Reasons behind the EU’s limited response to internal democratic backsliding: Hungary and Poland

By Miranda Cortizo -

In recent times, one of the processes that has most called upon the attention of the European and international community has been the democratic decline of Hungary and Poland. Both States began their democratic trajectory in 1989, after the fall of the Soviet Union. By 2004 they met the Copenhagen Criteria and were accepted in the European Union (EU), a bloc which flags democracy. However, in the latest years the democratic trend in Hungary and Poland began to reverse in a much steeper way than the average of the EU.

After Victor Orban and his right-wing nationalist party Fidesz rose to power in Hungary in 2010 with an absolute majority; and the Law and Justice conservative party (PiS) won both the parliamentary and Presidential elections in Poland in 2015, the checks and balances that characterize democracy were significantly weakened. Media freedom became restricted, judicial autonomy decreased, there has been a purge in the bureaucracy and the military, which replaced competence by loyalty within the government, and minorities have become a target.

Most recently, as Human Rights Watch remarked in one of their latest reports, Orban and Duda have used the Covid 19 pandemic to justify political power-grabs that put democratic standards in jeopardy (1). These issues have not gone without notice from democracy raters. For instance, V-Dem downgraded Hungary’s Regimes of the World Index (ROW) classification from “liberal democracy” (which they had since 1991) to “electoral democracy” in 2010 -when Orban reached power-, and to “electoral autocracy” in 2018. Comparably, Poland’s RoW classification declined from “liberal democracy” in 2015 to “electoral democracy” in 2016, after Duda’s first year in office. (2)

The European Parliament and Council have addressed several times the deterioration of EU values in Hungary and Poland. However, they have never activated Article 7.2 of the Treaty of the European Union (TEU), which is the bloc’s most powerful tool to fight illiberalism, since it would leave the authoritarian countries without voting powers in the bloc. In addition, even though specific payments to Hungary and Poland have been frozen (such as the COVID-19 recovery funds package in 2020), the bloc still directly funds Hungary and Poland.

The latest long-term EU budget (2021-2027) shows that Hungary was given 5,974 million Euros by the European Union (3). This represents approximately 2.5% of the country’s Gross Domestic Product (GDP). The economist Istvan Csillag proved that without the funds Hungary receives from the EU, the Hungarian economy would collapse (4). Poland received more than three times as much EU funding as Hungary: 18,727 million (3), equivalent to 2,75% of its GDP. The EU’s financing thus contributes to consolidating the regime of the authoritarian, populist leaders in Hungary and Poland.

Why hasn’t the European Union had a tougher response towards illiberalism in their democratic bloc? After a thorough review of expert reports, primary sources, academic papers and statistic reports that I examined for my graduate thesis project “The European Union’s response to internal democratic backsliding: evidence from Hungary and Poland”, I found that there are three main explanations for the EU’s limited response, which I will detail in the following paragraphs.

In the first place, there is a design problem with the EU’s institutions to fight illiberalism which makes them insufficient or ineffective. Insufficiency comes from the fact that there is no provision to expel a member, and all members receive a percentage of the EU’s funding, which is handled by the incumbent. Furthermore, Article 7 of Regulation (EC) No. 2004/2003 prohibits the EU to finance local political parties, so they can’t financially support pro-democratic local opposition (5). Hence, the EU’s own rules and institutions make them finance the authoritarian incumbent -who uses the money to further secure their place in power- and prohibits them from financing a potential opposing candidate who is more aligned with EU values.

Moreover, the tools that the EU does have to combat illiberalism have proven to be inefficient. These are: recommendations, legally binding declarations, and Article 7 of the Treaty of the EU. The European Commission can make recommendations through the “Cooperation and Verification Mechanism” or the “Commission Rule of Law Framework”; and the European Council via their annual “Rule of Law Dialogues”. However, all of these mechanisms come from “soft law”, which means that they are not legally binding. Therefore, States are not forced by any legal means to respect the recommendations made by the European Commission or Council. Jan Klabbers, a recognized International Law Associate Professor at the University of Helsinki, even argues that soft law “serves no identifiable purpose”. (6)

