Monthly Archives

January 2018

Sleepless in Sofia: Can Bulgaria save Poland from Article 7?

By | Uncategorized

Asya Metodieva (CEU) and Nick Sitter (CEU/BI)


It is the Bulgarians’ turn. When the Bulgarian government took over the EU’s rotating Presidency of the Council on 1 January, it was confronted with both a potential crisis and a golden opportunity to clean up the image of the country known to be among the poorest and the most corrupt among the EU’s member states.

Two hot potatoes – Brexit and Poland – feature prominently on the Bulgarian Presidency’s agenda. Of the two, the Polish question is likely to prove more difficult. Last December, the Commission gave Warsaw three months to reform its plans for judicial reform because these were found to present a risk that the rule of law might be undermined. At a ministerial meeting on 27 February the EU member states will have a first discussion with Poland on this matter – under Bulgarian chairmanship. But Bulgaria would prefer not to have to deal with the Polish case at all.

So far, the Bulgarian government has failed in its attempts to postpone discussions on the Polish case, and kick this particularly tricky ball into the long grass. The minister for the EU presidency, Lilyana Pavlova, observed that the case could easily drag into the second half of 2018, when Austria takes over the Council presidency. But this was not greeted with enthusiasm in Brussels. The Commission continues to emphasise the importance of the three-month deadline that expires in March.

The Bulgarian government – like some of the other Central European member states – is caught between its sympathy for a fellow post-communist state and its broadly pro-EU stance. This Balkan state, which joined the EU eleven ago, has not yet managed to reform its own judicial system and would rather avoid high speed and sharp turns on the Polish question. The prime minister said that rule of law issues are ‘so vague’ and difficult to measure that it is better not to bring them before the Council. Officials in Sofia have therefore expressed considerable reservations about the threat to punish Poland over democratic backsliding, and emphasized the challenges involved in forcing a decision at the EU level.

The first vote under Article 7 will be a decision whether there is a ‘clear risk of a serious breach’ of the rule of law in Poland. This requires the support of a four-fifths majority of member states, which means that six states (not counting Poland) voting no or abstaining is sufficient to block the decision. Hungary has promised to veto any subsequent vote to determine an actual breach, which requires unanimity. But if the EU cannot even muster the 22 votes needed to determine a risk of a breach, this could seriously undermine the EU’s credibility – especially during the negotiations on the Multiannual Financial Framework.

Last summer, Swedish Prime Minister Stefan Löfven suggested that countries that do not follow EU rules ought to be punished by suspending EU funding. At the time, he referred to Poland and Hungary’s refusal to accept refugee quotas. Since then the theme of linking EU funding to compliance with the EU’s fundamental rules and values has since gained traction. It has received some support from several (western) member states. Budget Commissioner Günther Oettinger has also publicly commented on the possibility of establishing conditionality as part of future funding arrangements. In the light of the Norwegian government’s successful confrontation with Hungary over the use of European Economic Area funds in 2014-15 – in which Norway suspended funding until Budapest stopped harassing EEA Grant-supported NGOs – this idea could prove attractive to the EU’s net contributors. But it would exacerbate the developing political cleavage between the north-west and the south-east in the Union.

Bulgarian PM Boyko Borissov’s immediate worry is that the EU member states might be called upon to vote on whether Warsaw breaks rule-of-law standards. He argues that this would create a ‘dangerous precedent’, and that such a vote should be avoided: ‘If we have to go voting, we will have sleepless nights to vote. I hope we do not have to face this’. Sofia therefore needs a compromise that will fudge the issue. On the one hand, the message is: ‘Poland should be listened to’ (Foreign Minister Ekaterina Zaharieva). On the other hand, Bulgaria hopes that its ex-communist fellow Poland will find a way to comply with the EU law.

