Hungary and Poland have announced plans to set up a new Rule of Law Institute. This comes after recent EU proposals to introduce a “rule of law mechanism” to the bloc’s budget, which the two countries believe is targeted against them. The EU has previously censured both Hungary and Poland for policies that breach the rule of law. Now, the two countries argue that this is the product of a “disagreement in values” with the EU, and that they are creating the Institute to showcase an “alternative” interpretation of the rule of law.

HUNGARY, POLAND AND THE RULE OF LAW

In recent years, both countries have installed policies that many observers argue are damaging to the rule of law. 

Under Prime Minister Viktor Orbán, Hungary has legislated to ban legal gender changes, limited the independence of the judiciary and the media, and imposed measures that could force the closure of the Central European University – all while rumours of corruption have spread and Orbán’s son-in-law has been accused of misusing EU funds.

Meanwhile, in Poland a sustained campaign has been carried out against LGBTQ+ rights, and the country’s constitutional tribunal has legislated to ban abortion in almost all circumstances. Judicial and legal independence has also been threatened : the country’s Minister of Justice, for instance, also serves as its Prosecutor-General.

EU RESPONSE

According to the Treaty of the European Union, if there is a clear risk that a country may breach the values of “human dignity, freedom, democracy, equality, the rule of law and respect for human rights” (Art.2 TEU), then the European Council may initiate Article 7 proceedings for that country. These put the country under EU observation and, if a serious and persistent breach of Article 2 values is found from this observation, can end in sanctions – including the removal of its voting rights in the Council. 

Both Hungary and Poland have been placed under Article 7 proceedings. The European Commission voted to act on Poland in December 2017, and the European Parliament voted to act on Hungary in September 2018. However, by January 2020 MEPs had passed a resolution asserting that the situation in both countries had worsened despite the Article 7 proceedings. They argued that the Council had not held regular or structured hearings with the countries, failing to “make effective use of Article 7”, and that the Commission had failed to use the tools at its disposal, including expedited infringement procedures and applications for interim measures in the countries. A Commission report in September 2020 again found persistent rule of law issues in Poland and Hungary.

The EU is now considering other ways to preserve the rule of law across the bloc. In July 2020,  an EU summit proposed that the Union’s budget for 2021-2027 should include conditions that states must adhere to the rule of law in order to receive EU funding.  Orbán did not receive the suggestion well – since November, he has threatened to block all measures on the EU budget or the coronavirus recovery package unless the rule of law condition was removed. This move would push the deployment of emergency funding back to 2021 at a time when EU countries need it most. Some MEPs have stated publicly that they believe Orbán is bluffing, and that they will press ahead with the mechanism. Months after the budget summit, however, the issue remains unresolved.

THE RULE OF LAW INSTITUTE

After plans for the EU rule of law mechanism were announced, Hungary and Poland responded by announcing their own plan to set up a Rule of Law Institute. While the exact nature of the Institute is still being decided, it will be finalised by the first half of 2021, and the hope is that more countries in the region will soon join the Institute. 

Judit Varga, the Hungarian Minister for Justice, has argued that this is a necessary move to show that it is possible to adhere to a different interpretation of the rule of law to that promoted by the EU. She has argued that there is a “very strong conservative policy” shared by countries in central Europe, and that “a country with the overwhelming support of its citizens should have the right to declare that the basis of our society is the family”. Yet, while this addresses disagreement on social issues such as abortion and LGBTQ+ rights, it does nothing to counter allegations of corruption or the threats to the independence of the media and judiciary that have plagued Hungary.

Yet this is part of the narrative that Hungary and Poland consistently use to counter accusations of rule of law breaches from the EU. Péter Szijjártó, the Hungarian Foreign Minister, has stated that the Institute will prevent the country being “taken for fools” and prevent “double standards” from being applied by the EU. The countries’ argument is that they are unfairly targeted by the EU when other member states should also be held to account for breaches. However, the Commission’s rule of law report in July brought many other countries in for criticism, including Spain, Bulgaria, Croatia, and Slovenia, not just Hungary and Poland. As Adam Bognar, the outgoing Polish human rights ombudsman, has said, this “whataboutism” is one of Poland and Hungary’s “regular tricks”, and their argument is not supported by the evidence of EU action on the rule of law.

THE FUTURE FOR THE RULE OF LAW

As things stand, the rule of law in Hungary and Poland is left in an uncertain state. While EU pressure has helped to defend the rule of law in the countries before – such as when Orbán abandoned court reform after EU concern in 2019, or handed back emergency powers after EU pushback in 2020 – this time around Hungary and Poland are refusing to blink first. 

While both countries are major recipients of EU funds, they have so far maintained their threat to veto on any budgetary measures while the threat of sanctions over the rule of law hangs over their heads. The EU’s own processes make further action difficult – budget decisions require unanimity between member states, and sanctions under Article 7 also require unanimity, meaning that Poland and Hungary have so far been able to block each other from facing serious repercussions.

With no clear path forward as 2020 comes to an end, the rule of law in the EU looks more precarious than ever.

Alice is currently studying the GDL at City, University of London and holds a BA in Classics from the University of Oxford. She is passionate about human rights, with a particular interest in refugee and migration issues.

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