On the other hand, the European Court of Justice can make legally binding determinations that legally force a member State to abide by EU rules. However, the problem with these measures in practice is that, even though they are legally binding, they are not enforceable. The EU is an integrated block, but it still is in the arena of international law which is, according to political philosopher Hedley Bull, an “anarchic society” where there is no “international police” (7). Therefore, as political scientist David Lake well puts it: “even though enforcement provisions may be specified in an agreement, the enforcement of international law ultimately depends on the principle of national self-help” (8). Simply put, if a nation is reluctant to comply with the block’s law, the EU does not have the necessary authority or “global police” to enforce it. For instance, in 2021 Poland’s Constitutional Court stated that the primacy of EU law was unconstitutional. They did this right after the Court of Justice of the EU demanded to revoke Poland’s law regarding the new National Council of the Judiciary (NCJ), which allowed Poland’s Parliament (PiS controlled) to indirectly appoint Supreme Court judges, decreasing the checks on the executive. Duda not only failed to comply with the EU Court’s demands, but directly subordinated EU law to national law, “rejecting the legal bedrock upon which the European Union is based”. (9)

As for Article 7.2 of the TEU, which is the strongest tool that the EU has to control and sanction illiberal States, the final decision to invoke it has to be unanimous by the European Council members (except for the judged country) (10). The European Council is composed by the heads of State of all member countries. Therefore, if only one State is against invoking Article 7.2 of the TEU, the motion does not pass, which means that there are 26 veto players. Here is where the second explanation for the EU’s limited response comes into play: Hungary and Poland’s alliance successfully counteracts the EU’s actions.

In June 2015, Article 7.1 was attempted to be used against Hungary, but the resolution did not pass the Council. In 2018 the European Parliament (EP) triggered Article 7.1 against Hungary for breaching the EUs core values. The proposal was approved with 448 votes against 197 (11), but it did not reach the stage of Article 7.2. yet. Similarly, in 2017 the European Commission triggered Article 7.1 against Poland, and the European Parliament approved it in 2018, but the Council’s decision is still pending. But even if the process would advance, Hungary has already publicly stated that it would use its veto power. Zsolt Semjén, Hungary’s deputy Prime Minister, declared that “the Polish- Hungarian friendship and the Hungarian government’s commitment to treaties obliges us to step up against the Commission’s move in all forums” (12). Furthermore, Semjén added that “it is unacceptable that Brussels is exerting pressure on sovereign member states and arbitrarily punishing democratically elected governments” (12). In practice, Hungary and Poland exploit the flaws of the institutional design and render the EU’s tools to fight illiberalism inefficient. The EU’s institutional design did not foresee an event where there were two allied authoritarian countries.

There is also a third possible explanation: strategic interests. A way to think about the relationship between the illiberal regimes and the EU is as if Hungary and Poland were authoritarian provinces within a democratic federal State. In this sense, the work of comparative politics expert Edward L. Gibson may be of help. The author explains that an authoritarian province may survive in a nationally democratic State if its illiberal tendencies are overshadowed by other, more convenient, strategic interests that it can provide to the central State, such as votes (13). Hungary and Poland met strategic interests to the EU as a whole and to specific groups within it at different points in time.

Before 2021, Hungary’s members of the European Parliament made the EPP (a faction within the European Parliement) have a majority. This made their alliance crucial for the group. In contrast, Poland always belonged to the ECC group, which has a marginal influence over European politics. Coincidentally, the European Parliament was more lenient towards Hungary. For instance, when Article 7.1 was attempted to be enacted against Hungary in 2015, the EPP publicly defended Orban: 187 EPP members voted against the resolution and only six in favor and three abstentions (12). In contrast, when the European Parliament voted to activate Article 7.1 against Poland, the resolution passed without much resistance. (14)

However, tables turned in 2022. Fidesz had quit the EPP group in March 2021 and Poland became a crucial ally in Europe to support Ukraine in the war against Russia. Poland shares a border with Ukraine, so they have emerged as a “vital element of the puzzle” to helping Ukrainian refugees. It is estimated that Poland welcomed 3.5 million Ukrainian refugees and provided almost $3 billion in aid (15). In addition, they sent weaponry and became the “global hub for arms deliveries and other equipment headed to Ukraine” (15). This made Poland pass from being a pariah within the EU to becoming a savior in the international community’s eyes. The case for Hungary was different. Even though the Hungarian-Polish alliance is still strong, Orban's attitude towards Ukraine was contrary to Poland’s: he did not hold all the sanctions against Russia, did not send weapons or military assistance to Ukraine and has even been accused of offering safe escape routes to Kremlin officials. This translated in the EU being more lenient towards Poland this time! Both Hungarian and Polish COVID-19 recovery funds had been blocked due the Rule of Law Conditionallity agreement, which is a new method to protect EU’s budget from illiberalism; but Poland’s fund was unblocked in June 2022, while Hungary’s to this date still isn’t (June 2023). (16)