And Bulgaria is not the only state in this position. Hungary openly supports Poland, and the Croat government has made sympathetic noises. The Commission’s recent warning to Bucharest about rule of law and corruption (24 January) might not make Romania too keen to go after Poland. And in the middle of Brexit negotiations, might London abstain in order not to lose friends in the east? Might a left- and right-populist triumph in the Italian elections on 4 March tip the balance? In any case, Vienna, Prague and Bratislava all have mixed attitudes to their ‘illiberal democracy’ neighbours.

Bulgaria will therefore play the role of balancer in the next 6 months. The Bulgarian Presidency is run under the theme ‘United we stand strong’. These words also feature on the coat of arms of the Republic of Bulgaria. The Presidency has promised to work on unity among the member states and the EU institutions. Its message needs to be ‘remain neutral and impartial’. If the Polish question comes to a vote – where abstaining will count in favour of Warsaw – that might well prove impossible. But if Bulgaria manages to postpone the vote, the EU could be facing an even bigger crisis in the shape of the future budget.


The authors are writing in a personal capacity and their views do not represent the TransCrisis consortium as a whole.


The Czech Presidential Election and Europe’s Populism Crisis

By | Uncategorized

Elisabeth Bakke (University of Oslo) and Nick Sitter (Central European University)

Czech elections – let alone Czech presidential elections – do not always command international attention. Compared to Hungary and Poland – where the radical effects of the victory of populist right-wing parties in parliamentary elections have given new meaning to the term ‘democratic backsliding’ – democracy in the Czech Republic is not under threat. However, the current presidential election (first round January 12–13; run-off on January 26–27) merits attention both on the grounds of the effects it might have on domestic politics and because of its potential wider impact on European Union politics and on European security questions. 

Nine candidates ran in the first round, and as expected, the incumbent president Miloš Zeman finished first with 38.6 percent.  Zeman did not do quite as well as some of the polls suggested. Zeman’s strongest rival, Jiří Drahoš, the former head of the Czech Academy of Sciences, finished second with 26.6 percent. Polls give Drahoš a good chance of winning the run-off. Unlike Schwarzenberg in 2013, he is acceptable in wider circles. Of the seven candidates who did not make it to the second round, three non-partisans won between 8.8 and 10.2 percent each. The only experienced politician besides Zeman, former prime minister Mirek Topolánek, received only 4.3 percent. All four have publicly endorsed Drahoš for the second round, and one of them (Michal Horáček) even offered Drahoš his prepaid billboards. However, much depends on Drahoš’ ability to match Zeman in (two) TV debates and to mobilize (new) voters. Turnout in the first round was 61.9 percent; and highest in Prague, where Drahoš won. It is expected that the campaign will become uglier in the run-up to the second round. 

Why is it important who wins the run-off? The present impasse in Czech politics means that the next president may have more influence on the Czech political scene than his limited formal powers might suggest. This week the minority government of billionaire prime minister Andrej Babiš, in office since December 6th, 2017, lost a vote of confidence in the lower house. Having won the parliamentary election of October 2017, his party, the centrist populist ANO, is the biggest party with 78 seats in the 200-strong lower house. However, the government only received the backing of the ANO, and therefore resigned on January 17th. As if this was not enough, the lower house voted to strip Babiš and his first vice chairman Jaroslav Faltýnek of their parliamentary immunity. 

The two MPs have been under police investigation for subsidy fraud against the EU in the Stork’s Nest case. In 2008 the Stork’s Nest farm and hotel complex received a 50 million crown EU subsidy intended for small and medium-sized companies. Technically it was at the time owned by family members of Babiš (his two grown children and the brother of his current wife), but before and after this the Stork’s Nest was owned by a subsidiary of Agrofert, and therefore not eligible for EU subsidies. The case has also been investigated by OLAF, the European Anti-Fraud Office. Babiš denies any wrongdoing.

