Old Problems and No Solution
Today, the European Commission will publish its annual Rule of Law Report, in which it systematically examines the separation of powers, media diversity and the independence of the judiciary in all 27 EU countries. Last year, when the Rule of Law Report was published for the first time, the Commission had already uncovered violations of rule of law principles in a number of member states, with Hungary and Poland in particular showing major shortcomings. The new report could now intensify the conflict between the EU and the two Central European member states. Given the continued undermining of democratic principles in Poland and Hungary, one would expect not only a retrospective analysis, but also concrete recommendations for action against violations of the rule of law. However, this does not seem to be the case.
The European Commission is increasingly facing criticism for failing to effectively combat the erosion of democracy among some of its members. Its efforts as guardian of the treaties to stop the disturbing developments – especially in Poland and Hungary - have so far been mostly ineffective. Although the European Commission initiated proceedings under Article 7 of the EU treaties against the two countries for alleged violations of fundamental EU values a few years ago, the undermining of the rule of law in Hungary and Poland has continued ever since. Mechanisms, such as withholding EU funding in case of a persistent violation of the rule of law, have not yet been put into practice.
In order to encourage the dialogue on common fundamental values and strengthen democracy in the EU, the Commission launched the Rule of Law Report initiative. In September 2020, a comprehensive report on the state of the rule of law in the EU was published for the first time. The aim of the annual Rule of Law Report is to shed light on the most important developments across the EU as well as in individual member states and to identify potential problems related to the rule of law in a timely manner.
In last year's Rule of Law Report, Poland and Hungary were particularly criticized. The report highlighted, among other things, the undermining of the independence of the judiciary, increasing attacks on LGBT rights, and state pressure on the media and civil society critical of the government. In light of current developments in the two Central European countries, the new report is expected to heighten tensions between the EU on one side and Poland and Hungary on the other.
Rule of law in Poland under threat
Just last week, Poland's Constitutional Tribunal ruled that the Polish constitution was superior to EU law, allowing Poland to simply ignore some EU court rulings. After the European Court of Justice (ECJ) ruled Thursday that the so-called Disciplinary Chamber at the Supreme Court is contrary to European law because its independence and impartiality are not fully guaranteed, the Polish government announced that it has no plans to suspend the chamber's activities. The Disciplinary Chamber can waive the immunity of judges, suspend them from service or reduce their salaries.
In recent months, the Polish government also used the politicized Constitutional Tribunal to end the ombudsman's mandate and effectively ban access to legal abortions.
Moreover, the pressure on independent media increased in the last year. A few months ago, a new bill was introduced that would impose a tax on the advertising revenues of media companies, which would particularly affect media outlets critical of the government.
Referring to the so-called "repolonization" of the Polish media, one of the important goals on the political agenda of the ruling Law and Justice (PiS) party, the state-controlled Polish oil company Orlen announced at the end of 2020 that it would buy the regional newspaper group Polska Press, which publishes 20 of a total of 24 of Poland's leading regional newspapers, from the German publishing group Verlagsgruppe Passau (VGP). According to critics, this in fact means a takeover by the government. Currently, there is also a new bill being hotly debated in Poland that could cost the government-critical TV station TVN, owned by the American company Discovery, its license.
Hungary also on a collision course
Over the past year, Hungarian Prime Minister Viktor Orbán's treatment of the national press has frequently stirred up tensions with the EU. The undermining of media freedom in Hungary is clearly at odds with the fundamental democratic and liberal values that the EU represents. Over the past few years, businessmen known to be supporters of the prime minister have gradually taken over control of the independent media in Hungary and have since guaranteed pro-government media coverage. Currently, the suspicion that Hungary's right-wing conservative government, using the Pegasus software, is spying on investigative journalists is causing particular turmoil.
The independent media are not the only victims of Hungary's current illiberal politics – NGOs and educational institutions are also under attack. Orbán's so-called "NGO law" obliges non-governmental organizations, which receive more than 7.2 million forints (about 20,000 euros) worth of foreign donations annually, to register with the state. In addition, these foreign-funded NGOs have to declare online that they are a foreign-supported organization. However, in response to the ruling of the European Court of Justice, which states that the “NGO law” violates European law, the Hungarian parliament ultimately abandoned the law.
Most recently, the Hungarian government's treatment of the LGBT+ community caused a particular stir and outrage among EU countries. To the concern of many human rights activists, the recently adopted "pedophilia law", which is supposed to protect children in Hungary more effectively from pedophilia, also includes an article that prohibits the depiction of LGBT-related content to minors in schools, on television, in literature and advertisement. This discrimination of the Hungarian LGBT+ community is not unprecedented in Hungary, as evidenced by the ban for homosexual couples to adopt children. Such behavior does not only restrict the rights of minorities, but also violates freedom of expression, as in the case of the "pedophilia law”. Due to its illiberal political course, which undermines the rule of law in the country, the Hungarian government has often clashed with the EU, which even initiated proceedings against Hungary under Article 7 in 2018.
Criticism of the effectiveness of the rule of law report
In this year’s “Rule of Law Report”, the EU will undoubtedly refer to the many violations of the rule of law in Poland and Hungary listed above. While no one doubts that the European Commission's report helps to draw public attention to the problematic state of the rule of law in some member states, skeptics question the actual effectiveness of the report, which neither identifies specific recommendations nor concrete measures to combat violations of the rule of law. The report simply describes the state of the rule of law in the EU’s member states retrospectively. For critics, the report is a renewed illustration of the EU's impotence. They call for concrete and stricter measures to counter democratic backsliding in Europe.
Future of the rule of law in the European Union
In order to safeguard and strengthen the rule of law in Europe in the years to come, the EU must take concrete action to give effect to its words. Infringements of the rule of law in member states must not only be detected earlier, but also sanctioned to ensure the independence of the judiciary and the media, and the protection of human rights. Tying EU funding to respect for rule of law principles is the most promising EU tool and should be applied in the future. The rule of law report should by no means be the only instrument in Europe against violations of fundamental democratic values, but should exist as a supplement to concrete action.
Valerie Kornis is an intern at the office of the Friedrich Naumann Foundation for Freedom in Prague. She graduated with a Bachelor in International Relations and Organisations from Leiden University in The Netherlands and will soon start a Master in Human Rights and Humanitarian Action at Sciences Po in Paris.
Natálie Maráková is a project manager at the Friedrich Naumann Foundation for Freedom's Central Europe and Baltic States Office in Prague.