The European Commission declared on Monday 4 January that it would discuss the state of the rule of law in Poland after the country’s extreme-right government pushed through legislation placing the judiciary and the media under government control.
In a move reminiscent of Hungary’s illiberal regime, the new Polish government is attempting to seize total control of the country’s institutions, silencing the Constitutional court and ensuring direct government appointment of senior figures in national television and radio. The law would also see the current managers and supervisory board members of Poland’s public broadcasters fired with immediate effect.
If the phenomenon of Victor Orban looked to some people like an isolated case in contemporary Europe, the last year has shown that this is not true: Orban’s brand of ‘illiberal democracy’ has found enthusiasm in Poland, where it was a crucial factor in the recent elections returning the Law and Justice party to power; it has found admiration in France amongst supporters of the Front National; and Orban’s hardline stance on migrants – leading to the building of walls and fortifications – has arguably become the leading response of much of Europe to what is termed the ‘migrant crisis’.
Orban has become the figurehead of a vision of Europe which is white, Christian, defensive, authoritarian and in which fundamental rights and liberties are at high risk. We cannot afford this to happen. The European Commission is right to open a rule of law procedure.
This procedure follows a three-steps approach:
- The Commission first assesses whether there are clear, preliminary indications of a systemic threat to the rule of law
- If it decides there is a threat, the Commission enters a dialogue with the member state, which is given chance to respond or amend legislation
- Should there be no satisfactory implementation, the Commission would have the possibility to trigger the application of Article 7 TEU, which would suspend the voting rights of the country in the European Council.
It is an important first step for the Commission to have raised the “systemic” risks to democracy of Poland’s judiciary and media reforms, instead of focussing exclusively on the technicality of individual legislation without raising the larger political picture as previously done (with abysmal results) in the case of Hungary. Nonetheless, the rule of law procedure is a weak enforcement tool, with the third step, Article 7, called the “nuclear option” for its unlikely application and the lack of gradual or intermediate steps.
This highlights the growing paradox of the European Union having tools to encourage fundamental rights and values in its neighbourhood through the Copenhagen Criteria that candidate states need to fulfil to join the Union, but very few tools to safeguard fundamental rights in countries once they are inside the Union.
The Tavares report on the situation of the rule of law in Hungary adopted by the European Parliament in 2013 suggested the creation of a Copenhagen Committee to monitor EU countries permanently on the basis of agreed criteria when it comes to adherence to the rule of law, with a gradual set of enforcement mechanisms to address rights violations.
The relative lack of political will to advance on a Copenhagen Commission, or give more powers to the already existing Fundamental Rights Agency to fulfil a similar role, are testament above all to the low priority placed on this issue by the dominant political forces at European level at the moment. Where European leaders are willing to take this risk when it comes to fiscal policy, surely because they feel in a position of strength with financial institutions alongside them, they are unwilling to take it when it comes to fundamental rights.
We have known for a long time that citizens rights very quickly fall into irrelevance if they are not consistently defended and advanced. We have seen over the past years how quickly a deterioration in democracy in one country spreads to other European countries.
The European Commission must now go all the way within its powers to show violations of democracy and rights will no longer be tolerated. But ultimately, the only way to improve this situation, in addition to changing the balance of forces dominating the European institutions, is for European and Polish citizens to show decisively that they will stand up for their rights. The European Media Initiative will do all it can to fight for a more effective and incisive role for European institutions.