With regards to the political situations in Hungary and Poland, we have seen that – so far – the European Union has only been able to achieve the bare minimum to prevent authoritarian regime-building. Although the debates around issues stemming from the violations to the rule of law have created new political mechanisms, thus far none of them have proved to be effective, and some of them can even backfire. The solution could be in the hands of the ECJ, which has been cautious in its legal practice.

After two and a half years of rule of law wrangling, the European Commission is trying to step up against the Polish government with extended political and legal tools. But the ruling power in Warsaw is still unwilling to make substantive changes to the transformation they enacted on the Polish judicial system.

Brussels has introduced the rule of law mechanism against Warsaw for the first time, which was originally created as a potential deterrent against the Orbán government in 2014, but has yet to be applied against Hungary. The procedure was intended to be an early warning tool through which the Commission can address disputes in the context of a dialogue with the member state concerned. After the Polish leadership has blocked this procedure, the Commission launched the “nuclear option” last December which aims to suspend Poland’s voting rights. This is unprecedented in the history of the EU: it was not even used against the far-right Austrian government of Jörg Haider, when some of the member states chose to use unilateral economic sanctions against Vienna instead.

The EU is stepping up against the Law and Justice (PiS) government harder than it did Hungary not because they are not a member of the most influential caucus of the European Parliament (EP), the European People’s Party, but because PiS approved more than 13 laws which subjugate the judicial branch under the executive power, effecting essentially the whole spectrum of the judiciary from the Constitutional Court and the Supreme Court, through the prosecutor’s office to the ordinary courts. This was done by amending the Polish Constitution’s scope with a number of ordinary resolutions and introducing new judges to the Constitutional Court in an unconstitutional manner.

Political tools have also been put in place: in addition to the EP, which has hosted the majority of the debates, the discussion over the rule of law has also been conducted by the General Affairs Council. Mateusz Morawiecki’s June hearing in front of the Council was symptomatic of PiS’s agenda: the Polish Prime Minister claimed that some judges from the current Supreme Court were part of the same board during the state of war in the 80’s. Therefore, PiS is arguing for judiciary reform under the guise of anticommunism. However, contrary to the government’s position, that was an overstatement, and the chairwoman herself, Malgorzata Gersdorf, was a member of the Solidarity Committee which was fighting against Communists since 1980.

The Hungarian trick: tactical retreats

In comparison, Hungary’s case is only in the initial phase of the Article 7 proceedings. Although the illiberalisation of the democratic system in Hungary is the most advanced when it comes to the four Visegrad countries, the Commission has not declared that there is a systemic threat to the rule of law. Due to his 2/3 majority, Viktor Orbán could easily play a game of “tightening-loosening” his autocratic control over the country for a long time with the Commission in the form of legally predictable and politically risk-free procedures.

The early retirement of judges was a good example of the above-mentioned strategy: by the end of the infringement procedures, Fidesz could easily get rid of some of the undesirable judges. Thus, it was not very difficult for the Hungarian government to comply with request of the Commission by amending the contested law.

An important umbrella act has been provided by the largest EP faction, the European People’s Party, where the most influential German delegation has so far sought to both pacify and shield Viktor Orbán for the technical reason of needing the 12 votes from his Fidesz party to remain in a majority. The failure of their strategy became obvious after the 7th constitutional amendment and the Stop Soros law were quickly adopted in Hungary. Orbán also sent a message to his European party family that if they do not stop criticizing him, Fidesz would probably enrich the lines of more a “tolerant” EP-caucus after the upcoming EP-elections in 2019.

The importance of the European party-membership has been reflected by the fact that Jaroslaw Kaczynski’s party, on the other hand, was less protected by the weightless, euro-skeptical ECR caucus. Although the Commission has launched infringement proceedings against Warsaw in June, the example of the Orbán government has proven that the instrument is unsuitable for preventing systematic changes. At the end of the day, PiS can also replace undesirable judges easily.

Hungary and Poland will be both on the EU’s agenda in autumn: in the EP, on 12 September, they will vote on the LIBE report, which suggests to trigger Article 7 of the EU treaty against Budapest. Even if it will be passed by the EP, the member states will have to accept it unanimously in the European Council. Although the symbolic significance of the process is important, it is structurally still unsuitable to address the rule of law issues due to the mutually guaranteed Polish-Hungarian vetoes.

