R. Daniel Kelemen is professor of political science and law at Rutgers University.
In her first State of the Union speech, European Commission President Ursula von der Leyen laid out ambitious plans on everything from public health and the fight against the pandemic to climate change, human rights and migration.
But for all its strengths, her maiden speech was exceptionally weak on one of the most pressing threats facing the EU: the rise of increasingly autocratic governments in a handful of EU member countries, most notably Hungary and Poland.
Although von der Leyen’s speech did include a pledge to defend the rule of law, it painted a picture that was distressingly detached from reality.
She suggested that threats to the rule of law inside the EU are a new challenge or one looming on the horizon. She lauded an annual “rule of law report” on all member countries that her Commission will publish for the first time later this month, arguing it could serve as a “preventive tool for early detection of challenges and for finding solutions.”
She spoke of “a starting point” to “ensure there is no backsliding,” as if the house weren’t already on fire.
But the reality is that in some EU countries, severe backsliding has been occurring for years.
Leading international ratings bodies such as the V-Dem Institute and Freedom House have already recategorized Hungary as the EU’s first non-democratic member. Other countries such as Poland and Bulgaria are backsliding fast, on track to join Hungary in the hybrid authoritarian regime category.
Von der Leyen’s reference to the new rule-of-law reports as a “starting point” is all the more ridiculous when one considers that disciplinary procedures under Article 7 of the Treaty on European Union concerning systemic threats to the rule of law and other fundamental EU values were commenced against Poland and Hungary already in 2017 and 2018 respectively.
These procedures remain blocked in the European Council awaiting meaningful action, yet von der Leyen made no mention of them whatsoever. Indeed, she failed to even name Hungary, Poland or any of the other countries experiencing democratic backsliding and rule-of-law crises.
Von der Leyen’s speech also suggested that the Commission under her leadership has been a stalwart defender of freedom of the press and the independence of the judiciary. But her track record to date suggests otherwise.
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During the first year of her mandate, Viktor Orbán’s regime in Hungary continued its crackdown on the last remnants of independent media and used the pandemic as a pretext to tighten its grip on power and punish the opposition. In Poland, the ruling Law and Justice (PiS) party intensified its five-year assault on the independent judiciary and is openly defying Court of Justice of the EU rulings on the issue. Courts in the Netherlands and Germany have even blocked the extradition of suspects to Poland under the European Arrest Warrant, citing fears that Polish courts can no longer be considered independent.
Yet, despite such developments, the von der Leyen Commission launched no new infringement procedures against Hungary on these issues and only one against Poland, while also showing no inclination to accelerate existing cases launched by the previous Commission. Likewise, the Commission has remained mostly silent about the deterioration of the situation in Bulgaria, where tens of thousands of protesters have taken to the streets of Sofia in daily protests calling for the resignation of a government they say has been captured by an oligarchic mafia.
Ultimately, the most powerful tool the EU could use to defend democracy and the rule of law would be to more robustly link receipt of EU funding to respect these fundamental values. In 2018, the previous Commission proposed a regulation that would provide for such “rule of law conditionality,” but it has been blocked by governments in the Council ever since.
Now, approval of the EU budget and the pandemic recovery package agreed by countries this summer is being held up in the European Parliament over exactly this. Leaders of major party groups in the Parliament recently declared that they would not approve the EU budget unless the Council approved a robust rule-of-law conditionality system based on the Commission’s 2018 proposal. Meanwhile, Poland and Hungary are threatening to block the EU budget and coronavirus recovery package if the Parliament and Council approve a mechanism that would block funds to countries that violate the rule of law.
Von der Leyen addressed this in her speech, saying that, “we will ensure that money from our budget and NextGenerationEU is protected against any kind of fraud, corruption and conflict of interest. This is non-negotiable.”
While this sounds like an endorsement of the Parliament’s position, it is a rather tepid one. After all, the EU budget is already in principle — though certainly not in practice — protected against fraud and corruption. By contrast, leaders in the Parliament have framed the issue much more forcefully in terms of using the budget as a tool to combat the erosion of democracy.
As von der Leyen prepared to take office last year, she promised to take a less confrontational approach with Hungary and Poland over rule-of-law issues. Aside from one welcome exception in July — when the Commission sent a strong signal by withholding EU funds from towns in Poland that had declared themselves “LGBTQ-free zones” — she has done just that.
Von der Leyen has pursued appeasement not just in her policies, but also in her rhetoric. Over the past year — and again in her State of the Union address — von der Leyen has failed to publicly acknowledge the erosion of democracy and the rule of law in some member countries. This backsliding presents an existential threat to the Union, but the Commission president can’t seem to admit that the problem even exists.