This case is part of the reason why it has been difficult for Babiš to form a majority government. To do so, he needs the support of at least one other party. Babiš stated right after the election that he would prefer to govern with the Civic Democrat ODS (25 seats), also because the two parties – in his view – are politically close. The invitation was flatly rejected by ODS chairman Petr Fiala. A second possibility would be to renew the 2013–2017 coalition with the Social Democrat ČSSD (15 seats) and the Christian Democrat KDU-ČSL (10 seats). Both are willing to negotiate, but neither party will accept as a member of the government, let alone prime minister, a person who is under criminal investigation. As for the rest, Babiš declared already before the election that he would not govern with the extreme left (the unreformed Communist Party KSČM, 15 seats) or the extreme right (Tomio Okamura’s SPD, 22 seats). ANO nevertheless made a deal with these two parties to make sure that Radek Vondráček from ANO was elected speaker. The two small parties on the centre-right, the conservative TOP09 and the centrist Mayors (13 seats combined) ruled out future government cooperation with ANO even before the election. Finally, the Pirate Party (22 seats) has decided not to support or tolerate an ANO government. It is difficult to imagine a majority government without ANO, since neither of the parties wants to govern with KSČM and SPD.   

In this complicated parliamentary situation, the outcome of the run-off election on January 26–27 may well make a difference. According to the Czech Constitution, the president appoints the prime minister, and on his proposal, the rest of the ministers. However, if the government does not win a vote of confidence in the lower house within 30 days, it must resign. This is where the Czech Republic is now. President Zeman has promised Babiš a second go, but to put pressure on the parties, Zeman has demanded assurances that a majority of at least 101 MPs will support the new government. In the meantime, the current Babiš government will continue as a caretaker government. If Zeman wins the run-off, this situation can go on for a long time – potentially to the end of the election period. Already in 2013 Zeman showed his willingness to stretch the constitution by keeping a government in office that did not enjoy the confidence of the lower house. Moreover, he is adamant in his rejection of early elections. 

If Drahoš wins, Zeman has to act before his period ends on March 8th. If he decides to give Babiš a second chance, and he succeeds in forming a majority government, there is little Drahoš can do. If this government also fails to win the vote of confidence, the speaker of the lower house (Vondráček from ANO) decides whether Babiš (or somebody else from ANO) will get a third chance. If also the third attempt fails, the initiative goes back to the president. Drahoš has spoken up against appointing a prime minister who is charged with crimes, and in contrast to Zeman, he most likely will call early elections if also the third attempt fails. If all parties but ANO agree, the lower house may theoretically dissolve itself (with a 3/5 majority), but this is not very likely.

But the Czech presidential vote may also have reverberations outside the country. The contest between Miloš Zeman and Jiří Drahoš reflects a political cleavage that runs through many European party systems and has gained salience since the financial crisis. The Economist labelled this a contest between ‘drawbridge-up’ national and populist protectionists on one hand, and liberal ‘drawbridge-down’ parties. Since 2010, the right-populist Fidesz has taken ever-tighter control of Hungarian politics, to the extent that its commitment to liberal democracy is widely questioned. In Poland the PiS lost no time in copying Fidesz’s ‘illiberal democracy’ project after its 2015 electoral victory. In 2016 the nationalist critics of open borders triumphed in the Brexit referendum and the US presidential election, but failed in the Austrian presidential election. In 2017, the French and Dutch elections saw the liberals defeat right-populist challengers, which the German elections weakened Angela Merkel and the Austrian elections brought a populist coalition to power. On 4 March, the Italian election will pit a centre-left liberal alliance against populist Eurosceptic rivals on both the left and the right in a three-way race.  

