Even in a time of unprecedented crisis, with a pandemic raging and economic depression looming, some in Brussels will not take a pause in their attacks against Hungary’s and Poland’s conservative governments. The unnecessary “concerns” expressed by members of the European Commission about Hungary’s so-called state of danger, and about Poland’s presidential election, which was originally scheduled for May 10, are blatant illustrations of this attitude. In the meantime, other longer-lasting conflicts, like the one over Poland’s judicial reforms, remain at the centre of the European Commission’s attention, with a new procedure launched against Warsaw on April 29. On the two former topics (Hungary’s state of danger and the Polish elections) the Commission has had to step back for a lack of arguments against the two Central European countries.
The state of danger was first approved by the National Assembly in Budapest on March 11, for a duration of 15 days, to give Viktor Orbán’s government the tools it needed to combat the COVID-19 pandemic. Many countries in Europe have had to resort to states of exception, some of which were put in place even before the national parliament had an opportunity to approve them, as was the case in Italy and Spain, for example, and many of which give national governments more powers than in Hungary, as is the case in France. In any case, the limitations on individual rights that were introduced with the lockdown in Italy, Spain, France, and even the UK went much further than in Hungary. Article 53 of the Hungarian constitution gives the government the power to extend such a state of danger at the end of the first 15 days, in which case the state of danger will remain in force until the danger (in this case the COVID-19 epidemic) ceases to exist. However this extension needs to be approved by parliament, which was done on March 30. Parliament is not suspended by the declaration of a state of danger, and it is for MPs to later decide that the country is no longer in a state of danger, which they can do at any time. The extension of this state of emergency was approved by 137 MPs out of 199, which came as no surprise, since the Fidesz–KDNP coalition had won a two-thirds majority for the third time in a row in the parliamentary elections of 2018.
Apart from the Hungarian opposition and left-wing media crying foul and claiming that Viktor Orbán was putting an end to democracy – a claim they have been making for ten years now – there was no tangible reason for the European Commission to meddle in Hungary’s internal affairs on such an occasion. Commission President Ursula Von der Leyen did nevertheless express her concerns on April 2, two days after the Hungarian state of danger was extended by the national parliament in accordance with the national Fundamental Law. “I am concerned that certain measures go too far”, she said about measures taken by member states against the pandemic, “and I’m particularly concerned with the situation in Hungary”, adding about measures taken by Hungary that the European Commission “will take action as necessary as we have already done in the past.”
Critics focused mainly on two features of the Hungarian state of danger. The first was the fact that it did not state a precise end-date for Orbán’s government’s ability to rule by decree (which it is only allowed to do in matters related to the COVID-19 pandemic) – the state of danger will come to an end when parliament declares the danger no longer exists. The second contentious point concerned a measure taken within the framework of the state of danger that made it punishable to purposely and knowingly spread false news about the COVID-19 epidemic in the country, if such action hinders the effectiveness of the authorities’ response effort. About the indefinite duration of the state of danger, it was said that parliamentary control over the time when the state of danger should be declared over is only virtual in Hungary, because of the large majority the government enjoys in the Hungarian National Assembly. However, such an argument actually calls into question the very principle of parliamentary democracy. Viktor Orbán’s government can count on the support of a two-thirds majority in parliament because the Fidesz–KDNP coalition won the democratic election of 2018, and was thus entrusted by voters with the formation of a government! Hence, the same point could be made about all national governments enjoying the support of an absolute majority in Parliament, that is to say, all those which are not minority governments! As a matter of fact, the power to rule by decree is meant to give the Hungarian government the ability to react faster to the current crisis; its parliamentary majority means that it could pass any law anyway, without having to declare a state of danger.
Didier Reynders, EU Commissioner for Justice, said however that “the situation in Hungary raises particular concerns. We will closely monitor the application of its emergency measures, including the application of the new criminal offense of spreading ’fake news’ during the ‘state of danger.’ In these challenging times, legal certainty and freedom of expression must be guaranteed. It is more important than ever that journalists can do their job freely. The Commission will take action as necessary, as we have already done in the past.”
