R. Daniel Kelemen / Apr 2021
Věra Jourová, European Commissioner for Values and Transparency and Didier Reynders, European Commissioner for Justice. Photo: European Union 2021
Of all the crises the European Union has faced over the past decade, the one that poses the greatest threat to the Union has attracted the least attention. First the Eurozone crisis dominated the frontpages, then the refugee crisis, then Brexit, and lately the EU’s missteps in Covid-19 vaccine procurement. While each of these crises took turns grabbing the headlines, reports about a festering rule of law crisis in Hungary and Poland were buried somewhere beneath the fold.
But for all the political ferment, economic damage, and human suffering the other crises have caused, only the rule of law crisis poses a potentially existential threat to the Union. The backsliding in Budapest and Warsaw is a unique menace to Brussels because it attacks the very foundations on which the Union is built and because, like most cancers, it will metastasize if left untreated.
The European Commission’s first President Walter Hallstein famously described the (then) European Economic Community as a Rechtsgemeinschaft, or somewhat more awkwardly in English, “a community based on the rule of law.” His description is just as apt today as it was then.
The EU asserts extensive legal authority over citizens, firms, and member states with its powerful judicial system and expansive body of law. But this construction rests on vulnerable foundations.
Unlike a state, the EU does not exercise a monopoly on the legitimate use of force; indeed, it wields no force at all. Its budget remains meager and its administration diminutive. The EU governs through law and is held together by its judicial order. The EU’s strength is that it is a union built on law. Its weakness is that it is built on little else.
Even the EU’s seemingly powerful judicial system topped by the Court of Justice in Luxembourg is fragile: the entire edifice depends on the sincere cooperation of member state governments, on mutual trust between national courts, and on the ability of national judges to serve as frontline EU judges. In the EU system, it is up to national judges—acting in their capacity as courts of the EU legal system - to apply EU law faithfully and to send references on questions of EU law to the European Court of Justice where appropriate.
The emergence of autocratic regimes in Hungary and Poland poses a profound threat to this delicate construction. The electoral autocracies that have emerged in Budapest and Warsaw have not only dismantled judicial independence and fundamental rule of law principles at home, they have also taken to brazenly defying EU law and to attacking central pillars of the EU legal order.
In both countries, the governments are refusing to comply with judgments of the European Court of Justice and claiming that they can ignore the supremacy of EU law. In Poland, the government is systematically persecuting national judges for sending references to the European Court of Justice. In Hungary, the government has started making similar threats.
These developments have not gone unnoticed by judges across Europe. Courts in other member states have started to refuse European arrest warrant requests from judges in Hungary and Poland, questioning whether suspects can get a fair trial in those countries. Inevitably, such concerns won’t simply affect European Arrest Warrants; similar questions are sure to arise as to whether courts in other member states must recognize judgments of Polish and Hungarian courts in civil and commercial matters - thus jeopardizing the functioning of the single market.
While the nascent autocracies in Hungary and Poland have been chipping away at the legal foundations of the Union, the European Commission has been mostly asleep at the wheel. Though it has brought a handful of infringement cases concerning attacks on rule of law principles, on the whole its approach has been so halfhearted it amounts to a dereliction of the Commission’s duties as the “Guardian of the Treaties”.
Finally though, there are signs this may be changing. Last month, the Commission finally initiated a case that would impose financial sanctions on Hungary for its defiance of a European Court of Justice ruling in a case involving the government’s targeting of foreign-funded NGOs. Just last week, the Commission referred a case to the European Court of Justice, challenging the ongoing persecution of judges in Poland by an illegal “disciplinary chamber” and seeking the imposition of “interim measures” to put an immediate stop to this persecution. The Commission has also suggested it may soon put to use the rule of law conditionality mechanism that would allow it to suspend funds to states that violate rule of law norms in ways that put at risk the financial interests of the Union.
Though the Commission should have taken more aggressive action on the rule of law crisis years ago, better late than never. Over the past decade, EU leaders have let a series of crises distract them from addressing the rise of authoritarian regimes that were rotting away at the legal foundations of their Union. But a viable Union must be able to confront more than one problem at a time. Even as they grapple with the profound public health and economic crises caused by the pandemic, EU leaders must find the resolve to stand up to the autocrats who threaten the very basis of their Union.