Editorial Board

Eastern Europe and the Rule of Law

The EU’s post-communist members are testing its commitment to democratic norms. Here’s how to respond.

Pro-EU demonstrators in Budapest.

Photograph: Istvan Huszti/AFP/Getty Images

For several years the European Union has heaped criticism on the governments of Poland and Hungary for flouting EU rules and undermining EU values. So far, it’s been mostly talk.

Lately the violations have mounted. Support for some kind of punishment is growing, and a showdown seems to be looming. Yet the EU is finding that it lacks good -- meaning politically feasible -- ways to enforce its constitution. As well as addressing the immediate controversies, the union’s leaders will sooner or later have to face this deeper problem.

The European Commission just voted to start proceedings against Poland, Hungary and the Czech Republic for violating the EU’s 2015 agreement on migrants. Under the deal, they agreed to take in a certain number of refugees every quarter. The targets were hardly demanding (a mere 1,294 for Hungary, for example) but the borders stayed shut.

Hungary has taken the case to the European Court of Justice, arguing that the agreement infringes on national sovereignty and isn’t binding. A ruling is expected in July. If the Commission’s case is upheld, the violators will have to honor their undertaking or face sanctions.

This is a good way to proceed. It asks a court whose authority is recognized by all the parties to resolve the dispute. But compare this with another set of EU controversies.

Since coming to power in 2015, Poland’s Law & Justice party (PiS) has sought to control the media and has proposed changes to the country’s Constitutional Tribunal that drew an official warning from the European Commission. In Hungary, Viktor Orban’s government has also attacked the courts and the press. Recently it followed Vladimir Putin’s example, passing a law attacking non-governmental organizations that receive funding from abroad. (Budapest’s Central European University, supported by George Soros, is a main target.)

These measures appear to scorn clear EU commitments to democratic norms. And there’s a procedure -- set out in Article 7 of the Lisbon Treaty -- for putting that right. The problem is that it’s slow, complicated and politically charged. In effect, it asks politicians and bureaucrats to sit in judgment over the (popularly elected) governments of offending countries.

Governments rightly fear this is ill-advised: It risks inflaming the disputes. Many see the procedure as a "nuclear option," too dangerous and divisive to be triggered. Germany’s preferred solution -- withholding aid from countries not in compliance with EU rules -- would hurt the EU’s most vulnerable citizens and create new resentments. 

Recent trends in Hungary and Poland are indeed disturbing. The EU needs a way to enforce the undertakings its members have made on democratic norms, but one it isn’t afraid to use.

For now, Europe’s leaders ought to ramp up the diplomatic pressure on Poland and Hungary, reminding them of promises made -- and, if that fails, invoking the threat of Article 7. That path is risky, to be sure, but at least it’s there. In future, though, the EU should ensure that constitutional questions such as these can be more quickly routed through a judicial procedure that lowers the political heat. Arguments about what treaties and constitutions require are arguments about the law, and best conducted in courts.

    --Editors: Therese Raphael, Clive Crook

    To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net .

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