Here too, the idea that journalists would be forbidden from doing their job freely because of the Hungarian Coronavirus Response Act and its provision on the spread of false information is simply untrue, because its application is limited to very specific situations when someone purposely and knowingly spreads false information to raise fear among the public in relation to the current health crisis, or to hinder the response effort by the authorities, and it has to cause some harm to be punishable. For someone to be punished under this provision, they would have to be proven guilty in a court of law of purposely spreading false information. Such a provision has been codified in Hungarian law since 2013, and no journalist has ever been punished for spreading false information. The amendment introduced by the Coronavirus Response Act merely extended the application of this provision to the current crisis. In this matter, a country like France has developed tools which are much more powerful to silence dissenting journalists, like the possibility of state-subsidised NGOs suing them for supposedly racist or homophobic statements or other kinds of so-called “hate speech”, and on May 13, in the midst of the coronavirus crisis and while the state of emergency remained in force, the French National Assembly adopted the new “Avia” law which will force preventive extrajudicial censorship on social media by threatening them with gigantic fines if they do not react within 24 hours to any case of “hate speech” reported by users.
Commenting on the Hungarian state of danger in early April, the EU Commissioner for Values and Transparency Věra Jourová told Politico she would be looking at the way the Coronavirus Response Act was implemented, explaining her worries in the following words: “It’s the context. It’s the history. Under Hungarian law, we've already seen attempts to diminish the power of the judiciary. Mr Orbán will have to prove that [our] concerns are unfounded.” Thus, not only is the European Commission overreaching its competencies by claiming it should closely monitor the way democratic principles are enforced in EU member states, but it overtly claims to be doing so for some countries only, and that those countries are selected on the basis of the Commission’s own bias.
On April 29, the same Věra Jourová had to admit that the emergency measures adopted in Hungary did not break EU rules “yet”: “Of course the emergency law in Hungary attracted more attention”, Jourová said, “I studied very thoroughly the law and I have to say that when we read the law itself, it doesn’t raise the reason for starting the infringement procedure yet – I have to emphasize ’yet’ – because we are following what the Hungarian government is doing and how it’s using the very wide discretionary power, especially for issuing the governmental decrees. But when we read the Hungarian law, of course inevitably we read it in some context, that we already before COVID had concerns related to the balance of powers in Hungary, with the freedom of speech, and independence of journalism, and plurality of opinions, whether it has full space or not. We had concerns relating to civil society, now that we have several infringement procedures, and also Hungary is under the Article 7 procedure. So the context and the history is increasing the concern now when we look at the emergency law in Hungary. And again, I promised also to many who asked me to take radical steps towards Hungary, I have promised to everybody that I will do what I call ‘proactive monitoring’.”
To put the record straight, in September 2018 the European Parliament did ask the European Council to “determine that there is a clear risk of a serious breach by [Hungary] of the values referred to in Article 2” under the procedure provided for under Article 7 of the Treaty on European Union, but up to now the European Council has never made such a determination. The September 2018 vote itself raised concerns because of the way the rules were bent by the then president of the European Parliament Antonio Tajani, who agreed to exclude abstentions from the vote count in order to claim the necessary two-thirds majority had been reached, acting against the legal advice delivered by the European Parliament’s own legal service, and without even consulting the European Parliament Committee on Constitutional Affairs (AFCO) in relation to this new ad hoc interpretation of the rules of procedure in breach of Article 354 of the Treaty on the Functioning of the European Union. The Hungarian government brought the vote to the Court of Justice of the EU (CJEU) where the case is still awaiting trial. Explaining why he would vote against a new motion regarding the rule of law in Hungary, Tajani himself later acknowledged in January 2020 that the European Union was not applying the same standards to other member states as are applied to Hungary.
In spite of those facts, in mid-April Hungary and Poland were the only two countries targeted and named in a resolution “on EU coordinated action to combat the COVID-19 pandemic and its consequences”: Hungary for “the decision from the Hungarian Government to prolong the state of emergency indefinitely, to authorise the Government to rule by decree without time limit, and to weaken the emergency oversight of the Parliament”, and Poland for “the steps taken by the Polish Government – namely changing the electoral code against the judgment of Constitutional Tribunal and provisions laid by law – to hold Presidential elections in the middle of a pandemic, which may endanger the lives of Polish citizens and undermine the concept of free, equal, direct and secret elections as enshrined in the Polish Constitution.” On May 14, the European Parliament held a new debate on the rule of law in Hungary, in which Hungarian justice minister Judit Varga was refused an invitation. Not being allowed to present her government’s stance to MEPs, Varga therefore published her planned speech where she explained once more why the Hungarian state of danger does not violate democratic principles, civic liberties and the rule of law. Speaking for the Identity & Democracy group, French MEP Nicolas Bay agreed that “there is a EU member state which does restrict fundamental rights with its new emergency law, (…) where constitutional judges are appointed unilaterally by politicians (…) and where a new law was adopted yesterday that will limit freedom of expression by developing censorship on the internet with no possibility of appeal”, but that this country “is not Hungary, it is Emmanuel Macron’s France”. Bay was referring to the aforementioned “Avia law” that was adopted by the French Parliament on May 13 and which resembles Germany’s much criticised Network Enforcement Act (NetzDG), making France and Germany, according to some, “one of the worldwide threats to free speech”.
