On 21-22 September, Radboud University in Nijmegen celebrated the inauguration of Professor Petra Bárd with a conference based around the topic of her inaugural lecture on “sustainable Rule of Law”. This series of RevDem op-eds collects reflections arising out of that event on the contemporaneous challenges for the Rule of Law. In the first entry, Benedetta Lobina (PhD candidate, University College Dublin) considers the Rule of Law impacts of the Russo-Ukrainian war.
Over a year and a half since the beginning of Russia’s war of aggression against Ukraine, the EU’s façade of unity and solidarity seems to be slowly slipping. Unsurprisingly, the culprits are the same Member States that have reneged upon EU law and values for the past decade: Hungary and Poland. It may appear surprising from a historical perspective that these two former Soviet satellite states would antagonise their Western allies while their former oppressor is back to its old tricks. However, since 2010 and 2015 respectively, Hungary and Poland have turned their backs on democracy by following the blueprint of Putinism: capturing the judiciary, removing independent watchdogs, curtailing the civil rights of gender and ethnic minorities, and fostering corruption. Their repudiation of liberal constitutional democracy and the Rule of Law has, whether deliberately in one case or inadvertently in the other, become an asset to Russia and continues to affect the EU’s response to Putin’s belligerent turn. The question is: can this continued rejection of EU law and the spill over of Rule of Law deficiencies into other aspects of integration become a breaking point to push the EU institutions to enforce fundamental values?
Dealing with attacks to democracy inside and outside its borders, the EU has undoubtedly found itself in a difficult position, especially when Hungary’s government started abusing its veto powers in the area of Common Foreign and Security Policy to water down sanction packages, block aid and overall hinder the united efforts of the other Member States. However, the shameless promotion of Viktor Orbán’s illiberal agenda at Union level has resulted in Hungary being the first MS to see its EU funds withheld via the Rule of Law Conditionality Regulation.
On the other hand, Poland was an early supporter of increased support for Ukraine and stricter sanctions on Russia, assuming a position of leadership in the Western response. It is interesting to observe that the Rule of Law Conditionality Regulation has not been activated against Poland, despite many of the same issues pertaining to judicial independence found in Hungary being present in the “legal black hole” that Poland has become. Nevertheless, in light of the upcoming elections of October 2023, the priorities of the incumbent PiS government have drastically shifted. First, it drafted a law against “Russian interference,” which effectively mirrored the Russian law used to prevent opposition candidates like Alexei Navalny from participating in elections. The latest development is the decision to side with Hungary and Slovakia in a rogue move to contravene EU law and block grain imports from Ukraine.
After security policy, the EU is once again undermined by backsliding governments, this time in trade policy, one of its main areas of competence. This is yet another wake-up call as to the effect on the supranational arena of domestic erosion of Rule of Law and democracy, which ultimately poses an existential challenge. When Member States operate in complete disregard of their obligations arising not only from Article 2 TEU, but also Article 21 on the promotion of Union values on the international stage and their duty of loyalty under Article 4(3), their continued enjoyment of the perks of EU membership is dissonant and problematic. Moreover, with Hungary being officially recognised as a non-democracy by the European Parliament in 2022, its participation in decision-making within the Council compromises the legitimacy of the process, and is especially concerning when the state makes full use of its veto powers to go against the will of all the others and defend the interests of Russia.
Time to play enforcement hardball
The EU’s handling of the Rule of Law crisis has long suffered from short-sightedness. The reluctance to intervene in what were mistakenly considered issues that could only be solved at the national level has borne fruit in the form of continuous challenges to its credibility and its decision-making power. Recent events display an urgent need to deploy all the available tools to preserve the unity and common goals of the EU.
While the ongoing Article 7(1) TEU procedure is likely to remain stuck in limbo, the Commission has been more successful in withholding funds through a combination of the Conditionality Regulation, the Common Provisions Regulation and the Recovery and Resilience Facility. This is a positive signal, but it is paramount that the Commission holds a firm line against both Hungary and Poland, the latter of which has received a more lenient treatment as a result of its initial cooperation in the war-related efforts. Furthermore, early signs of symbolic compliance must not be accepted as a consolidated success. The grain agreement debacle emphasizes that the enthusiasm for compliance shown by the Commission, for example in the 2023 Rule of Law Report, is premature at best.
With growing concerns over the regularity of the upcoming Polish elections, the EU might soon find itself housing two non-democracies in full enjoyment of voting powers in the Council, which is an open violation of Article 10(2) TEU. Moreover, Hungary and Poland are scheduled to hold consecutive presidencies of the Council in the second half of 2024 and first half of 2025 respectively, and their ability to set the EU’s agenda poses a significant threat to the Rule of Law as well as to the EU’s relations with Ukraine.
Even beyond democratic legitimacy, the fact that unanimity in the Council is required in many key areas has granted these governments a disproportionate amount of power, which has allowed Hungary in particular effectively to extort the EU in exchange for its cooperation. Most recently, Orbán has been threatening to veto the EU budget, taking particular issue at the provision of financial aid to Ukraine, at least until the EU funds currently frozen due to Rule of Law violations are released. Should the Commission cave to these requests, it would lose all of its leverage and defeat the purpose of the new conditionality regime.
The two most immediate avenues to address these issues are the instrumentalization of Article 10 to prevent non-democratic Member States from holding decision making hostage in the Council and in the European Council, and implementation of contingency plans to protect the functioning of the Council in relation to the rotating presidency. The first ever use of Article 10 in conjunction with Article 2 in the infringement procedure started against Poland with regard to “Lex Tusk” is perhaps the culmination of the Commission’s renewed commitment to defending democracy and the Rule of Law in the past two years, although the road ahead is long.
The EU is currently facing the strongest attack to democracy in its history, both inside and outside its borders. The need to uphold its founding values is highlighted now more than ever, when the lack of sincere cooperation undermines the Union’s position on the international arena and veto powers are being wielded liberally to defend the interests of a belligerent autocracy bringing war to its footsteps. Arguably, however, the EU has all the necessary tools as well as the duty to uphold its values and defend democracy. It is time that it uses them and fulfils its promise of being a promotor of democracy across the continent.