In recent years, the rule of law has been dismantled in the EU, especially in Hungary and Poland. Who and which measures can guarantee safeguarding democracy and citizen's rights? And how will the situation develop in Europe?
Sergey Lagodinsky, Member of the European Parliament, Małgorzata Tracz, Member of Sejm (lower house, Polish Parliament), Polish Green Party and Benedek Jávor, Representative of the City of Budapest and former Member of the European Parliament in a conversation with Joanna Maria Stolarek, Head of Office, Heinrich-Böll-Stiftung Warsaw and Gert Röhrborn, Head of Democracy and Human Rights Programme, Heinrich-Böll-Stiftung Warsaw.
Joanna Maria Stolarek: I would like to start with a provocative question. Are the European Commission’s measures to protect the rule of law enough to address democratic backsliding or should the Commission do more?
Sergey Lagodinsky: To be honest, I don’t see that many measures were taken by the European Commission, especially during the coronavirus crisis. We had our questions regarding the situation in Hungary and in Poland. The European Parliament has stated its concerns in several resolutions, but European Commissioners Didier Reynders and Věra Jourová were basically giving a blank cheque to countries for all the measures that I personally and most parliamentarians see critically. I wish that the European Commission had introduced more legal measures and had not been as timid as they were during this crisis.
Joanna Maria Stolarek: Małgorzata, what do you think? How similar are Hungary and Poland regarding the attacks on the rule of law or should we better not compare these countries?
Małgorzata Tracz: The patterns are similar. We had a very specific situation in Poland, where the presidential elections that were supposed to be on 10 May 2020 just didn’t happen. There was legal chaos about it and now the first election was held on 28 June and the second round on 12 July 2020.
There are two main similarities in Poland and Hungary. Firstly, the ruling party “Law and Justice” (PiS) in the coalition that has the absolute majority in the Polish Parliment. Secondly, there is the important role of the so called ‘public media’, which is public only by name. In fact it is 100 percent government-controlled and used for propaganda. Their entire news coverage is directed against the opposition and for the promotion of pro-government ideas. There is a lot of disinformation, fake news, and all this is steering public opinion in favour of “Law and Justice” (PiS).
Joanna Maria Stolarek: What is your opinion Benedek? Can we compare Hungary with Poland? Is it justified regarding the rule of law?
Benedek Jávor: Yes, it’s possible to compare them. The two countries have many similarities, as both Poland and Hungary create a very difficult case for the EU. However, there are strong differences as well: complete control over the state hasn’t been created by PiS yet. In Poland, they still have existing checks and balances, institutional opposition to the ruling of the government party. While in Hungary, most of those oppositional or institutional counterbalances have already been destroyed or occupied by the government.
On the other hand, if you talk about the similarities, we see that the local level, the municipal level, has importance in the resistance against illiberal populistic governments. To illustrate, both of the mayors of Warsaw and Budapest are from the opposition. In other larger cities, the opposition has a relatively strong position in local politics and local governments as well.
Gert Röhrborn: Sergey, I have a question to widen the perspective. Who is actually working in the EU to safeguard the rights of citizens? Not only looking at Poland and Hungary, but also at what happened under the coronavirus pandemic. After the beginning of the restrictions there were voices complaining about the constraint of civic rights. Who has a role to play, also beyond parliaments?
Sergey Lagodinsky: Your question actually contains two questions: Who has a role and who has an effective role? This is an important difference within the EU’s structures. Civil society plays an important role. From my perspective, they are the most important voices because they uncover, they unmask deficiencies.
The parliament also plays an important role. We monitor, there is a ‘Rule of Law and Fundamental Rights Monitoring Group’. All political groups are present and starting from the beginning of the pandemic we met every week and closely watched the situation.
I believe that the one effective actor that we will be seeing is the European Commission because the two pressure points that we have are legal proceedings and money.
Gert Röhrborn: I would like to follow up with a question to both of you, Benedek and Małgorzata: Which measures that we’ve discussed are going to bolster trust in the EU? Or is the EU giving these governments more arguments against European integration?
