The Brainstorm long read: how the rise of strident populism in Hungary and Poland has created a challenge for the European Union

By John O'Brennan, Maynooth University and Michael Toomey, University of Limerick

In our little corner of Europe, political life has been consumed by Brexit over the past two years. As London has struggled to formulate a coherent position on the Article 50 talks, the island of Ireland has had to face up to the existential challenges potentially flowing from a "No Deal" outcome.

The Brexit vote in 2016 was a manifestation of a certain kind of populism. But these impulses were and are far from unique to Britain. Across the Atlantic, the Trump bandwagon swaggers on, irrespective of the myriad legal threats swirling around the president. And in other parts of Europe populist governments driven by a desire to entrench nativist values within their jurisdictions are firmly ensconced.

Hungary and Poland are at the apex of a wave of what some term "illiberal" governance in Central and Eastern Europe. The more accurate term for this phenomenon is simply "authoritarianism" and its sweeping advance across the continent now poses acute problems for the European Union.

From RTÉ Radio One's Morning Ireland, Paul O'Flynn reports from Budapest on the meeting earlier this year between the Taoiseach Leo Varadkar and Hungarian prime minister Viktor Orban

The recent re-election of Prime Minister Viktor Orbán’s Fidesz party in Hungary confirmed their full spectrum dominance of Hungarian politics. In Poland the ultra-conservative Law and Justice party (PiS) headed by Jaroslaw Kaczynski, exercises authority in an increasingly autocratic fashion. Both parties have engaged in sustained attacks on liberal democratic institutions, opposition parties and civil society, advocated a "sovereigntist" approach to governance and deployed the febrile language of populist Euroscepticism to fend off criticism from Brussels.

Both countries entered the EU in 2004 after a protracted period of negotiations which were supposed to lock in democratic transformations in the former Communist countries. Renowned dissidents such as Lech Wałęsa and Václav Havel had challenged authoritarianism in Gdansk and Prague in part by embracing European integration and advocating for the return to Europe of Hungary and Poland, a Europe from which those countries had been involuntarily cut off after the second World War.

The 2004 Eastern Enlargement of the EU was commonly understood at the time to be the culmination of the democratic transitions and consolidations that had begun across Central and Eastern Europe in the late 1980s. This round of expansion was different to previous ones, as the EU took a much more active role in preparing the candidate countries for membership.

From RTÉ Six One News, a report on the re-election of Viktor Orban as Hungary prime minister

From the introduction of the "Copenhagen Criteria" (accession criteria)  in 1993 and continuing through the pre-accession and accession negotiation periods from the early 1990s to 2004, the EU sought to ensure the development and consolidation of liberal democratic norms in the new member states. This included the embedding of pluralist institutions, functioning market economies, respect for minority and human rights, and the irreversible locking-in of the rule of law.

For about a decade after 2004, it was believed that this process had been broadly successful. It set off a wave of research on the so-called "transformative power" of the EU. It also contributed to the belief that the European Union would act as a vigorous agent of democracy promotion both within and outside its own borders and that the EU would provide the anchor for this far-reaching re-constitution of state and society. The Union expanded further with the accessions of Bulgaria and Romania in 2007 and Croatia in 2013, a development which seemed to confirm the thesis about the EU’s "transformative power".

But this narrative has been challenged quite fundamentally by developments in Hungary since the victory of Orbán and the Fidesz Party in the 2010 Parliamentary elections. Following this vote, which saw Orbán’s party win a supermajority of 67 percent of the seats in the Hungarian National Assembly, Hungary began a precipitous turn away from the democratic norms the country had signed up to upon achieving EU membership in 2004. Throughout this period, Orbán managed to systematically undo almost the entire system of checks-and-balances in the country, pack the judiciary with cronies and political loyalists, re-write the country’s voting laws and gerrymander electoral districts in such a way that blatantly favoured his party.

From RTÉ Radio One's News At One, the Financial Times' Andrew Byrne on how Viktor Orban is at odds with the EU over hardline migration policies, Hungary's judicial system and political control

Subsequent electoral victories have seen Orbán consolidate his control over Hungarian state institutions while targeting any and all forms of opposition to his regime. This has manifested itself in a concerted campaign against civil society organizations, independent media groups, and the Central European University (CEU), the most prestigious university in Hungary. Such non-governmental organisations are regularly smeared as being "agents of George Soros", supposedly working to undermine Hungary’s sovereignty and conspiring to flood the country with illegal migrants.

