The EU's Democratic Backsliding Against Poland and Hungary | Opinion

Americans and Europeans should realize how similar our respective experiments in political unity have proven to be. If congressional showdowns over debt ceilings and shutdowns sound familiar to Europeans, it's because our leaders also can't seem to agree on a path forward unless a crisis of the largest magnitude forces them to, and even in an emergency, they take every opportunity to press a partisan advantage. The EU is currently trying to leverage coronavirus relief to force compliance from conservative governments in Poland and Hungary, putting the entire continent's financial stability at risk.

The agreement the EU reached in July over its budget for 2021-2027 and its response to the COVID-19 recession was the latest example of European political gridlock. Only after five months without signs of the virus abating, and facing a deadline for the current budget to expire, did EU heads of state agree to redistribute €1.1 trillion in member states' contributions over the next seven years, with an additional €750 billion earmarked to address the economic fallout from COVID-19. Some of the fine print of how states will be required to spend the appropriated money and report on it back to Brussels remains to be hashed out, but at the time of the agreement, the deal tabled away a controversial "rule-of-law conditionality mechanism." Or so we were told.

Let's detour into what this provision entails. EU treaties require "rule of law" to both join the bloc and stay on as a member, but as with much else, what the notion exactly means is left vague, beyond the usual bromides about independent judiciaries and the recourse to contest arbitrary decisions. To the chagrin of Euro-federalists who wish to merge our vastly different systems into a single EU judiciary, EU treaties don't explicitly dictate such minutiae as how constitutional court judges should be appointed and how their mandate should be regulated. Part of this ambiguity owes to the difficulty of laying a concrete benchmark for "rule of law" among countries that remain, compared to the rest of the world, all good exemplars of it. This vagueness, as it turns out, has been used to turn "rule of law" into a cudgel against countries whose prime culpability is not legal, but political.

Poland is one of those countries. In December 2019, Poland's Sejm voted to establish a "disciplinary mechanism" to deal with judges whose denunciations of the make-up of the Supreme Court, a majority of the legislature believed, discredited the country in the eyes of the world. All this traces back to partisan squabbles, not to any neutral definition of "rule of law." The make-up of the Court that these progressive judges denounced stemmed from a period of divided government when the centrist-liberal Civic Platform, upon losing the presidency in 2015 but retaining a short-lived majority in the Sejm, attempted to pack the Court with five new judges. Andrezj Duda, who won the presidency in 2015, vetoed this lame-duck maneuver upon taking office and the parliamentary majority of the conservative PiS party that rode his coattails appointed its own slate of judges—hence the opposition's bitterness, and the disciplinary mechanism meant to keep it from becoming a reputational crisis for Poland.

Sober-minded Poles and Europeans can reasonably argue about the appropriate threshold of legitimacy for appointing—and blocking the appointment of—judges, and what role this question plays in our understanding of the "rule of law." How minority factions should behave when they lose a mandate to shape the judicial branch is the thornier question. Our American friends are no strangers to it. Democrats resented Mitch McConnell's stonewalling of Judge Merrick Garland's nomination in 2016. While Trump has overhauled the federal bench far beyond the norm for a one-term president, outside groups aligned with the opposition party have portrayed America's entire judiciary as an accessory to authoritarianism.

Sadly, Poland's opposition, not trusting that the Polish people can arbiter against interference with the judiciary, have themselves enlisted a plethora of outside NGOs and Brussels bureaucrats to lambast an alleged "backsliding" of democratic norms. It's a drum the Polish Left, ever so weary of the Poles voting the wrong way, has beaten so loudly that in April 2019, the European Commission launched an "infringement procedure" against Poland over the disciplinary mechanism.

Pedestrians are walking in front of the Berlaymont, the headquarters of the European Commission, on September 24, 2020 in Brussels, Belgium. Thierry Monasse/Getty

Such infringement procedures, cloaked in self-righteous virtue signaling about "rule of law," are anchored in partisan dislike of conservative governments. Hungary is an even better example. With perhaps the aggravating factor of a recent spike in reported corruption cases, Prime Minister Viktor Orbán is the real bête noire of Brussels's liberal-federalist consensus, and the Commission's probe into his government's judicial policies is even more compromised than in the case of Poland. Under scrutiny is Hungary's tightening of transparency requirements on foreign-funded NGOs which, under the guise of legal aid, deliberately stoked the inflows of asylum-seekers through the Serbian border in the summer of 2015, at the height of that year's migrant crisis.

Again, the proper ordering of an independent judiciary can be a matter of reasoned argument. Yet even though its infringement procedures have yet to definitively ascertain breaches grave enough to warrant financial penalties, the EU threatened to withhold vital funds—risking the immeasurable achievement of the July deal—on the basis of requirements that are nowhere specified in EU treaties. If this sounds awfully close to blackmail, it's because it is blackmail.

More clearly than ever before, the EU showed how far it will go to coerce states diverging from its proto-federalist, hyper-liberal direction into accepting its one-size-fits-all diktats. The choice given to Poland and Hungary on Monday was, in the words of a German social-democrat politician, to either "financially starve" or drag the entire Union into the same predicament by vetoing the whole budget, thus throwing the arduous progress of the last few months out the window. But putting the July deal at risk was not an accident—it was precisely the EU's strategy. To the heads of state who added the conditionality mechanism back into the budget deal, leaving Europeans out in the cold without essential funds to weather the crisis was a risk worth taking, if the payoff was bending Poland and Hungary once and for all.

The Euro-federalist consensus in Brussels is no doubt solid, but so is the determination of Poles and Hungarians not to be bullied. On Monday, the plot to subdue them failed, thankfully. After being dared to either bow down or veto the entire package, PMs Orbán and Mateusz Morawiecki chose the latter. On the face of it, they were entirely right to do so—the conditionality mechanism directly contravenes the Council's prior decision from July and castigates two sovereign member states on the basis of something that's not in the treaties.

As the Council prepares for further talks this week, Germany's Angela Merkel is reported to be willing to buck anti-Poland and Hungary hardliners, such as the Netherlands, and seek a compromise with Orbán and Morawiecki. But the veto was crucial for another reason. Seeing as how the EU is ready to fill the vacuous notion of "rule of law" with the latest progressive shibboleth of the day and use it as a cudgel against governments that dissent from Brussels' liberal-federalist consensus, what is to stop it from finding even more off-base accusations in the future? What is to halt it from, say, threatening to impoverish countries that restrict abortion or refuse to build transgender bathrooms?

For better or worse, the future of Europe as a collaborative union of sovereign nation-states—and not a punitive mechanism against conservatives—is in the hands of two leaders. Let's hope they stand tall.

Jorge González-Gallarza (@JorgeGGallarza) is the co-host of the Uncommon Decency podcast on European issues (@UnDecencyPod) and an associate researcher at Fundación Civismo.

The views expressed in this article are the writer's own.