Beatrice Monciunskaite (Dublin City University)
In the year that Freedom House reported the 18th consecutive year of democratic decline globally, the rule of law crisis in the European Union entered a new phase. While Poland has begun to rebuild its liberal democratic status after eight years of PiS autocracy, Hungary continues to intimidate EU institutions by employing political extortion tactics to obtain EU funds.
In Poland, in the October 2023 general election, voter turnout was the highest it had been since the fall of communism at just over 74%. This election signalled an important shift in the political landscape of this member state as, for the first time since 2015, PiS lost its top position in government, with its share of seats in the Sejm slumping to 35%. They lost to Donald Tusk’s Civic Coalition, which, with the support of the Third Way and New Left parties, took 54% of the vote, allowing them to form the government.
Despite campaigning on the promise to oust the previous ‘evil’ that was the PiS regime and a vow to restore Polish democracy, LGBT rights and the independence of the national broadcaster, the new government faces significant challenges in its political future. An apparent example of the difficulties that lie ahead is the issue of restoring judicial independence in Poland. The Minister of Justice, Adam Bodnar, must achieve a balance between retaliating against the autocratic legacy of the PiS regime within the judiciary and ousting the judges who are currently sitting on Polish court benches but who were nominated and appointed in blatant violation of national and international law on judicial independence.
Striking the right balance will be exceptionally difficult given the vast structural reforms that Polish judiciaries have undergone in the last eight years. The irregularly appointed ‘neo-judges’ are in their thousands at this stage and have infiltrated Polish courts at every level of the system. They cannot simply be removed in one fell swoop as this would constitute clear rule of law violations and would no doubt attract the unflattering accusation of hypocrisy. Then again, a system to legitimise the existing neo-judges still needs to be implemented to remedy the deficiencies in judicial independence that this new government inherited. Another layer of difficulty is apparent as the new government will be stifled in their attempts at re-democratisation by the Polish President, Andrzej Duda, who remains in power.
Meanwhile in Hungary, the Fidesz government stands firm in power and continues to wreak havoc on the country’s constitutional democracy and the wider EU. Despite numerous infringement procedures, rule of law reports and the triggering of the Conditionality Regulation against Hungary over persistent rule of law violations, the ruling party has failed to improve Hungary’s democratic status substantively. Moreover, the Hungarian Prime Minister, Viktor Orbán, has been prominently featured in the headlines over the last few months due to his extortion tactics to force the European Commission to un-freeze EU funding.
At the end of 2023, the European Commission released €10.2 bn in cohesion funds to Hungary just days before the European Council Summit. Expert observers and the European Parliament rightly criticised this decision as it is evident that the reason this funding was being withheld, namely systemic judicial independence issues, had not been substantively rectified to warrant the release of these funds. It is clear from the context of the agreement that Prime Minister Orbán received the funds so that Hungary would not use its veto power in the European Council to block vital aid and accession negotiations for Ukraine. This high-level political blackmail has recently reached the Court of Justice as the European Parliament has filed a lawsuit against the European Commission for releasing the funding under such circumstances.
In the background of these ever-prominent rule of law concerns in Poland and Hungary, we have also witnessed the continued erosion of the principle of the rule of law in other European countries. Spain has succumbed to severe political polarisation and numerous reports of attacks on the separation of powers. Furthermore, at the end of 2023, the EU began official accession negotiations with Ukraine. The road to EU accession for Ukraine is likely to be long and winding, but the gravity of the accession negotiations cannot be overemphasised. Aside from the apparent turmoil that comes with large parts of the country being an active warzone, Ukraine must address inter alia systemic corruption, human rights, and governance issues before it can join the EU. The support the EU offers during this transition for Ukraine in the coming years will indicate whether the EU has learned from its past mistake of superficial accession conditionality and the inherent defects in the Copenhagen Criteria.
Beatrice Monciunskaite is an Assistant Professor at the School of Law and Government at Dublin City University. Her teaching and scholarly interests include comparative constitutional law, European Union law and democratic theory.