The Hungarian and Polish Rule of Law Crisis: why should we worry?
As the Coronavirus takes force and hits the European continent twice as hard as in the spring phase, the European Union (‘EU’) seems to be facing an entirely different, yet familiar crisis. While EU leaders are trying to reach a compromise on the budget and coronavirus recovery package (‘the Budget’), the rule of law inexorably remains a scoop. Being subject to Article 7 of the Treaty of the European Union (‘TEU’) (‘Article 7 Procedures’) (Geiger, Kotzur and Khan, 2015) Poland and Hungary have long been under scrutiny for violating the principles covered by TEU legislation. In response to the criticisms by other EU states, both countries threatened to block the current talks over the Budget if they find the proposed‘rule of law mechanism’ unacceptable. As Poland and Hungary’s resentment towards the proposed ‘rule of law mechanism’ manifests, the question arises: Should we worry?
The breach of the Article 7 Procedures
The procedure that has been triggered against the actions of the Polish and Hungarian governments is covered by Article 7 Procedures (Ginger and Emmet, 2020). It applies whenever the EU Commission identifies a member state which persistently breaches the EU’s institutional founding values, namely the respect for ‘human dignity, freedom, democracy, equality, the rule of law and respect for human rights’ (Treaty of the European Union, 2012). The criteria embraced by the TEU are ‘unconstitutional constitutionalism’ (Müller, 2008), understood as the abuse of power through legal means, the undermining of the liberal democratic state and systematic corruption (Closa, Kochenov and Weiler, 2014). In separate occasions, both Poland and Hungary were accused of infringements on judicial independence and erosion of democratic standards. As both the governments voiced their opposition towards the proposed ‘rule of law mechanism’, they instead came up with the idea to establish their own rule of law institute (‘the Institute’) by the first half of 2021 (Eszter, 2020). Supporters of this idea appealed to the concept of ‘double standards’ prevention in relation to the current rule of law standards espoused by the European Commission (Eszter, 2020). Hungarian foreign minister commented on the issue as aiming at the institute is not to be taken for fools (Eszter, 2020). Unquestionably, Central Europe is currently under the influence of strong conservative ruling and that provides a meaningful counterbalance to the old model of institutional values.
Human Rights Crisis?
As the highly sensitive talks over the Budget continue, member states are inexorably keeping a close eye on the eastern border of the European community. Notably, the right-wing rule in Poland carried out anti-LGBQ+ movements over the past few years, while implementing restrictions on personal freedoms and judicial independence. Law and Justice Party (‘PiS’), Poland’s ruling party since 2015, has filled judiciary and independent media with loyalists, sharing a highly distorted image of reality through various methods of bias. The tension among PiS’ supporters and the rest of the society escalated after last week’s constitutional tribunal ruling which enacted an almost-total ban on abortion, prohibiting pregnancy termination in cases of foetal deformation. Pro-choice supporters held the biggest-ever protest since the collapse of communist rule in 1989 against the government, accusing the Parliament and judiciary of validating human rights violation that is in conflict with international conventions such as the European Convention on Human Rights (1950). This is certainly a positive change. Yet, sceptical foreign commentators accentuated that the society remains highly polarized rather than miraculously united under PiS (Easton, 2020) ruling, which was evident in the previous presidential elections (Easton, 2020).
Although Poland remains a burning point, the European community has not turned a blind eye to the democratic and human rights issues in Hungary. Hungarian officials remain to be regularly accused of corruption and fraud, which was vastly presented in the recent EU Commission’s reports (European Commission, 2020). Unsurprisingly, Hungary immediately commented on the information as being ‘irrelevant and biased’ (Petrequin, 2020). Additionally, the prime minister’s anti-homosexual campaign is being broadcasted across the state. With such evident human rights infringements in mind, one cannot possibly be shocked with Poland and Hunary’s plans for the contradictory Institute foundation.
