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The EU’s campaign to uphold the rule of law has temporarily run aground amid the fog of war, igniting fears that the bloc is neglecting to defend democracy at home even as it takes historic steps to do just that in Ukraine.
In the months before the war, the EU’s executive arm, the European Commission, had been turning up the heat on wayward members like Poland and Hungary. It blocked each country’s pandemic recovery funds and started laying the groundwork to unleash a never-before-used power that could see both countries lose even more significant EU payouts.
In mid-February, the EU’s top court even blessed the bloc’s budget-slashing power as legal, raising expectations that further action might be imminent.
Then Russia invaded Ukraine. War broke out. And the EU’s attention shifted.
“Everyone is so occupied with the Ukrainian crisis, understandably, that it’s not foreseeable when we will act,” said one EU official. “But the intention is to do so as soon as the conditions allow.”
That doesn’t mean the EU is eschewing its rule-of-law mandate, officials insisted. One senior Commission official noted staff are still working on a notification for Hungary that would trigger the EU’s power to cut longer-term budget payouts.
But the delays have nonetheless set off alarm bells among parliamentarians, judges and academics who fear Budapest and Warsaw could use the Kremlin’s aggression — and the EU’s desire for wartime unity — as cover to continue undermining their own democratic checks and balances.
“The Polish government,” warned Judge Dariusz Mazur, who traveled to Brussels this week to describe the plight of Poland’s judicial system to Commission officials, “is going to use this war in Ukraine as a smokescreen for the final assassination of the rule of law in Poland.”
In her two-plus years as Commission president, Ursula von der Leyen has repeatedly pledged that safeguarding democratic norms is a top priority.
Yet it’s now been over a month since the EU’s top court cleared the Commission to use its budget-cutting authority over rule-of-law concerns.
The EU adopted the power in late 2020 amid concerns that existing tools were not effective in preventing democratic backsliding across the Continent. It allows the EU to reduce funding to countries where rule-of-law breaches negatively affect European taxpayers’ money.
The EU waited to deploy the power while legal challenges from Hungary and Poland worked their way through the Court of Justice. The two countries argued the mechanism is illegitimate and politically motivated.
Two weeks after the court ruled against the argument, the Commission published its guidelines on how it would use the so-called conditionality mechanism.
But since then, it has not made any further movements publicly. And officials have indicated that plans to activate the mechanism have been put on ice — at least temporarily. So for now, the only money being withheld is from the pandemic recovery cash; the EU’s regular budget is still available to Budapest and Warsaw.
The inaction has raised eyebrows in the European Parliament, where many parliamentarians have long argued that Poland and Hungary should face budget cuts for eroding the basic tenets of democracy, including a judicial system free from political interference and robust checks against kleptocracy.
Over the past weeks, experts say problems facing Polish judges have only deepened — in a letter this week, Polish civil society groups pointed out that since the beginning of the war, a judge was suspended for applying EU law and scores of new judges were appointed despite concerns over the independence of the body nominating them.
And, civil rights groups add, the Polish proposals to address the EU’s ongoing concerns about how Poland disciplines judges would merely result in cosmetic changes, failing to truly restore judicial independence.
Meanwhile, in Hungary, civil rights groups and opposition politicians say the ruling party has been enjoying an uneven playing field ahead of an April 3 general election, using state resources and government-controlled media to promote Prime Minister Viktor Orbán’s campaign.
Russia’s invasion “definitely takes attention away,” said German Green MEP Daniel Freund.
Economic fears and the Continent’s largest refugee crisis since World War II have seized the agenda, drowning out almost everything else. There are also the complicated optics of the EU withholding more money from Poland and Hungary just as they receive hundreds of thousands of Ukrainian refugees.
Yet Freund argued it would hurt the EU’s image if it paused a rule-of-law dispute while war rages.
“In Ukraine, people are fighting and dying for democracy, the rule of law and the chance of one day joining the EU — and we want them to know now that actually this rule of law thing, we don’t care that much about?” he said. “That seems exactly the wrong message to send, including to our Ukrainian neighbors.”
The long game
Officials maintain the rule of law has not been shelved.
One Commission official said the war “would not play an important role” in whether the EU cuts funds to any country. That authority, the official added, is seen as “a long-standing procedure.”
“Von der Leyen has had other issues to deal with over the past two weeks,” the official said. “I would say that the conditionality is still very much on the table.”
A Commission spokesperson echoed the sentiment.
“The Commission is continuing its assessment,” the spokesperson said. “What matters here is quality over speed in particular since we can reasonably expect any steps we take to be challenged at court.”
There are also differences in how the Berlaymont is approaching Warsaw and Budapest. It has, for instance, taken a more optimistic approach to talks with the Polish government.
With Poland, said the first senior Commission official, there is “positive momentum” toward “effective milestones” to address the bloc’s concerns about the disciplinary system for judges and to present a pandemic recovery plan that EU officials are satisfied will ensure the funds are properly spent. Politicians from Poland’s ruling Law and Justice party are also ramping up pressure on the EU to release the funds.
Conversely, with Hungary, the Commission is working on its notification to trigger the mechanism to cut funding, according to the official.
“I believe it is now too late to still send it prior to elections as it could work in Orbán’s favor. But we will have it ready for after elections, which is not a bad thing,” the official said. “Rule-of-law matters are not off the table in my view, whilst we all acknowledge that EU unity is key now regarding the Putin war.”
Among the diplomats working on the Council of the EU side, which would have to approve any rule-of-law funding cut, some are taking a similar view.
The war in Ukraine and the rule-of-law fight are “two separate issues,” said one EU diplomat.
Put bluntly, work to unlock pandemic recovery funds for Budapest and Warsaw is “not moving” until Warsaw and Budapest first make policy changes, the diplomat said.
“I don’t think it’s going to move before they move,” the diplomat added.
But the diplomat conceded that “other considerations could play a role” in the EU’s bigger decision over whether to withhold regular budgetary funds, such as the possibility that Hungary could block future Russian sanctions in retaliation.
Legally, however, the diplomat argued the Commission is required to trigger its budget-slashing authority if it determines the EU’s finances are at risk.
“It’s the obligation of the Commission to safeguard the EU budget,” the diplomat said. “If they have enough evidence EU money is misused, they eventually have to move.”
Zosia Wanat contributed reporting.