The first international dimension of the Czech election is therefore that it is one of a series of electoral tests between liberals and populist nationalists. In the Czech, like the Hungarian and American, case this also involves a Russian dimension. If Viktor Orbán is – as a US congressional report on Putins’s Asymmetric Assault on Democracy in Russia and Europe suggests – Vladimir Putin’s closest ally in the EU, Miloš Zeman comes a close second. The Czech president has pushed for the EU to accept the Russian annexation and explore the possibility of some form of compensation for this ‘fait accompli’. Like the Hungarian and Slovak prime ministers, Zeman has repeatedly criticized the EU sanctions on the Russian financial, energy and defence sectors. Although his foreign policy powers are limited, Zeman’s re-election could reduce somewhat the prospects for the renewal of the sanctions when these come up for renewal in the summer. Perhaps more worryingly, the presidential election has already given rise to fears about ‘fake news’ and Russian interference. Regardless of its limited potential effect on foreign policy decisions, this electoral contest is likely to go down in history as another chapter in Russia’s cyber-attacks on the West.

The second international dimension concerns the future of the EU. The Czech presidential election takes place in a political situation where the Central European states are very divided over the Hungarian and Polish governments’ ‘backsliding’ on their countries’ commitments to liberal democracy and the rule of law, and the norms and laws they signed up to as members of the European Union. Again the formal powers of the Czech president are limited. It will be the government that decides on how to vote on any censuring of Poland. So far, only Hungary’s Fidesz has threatened to veto sanctions against Poland under the European Union’s Article 7 over breach of fundamental values of the EU (in this case, the rule of law). Bulgarian prime minister Bouko Borisov (the chair of the EU Council of Ministers for the first half of 2018), said he ‘would lose sleep’ over the question. Some others, such as Austria’s conservative-populist government (which is close to Fidesz) and the Croat government, are playing their cards close to their chests. While Hungarian prime minister Viktor Orbán had made it clear that he considers action against Poland an attack on all of Central Europe, his Czech and Slovak counterparts have been more careful to avoid too close association with the EU’s ‘backsliding’ black sheep. Under Article 7, a four-fifths majority of member states (i.e. 22 states) is required to determine the ‘clear risk of a serious breach’ (after that, unanimity would be required to determine ‘the existence’ of such a breach, which could then lead to sanctions). Could a strengthened Zeman-Babiš team shift the balance in the Visegrád 4? And tip the balance if the Italian election in March propels right- or left-wing populists to power, and/or the uncertainty around Brexit makes the UK abstain? 

The answer will depend on how the Czech domestic politics game plays out after the election. When the European Parliament voted on a resolution to criticise Fidesz over its government’s democratic backsliding in May 2017, the fault line in the European People’s Party between the parties that protected their errant sister party ran from north-west to south east: the Italians, Spaniards and Germans joined the Czech, Slovak, Hungarian and Balkan conservatives in closing ranks around Fidesz. But both Babiš and Jiří Drahoš are committed to a pro-EU and Atlanticist foreign policy. More to the point, Babiš has explicitly distanced himself from the Polish and Hungarian governments’ efforts to centralise power and limit the rule of law. In the event of a Drahoš-victory, the prospects for the Czechs moving closer to Poland and Hungary in a ‘backsliders alliance’ are therefore weak. But in the event of a Zeman victory – and especially one that is associated with Russian interference – the waters could become muddier. Zeman has already demonstrated a tendency to disregard constitutional convention, notably when he appointed a ‘technocratic’ caretaker government in 2013 and delayed new elections despite its lost vote of confidence. 

Although the Czechs are unlikely to follow the Polish and Hungarian path, a shift closer to their two illiberal regional partners could have a negative effect on the EU’s will to confront democratic backsliding. The Commission can count to 22. With Budapest and Sofia sympathetic to Warsaw, and question-mark hanging over Zagreb, Vienna and London –  and possibly post-election Rome – even a degree of uncertainty about the position in Prague might be enough to prevent the next step toward a censure of Poland. In what promises to be a turbulent year for the EU, political developments in the Czech Republic could become important for Central Europe’s future in the EU.

The authors are writing in a personal capacity and their views do not represent the TransCrisis consortium as a whole.

