PARIS – Poland has rebuffed a ruling by the bloc’s highest court, claiming its own constitution has precedence over the EU laws it vowed to follow when it joined the club in 2004, although it now appears to have backed down.
Farther north and politically opposite, Denmark’s leftist government is also feeling legal heat over its recent decision to return hundreds of Syrian immigrants to Damascus, a move critics say violates basic human rights and could set a dangerous precedent for other deportations.
Along with a year of battling COVID-19 and its economic fallout, the EU is also grappling with a more existential threat, as its founding principles of democracy, rule of law and human rights face multiple challenges from within, in ways, some observers say, the 27-member bloc is unprepared to meet.
Referring to Hungary and Poland, among others, French President Emmanuel Macron recently warned of a creeping “anti-liberal conservatism” undermining EU values “and what has built the core of our Western liberal democracy for centuries.”
“The EU has been all about democracy from the start,” said Sebastien Maillard, director of the Paris-based Jacques Delors Institute think tank.
“The fact member states are challenging this is a major threat, because the EU is a legal construction. It has no army. Its only power is a legal power,” he said.
As questions mount about the bloc’s ability to save itself — “The EU Watches as Hungary Kills Democracy,” The Atlantic magazine wrote last year, echoing other analyses — it is now sharpening its defenses.
European leaders are speaking out against dissident members, some observers say, in ways they rarely did before. The European Commission, the bloc’s executive arm, is mulling new financial penalties against key offenders.
Not enough
Yet for many, these steps are insufficient.
“For me, Hungary has no place in the EU anymore,” Dutch Prime Minister Mark Rutte said in June, while Luxembourg’s Foreign and European Affairs Minister Jean Asselborn suggested a referendum over its EU membership.
A less dramatic rebuttal, this time targeting Poland, may come later this month. The commission has given Warsaw until Aug. 16 to comply with a European Court of Justice ruling against its system for disciplining judges it claims undermines judicial independence, or face fines — a dollars-and-cents reprisal it may increasingly use against other rule-of-law violators, reports suggest.
Poland initially pushed back strongly. Justice Minister Zbigniew Ziobro warned in an interview his country should not remain within the EU “at any price,” accusing the bloc of “blackmail.” But in a turnabout hours later on Friday, deputy prime minister and ruling party leader Jaroslaw Kaczynski said Warsaw would drop the disciplinary system in its current form.
Last month, Brussels also launched legal proceedings against both Poland and Hungary for measures it claims violate the rights of LGBTQ people. A key target is new Hungarian legislation banning the presentation of LQBTQ issues to minors. In a first step, Hungary began restricting children’s books promoting gay and gender-change content.
Brussels still has plenty of champions. In June, 17 European leaders signed an open letter calling on the bloc to fight LGBT discrimination.
“I’ve never seen this kind of letter before by heads of state or government, analyst Maillard said, “They don’t like doing this. But this time they did.”
The commission is also probing allegations Israeli spyware was used against EU media. Hungary is the only member state named in a broad media investigation into potential users of the Pegasus software.
“I really hope things will happen here, but it’s unclear how much,” said Scott Marcus, senior fellow at Brussels-based economic policy institute Bruegel. “In the case of Hungary, this probably just gets added to a long litany of complaints, so I don’t think it changes the underlying situation very much.”
Financial penalties
The commission’s July rule-of-law report, an annual member state assessment launched last year, found a raft of concerns about Hungary and Poland in areas such as press freedom, judicial independence and corruption. It also faulted other states, including Western members such as Austria and Italy, although on a lesser scale.
Separately, rights lawyers are threatening Denmark’s leftist government with legal action over its efforts to return Syrian asylum seekers to Damascus on grounds it is safe — a move rights groups such as Amnesty International denounce and reject.
The EU Commission is expected to further flex its financial muscles, conditioning some funding on countries’ democratic performance. Yet some believe such measures are insufficient, and European Commission Vice President Vera Jourova appeared to rule out such a quid-pro-quo in releasing billions of dollars in coronavirus recovery funds.
“I don’t think this money should be used as blackmail,” she told France’s Le Monde newspaper.
“The EU should … end its naiveté,” Le Monde wrote in a separate editorial, endorsing conditionality measures but urging stronger action against rule-of-law offenses, including sanctions against individuals wrongfully enriching themselves with EU funds.
Yet the most drastic options appear unlikely, if not impossible. There is no mechanism for ousting errant member states, and efforts to suspend their voting rights risk being difficult. Moreover, after Brexit, there is little EU appetite to further diminish its ranks, analysts say. Sanctioning an entire population, rather than its government, is also unfair.
“Viktor Orban will not be there forever, so I don’t think that kind of threat is helpful,” said analyst Maillard of Hungary’s hardline prime minister. “We have to have unity with all our diversity and differences.”
