The Hungarian-Polish veto on the EU budget and the recovery fund was averted at the European Council last week, but threats to core European values were not. The EU’s rule of law crisis is nowhere near to being solved, and attacks on fundamental rights and democracy will intensify in the wake of the Covid-19 pandemic. The European Commission needs to deliver on its promises to “strive for more when it comes to protecting our citizens and our values.” For citizens to maintain pro-EU sentiments, they need to see the Union keeping the promises it made, and EU institutions sticking by them in the face of inevitable illiberal attacks.
This commentary is part of our dossier on the Rule of Law in the EU.
Europeans heaved a sigh of relief when last week’s European Council summit adopted its conclusions and the Hungarian-Polish veto on the next EU budget and the Recovery Fund was averted. Not only will the EU have the financial means to take essential action to respond to the economic damage caused by the Covid-19 pandemic, it should also have a long-awaited tool to sanction the corrupt use of EU funds.
The deal that ended the high-stakes drama over the rule of law conditionality mechanism also offered a cover for those in the business of systematically breaching the rule of law to return home claiming that they had yet again “fended off Brussels”. This, of course, is a fallacy. While the delay in its implementation is a gift to the autocrats, the German EU Presidency safeguarded the rule of law regulation -- in at least the medium run -- no matter how hard Hungary and Poland tried to prevent this.
No magic wand
Paradoxically, the European Council felt that the rule of law needed to be breached to protect the rule of law. The compromise created a legal machinery that will move at a snail’s pace. On the procedural side, the European Commission will delay the application of the -- directly applicable -- regulation until the EU Court of Justice (CJEU) has ruled on it and the Commission has finalised its own guidelines. This delay will buy autocrats time to frontload EU funds to further engage in state-organised corruption and weaken democratic and transparency standards, and crucially, the protection of the rights of European citizens. Alongside, it will open the door for continued efforts to tame the judiciaries in Poland and Hungary and to further starve and strangle independent media and civil society.
At the same time, the new mechanism was not expected to be a magic wand that, once waved, would protect all of the EU’s core values. While the European Parliament fought for a strong tool to sanction a wider range of rule of law breaches, many Member States originally merely intended the rule of law conditionally to stop funding governments that use EU taxpayers’ money in fraudulent or corrupt ways.
Toxic all the way
The EU’s rule of law crisis, however, is nowhere close to being resolved. Its toxicity will spill into other policy areas far beyond the use of EU funds. The illiberal campaign mounted by Hungary and Poland will steamroll ahead, trying to redefine the terms of mainstream European politics. They will do so by insisting that their “national interpretations” shape the contours of the European rule of law and their “margins of appreciation” override binding international human rights law.
This will, at the same time, undermine the multilateral legal and institutional framework meant to protect and advance them -- both in Europe and in the external dimension of EU policies. Both countries will continue to rely on self-designed notions of sovereignty, national interest and identity in their energetic efforts to weaken the protection of core EU values. Their methods, employed against EU Commissioners and member states that are ‘friends of the rule of law’, will mimic their smear campaigns against Hungarian and Polish NGOs, journalists and political opponents. The way the two governments threaten and bully their own citizens at home is on full display for Europe and beyond to see, while they aim to poison the room and fuel polarisation at EU level.
Next stop: full assault
Before taking office, Ursula von der Leyen announced in her Political Guidelines that equality and the rule of law will be important priorities for her Commission. Migration and supporting democracy within the Union are also at the centre of European debates. It is heartening that the Commission has recognised the imperative need and in recent months has outlined a series of plans to strengthen equality and democracy in the EU in 2021, which may also bring the EU closer to its citizens: the Action Plan on Integration and Inclusion, the Anti-racism Action Plan, the Plan on Roma Inclusion, the Gender Equality Strategy, the LQBTIQ Equality Strategy, the New Pact on Migration and Asylum and the European Democracy Action Plan.
Yet it will be exactly these priority areas of EU policy and law-making that Orbán and Kaczynski will target next and weaponise.
The ultranationalism and Kleinstaaterei at work betray the extent of support for the European Union and supranational governance. Three quarters of European citizens agree that the distribution of EU funds should be linked to respect for the rule of law and democratic principles. Most if not all of us are outraged that EU funds end up in the pockets of government cronies and are used to fuel politics that strive to conceal these abusive practices.