The Rise of Transboundary Crises: Surveying Crisis Management Capital

By | Uncategorized

Arjen Boin, Lavinia Cadar and Maureen Weller

The prospect of transboundary crises forces governments to reassess their crisis management toolbox. In recent years, modern systems have proven frightfully sensitive to disruptions that originated in some unrelated faraway domain. The financial crisis, the flood of immigrants, the threat of cyber warfare – these are all examples of transboundary crises. These crises do not respect borders and create daunting challenges for governance.

The TransCrisis consortium is investigating these challenges and exploring how governments can prepare for transboundary crises. It is clear that transboundary threats require new forms of governance. Time-proven processes and ways of organizing are no match for the transboundary crisis. Governments need to work across boundaries to create the crisis management ‘capital’ that is required to minimize the impact of these events.

What might that ‘capital’ look like? According to our perspective, this includes all the organizational means, processes, and experiences that are relevant to the fulfilment of the strategic tasks that typically demand attention in any large-scale crisis response (these tasks are derived from Boin et al, 2016).

We recognize five tasks:
1. Early detection: recognizing that something is afoot that may have an impact in one’s domain.
2. Sense-making: understanding what is happening during the crisis.
3. Critical decision-making and coordination: recognizing which decisions must be taken now, and making sure these decisions are made and implemented.
4. Crisis communication: explaining to the public what is happening and what people should do (and should not do).
5. Accounting: explain to relevant institutions how the crisis was handled and why it was handled that way.

The underlying assumption is simple: the better these tasks are handled, the better the crisis response is likely to be. If one accepts this assertion, several questions arise: What do we have available? Is our organization ready to fulfil these tasks? What, exactly, should we be looking for to answer these questions?

It is not easy to assess an organization’s crisis preparedness, especially if you do not know what to look for in an organization or in a sector.

The TransCrisis consortium has created a tool to do exactly that. We designed a survey tool that helps to ask the right questions and quickly gauge the crisis readiness of an organization or set of organizations. It measures the transboundary crisis management capital of an organization. The Survey consists of questions that should be answerable without deep knowledge about the organization. The answers provide the input for a ‘performance dashboard’ that one can use to track the organization’s crisis management capital over time. The surveyor is invited to provide a grade for each question, which allows for an overall score. The questions and the scores generate three types of input: on preparation, on available means, and on the legitimacy base an organization or policy sector needs to perform well during a crisis. These are the indicators of the dashboard.

The Survey tool follows three steps:
Step 1: Decide what the object of analysis is. The tool can be used in three different ways:
a) Take a crisis, identify the organizations that play(ed) a role in the response, and score their capacities to deal with that particular crisis.
b) Take an organization and assess its capacities to deal with a crisis.
c) Take a policy sector, identify potential risks, identify the organizations that play a role in the response, and score their capacities to deal with crises that may flow from those risks.
Step 2: Determine the weight of the three performance categories and assign “earnable” points for each question.
Step 3: Collect data to answer the questions and complete the dashboard.

The Survey Tool can be accessed here and also provides for illustrations drawn from TransCrisis research.

This tool serves the needs of both practitioners and academics. For instance, an agency director can use it to assess the organisation’s readiness level to respond to transboundary crises. The survey will help to identify the capacities the organisation is lacking in order to inform strategic decisions on budget and training for crisis management. For researchers, this tool helps to compare the readiness and performance of organizations that may be involved in transboundary crisis responses.

To be truly effective, this tool requires further fine-tuning by being tested against known failures and successes. For that reason, we invite practitioners and academics to use this tool and provide us with their feedback.

Arjen Boin, Paul ‘t Hart, Eric Stern and Bengt Sundelius (2016). The Politics of Crisis Management. Cambridge University Press (second edition).