Additionally, organisations that have received funding from outside of Hungary have been repeatedly targeted by the authorities. As early as 2014, offices of organisations that had received funding from the Norwegian government were raided by the police. A law passed in 2017 required organisations that received more than €24,000 in donations from abroad to register as "foreign-supported organisations".

Following the elections in April 2018, independent organisations have found themselves threatened with even greater restrictions as part of Orbán’s "Stop Soros" campaign. Recent weeks have seen the closure of several independent media organisations and the resignation of a number of judges from the country’s National Judicial Council, the supervisory organ of the courts administration. A pro-government magazine ran an outrageously inflammatory article under the provocative headline "the Speculator’s people", which listed more than 200 employees of independent civil society groups and media outlets, along with a picture of Soros.

From RTÉ Radio One's Drivetime, Philip Boucher-Hayes profiles controversial billionaire philanthropist and financier George Soros

 This week saw an announcement from the Soros-backed Open Society Foundation that it was closing its operations in Hungary and moving staff to Berlin, citing an increasingly repressive legal and political environment and ongoing security concerns. These anti-NGO laws mimic those developed by Vladimir Putin’s regime in Russia and were designed to encourage a hostile environment for critical voices in Hungary.

Orbán has succeeded in turning the public sphere in Hungary into a grotesque pantomime parallel reality, replete with paranoia and conspiracy theories of all kinds, generated to keep the public in a constant state of watchfulness about "foreign threats" to Hungarian identity and culture.

His success in dismantling independent institutions has undoubtedly emboldened would-be authoritarians elsewhere in Central and Eastern Europe to think that they too could have their authoritarian cake and eat it - and do so from within the European Union. In fact, Jarosław Kaczyński brazenly declared as early as 2011 that "a day will come when we have a Budapest in Warsaw"

US president Donald Trump speaks in front of the Warsaw Uprising Monument at Krasinski Square, Warsaw, in July 2017

In the same way that Orbán assailed the independence of the judiciary and the freedom of the media, the Polish government has likewise sought to pack the Constitutional Court with its own judges and limit the capacities of the judicial organs to exercise restraint on the government. Within months of winning an overall majority in the 2015 parliamentary election, the new PiS government, led by Beata Szydło, was the subject of withering criticism from the European Parliament. On 13 April 2016, the Parliament passed a resolution declaring itself "seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law". 

However, Law and Justice’s behaviour has differed from that of Fidesz with its sheer brazenness. Whilst Orbán was able to methodically use his parliamentary supermajority to introduce a new constitution and thereafter to systematically dismantle any checks on his rule, the Polish government only enjoyed a slim majority after the 2015 elections, and had to rely on confidence-and-supply arrangements to ensure its retention of power.

But this proved to be little impediment to PiS, as they likewise were able to marginalise judicial oversight bodies, gerrymander electoral districts and greatly weaken the independence of the media in the country. It has turned Poland’s legal architecture on its head, putting an end to the separation of powers. According to laws passed in 2017, the PiS-dominated parliament has full control over the election of the National Judicial Council (NJC) which has responsibility for making judicial appointments. The new laws also allow for the replacement of around 40 per cent of sitting Supreme Court judges.

From RTÉ Radio One's Morning Ireland, Piotr Rakowski, Deputy Head of Mission with the Polish Embassy in Ireland, discusses protests against judicial reform in Poland

Freedom House's Zselyke Csaky has made the point that all this was made possible by PiS’s "aggressive 2016 takeover of the Constitutional Tribunal" which adjudicates constitutional disputes. The result of all this has been the "complete subjugation of the judiciary to Law and Justice. All decisions related to the disciplining and sanctioning of judges will happen under the auspices of a new body whose judges are also effectively chosen by PiS". 

This new body also has responsibility for validating elections, a function previously discharged by an independently appointed Supreme Court.  The damage to Poland’s international reputation has been such that in March a judge in Ireland refused to extradite a Polish defendant to his homeland, worried that he might not get a fair trial. 

