The Guest Blog

Guest post by Arlind Puka, Administrative Assistant

The refusal of Hungary and Slovakia to comply with an ECJ’s decision to uphold the EU’s refugee relocation scheme which aims to relocate 160,000 asylum seekers from Greece and Italy, has increased tensions between the EU and the Hungarian Prime Minister.

In Hungary, Orban’s government has attacked the Hungarian Constitutional Court, freedom of the press and citizens’ Internet access. In the absence of free media, truly competitive elections, and active civil society, a country is not a democracy at all, regardless of whether or not there are periodic elections. This remains the most poignant reminder that democratization in post-communist Europe is neither complete nor irreversible. Without improvements, any further deterioration in governance, electoral process, media freedom, civil society or judicial independence under Prime Minister Viktor Orban’s will turn Hungary into a country with a hybrid regime. The new law on NGOs is the latest step taken by the Hungarian Prime Minister to threaten the democracy in the country. Orban has accused foreign-funded NGOs, in particular those supported by American billionaire George Soros, of domestic interference. Attempts by the EU institutions to convince Orban to change course have only emboldened him to commit further outrages against democratic norms.

Since October 2015, the Law and Justice (PiS) in Poland, a Eurosceptic party that also opposes immigration, secured an outright parliamentary majority by promising to implement populist economic policies. The first step was attacking the powers of the Constitutional Tribunal just a month after taking power, followed by monopolising state bureaucracy, state media and the military, and now moving on to the rest of the justice system. The Polish government has taken greater control over the state-owned media. Although there was no clear separation between media and the government before PiS’s victory, after they came to power, any previous autonomy the Polish media enjoyed quickly eroded.

The EU has already several specific tools at its disposal to govern the rule of law in its Member States, Article 7 TEU and the original infringement procedure of Article 258. Unsurprisingly, Article 7 TEU has never been used. The Austrian episode of 2000 could have provided the perfect opportunity but Article 7 did not yet authorize suspension proceedings in the situation where there was “merely” a risk of breach. In any case, it was widely acknowledged afterwards that the actions of the EU (in fact, Austria EU’s partners acting outside the EU framework) proved counterproductive and excited nationalistic passions in Austria. This seems to explain why the arrival of a similar governmental coalition in Italy in 2001 was quietly accepted by Italy’s EU partners. Moreover, in 2012, the EU had the case of Romania, which looks a lot like Poland now. That was when there was a Prime Minister (Victor Ponta) who decided that he wanted to get rid of the President (Traian B?sescu), so the PM’s party intimidated the constitutional court and did a series of things that were illegal under Romanian law.

Some commentators and political actors tend to see the outrage of other Member States or EU institutions over specific developments in a given Member State as ideologically motivated, as the battle between left-wing and right-wing convictions, or as a battle between different cultures. In this context, it has been argued that possible EU intervention needs to be based on a legally founded decision subject to review by the Court of Justice of the EU (CJEU). This would reduce the risk of, on the one hand, discretionary and opportunistic decisions, and on the other, Member States refusing to act against each other. However, with respect to Article 7 TEU, the Court lacks the jurisdiction to review the legality of any decision determining that there is a clear risk of a breach of the Union’s foundational principles or a serious and persistent breach of these principles. The Member States deliberately limited the Court’s jurisdiction to the review of the “purely procedural stipulations in Article 7,” with the aim of merely guaranteeing that the “guilty” Member State’s defense rights are respected.

The only way to keep the threat of sanctions on the table under Article 7(2) is for the European institutions to act against both Poland and Hungary at the same time by invoking Article 7(1) first, as it is clear that Hungary would veto sanctions against Poland and vice versa. Strengthening the technical, not just the political analysis to determine the risk and existence of a serious breach of values, enhancing dialogue with the Member States’ institutions, and enabling the European Parliament to launch proceedings on the violation of Article 2 TEU on an equal footing with the Commission and the Council should remain the priorities for the EU in this context. The German proposal for the reform of the EU cohesion fund that the European Union members that fail to meet EU standards on the rule of law could lose access to its financing should be disregarded. If a member state does not respect the rules, and then cohesion funds are withheld, you are not punishing the national government but the cities and regions, which might disagree with the national government.

One of the reasons why these rule of law issues have been so hard to deal with is that there are so many crises at once. The sad reality is that, as Guy Verhofstadt stressed, were they to apply for EU membership today, neither Hungary nor Poland would have been admitted.

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