Not up for debate: democracy and the rule of law in the EU

One thing is clear: if the EU does not manage to protect the rule of law in all Member States, it is difficult to conceive of it as a community of values. The EU will never fail because of climate goals, foreign trade or budget issues. Compromises on these issues may be hard to reach but are eventually found. The EU, like any political community, will fall apart when its fundamental values are no longer shared by all - when democracy and the rule of law apply to some European citizens but not to others.

In the EU, many things should be negotiable, but not the rule of law or democracy. One is inconceivable without the other. There is no such thing as an "illiberal democracy” as proclaimed by Hungarian Prime Minister Orban. Independent courts and media, free research, a vibrant and diverse civil society, and the fight against corruption are basic conditions for a functioning democracy. The European Commission, the European Parliament and the vast majority of Member States want to preserve this. That is why they want to link the allocation of EU funds to principles of the rule of law. The Hungarian and Polish governments are blocking.

Poland and Hungary have systematically undermined the rule of law in recent years. In Poland, the independence of the judiciary has been successively and deliberately curtailed. In Hungary, the freedom of the media and sciences has been severely restricted for years. The American-Hungarian Central European University has been forced out of the country by a targeted legislative attack, the work of the Academy of Sciences has been placed under state control, and NGOs that are critical of the government and independent cultural institutions face increasing pressure.

The problem is not new. For years, the question of the rule of law has been played down with reference to the sovereignty and different traditions of EU Member Sates - especially in Central and Eastern Europe. Infringement proceedings had little effect, the much-cited Article 7 procedure remains toothless, the European Public Prosecutor's Office lacks political support and OLAF, the EU anti-corruption authority, frequently reaches the limits of its competences.

Article 7 in particular and the possibility for Member States to withdraw voting rights shows how high the hurdles for tough measures are. It takes years to get the procedure underway and as long as two countries protect each other, they can rest assured. The newly introduced report on the rule of law in all Member States at least helps to increase the visibility of the problem, although it does not have direct consequences either. It should be further strengthened through independent experts.

OLAF is the only EU authority with independent investigative powers. It can detect offences but only make recommendations. According to the report of a consortium of investigative journalists, only 45% of its recommendations were implemented in Hungary between 2014 and 2018, 78% in Poland and a mere 14% in the Czech Republic. The new European Public Prosecutor has been weakened from the outset, as Hungary, Poland, Denmark, Sweden and Ireland have not joined. With a budget of less than 40 million Euros and only a few staff, it will be difficult to deal with the more than 3,000 cases already at hand.

Now Brussels is paying the price for its reluctance. The old approach of balancing and negotiating between Member States has reached its limits. At its core, this is not about the interests of individual Member States, but about the observance and guarantee of fundamental democratic values to all EU citizens. All Europeans, all Germans, Poles and Hungarians have a right to this.  The governments of all Member States must protect these values - in their own - as well as in all other EU countries. When Polish Prime Minister Morawiecki and his Hungarian counterpart Orban invoke their national sovereignty, they too willingly forget that all citizens in their countries enjoy the protection of the EU - and are virtually entitled to the interference of Brussels.

What next? There must be no fundamental departure from the rule of law mechanism negotiated by Parliament and Council. The old routine of muddling through only works when there is a clear and agreed upon set of shared values.

The EU, its politicians and the citizens of Europe must deeply think about, discuss and grapple with its core values and the question of how to enforce them. The Conference on the Future of Europe was announced a year ago. It is now time to make it happen. Without a common foundation of values, without shared ideas of democracy and the rule of law, it is hard to imagine that the EU will realize its ambitious objectives. More than three decades ago, a democratic and liberal European Community inspired the people of communist Hungary and Poland. An EU without a foundation of values inspires no one, leaves its supporters alone and strengthens its opponents. No, democracy and the rule of law are not up for debate.

Dominik Hierlemann, Senior Expert, lived in Poland when the country joined the EU and wrote his doctoral thesis on Polish domestic politics.

Stefan Roch, Project Manager, lived in Hungary for eight years and worked and completed his doctorate at Central European University in Budapest.