Małgorzata Tracz: The conditionality of the recovery plan and rule of law are very important topics, and also priorities of the German EU Council Presidency.
We have to be aware that the reaction of the EU on breaking the rule of law in each member state is actually protecting the citizens. You can compare it to quarantine.
Quarantine is never popular, but it is designed to protect us against a larger societal crisis, which is why people can understand and accept its purpose. However, it is crucial to understand that if European cohesion and green transition funds are frozen, due to rule of law concerns, a portion of the money won’t be redirected to local governments and non-governmental organisations, who are fighting for green and democratic values.
It takes a lot of ‘grass-roots work’ to explain to people that the EU is so much more than just a fund for economic development or for fighting the crisis.
I would also like to refer to the role of civil society, because during the pandemic in Poland the government was cynically using the restrictions for public gatherings, to shut down civil society. There were disproportionate fines for protesting on the street, even while keeping two metres distance and wearing face masks. Yet, despite the obstacles, many organisations found a way to spread their message and protest in a way that was not a danger for public health. It was very impressive and I think that we as Greens or as opposition politicians should wholeheartedly support this type of civic engagement.
Joanna Maria Stolarek: Benedek, what is your take on this?
Benedek Jávor: You cannot avoid the Hungarian government speaking against the EU, so it does not make a real difference. Yet, it is true that you can generate some negative feelings towards the EU in the pro-government public in Hungary or in Poland with the introduction of the rule of law conditionality. However, you also have to take into consideration the level of trust in the EU institutions in the rest of the public, where there is an increasing disappointment over the EU doing nothing against illiberal tendencies. And the trust is eroding in net contributor countries as well because people believe that the money they pay for the EU is used in the wrong way and there is not enough control over it. It’s about public confidence towards the EU in the pro-European public. They are the important ones for the leaders of the union or the political background of eurosceptic and anti-European governments.
I agree with Malgorzata, the EU should not simply find a way to control the EU funding for member states and in some cases sanction them; the EU should try to find partners in those countries. There are progressive civil society actors or municipalities in Poland, Hungary, the Czech Republic, Romania and Bulgaria who are trying or are willing to join the European efforts in the fight for EU-initiatives and regulations. They should be supported.
Joanna Maria Stolarek: Sergey, what do you think about the suggestion to support local partners? How can the EU do this?
Sergey Lagodinsky: I think it is important that we are talking about partners. This is part of European regionalism and that is why it is worth exploring. I am very interested in how we can earmark funds for municipalities. We should also be supporting civil society.
Financial support for NGOs, independent media and non-profits is of utmost importance. This is something that I am championing because civil society will be particularly vulnerable in the post-pandemic recovery: they will be at the mercy of their national governments. We are also concerned about the amount of money going to civil society, but also for anti-racism training, as part of the justice and values framework instrument. It is supposed to be cut by 20% according to the current MFF plan.
This is unacceptable and we must ensure that any government participating in the recovery program guarantees the distribution of funds to a broad range of non-governmental actors and independent media. Rule of law is as critical for the EU as its economies.
Gert Röhrborn: According to your assessment, is there something the EU could do to directly support judges and the judicial systems of the member states? Or at least counter the destructive argumentation of parts of the Polish ruling party which claims the EU has no competences at all in this field?
Sergey Lagodinsky: Generally, we should continue investing in programs that foster trainings and support justice officials. Where judges are under pressure from their own governments, the EU should not hesitate to introduce infringement procedures. It is especially important to implement fast interim measures that are linked to monetary penalties in case the governments of these countries do not fulfil the orders. By doing so, we can secure a safe space for judges to operate in.
Benedek Jávor: Independence of the judiciary system is and should be a real red line for the European Commission. Years ago, it was already indicated by Vice-President Frans Timmermans during our discussions around the democratic developments in Hungary that touching it would be a game-changer action from the Hungarian government. And that should be the same in the case of Poland. Well-functioning of the independent control institutions is a key factor of the Rule of Law Mechanism in the next multiannual financial framework (MFF) as well. It should be made crystal-clear by the European Commission that further undermining of the independence of the judiciary would trigger painful reactions including those related to the access to EU-funds.
