The Polish Question and the EU’s Illiberal Populism Dilemma

By January 7, 2018Uncategorized

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.