From RTÉ Radio One's Morning Ireland. Ruaidhrí Giblin reports on legal changes in Poland which led to High Court judge Ms Justice Aileen Donnelly deferring her ruling in a recent extradition case

The Polish public state broadcaster, Telewizja Polska (TVP, the Polish equivalent of RTÉ) has been almost completely taken over by the ruling party with the result that all opposition voices have been banished. An anti-NGO smear campaign is also in full swing, with activists involved in protests being harassed, arrested and interrogated by the authorities. Political opponents are routinely labelled "traitors". PiS has also made it illegal to accuse the "Polish Nation" of complicity in the Holocaust. 

Csaky also alerts us to the fact that "what PiS is attempting to do is revolutionary. The party is not just seeking to select its own judges and give them extraordinary powers, it is essentially taking over the state, operating with total disregard for constitutional and parliamentary norms".

In both Hungary and Poland, creeping authoritarianism has been fuelled by and further propelled populistic and nakedly xenophobic anti-immigrant campaigns. Orbán and Kascyński regularly expound on their vision of what their countries should be: white, Christian, mono-ethnic, and dominated by a single political party headed by a strong leader. At the height of the migrant crisis in the summer of 2015, Orbán’s administration plastered billboards all over Hungary with graphic messages linking migrants to crime, terrorism and the harassment of women.

Both Hungary and Poland have experienced some of the highest economic growth rates in the EU in the years following the financial crisis

The retreat from pluralist checks and balances in Central and Eastern Europe is not confined to Hungary and Poland. The recent Nations in Transit report from Freedom House highlights the alarming pattern of renascent authoritarianism evident across CEE. It argues that "contempt for independent institutions and open discussion has become entrenched" as Illiberalism has "become the new normal".

It shows the "bulldozing of the judiciary" in Poland and how the composite "democracy score" of every country in Central and Eastern Europe has declined since 2008, "with the biggest setbacks in the media, the judiciary, and the functioning of national democratic institutions like parliaments and presidencies". Bulgaria (which currently holds the EU Presidency) and Hungary can no longer be considered "consolidated democracies", and Poland "is near the threshold for leaving the category, having suffered the largest category score declines in the history of the survey".

The consolidation of power has also been buoyed by strong economic growth: both Hungary and Poland have experienced some of the highest (sustained) economic growth rates in the EU in the years following the financial crisis. Much of this wealth has been funnelled into welfare programs designed to buttress support for partisan political ends. However, a significant chunk of this wealth in Hungary has also been siphoned off into the bank accounts of predatory oligarchic forces aligned with Orbán, as the country becomes increasingly corrupt and financial structures more and more opaque. 

A view of Budapest bisected by the Danube

Transparency International’s 2017 Corruption Perception Index ranked Hungary as the second-most corrupt in the EU, after Bulgaria, which marked a continuing deterioration in the country since 2010. The worrying pattern of authoritarianism has to some extent developed out of the systematic deployment of informal clientelist networks to suborn public processes to private ends. These networks have succeeded in instrumentalising national and sub-national political actors with the result that in many states in CEE it is difficult to know where the state begins and rent-seeking oligarchy ends.

The economic success of both countries is attributable at least in part to the significant structural funds they have received from the EU over the past decade. Between 2007 and 2013, EU funds to Hungary amounted to €35 billion whereas total Foreign Direct Investment (FDI) into the country was €28 billion. Hungary will receive just under €30 billion from the EU between 2014 and 2020. That amounts to a subvention of about 3.5 percent of Hungarian GDP per annum in direct support from Brussels, comparable to the vast sums Ireland received from the EU in the 1990s.

Poland will receive more than €86 billion from EU funds in the same period. Crucially, more than half of the infrastructural and development funding in Poland in the 2014-2017 period came from Brussels. Given that much of the popularity of the governments in both countries is based on their perceived delivery of economic goods, the EU finds itself in the position that it is effectively subsidising the emergence of two autocratic regimes

Caption

So what has the European Union done to halt this slide toward autocracy? To date, responses from the EU have largely been weak or non-existent. This is partly due to the difficulties of responding to breaches of the spirit of European law, as opposed to breaches of the letter of the law. The simple truth is that once a country becomes a member state of the EU, the capacity of the Union to exert leverage over that state is considerably reduced. Prior to 2004, Hungary was subject to different forms of EU conditionality which impelled Hungarian leaders to comply with EU demands. Once the anaesthetic of conditionality was removed, the incentive to continue being a good citizen all but disappeared.