This illustrates how strategic interests play a role in the EU’s attitude towards illiberalism: when Hungary represented the needed majority for the EPP, the EU’s attitude towards them was more lenient in comparison to Poland. However, now that Poland represents a crucial international ally against Ukraine and Hungary stands against them and is no longer part of the EPP, the EU is able to overlook judicial corruption in Poland while not in Hungary.

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All in all, the downfall in the EU’s institutional design to fight illiberalism is a necessary condition to explain their limited response towards authoritarianism in Hungary and Poland, since it tilts the playing field in the illiberal country’s favor. Nevertheless, to comprehend the whole panorama it is crucial to understand how the Hungarian-Polish alliance and the interested parties within the EU exploit these institutional downfalls. It is a combination of the three arguments based on institutions, alliances and interests that best explains the EUs limited actions in Hungary and Poland.

(1) Bartosz Węglarczyk, “Like Hungary, Poland has used the coronavirus to undermine democracy”, Notes From Poland, March 29, 2020, https://notesfrompoland.com/2020/03/29/like-hungary-poland-has-used-the- coronavirus-to-restrict-democracy/ (2) “V-Dem: Variable Graph - RoW”, V-Dem, accessed June 9, 2023, https://v-dem.net/data_analysis/VariableGraph/ (3) “EU spending and revenue 2021-2027”, European Commission, accessed March 23, 2023, https://commission.europa.eu/strategy-and-policy/eu-budget/long-term-eu-budget/2021-2027/spending-and- revenue_en (4) Paul Lendvai, “The Transformer: Orban’s Evolution and Hungary’s Demise”, Foreign Affairs, August 12, 2019, https://www.foreignaffairs.com/articles/hungary/2019-08- 12/transformer?utm_medium=promo_email&utm_source=lo_flows&utm_campaign=registered_user_welcome &utm_term=email_1&utm_content=20221025

(5) “Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding”, European Union, accessed June 9, 2023, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32003R2004

(6) Jan Klabbers, “The Undesirability of Soft Law”, Nordic Journal of International Law, 67(4), 381– 391. doi:10.1163/15718109820295741

(7) Hedley Bull, La sociedad anárquica: un estudio sobre el orden en la política mundial. (Madrid: Los Libros de la Catarata, 2005)

(8) David Lake, World Politics: Interests, Interactions, Institutions (New York: W.W Norton & Company, 2010), 473.

(9) “Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal”, European Commission, December 22, 2021, https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070

(10) Consolidated Version of the Treaty of the European Union”, Official Journal of the European Union (October 2012): 326/13.

(11) Rule of law in Hungary: Parliament calls on the EU to act”, European Parliament, September 12, 2018, https://www.europarl.europa.eu/news/en/press-room/20180906IPR12104/rule-of-law-in-hungary-parliament- calls-on-the-eu-to-act

(12) Tamás Székely, “Hungary To Veto EC’s ‘Unprecedented And Astounding’ Article 7 Procedure Against Poland”, Hungary Today, December 21, 2017, https://hungarytoday.hu/hungary-veto-ecs-article-7-procedure- poland-97309/

(13) Gibson, Edward L. “Boundary Control: Subnational Authoritarianism in Democratic Countries.” World Politics 58, no. 1 (2005): 101–32.

(14) R.Daniel Kelemen, “Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union”, Government and Opposition 52, no. 2 (2017): 211-238.

(15) Jaroslaw Kuisz & Karolina Wigura,“Will the Ukraine War Return Poland to Europe’s Democratic Fold?”, Foreign Policy, August 11, 2022, https://foreignpolicy.com/2022/08/11/poland-democracy-illiberalism-europe- ukraine-russia-war-eu-nato/

(16) Zoltan Simon, “How EU Is Withholding Funding to Try to Rein In Hungary, Poland”, The Washington Post, January 2, 2023, https://www.washingtonpost.com/business/how-eu-is-withholding-funding-to-try-to-rein-in- hungary-poland/2022/12/30/ba3641fc-8818-11ed-b5ac-411280b122ef_story.html

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