In recent weeks, Europe has moved a few steps closer to the brink. Emboldened by a landslide electoral victory earlier this year, the Hungarian government adopted on 20 June legislation that tightens its grip on non-governmental organisations, threatens human rights activists, limits academic freedom, and strengthens political control of the judiciary. Just days later, Polish President Andrzej Duda used a new retirement law to try to force the president of the Polish Supreme Court, Małgorzata Gersdorf, out of office before the end of her constitutionally mandated six-year tenure. He did so despite international criticism, domestic protests, and the EU Commission’s infringement procedure against the new law.
Invoking the constitution, Gersdorf rejected the decision. Yet this assault on Polish democracy opened the way for the ruling Law and Justice party (PiS) to assert full control of the judiciary. The Supreme Court will be soon packed with political appointees able to rule on issues such as the validity of elections and the legality of protests. This will help the government manipulate electoral law to its own benefit, not least through a new draft proposal on European parliamentary elections that – in violation of EU laws on proportionality – favours large parties.
These efforts to consolidate ruling parties’ power have an ideological underpinning. Addressing the European Parliament on 4 July, Polish Prime Minister Mateusz Morawiecki stated that Poland is a proud country unwilling to be lectured on the rule of law. He referred to the EU principle of constitutional pluralism, which allows each country to shape its political system according to its traditions. Two days later, Hungarian Prime Minister Viktor Orbán acknowledged that he and German Chancellor Angela Merkel “look at the world differently”.
Questions around just how far constitutional pluralism stretches are becoming ever more pressing. They overshadow disputes between European leaders on issues such as migration, climate change, and the EU budget. And they may presage a crisis of unity more significant than any other the EU has faced.
The EU has been unable to prevent democratic backsliding in Hungary and Poland for three reasons. Firstly, its legal instruments (under Article 7) have failed to prevent sovereignty from prevailing over the rule of law. Secondly, party cooperation within umbrella groups such as the European People’s Party has protected Orbán from open criticism. Thirdly, member states recognise that decisive action against rule-breakers would threaten EU unity in the face of growing external challenges. So far, geopolitical concerns have won out.
The EU’s caution may be understandable, given that the shift towards authoritarianism in Hungary and Poland has occurred gradually, making it difficult to grasp the threat it poses to the European project. And, in contrast to the rise of authoritarian leaders such as Józef Pilsudski and Miklós Horthy before the second world war, this shift is less about hostility towards democracy, parliamentarianism, and political parties than it is about attempts to empower a democratically elected majority. Nonetheless, Polish and Hungarian leaders are destroying liberal democratic checks and balances to impose their will on national politics.
The sword will fall when EU courts refuse to respect the rulings of Polish or Hungarian courts.
These “new authoritarians” – as Polish sociologist Maciej Gdula calls them – currently seek democratic support and take care to maintain a façade of democracy. But, as events in Hungary show, these leaders are also using all possible means to remain in power, including massive public funding of propaganda campaigns. Thus, democratic transfers of power are becoming increasingly unlikely. In this way, democracy itself – not just liberalism – becomes a farce. Orbán has been in power since 2010, with the Organisation for Security and Co-operation in Europe judging Hungary’s recent election to have been unfair. As the space for free expression in the country continues to shrink, there is no indication of where its descent into authoritarianism will end.
Poland has begun to walk a similar path. The country is divided – albeit with opposition parties still stronger than their counterparts in Hungary – as the government repeatedly breaches the constitution in ways that would entail severe punishment if it was voted out. The ruling party’s awareness of this fact increases the temptation for it to acquire yet more power and thereby avoid electoral defeat. With all the fuses removed from Poland’s political system, it will be only the ruling party’s reading of domestic politics that determines the effects of the laws it is introducing.
It would be misleading to frame this conflict as a dispute between eastern and western Europe. The divides within EU member states are more pronounced than those between them. Many EU countries face a threat from the new authoritarianism. However, the crisis of democracy in Poland and Hungary is a welcome pretext for all those who believe that EU’s eastern enlargement was a mistake and dream of a small EU. As such, the efforts of European – particularly German – leaders not to let a dispute over the rule of law endanger EU unity deserve credit. But they are unlikely to prevent further democratic backsliding and a resulting political crisis in Europe.
Questions around whether the EU can apply constitutional pluralism to the separation of powers, the rule of law, and human rights will continue to hang over the bloc like the sword of Damocles. The sword will fall when EU courts refuse to respect the rulings of Polish or Hungarian courts, or when the Polish or Hungarian authorities begin to arbitrarily jail journalists or politicians.
It is unclear whether this will happen. Hopefully, Europe’s democratic instincts will prevail and the new authoritarians will leave power as quickly as they seized it. But it is important to remember that “wherever law ends, tyranny begins”, as John Locke put it. As soon as it reaches that point, the EU will begin disintegrate. Europe’s next crisis over the rule of law and democracy could be its last.