Reasons for rule of law counterbalance institute formation
Hungarian Justice Minister, Judit Varga, claims that the main aim of the institute will be to ‘show Europe that there might be an alternative interpretation (of the rule of law)’ (Petrequin, 2020). He also claims that the Institute would enable the country to be better understood by other European State (Petrequin, 2020). Major newspapers comment the Institute is misleading and merely a great distraction to divert the EU’s attention away from potential further breaches of the rule of law in Central Europe.
The Institute proposed by Poland and Hungary faced criticism from member states including Sweden, the Netherlands and Denmark. The Guardian refers to the commentary of the Dutch Government, which has stated that ‘they have warned that the current proposal puts the threshold for action far too high and that its parliament would be unlikely to ratify the EU budget at all should it be put to the country’s Members of the Parliament’ (Shaun and Daniel, 2020).
What’s next?
As the significance of other EU issues such as Brexit deal talks and pandemic regression grows, Poland and Hungary’s attempt to evade from the rule of law may not be treated as a priority by the EU leaders. Yet, the Union must keep their eyes peeled for the breach of fundamental human rights and values protected under the Article 7 Proceedings, bearing in mind the political destabilization and upheaval in neighbouring Belarus. As the rule of law in Hungary and Poland continues to be undermined and questioned, it seems that Europe must once again prove its integrity in action. Yet, due to the strong political unwillingness to use the mechanism provided for by the Article 7 proceedings, there are calls to establish monitoring or early warning mechanisms, despite ‘going unheeded for a decade’ (Sadurski, 2009). The question arises: will they break through the institutions who shy away from taking robust action?
A piece by Marta Stępniewska.
Bibliography
Closa, C., Kochenov, D. and Weiler, J.H. (2014). Reinforcing rule of law oversight in the European Union. Robert Schuman Centre for Advanced Studies Research Paper, 14(25).
Easton, A. (2020). Poland’s Duda narrowly beats Trzaskowski in presidential vote. BBC News, [online]. Available at: https://www.bbc.com/news/world-europe-5338502, [Accessed 29th Oct. 2020].
Eszter, Z. (2020). Deal in reach on linking EU funds to rule of law. EUObserver, [online]. Available at: https://euobserver.com/political/149909 [Accessed 30th Oct. 2020].
European Commission. (2020). 2020 Rule of law report. The rule of law situation in European Union, [online]. Available at: https://ec.europa.eu/info/sites/info/files/communication_2020_rule_of_law_report_en.pdf, [Accessed 1st Nov. 2020].
European Court of Human Rights. (1950). European Conventions on Human Rights, [online]. Available at: https://www.echr.coe.int/documents/convention_eng.pdf, [Accessed 30th Oct. 2020].
Geiger, R., Kotzur, M. and Khan, D.E. (2015). European Union Treaties. Beck.
Ginger, H., Emmet, L. (2020). What is Article 7? Politico, [online] Available at: https://www.politico.eu/article/hungary-eu-news-article-7-vote-poland-rule-of-law/ [Accessed 29th Oct. 2020].
Müller, J.W. (2008). A general theory of constitutional patriotism. International Journal of Constitutional Law, 6(1), pp.72-95.
Petrequin, S. (2020). European report finds waning of democracy in Poland, Hungary. AP News, [online]. Available at: https://apnews.com/article/virus-outbreak-checks-and-balances-poland-hungary-europe-e3bca7b1fcae74f071eb585cb03d0db5, [Accessed 29th Oct. 2020].
Sadurski, W. (2009). Addint Bite to a Bark: The Story of Article 7, EU Enlargement, and Jorg Haider. Colum. J. Eur. L., 09(16), p.385.
Shaun, W., Daniel, B. (2020). Hungary and Poland to counter critics with ‘rule of law institute’. The Guardian, [online]. Available at: https://www.theguardian.com/world/2020/oct/28/hungary-and-poland-to-counter-critics-with-rule-of-law-institute, [Accessed 29th Oct. 2020].
Treaty of the European Union. (2012). Consolidated version of the Treaty of European Union, [online]. [Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M007&from=FR#d1e40-13-1, [Accessed 1stNov. 2020].