Central European litmus tests

It was Kim Lane Scheppele, an American constitutional lawmaker, who suggested, among others, that the proceedings under Article 7 should be initiated simultaneously against Budapest and Warsaw. But the fact is that it would not be easy to achieve – not even with broad political consensus within the Council.

Consequently, traditional tools provided by the EU treaty are less and less able to deal with the governments in question. Therefore, the Commission has changed its previous opinion in May and came up with a bold proposal with regards to the multiannual budget framework after 2020. According to this plan, the Commission would bind payments of the EU funds to certain requirements, meaning the respect of rule of law.

The rule of law condition would be based on the Article 322 of the EU treaties which already oblige member states’ authorities to manage EU funding legally and adequately. Brussels would create a new practices in the sense, meaning that if the independence of the judiciary or the risk of fraud involving EU founds would arise, sanctions against a member state concerned could be only prevented by qualified majority of the member states. While Poland would be affected by the judiciary overhaul, Hungary might be badly affected by the high share of misappropriated EU funds and the low share of cases ending in an indictment after the EU’s anti-fraud agency OLAF signals problems.

Although a fair monitoring system covering all member states would be a legitimate expectation of all EU taxpayers, it remains to be seen what could get approved in the Council. From the point of view of the Polish courts, this is not practical either because, in addition to protracted budget negotiation, PiS can also gain time.

Moreover, tying payments to the rule of law is not a brand new idea, and its opponents have argued against it by referring to the lack of objective, EU-level criteria on the rule of law. Which means that all member states mean whatever they want under them, as the EU’s charter of fundamental rights lists the basic rights, but they have not been codified yet.

That European Court of Justice (ECJ) could make a breakthrough in this regard, which has already made two important precedent decisions this year. Regarding an Irish extradition case, the Luxembourg tribunal has practically concurred with the Commission, which questioned the independence of the Polish judiciary. Poland issued an arrest warrant against a Polish citizen residing in Ireland, and the ECJ instructed the Irish Supreme Court to decide whether to release the person or to refuse Warsaw’s request, relying on the disputed independence of the Polish court.

In another case regarding Portugal, the ECJ also ruled that the courts should be impartial without any external pressure, and the member states must ensure that their courts comply with the requirements for effective judicial protection. What could make a breakthrough in the Polish rule of law case is that Brussels has turned to the ECJ in August to make a final decision on the PiS government which defied the independence of the judiciary. In addition, the Polish Supreme Court itself has turned to the Luxembourg court for a review of the governmental measures which targeted itself. The Polish Supreme Court is trying to gain time this way, due to the fact that the implementation of the law in question has been suspended until the decision of the EU court.

Any sanctions that are going to be used against any member states that violated the rule of law should be introduced by the politically independent EU court which has been cautious in its legal practice so far. It should be so even if the Polish Deputy Prime Minister hinted in advance that Poland will not respect the ECJ’s decision. Also, if they would tie the EU payments to conditionality, it is crucially important that it should not be linked to mandatory relocation of asylum seekers.

A recent suggestion by the Italian Five Star Movement would definitely benefit Viktor Orbán. The Hungarian Prime Minister, who claims that Fidesz’s anti-immigration stance is behind the EU’s rule of law criticism, stated that he does not approve any EU budget “in which money is taken away from landholders, R&D and regional development to give it to countries that allowed migrants to enter [the EU]”. Orbán is consciously striving to strengthen the perceived division between the West and the East signalling to Hungarians that the EU is employing double standards and thus lets Eastern member states down.

Although most polls indicate that the Hungarians and Poles are the most pro-European of the EU, the Brexit referendum has highlighted the systemic risks inherent in the anti-EU government strategy in the long term. According to a recent survey, the majority of Poles would rather leave the union than accept refugees on the basis of mandatory quotas. The cases of Warsaw and Budapest are also litmus tests whether the EU can prevent any undermining of its own credibility through the development of a system of rules which applies to all EU countries. An approach without proper planning – discriminating against certain groups of countries – would play into the hands of anti-EU populist forces in the 2019 European Parliament election.

Edit Zgut is a Political Capital Warsaw Foreign Policy Analyst. This article is part of the Visegrad / Insight #DemocraCE project and was originally published in Hungarian by HVG, which can be found here.