justice is simultaneously the Prosecutor General. This double role increases the vulnerability to political influence.
Another problem may arise when reforms of judicial systems are on the agenda. In Hungary in particular, concerns may be in place as the new rules allow for the appointment to the Supreme Court of members of the Constitutional Court, elected by Parliament, outside the normal procedure. And as the Director of Amnesty International Hungary pointed out, the Hungarian Government is still continuing to challenge final court rulings. These issues were raised in Article 7(1) TEU procedure initiated by the European Parliament. The very same procedure has been launched against Poland, too, as its justice reforms have been a great source of controversy since 2015. Furthermore, the Commission launched another two infringement procedures to safeguard judicial independence in the aforementioned country.
Another area of the Commission’s focus was anti-corruption framework situation in the Member States. In this regard, the report says that criminal investigations and application of sanctions for corruption still face challenges in several EU countries; thus, there are concerns about the effectiveness of the investigation, prosecution, and adjudication of corruption cases. Although developing and effectively implementing anti-corruption plans and strategies is essential for monitoring corruption in countries world-wide, unlike many EU members, neither Hungary nor Poland have adopted a national plan to fight corruption. This is a great example of their reluctance towards improving their rule of law status in the Union.
In Hungary, the prosecution of corruption cases involving high-level officials, or their immediate circle remains very limited when serious allegations arise. Especially since 2010 when the Fidesz party of the Prime Minister Viktor Orban assumed power, it is assumed that high-level officials not only exercise power over the opposition, media, religious groups, NGOs, courts and the private sector, but they have also established broad control over public institutions including those with investigative and auditing objectives.
Poland, on the other hand, has been praised for envisaging and strengthening measures for corruption prevention and integrity framework. Nevertheless, it cannot be argued that there is no corruption in Poland, albeit it differs from the Hungarian. Pursuant to judicial reforms from the beginning of this year, it is obvious that government as well as other state officials, particularly those affiliated with PiS, enjoy unprecedented space for performing self-serving activities and for promoting and enforcing their own interests without proper impartial supervision. The recently adopted “muzzle law” prohibits the judges to question those officials appointed by the president. Thus, as one can note, the law not only violates the international and EU law, but it simultaneously further undermines the independence of the Polish judiciary and therefore the whole checks and balances principle.
MEDIA PLURALISM AND MEDIA FREEDOM
Media pluralism and media freedom are key features of the rule of law, fight against corruption and democratic accountability. Recent murders of journalists in a couple of European states have been a wake-up call for all countries, stressing the need to guarantee and enable a safe environment for investigative journalists and to actively promote media freedom and pluralism. Nevertheless, both Hungary and Poland greatly fail in this respect as they do not respect the independence of media authorities.
Extensive media infringement enacted by Fidesz has created avenues for politicized media regulation and although private and opposition-aligned media exist, national, regional, and local media are dominated by pro-governmental outlets. Furthermore, according to the Freedom House report of 2019, a number of independent media outlets ceased their operations in the period 2016-2018, including the largest Hungarian independent daily, Népszabadság. As the 2020 Commission report shows, sudden closures of independent media outlets and broadcast stations in recent years are the consequences of infringement, influence, threats and even attacks of journalists carried out by Fidesz officials. In addition, in the absence of legislation and transparency in the distribution of state advertising, substantial amounts of state advertising channels to pro-governmental outlets which gives the government a unique opportunity to exert political influence over the media in Hungary.
Another threat may come up when media pluralism is concerned. Establishment of KESMA media conglomerate through consolidation of almost 500 pro-governmental media outlets can be undoubtedly perceived as a breach of media pluralism principle in Hungary. In Poland, media pluralism has been questioned too, both – in this year’s Commission and the 2019 Freedom House reports. Roots of this problem could be found in 2015 when the Law and Justice party came to power. Ever since, the public media have lost its independent and dissenting voice. Even TVP, the public television broadcaster, has been promoting the PiS government’s message on a wide range of topics. Later in 2019, TVP openly supported the ruling party’s campaign during the European Parliament elections discrediting any attempts of the opposition and, thus egregiously breaching of public media’s legal obligation to provide information in a reliable and pluralistic manner.
OTHER INSTITUTIONAL ISSUES LINKED TO CHECKS AND BALANCES
Finally, as the report highlights, institutional checks and balances are at the very core of the rule of law principle in the EU. This institutional principle has also been undermined in both Hungary and Poland in the past ten and five years, respectively. What can be observed in Poland, for instance, is the excessive usage of accelerated and emergency legislative procedures for adoption of significant judicial reforms, which ultimately leaves out the Parliament – a supreme legislator and consultant of the law-making process.
Both countries simultaneously fail in the field of civil society organisations as they do not provide a stable environment for such groups in the first place, nor they follow appropriate association laws. Based on association laws, civil society organisations are able to act collectively in areas of common interest, furthermore – it is crucial that they operate without unjustified interference of state authorities. It needs to be noted that many Polish NGOs are targeted by the representatives of public authorities – for instance, they do not hesitate to use unfavourable labels for LGBT communities or to arrest and detain some of their group members.
These and other actions of a similar kind have raised many concerns among high-EU representatives. As long as civil society organisations are concerned, Hungary is not left behind either. In summer 2020, a new law on foreign-funded NGOs was adopted in the Hungarian parliament. It introduced certain obligations for certain types of NGOs which receive annual foreign funding above approximately €24,000. These organisations, according to the law, face serious sanctions if they fail to comply with the new reporting and transparency obligations. According to the EU Commission’s high representatives, this new act is not compatible with the EU law as it interferes the Union’s fundamental rights (right to freedom of association, free movement of capital, right of protection of private life and personal data etc.)
The European Commission presented the rule of law report, first of its kind, in order to ensure that European countries respect fundamental values and principles upon which the Communities are based on. It aims to promote accountability amongst national governments and to make sure that a flourishing system of wide public debate and democratic dissent, including a free press and a thriving civil society sector, develops. Nevertheless, some countries – namely Hungary and Poland, have been rather hesitant of and even in opposition to the report conclusions. The Commission described many of their actions and procedures as illegal and undemocratic, but representatives of both countries did not consider these statements to be true. Their Ministers of Foreign Affairs even agreed that their countries were treated unfairly under what they described as Brussels’ “double standards.”
The rule of law has been the top priority of the current European Commission of Ursula von der Leyen from its very introduction. Thus, it is understandable why it is coming up with the new initiatives and mechanisms which shall ensure promotion, protection, and adherence to the rule of law principles in all Member States. Actions are coming at the most vulnerable moment as there have been many undemocratic and unlawful tendencies observed in a couple of EU states, approximately in the past five years. Repeatedly, Hungary and Poland have been the most problematic ones.
Two countries have been labelled, by various independent surveys on democracy and freedom, as those who oppose and violate the EU rule of law principles more and more. Therefore, it is obvious that these countries are unwilling to make a real change in their political and institutional set-ups as they still appear to be very defensive towards any statement describing their systems as undemocratic or totalitarian, even though the line between ‘illiberal democracy’ and authoritarianism is blurred at best.
Given that elections in Hungary and Poland will not take place until 2022 and 2023, respectively, at the latest, systemic change is not on the immediate horizon, underlining the necessity from EU perspective to match the rule of law reports with coercive/enforcement mechanisms to ensure compliance, lest countries violate rule of law and threaten Europe with impunity.
Aneta Navrátilová is an intern with Europeum. She studied international relations and European studies at Masaryk University.