On the other end of the political spectrum, on May 14 Dutch MEP Sophie in’t Veld, speaking for the Renew Europe group, claimed that “under the rule of Mr Orban and his cronies, democracy has been killed in Hungary, it's dead”, asking for the payment of all EU funds to be suspended in the case of Hungary. However, in 2016 in’t Veld, whose goal is to build a political union, wrote in an article for the EU Observer that the process against Poland or Hungary was very arbitrary and politically motivated, and that if the European Parliament’s action was based on objective criteria other countries, like “France that is in a quasi-permanent state of emergency”, could as well be targeted by the European Parliament.
And it is worth noting that while the Hungarian government and parliamentary majority were reproached for their declaration of a state of emergency, including the fact that no election or referendum could be held while the current state of danger is in force, that is to say while the COVID-19 epidemic remains a threat on Hungarian territory, their Polish counterparts were reproached by EU institutions for the exact opposite: the fact that Morawiecki’s government would not declare a state of natural disaster and that the parliamentary majority refused to postpone the presidential election beyond the last possible date set by the Polish Constitution. With President Andrzej Duda’s term coming to an end on August 6, the last possible date to hold an election would normally be May 23. Because of the epidemic, the Law and Justice (PiS) majority wanted to have an all-postal vote, just as was done for the second round of the local elections in Bavaria on March 29. But while the Bavarian postal ballot organised in the face of the pandemic did not raise any concern in EU circles, plans to do the same in Poland were treated as one more opportunity for the European Commission and the European Parliament to meddle in Polish internal affairs. Of course, once again the Polish opposition was the first to ring the alarm, accusing PiS of forcing the original date of May 10 because their candidate, incumbent President Andrzej Duda, was sure to win if opinion polls were to be believed. For the same reason, opposition parties would have preferred to postpone the election by a year, which would only have been possible if a state of emergency had been declared. However, there was also reasonable concern, including within the United Right coalition led by PiS, about the conditions under which such an unprecedented all-postal vote would be organised in Poland, and whether the universality and secrecy of the vote as well as the transparency of the electoral process could be ensured. The scheduling of such an election for May 10 was furthermore made almost impossible by the opposition’s obstruction in the Senate, where the bill allowing an all-postal vote was blocked for a full month before it was rejected and sent back to the Sejm on May 5. A compromise was finally found within the United Right coalition, between PiS leader Jarosław Kaczyński and Jarosław Gowin, the leader of Porozumienie, a small party within the coalition whose 18 votes in the Sejm are necessary to maintain the government’s absolute majority. Under the solution agreed on by the two coalition leaders, the deadline of May 10 was kept unchanged, but the election was not held because of the practical impossibility of organising it in just a few days, and it was therefore declared invalid by the National Electoral Commission, with a new election to be held within two months.
Normally, such issues are discussed and resolved within each member state, as has indeed been the case so far in Poland. However, on April 23, the EU Commissioner for Justice Didier Reynders stated in front of the European Parliament Committee on Civil Liberties, Justice and Home Affairs (the LIBE Committee), that “under current circumstances” the Polish presidential elections “will not fulfil international standards”. Acknowledging that it is for member states to decide on whether elections should be postponed or held on their planned dates in the context of the COVID-19 pandemic, Reynders added that their decisions should fulfil their obligations as per international law and their own constitutions. As a consequence, the Justice Commissioner told MEPs that the question of the rule of law in Poland should be even more at the centre of the EU’s attention, and that the European Commission was decided to act and would inform the LIBE Committee on the progress of its dialogue with Poland.
The following day, the Commission had to clarify Reynders’ statement about its monitoring of the Polish electoral process, and it did so in the following words: “During yesterday’s debate in the European Parliament LIBE Committee, Commissioner Didier Reynders expressed his concerns regarding presidential elections on 10th May given the current crisis situation. Elections need to be free and fair. It is however for member states to decide whether to maintain or postpone planned elections. The position of the Commission on this matter has been clear and it has not changed. While the Commission always stands ready to support in the Article 7 proceedings on any issue that needs to be discussed, the Polish elections as such are not an issue we plan to raise in this context.”