Małgorzata Tracz: We need to remember that the legal order of member states is part of the EU’s legal order. Judges of member states also act in their capacity as EU judges. This in itself is a good reason to ensure that they enjoy protection and support from EU bodies. Poland is part of the EU legal order as long as it remains a member state. The EU competencies follow automatically from this fact.
However, it is true that at the moment the EU lacks strong means of providing positive support, as opposed to sanctioning powers, for breaches of fundamental principles of EU law and treaties. In my view, this is something that should be remedied and judges across the EU should enjoy stronger protections for their independence to make sure it cannot be easily eroded. One potential solution for the protection of judicial independence could be to be vested with a specialised EU-court for judicial affairs. Such a court could be composed of judges from all member states and exclusively competent to decide as the highest appeal court on disciplinary measures against judges sitting in national courts. This would ensure a level playing field with respect to the protection of judicial independence across the EU. This would require a treaty change in order to be implemented.
More broadly, it will be important to closely watch the European Commission’s upcoming Annual Report on the Rule of Law, the reception it receives and whether it stimulates a debate on this topic. We need more ideas about strengthening judicial independence across the EU and a new way of thinking about preventing encroachment, in particular in light of Polish and Hungarian experiences.
Joanna Maria Stolarek: The last question to all of you. Can you make a prediction of how the situation will develop regarding the rule of law in Europe, especially in Poland and Hungary?
Sergey Lagodinsky: I think we will only be able to create change if we empower actors within those countries and this will be the sine qua non for the future of rule of law. That’s number one. Number two, rule of law was not on the agenda of the European Commission or of many member states for too long, but it has changed. There is a new awareness of this topic and this gives me hope that we will go beyond rhetorical commitments.
Małgorzata Tracz: We need to change the attitude towards the EU by showing that it is a community of values and each of the actions taken by the European Commission is actually meant to protect citizens.
In many countries, certainly in Poland, the idea persists that the EU is nothing but a piggy bank from which we take money for our national interest. This has to change. We Greens need to initiate a debate about the benefits of the EU membership. Paradoxically thanks to the closure of the borders during the pandemic, many people discovered how important it is to freely move between countries, visit families and work corssborder. ‘Europe will be forged in crises,’ said Jean Monnet, one of the founding fathers of the European Union. We need to make sure that we use the political momentum of this crisis, to better explain to citizens how the European Union works. That it is not all about Brussels, the Institutions and the capitals, but it is about people. A people-centric Europe is what I would call it.
Benedek Jávor: If you ask about the state of the rule of law in the EU, and especially in Hungary and Poland, the picture is quite sad, and democracy is in decline – there is democratic backsliding in these countries. This is also an answer to the first question. The European Commission isn’t doing enough against this democratic backsliding.
Still, there is some good news. I completely agree with Sergey that local partners are extremely important.
If you have a look at the recent Polish presidential elections, there was a good chance that after the senate, perhaps the presidency could have been gained by the opposition. It was a close race. However, Andrzej Duda's election victory will underpin the PiS party's de facto monopoly of power until the parliamentary elections in 2023.
In Hungary, last October in the municipal elections, half of the bigger cities were won by the opposition, including Budapest. It is an extremely important message to the EU.
Is the EU able to give a helping hand to partners, municipalities, organisations, or politicians to fight against nationalistic illiberal governments? This fight is quite unequal and if they are left alone, they will eventually lose. Here the role of the EU is really to have a look at the situation and find a way of cooperating better with local partners in those countries. The changes should and can be made only in member states by local citizens, by local politicians and decision-makers and not from the outside, but their fight can and should be backed by the EU.
Joanna Maria Stolarek: Thank you very much, we need the EU more than ever.
The conversation took place on 15 June 2020.