By Ryan O’Connor
Hungary and Poland have both received a lot of attention from international media in recent years. This is a result of their refusal to accept the supremacy of EU law. Why have the two countries taken this stance, and what significance does it have for Europe’s future? To understand this, we must look to the founding of the European Union.
The formation of the European Union is often viewed in academia as one of the great wonders of international relations. Before its establishment, decades of scholarship seemed to demonstrate that international cooperation was forever doomed to be limited and rare; after all, states could not trust each other, nor could they afford to become dependent on their neighbors, the threat of destruction from whom was always present. The establishment of the European Community (EC) with the Treaty of Rome in 1958 was seen by many as the beginning of another pointless international institution that would serve only to reflect the balance of powers in mainland Europe. This institution, however, would become incredibly different to anything the nation-state-oriented world had seen before. As European integration reached levels far beyond academics’ expectations, some began to predict that the EC would become a federal state. Others disagreed and held tight to the old-fashioned theory of permanent international discord while waiting for the Community to collapse.
The formation of the European Union is often viewed in academia as one of the great wonders of international relations.
Fast forward to sixty years later, and it seems that neither of these predictions were correct. EC integration continued at a rapid pace, with member states becoming increasingly dependent on one another and eventually securing their original goals of a single market with a single currency. Having secured this goal, the European Community became something bigger; it became what is now known as the European Union. There are now little to no barriers to international trade between EU member states, both economically and legally. All of the EU states can be said to have incredibly high levels of interdependence. When attempting to explain just how this integration occurred despite seemingly impossible odds, many turned to legal explanations. The principles of direct effect and supremacy with regards to EU treaties are not always respected by the legislatures of member states. National law, however, seems to provide a method through which these principles can be enforced.
When the EC was founded, it had generally been accepted that the only reason states had to respect international treaties was that they feared retaliation from other states involved in the treaty. However, the European Court of Justice, otherwise known as the ECJ, decided to attempt another method of enforcing international treaties. In the early 1960s, the Court made it the duty of national courts to ensure that the supremacy of EC law would be respected. They provided lawyers with plenty of incentives to do so. For example, lawyers and judges could make a living by holding their government to account for following EC law. Thus, governments’ hands were tied; they could no longer justify breaking EC treaties because the EC had the support of national courts, the decisions of which no rational government could undermine. By handing responsibility for the upholding of international law to national courts instead of national governments, the ECJ ensured that, in nearly all cases, EC law would be upheld and enforced in its member states. Independent national courts became the foundation that almost all further development in European integration was based on.
Independent national courts became the foundation that almost all further development in European integration was based on.
As of November 2021, there are two prominent European leaders whose political beliefs differ significantly from the liberal political centre across the EU. Hungary’s Prime Minister Viktor Orbán and the Deputy Prime Minister of Poland Jarosław Kaczyński both hold political beliefs further to the right than most of their European counterparts. They are anti-gay rights, anti-trans rights, and anti-immigration. Both Orbán and Kaczyński have implemented anti-LGBTQ+ laws; teaching children about differences in sexual/gender orientation has been made illegal in Hungary, while ‘LGBT-free zones’ have appeared across Poland. On top of this, they have both condemned immigrants, whom they claim to ‘eliminate historical identities’. The two leaders have both exercised attempts to clamp down on the media in their countries. Pro-Orbán government owned-media takes up a whopping 55% of available media sources in Hungary. In Poland, the current governing party PiS has consistently implemented policies that decrease media freedom. They are attempting to push any privately-owned media sources out of the market to replace them with public broadcasters who agree to provide pro-PiS oriented news. The reasons why Orbán and Kaczyński have self-proclaimed themselves as leaders of ‘illiberal democracies’ are clear and plain to see.
Hungary’s Prime Minister Viktor Orbán and the Deputy Prime Minister of Poland Jarosław Kaczyński both hold political beliefs further to the right than most of their European counterparts. They are anti-gay rights, anti-trans rights, and anti-immigration.
However, it is against EU law for governments to discriminate against ethnic or sexual minorities in any sense. For this reason, the European Commission has begun legal action against Hungary and Poland for violation of the fundamental rights of LGBTQ people. However, this attempt to assert how governments can rule their countries has stirred up controversies surrounding national sovereignty. Some argue that such worries led to Brexit, in which British voters opted to leave the EU and fully restore their government’s ability to make its own decisions, independent from any EU intervention. Hungary and Poland’s two ‘illiberal leaders’ would likely love to escape the anti-discrimination regulations surrounding the treatment of LGBTQ people and ethnic minorities in the EU. On the other hand, both countries see significant economic benefits from their memberships of the Union, and understand that to leave it would be to lose a significant amount of funding. As a result of this, the governing parties have instead focused a significant portion of their energy on attacking their national judicial systems; specifically judicial independence. If the two governments can successfully exercise control over their national courts, the EU will not be able to continue its reliance on the national courts to enforce EU legislation.
On the other hand, both countries see significant economic benefits from their memberships of the Union, and understand that to leave it would be to lose a significant amount of funding.
In Hungary, the National Judiciary Office (NJO) is the central administrative body of the courts. They hold full administrative and partial professional control over them. It is argued that the body holds too much power. The president of the NJO has the power to appoint court leaders. This provides the president with the opportunity to abuse his/her power; they can appoint court leaders and judges that are loyal to them. According to Amnesty International, the National Judicial Council cannot provide sufficient checks and balances to the system. This opportunity for the president of the NJO to abuse his/her power becomes even more concerning considering that they are elected by the Parliament. Combine this with the slew of bills seeking to strip judicial independence from the Hungarian court systems and Orbán’s attempt to politicize the courts to favor himself become clear as day.
A similar situation has been observed in Poland, where the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court was established in 2017. The chamber was set up to handle purely political affairs in Poland, and the appointment of judges to this chamber is heavily influenced by the Polish legislature and executive branches. Once again, those who are loyal to the government find themselves earning excellent career opportunities in the courtrooms. The governments of both Hungary and Poland have not tried to hide their attempts to erode the checks and balances on their power by embracing authoritarian tendencies.
While the European Commission may have warned Hungary and Poland with weak cautions in recent years, they have recently begun to take a more serious stance. At the time of writing, it has been a week since the EU began to fine Poland a million euro for every day that they do not abolish the controversial Supreme Court chamber. In late 2020, the Commission implemented a new policy that makes it possible for them to withhold funding from member-states if they refuse to uphold the rule of law. It is clear that this mechanism was established to counter the dissent seen in Hungary and Poland. However, the policy has not yet been used because Poland and Hungary have both questioned its legality. The Commission has stated that it will wait until the ECJ rules that the policy is in line with EU treaties. The Commission has likely taken this approach to increase the legitimacy of the policy and because they believe that the court will side with them. However, the European Parliament has launched a lawsuit against the Commission for this decision. They believe that action needs to be taken against the two dissenting states before their governments become further entrenched in their positions.
The results of the current Rule of Law crisis will determine if the European bloc will survive or if future scholars will be developing theories of European Disintegration.
The lack of action against Poland and Hungary in their turns towards authoritarianism has led to fears that they see the European Union as a joke, and that other countries will follow in their footsteps. While the EU has historically acted slowly, subtly, and methodically in the enforcement of its policies, many states believe that the Commission has been too slow to respond to the current crisis, giving little importance to the fact that EU law, and its implementation through independent national courts, is essential to the functioning of the Union. The results of the current Rule of Law crisis will determine if the European bloc will survive or if future scholars will be developing theories of European Disintegration.