In Hungary, despite the government’s relentless push of the Brussels-bashing narrative, popular support for EU membership is at a record high: 85 percent of adults supported it at the end of November. Similarly, in Poland, 83 percent of the population held a positive attitude towards the EU in the summer of 2020.
This is close to a miracle. These countries’ pro-EU attitudes are sustained in spite of highly coordinated and well-funded propaganda machines that are designed to turn voters into intolerant nationalists.
Last week, many Hungarians were painfully disappointed by the deal concerning the rule of law regulation, particularly the delay in its implementation. While their expectations may have been unfounded or unrealistic, they still looked to the EU institutions to be their allies in standing up to corrupt autocrats.
Of totems and taboos
In 2021, the European Commission needs to deliver on its promises to “strive for more when it comes to protecting our citizens and our values.” In order for citizens to maintain pro-EU sentiments, they need to see the Union keeping the promises it made and EU institutions sticking by them, even in the face of inevitable illiberal attacks.
So how should European institutions react to systematic and increasing attacks?
We cannot let human rights and rule of law in Europe become taboos that are best avoided in the interest of a pleasant dining experience. Or to ensure the seamless operation of German car assembly plants in Hungary. Appeasing autocrats has never been effective either in reversing backsliding or preventing its spread across borders, and that will not change in 2021.
Regarding the human rights and democracy policy proposals tabled for 2021, the Commission should not allow itself to be bullied by illiberal member states. These plans are laudable and the Commission should proudly own them, get ahead of the attacks, prepare effective public communication plans and seek and support allies, such as civil society, around Europe.
More member states have to speak out about the existential crisis that the EU is facing if it fails to stay true to its values. The Article 7 procedures concerning Hungary and Poland should not be closed, since they have not been rendered redundant and the underlying clear risks of serious breaches of Article 2 values are becoming even more pronounced. Ending them would be a testimony to the Council’s sheer powerlessness as it surrenders to autocrats.
Courting the Court
While the debates over the direction of EU policies continue, existing rights will require even greater protection. This is all the more important since domestic backsliding on rule of law and human rights standards will put rights at risk in an increasing number of member states, as the pandemic leaves economies and societies frayed. In this, the CJEU has a central role.
In recent years, the Court of Justice has evolved into the EU’s true rule of law and human rights court. It did so through rulings on non-discrimination, personal data, asylum and migration, or judicial independence and freedom of association, and the application of the Charter of Fundamental Rights. The Commission should continue to launch infringements actions against rights-violating Member States, and if necessary, bring these cases to the CJEU without delay -- as should be done in the case of the Polish ‘muzzle law’.
Essential emerging EU jurisprudence on rule of law and human rights standards also builds on the dedication and resolve of domestic judges, who may face intimidation if they make preliminary references to the CJEU. It requires lawyers and NGOs to assist clients despite highly charged contexts and journalists to uncover what unscrupulous governments hope to keep from public scrutiny. In its democracy and human rights strategies as well as its funding programmes, the European Commission must support these actors of the rule of law and their capacity-building, litigation and solidarity efforts.
Like entitlements, judgments are empty promises without enforcement. The Commission should not hesitate to return to the CJEU if a member state fails to implement its judgment, and should seek financial penalties against recalcitrant Member States. This should certainly be done in the case of the Hungarian NGO law judgment (June 2020), where the Hungarian government has been dragging its feet to implement the ruling. In the same vein, the landmark CJEU judgments upholding the rights of asylum seekers and migrants not to be unlawfully detained and pushed back at borders (May 2020 and this week) will also call for enforcement.
The Court may find itself in the centre of political attacks and smear campaigns when, in 2021, Poland and Hungary challenge the rule of law mechanism, once set in motion, as well as further cases that are centred on explosive issues such as judicial independence or asylum.
Some governments may think that with the rule of law mechanism now ticked off the EU’s agenda, at least for a while, the headache will abate. But a European Union that inspires and protects, one that its 450 million citizens can feel close to and be proud of, should not allow their human rights to be hijacked -- neither at EU level nor by member states. As we transit into 2021 with much hope, we must make sure these values are upheld.