The EU Is Winning Its Rule-of-Law Challenges

(Bloomberg Opinion) -- The European Union is often accused of being powerless to deal with renegade member states that flout its declared principles. But the bloc’s recent success in resisting judicial reforms in eastern European countries, meant to increase ruling parties’ control over the courts, tells a different story.

. The judicial reforms are key to the establishment of illiberal regimes in eastern European countries. In recent years they have challenged the EU’s key values , tiring of their wealthier neighbors’ lectures on how to run their affairs. The EU was slow to get serious about these efforts, and indeed had limited tools to stop them. But it has gotten its act together recently, forcing Romania and Hungary to drop onerous plans.

. Hungarian Prime Minister Viktor Orban blazed the trail after returning to power in 2010, reducing the Hungarian Constitutional Court’s ability to strike down legislation, packing the court with supporters and putting judicial appointments under political control. It’s not that the European Commission didn’t object: It challenged some of the Hungarian legislation in the EU’s top court, forcing the Orban government to rewrite it. But the general outline of the system remained intact. That emboldened Orban to try further limiting judicial independence. His imitators in Poland, the Law and Justice (PiS) party that has been governing since 2015, enacted a similar set of judicial reforms.

. Orban moved to set up a parallel court system to rule in administrative cases, such as tax- and election-related ones, with the justice minister controlling the judicial appointments. The PiS government, like Orban before it, started with an abrupt takeover of the Constitutional Tribunal and then moved to grab more control of judicial appointments and to take election matters out of the existing court system.

. Romania’s ruling Socialist Party, whose leader, Liviu Dragnea, had multiple problems with the law (he was convicted of electoral fraud in 2015 and faced other investigations), decided to move in a similar direction. Its legislative proposals included new rules for the early retirement for judges, more control over judicial appointments for the justice minister and the creation of a special prosecutor’s office to investigate offenses committed by judges. The party’s most recent ideas included empowering the government to issue emergency decrees on judicial matters such as the statute of limitations.

. Given these nearly simultaneous developments, the European Commission couldn’t help but become alarmed with what appeared to be a concerted eastern European attack on the rule of law and judicial independence — a “rule of law crisis,” in the oft-repeated words of the commission’s First Vice President Frans Timmermans, charged with devising a response.

. The commission, however, didn’t have much in its toolbox to stop it: Member states’ constitutional configurations, including how their top courts work, are generally out of the EU remit, even though the bloc is bound by the common values.

. The commission could go to the European Court of Justice again: and it did, getting Poland to suspend its law lowering the retirement age for its top court judges. But that’s a long and thankless path when it comes to getting judicial reforms reversed: There are too many unsavory changes to contest, and national legislators can always produce more after a tactical retreat. (Orban has perfected the technique.)

. The commission also could start so-called infringement procedures, demanding that the renegade member states change offending laws and threatening them with the ultimate punishment, the loss of their EU vote, unless they adhere to the bloc’s vision of the rule of law. Such procedures were, indeed, initiated against Poland and Hungary over their judicial reforms (and Romania has been warned as a prelude to similar action) — but because the decision on stripping a member state of its vote must be taken unanimously by all the EU national leaders, the threat was hollow: The east Europeans could stand up for one another.

. For a time, it appeared that Timmermans could only castigate the Hungarian and Polish authoritarians and their Romanian followers without getting much traction. Yet the Dutch EU official has raised the profile of the issue with relentless campaigning and his refusal to compromise with the eastern European countries. No one was surprised when the commission proposed last year that EU funding for member states be linked to their rule of law compliance — and when the European Parliament backed the proposal earlier this year.

. What happens next to this measure and to the plan to cut funding to Hungary and Poland in the EU budget for 2021 through 2027, depends on the next lineup of the European Commission, to be formed this year, and on support from a qualified majority of national leaders. But Timmermans is one of the leading candidates for the commission presidency, and most of his rivals would probably back the drive to discipline the eastern European authoritarians. It’s also clear that, in the European Parliament election last month, nationalist forces failed to win enough votes to be able to torpedo these measures.

. I’m not a supporter of taking away EU funding from eastern European countries for any reason. Regardless of the political regimes that run them, these countries’ addition has benefited the European Union economically, and they deserve help to catch up to western neighbors’ living standards. It’s increasingly clear, however, that Timmermans’s crusade has been curiously effective — especially given the European Parliament election results.

. Last week, Orban abruptly suspended plans for a parallel administrative court system to avoid further confrontation with the EU and keep his party, Fidesz, in the mainstream, center-right European People’s Party group. Staying within it can help Hungary skirt a budget disaster. This is not a minor concession like those Orban made before: It will mean Hungary retains at least a partially independent judiciary.

. The Romanian Social Democrats suffered a painful defeat in the European election, and almost immediately afterward, Dragnea was jailed for three years for a corruption-related offense. Romanian Prime Minister Viorica Dancila reacted by abandoning plans for further meddling with the country’s courts. “I think politicians should not intervene in the justice system,” she said.

. So far, only Poland’s proud PiS government — which beat the opposition in the European Parliament election — hasn’t yielded much under EU pressure. But as the EU budget debate draws near, the last thing PiS will want to do is lose billions in funding: It could cost it the support of Polish farmers and a major chunk of projected economic growth.

. As it often happens, the EU doesn’t win by quick, orderly action. It does so by wile and attrition. If Timmermans hasn’t won his war yet, he’s come as close to it as possible in the time he’s had, which is a strong recommendation for him as a commission presidency candidate.

. To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

. Leonid Bershidsky is Bloomberg Opinion's Europe columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.

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The EU Is Winning Its Rule-of-Law Challenges