The authors are writing in a personal capacity and their views do not represent the TransCrisis consortium as a whole. The authors are based at Crisisplan BV in Leiden, The Netherlands (

The Polish Question and the EU’s Illiberal Populism Dilemma

By | Uncategorized

Martin Lodge and Nick Sitter

On December 20th, 2017, the European Commission formally posed the Polish Question: Can the EU tolerate that a member state breaches the Union’s fundamental laws and values? At some point in 2018, under the procedure laid down in Article 7 of the Treaty of the European Union, the other 27 member states might well be called upon to answer this question; first by a four-fifth majority vote on whether Poland is indeed in ‘clear breach’, and later – if applicable – by unanimity on whether to impose sanctions.

The Polish Question is about much more than the Polish government’s effort to limit the independence and power of its own judiciary. Ever since Vladimir Mečiar’s efforts to centralise political power in Slovakia in the mid-1990s (which the EU dealt with by relegating the country to the membership slow lane, until Mečiar lost power in 1998) and the right wing populist FPÖ joining the Austrian government after the 1999 election (when the other EU states responded by ‘monitoring’ the coalition), the EU has reluctantly prepared to deal with the possibility that a less than fully liberal democratic party might one day come to power in one of its member states. Article 7 provided the means for censuring such a government; Article 50 was designed to give an authoritarian state an exit option.

Since the Hungarian right-populist Fidesz won absolute power (including the two-thirds majority needed to rewrite the constitution) in 2010, that country has introduced a number of laws and measures that push at the boundaries of EU law. Journalists, politicians and academics have introduced the term ‘backsliding’ to capture the state’s gradual going back on its commitments to the fundamental values of the EU, and indeed to (constitutional) liberal democracy. Prime minister Viktor Orbán chose the term ‘illiberal democracy’ to sum up his idea of an alternative political system.

So why has it become a Polish Question, and why has the Hungarian question remained lower-case? Part of the answer is that Hungary could be dismissed as an accident or a coincidence (a long time after the Slovak and Austrian false alarms), and that in any case it was a small country. When the new Polish government took action against its own judiciary in late 2015, backsliding began to look like a pattern. And perhaps as importantly, Fidesz enjoyed the protection that its membership of the European People’s Party offered, whereas PiS’ main domestic rival is an EPP-member. But the Commission’s taking action against Poland also puts the pressure on Hungary. The question is whether other EPP members will continue to back Fidesz if Orbán lives up to his promise to veto any action against Poland. If the Hungarian prime minister’s close relationship with Bavaria’s Christian Democrats (the CSU) and Austria’s Sebastian Kurz is anything to go by, this issue could divide European conservatives (and the German government) right down the middle.

In the wider European context, it is perhaps fortunate for the EU that the Commission targeted Poland rather than Hungary. The Hungarian prime minister has made no secret of his admiration for the Russian president, and hinted that there is always the danger that if the EU is not nice to Fidesz then the more extreme right wing Jobbik lurks in the wings. Poland lacks the obvious (more) extreme-right challenge, and for historical reasons can hardly look to Vladimir Putin for help.

The EU faces a unique challenge from the right-wing populist governments in Hungary and Poland, and their ‘illiberal democracy’ project. The Hungarian strategy can be described as one of disloyalty – an effort to creatively comply with the letter of the EU law (see here). This pattern of creative compliance has increasingly centralised political power to an extent that is ultimately incompatible with the EU’s legal and political system. The big dilemma for the EU is that inaction undermines the credibility of the Union (and timid action against Fidesz emboldened not only the Polish government, but also its Slovak and Romanian counterparts); whereas invoking Article 7 is unlikely to lead to sanctions and might well backfire.

This dilemma is particularly serious because the Polish and Hungarian crisis involves not only regular right-wing populism, but also Euro-scepticism and illiberal ideology. This is not a classic anti-elite revolt by alternative groups that want access to the political power and exaggerate their rhetoric on the campaign trail; it is direct onslaught on the very rules of the liberal democratic game.