While the Polish presidential election is finally left for Poland to manage on its own, the same cannot be said of its judiciary. During his appearance in front of the LIBE committee on April 23, Justice Commissioner Didier Reynders also mentioned the unprecedented interim order issued by the Court of Justice of the European Union (CJEU) on April 8, demanding that Poland should suspend its Supreme Court Disciplinary Chamber as per the request made by the European Commission. According to the Justice Commissioner, no member state can question judgments and orders issued by the CJEU based on its national laws. That statement is blatantly untrue. In the past, several national constitutional courts and supreme courts have put checks on the reach of the CJEU’s jurisdiction and of European law based both on the European treaties and on national law, and the Polish Constitutional Court is likely to reaffirm its exclusive right to rule on whether such a disciplinary chamber, created by Polish law, is valid or not in the light of the Polish Constitution only, as the European treaties do not regulate the organisation of the national justice system and do not provide for a transfer of sovereignty to the EU in that field. On April 10 the president of the Polish Supreme Court Disciplinary Chamber put the case to the Constitutional Court, and the latter will therefore have to rule whether the CJEU can suspend a chamber of the Polish Supreme Court that was constituted by a law passed by parliament. On April 20, the Polish Constitutional Court invalidated a resolution adopted in January in the Supreme Court, by which the Supreme Court suspended its Disciplinary Chamber based on an earlier judgment from the CJEU. On April 20 the Constitutional Court defended its exclusive right to invalidate the law which had created that Disciplinary Chamber and denied the Supreme Court the right to invalidate a body created by law based on a judgment from the CJEU, stating that this would violate both the Polish Constitution and European law. It is thus to be expected that the Polish Constitutional Court will invalidate a CJEU temporary order which very clearly infringes upon its competencies.
It will be all the more difficult for EU institutions to attack Poland over such a judgment after the German Constitutional Court’s own decision to question a 2018 ruling delivered by the CJEU that backed a large-scale bond-buying programme launched by the European Central Bank in 2015. Even in a field where the CJEU’s jurisdiction can hardly been contested, Germany’s Constitutional Court thus claimed in early May that it has the right to put a check on the European Court of Justice in the light of treaties ratified by Germany and of Germany’s own national law.
Just a week before that judgment by the German Constitutional Court, the European Commission had launched a new procedure against Poland, targeting a new law which came into force in January as a reaction to the aforementioned November decision of the CJEU on the basis of which the Polish Supreme Court had suspended its own Disciplinary Chamber in January. Invoking the same CJEU decision, some low-ranking judges claimed their own right to question the legitimacy of judges appointed after the 2017–18 reforms of the judiciary, and the new law that entered into force in January allows for harsher sanctions against such illegal behaviour by judges. In other European countries, judges are not allowed to question the legitimacy of other legally appointed colleagues on the basis of their own personal interpretation of European law and constitutional law, but in the case of Poland the European Commission sees the check put by parliament on such blatant judicial activism as an attack on the principle of independence of the judiciary, and it will not stop its fight against the democratically elected parliamentary majorities and governments of Poland and Hungary even in a time of unprecedented crisis which could threaten the very existence of the European Union.
Justice Commissioner Didier Reynders went as far as to argue before MEPs on April 23 that “if harm is done to the judicial system in Poland or in the EU, exiting the health crisis caused by the coronavirus will be much more difficult for the whole society”, and that he was “convinced that the COVID-19 crisis will raise all kinds of legal questions from citizens and companies, and that to answer this challenge we need to have a judicial system which is independent and works well.” Putting aside the fact that Poland and Hungary have so far managed the crisis much better than most other EU countries or the EU itself, it is hard to understand why some Eurocrats are so obsessed with those two Central European countries, unless their obsession is motivated by ideology. In Hungary, the conservative Magyar Nemzet daily calls it a return of the Brezhnev doctrine, imposed from Brussels. Rightly so, as the rather conservative leaders who have been brought to power by voters in Hungary and Poland do not share the euro-federalist, multiculturalist, immigrationist, leftist-liberal agenda of many in Brussels. And, as Hungarian justice minister put it in her planned speech to the European Parliament on May 14, “the fundamental values of the European Union, including the rule of law, are our common values, which are self-evident to us. Can an institution call itself the guardian of the rule of law if it has made the rule of law a political tool, an instrument of exclusion and division?”