The EU engagement with Hungary has largely been confined to some relatively minor, technocratic tweaks to policies that violated European legislation in the fields of employment and audio-visual law. Hungary’s opposition to the European Commission’s migrant quotas scheme prompted the EU in 2017 to finally institute court actions against Budapest, but many commentators argue that this represented too little, too late.  

But the support that Orbán has received from within the EU is of far greater significance. As a member of the European People’s Party (the largest political grouping in the European Parliament and the one to which Fine Gael is aligned), Orbán has received vocal support from important figures such as Joseph Daul and Manfred Weber, the President and Leader of the EPP, respectively, and from Horst Seehofer, the German Minister for the Interior and leader of the German Christian Social Union. 

Poland could eventually see the removal of the country’s voting rights in the EU Council of Ministers. 

In the run-up to the recent Hungarian parliamentary election, both Daul and Weber offered strong support for Fidesz and Weber went so far as to praise Orbán’s determination to maintain Hungary’s "dominant culture" i.e White, Christian and hostile to migrants, especially non-European migrants. Although the European Parliament has published a report deeply critical of deepening authoritarianism in Hungary, the EPP has continued to defend and protect Fidesz. Philippe Lamberts, co-president of the Greens, argues that both Weber and Daul "should be ashamed that they put party friendship above fundamental rights and democracy."

In contrast, the Polish government, whose MEPs are members of the far smaller European Conservatives and Reformists grouping, has faced a more robust challenge. On 20 December 2017, the European Commission set the country an ultimatum to reverse the pattern of democratic "backsliding" and, in particular, the attempt to impose political control over the judiciary. Otherwise, Poland could face the possibility of an Article 7 sanctioning procedure being launched against it, which could eventually lead to the removal of the country’s voting rights in the EU Council of Ministers. 

Article 7 of the Treaty on European Union aims at ensuring that all member states respect the values of the Union, including the rule of law. Article 7(1) was designed as a preventive clause, to be activated only in the case of there being "a clear risk of a serious breach" of EU values in the member state in question. That is the article triggered by Frans Timmermans, Vice-President of the European Commission, against Poland.

From RTÉ Radio One's Morning Ireland, Professor Pawel Marcisz, University of Warsaw, analyses the threat by the EU to remove voting rights from the Polish Government

However, such an action will be extremely difficult to implement as both the Polish and Hungarian governments have vowed to veto any attempt to implement Article 7 and an EU decision to withdraw voting rights would require unanimity in the European Council. Before we get to that point, a majority of four fifths of the member states in the European Council along with the consent of the European Parliament will be required for the EU to determine that there is a "clear risk of a serious breach" of EU values. Poland will get a chance to present its case to the Commission in June and the Commission’s assessment of Polish progress on meeting EU concerns will be crucial in determining whether or not the European Council takes further action against Warsaw 

A potentially more fruitful course of action lies in concretely linking rule of law conditionality with the dispersal of EU funding. The European Commission moved decisively in this direction in May 2018 by proposing a new mechanism which would reduce access to EU funds for member states deemed in violation of EU rule of law norms. Crucially, decisions on such cases would be adopted by the Council using qualified majority voting rather than unanimity, on a proposal by the Commission.

The EU is at a pivotal moment in its evolution and the outcome of the Polish and Hungarian cases will define the nature of the EU project for years to come

Taken together, this new initiative on the EU budget and the opening of an Article 7 procedure against Poland represent a frank confession on the EU’s part that many of the gains supposedly entrenched by the eastern enlargement of the Union have been reversed over more than a decade of membership. Somewhat unwittingly, the EU has become a key agent of enablement of Hungarian and Polish authoritarianism because of its role as financial benefactor. Now, after years of inaction, Brussels has finally begun to take action against both Budapest and Warsaw

The EU is now at a pivotal moment in its evolution and the outcome of the Polish and Hungarian cases will fundamentally define the nature of the EU project for years to come. Although this throws up important issues of state sovereignty, no rules-based system can survive if some member states are in more or less constant violation of the obligations they accept under the EU treaties. There is an enormous amount at stake as the European Union confronts populism on the Danube and Vistula.

Professor John O’Brennan is Jean Monnet Professor of European Integration and Director of the Maynooth Centre for European and Eurasian Studies at Maynooth University. He is a former Irish Research Council awardee. His new essay on the EU’s relationship with the Western Balkans has been published by the Institute of European and International Affairs.  Michael Toomey teaches European Politics in the Department of Politics and Public Administration at University of Limerick.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