It is far too easy to dismiss Fidesz and PiS as part of a broader new populist wave. Although Hungary and Poland are part of a broader anti-elite backslash against consensus politics, they are a far cry from the Nordic and Dutch Protest parties of the 1970s and 1990s and Silvio Berlusconi’s Forza Italia, or even the hard right of Le Pen and Wilders. Fidesz and PiS fit this broader pattern at first sight, but present a bigger problem for the EU. The Nordic, Dutch and French populists’ rejection of the Social Democrat-Christian Democrat consensus on the welfare state, the social market economy and immigration is a policy challenge. The Greek, Italian, British populist Eurosceptics added political challenges as well. But Fidesz and PiS represent a challenge to the very integrity of the EU system.

To be sure, Fidesz and PiS draw on the three elements of populism found elsewhere in Europe: the Nordic, Dutch and Berlusconian populists’ claim to represent the ‘real’ people; the Euroscepticism of the Cinque Stelle and Greek populists on both flanks; and the nativism of Marine Le Pen, Geert Wilders and Matteo Salvini. But they base this on a (self-declared ‘Christian’) nationalist ideology – established in opposition not only to the centre-left but also presented as an effort to define the post-communist right against more pro-EU and market-liberal rivals – and they derive from it an open distrust of the institutions of liberal democracy.

The most important dimension of the Polish and Hungarian populism is that it is a challenge to understandings about what constitutional democracy is about – and that this has brought the two parties to power. Fidesz and PiS go further than most West European populists in their open distrust of liberal democracy, most notably the idea that governments should be constrained by the rule of law. Like other populist parties they claim a unique insight into what the genuine ‘general will’ of the people is; but unlike their counterparts elsewhere in Europe they have both the will and the means to translate this into a power-centralising project designed to diminish the chances of them ever losing another election. Populist parties in Norway, Italy, Austria and Denmark moderated their rhetoric when they entered the corridors of power; Viktor Orbán and Jarosław Kaczyński amplified it – and matched it with action.

It is this challenge to the rule of law and liberal democracy, not the ideological challenge or policies that jar with existing EU policies, that is the big problem for the EU. Protectionism and unorthodox economic policy might be a challenge, but the EU is robust enough to weather that. The problem is when it comes with centralization of political power in a way that undermines the basics principles the EU was established to defend – democracy, freedom and the rule of law.

So where is the dilemma for the EU? The problem is that Poland has so far ignored the Commission’s measures under the EU’s Rule of Law Framework, secure in the knowledge that Hungary can veto any Article 7 sanctions. Inaction encourages further backsliding, but action might simply expose the limits of the EU’s capacity. This probably explains the Commission’s reluctance even to use its ordinary infringement powers against Hungary to their full extent, and its slow and wary road to confrontation with Poland.

But the dilemma is even worse than that. Even a degree of success in the Commission’s confrontation with Poland – such as the German government taking the lead and mobilising a four-fifths majority censure vote in the Council – could end up exacerbating relations between most of the EU and its more populist governments. If this emboldens states such as Sweden in their quest to link EU funding to compliance with EU rules in the next Multiannual Financial Framework, it could tip the balance between the costs and benefits of EU membership for illiberal governments. When Norway confronted the Fidesz government over is abuse of power and suspended the European Economic Area funds, this had the desired effect of reversing Hungarian policy. But a wider confrontation over EU funds could also end up pushing Poland and Hungary out of the Union.

In a real policy dilemma, the only way out is to choose one of the two possible courses of action. Inaction rarely solves the problem. The EU has already lost the opportunity to deal with backsliding when it was a minor challenge. It must now address it before it becomes a systemic crisis. Is it worth taking the risk that the EU loses two or more member states, or is it better to risk that the EU’s legal system is undermined? The Commission has now played the ball over to the member states. Let’s hope it is not too late!

The authors are writing in a personal capacity and their views do not represent the TransCrisis consortium as a whole.