When Boyko Borisov rubs shoulders — or at least bumps elbows — with fellow EU leaders at a summit in Brussels on Thursday, his will be one of the most familiar faces in the room.

A veteran of EU summits since 2009, the burly Bulgarian premier will sit down alongside fellow leaders including Angela Merkel, Germany’s chancellor, and French President Emmanuel Macron to discuss a topic that has bitterly divided the bloc — and even raised questions about its viability.

The majority of EU member states want to introduce new rules allowing the bloc to curb flows of funds to states that violate its main rule of law principles. But Hungary and Poland oppose the legislation and are vetoing €1.8tn of money desperately needed for Europe’s recovery from the coronavirus pandemic.

Mr Borisov has not joined that blockade. But Bulgaria, which has faced claims of government corruption, is one of a growing group of EU countries that embody problems the mooted rules were meant to address. In some, such as Poland, governance concerns centre on alleged breaches of EU standards in areas such as judicial independence. In others, such as Malta since the 2017 murder of the journalist Daphne Caruana Galizia, they concern questions of corruption and official accountability.

Andrzej Duda, Poland’s president, has said this year that “LGBT ideology” is more “destructive to man” than Soviet communism © Petr David Josek/AP

Hungary is at the vanguard of a clutch of EU countries that have gone out of their way to laud ideas that many in Brussels believe to be illiberal. In Poland, President Andrzej Duda has also warned this year that “LGBT ideology” is more “destructive to man” than Soviet communism.

All this is a direct challenge to the values and legal principles the EU claims to stand for, which have become a central tool of its foreign policy and soft power. The result is that the EU is increasingly open to charges of hypocrisy, which both damages its moral legitimacy and could sow doubt for businesses about whether they can trust EU legal systems.

“We tried to appease the autocrats and it’s not working,” says Katalin Cseh, a Hungarian centrist MEP. “A government can be destroying the EU from the inside and still getting billions to enrich their own circles. If we do not do something now, it will threaten the stability of the union.”

Illiberal regimes are hardly a novelty in postwar Europe. From the former dictatorships in the east and south to the government of former Italian prime minister Silvio Berlusconi, who was convicted of tax fraud in 2013, the rest of the world has often looked at Europe’s claims about its values more sceptically than the region does itself.

Chancellor Angela Merkel of Germany and Bulgarian Prime Minister Boyko Borisov talk at the EU summit in July © Stephanie Lecocq/Reuters

But the current breakdown of EU norms has exposed a powerlessness on the part of the EU institutions, as they seek to project, enforce and embody its founding values. It is occupying energy and attention at a time when the EU is also involved in last-minute negotiations with the UK over a Brexit deal. And it jars awkwardly with US president-elect Joe Biden’s push for the world’s democracies to unite to counter rising authoritarianism.

The problem is worsened because mainstream EU-wide parties, including Ms Merkel’s European People’s party (EPP), Mr Macron’s Renew Europe and the Social Democrat grouping that includes Spain’s prime minister Pedro Sánchez, encompass controversial political parties or leaders — giving them added heft at the negotiating table and in the European parliament. The EPP has suspended but not expelled Hungary’s ruling Fidesz party, even as the latter threatens to scupper the entire EU budget package.

“It has been a political choice not to halt what has been happening in Hungary and Poland,” says Rosa Balfour, director of the Carnegie Europe think-tank. “It’s hugely damaging — it’s not just about democracy, it’s about the functioning of the EU.”

European officials say they are making best efforts with the tools they have, such as bringing court cases against countries at the European Court of Justice — but some concede the threat to the EU’s integrity is serious.

A placard criticising Jaroslaw Kaczynski, the leader of Poland’s ruling party, is held aloft at a pro-choice protest in Warsaw last month © Wojtek Radwanski/AFP via Getty

“We are at quite a moment in the European project in terms of challenges to its founding principles,” says one official. “What we are seeing in some member states is a severe backtracking on some of the fundamentals of what we stand for.”

Even if the proposed EU law governing payments is introduced, diplomats and officials play down the idea that it will transform the picture. While supporters brandish it as a way of empowering Brussels to drag illiberal governments back into the democratic fold, in reality it is a narrow mechanism that aims to prevent the misuse of EU funding.

The EU official characterises it as an important but modest “first step” towards forcing member states to finally engage more with the severity of the bloc’s rule of law problem.

Joining the club

Since its foundation the EU has believed it represents something far more than an economic community. Democracy, rule of law and fundamental rights are, in the words of European Commission vice-president Vera Jourova, the union’s bedrock. “This is largely what makes the EU unique,” she said in a speech in November.

It was this vision that drove the apparently relentless expansion of the EU and the spread of its ideology after the collapse of the Soviet Union in 1991. In the “jumbo enlargement” of 2004, 10 mainly former Communist bloc countries joined.

While the bar to admission to the EU was and remains high, the checks on behaviour once a country is in the club are limited. In particular, so-called Article 7 disciplinary procedures have proved inadequate to the task.

A protest outside the Central European University in Budapest against the Hungarian government’s decision to shut it down © Bernadett Szabo/Reuters

These allowed the commission, European parliament or member states to take action against countries under threat of punishments such as the suspension of EU voting rights. The commission triggered the process against Poland in 2017, while the parliament launched it against Hungary the following year.

Article 7 might be an effective panic button in the case of a clear-cut military coup, but it has proved of little use in navigating the grey zone of “illiberal democracy” created by Viktor Orban, Hungary’s prime minister, or in countries like Poland and Bulgaria, where those in power have sought to tighten control over the judiciary.

The requirement for unanimity means any two countries can stop action against each other — as Hungary and Poland have pledged to do, effectively stalling the processes targeting them. Officials speculate the proceedings against them may eventually get ditched, though proponents insist they exert important pressure — and point out that if the government changes in either country the procedure could yet have teeth.

The commission, which is now led by Ursula von der Leyen, has reverted to a strategy of bringing cases to the ECJ — an approach that officials stress has yielded wins.

But by the time judgments are handed down, the damage is often done. In October, the ECJ ruled against a 2017 Hungarian law that in effect forced the Central European University, founded by the billionaire backer of liberal causes George Soros, to shut down in Budapest. The victory came too late for the institution, which had already relocated to Vienna.

An LGBT Pride parade in Budapest in defiance of Hungary’s illiberal anti-gay government © Gergely Besenyei/AFP via Getty

In Poland, too, the impact has been limited. The commission’s decision to take Warsaw to the ECJ over its Supreme Court reforms resulted in the reversal of a purge of the court in 2018. But, overall, they have not been enough to prevent the ruling Law and Justice party from pushing through radical changes giving politicians sweeping powers over the judiciary. Critics say these critically undermine judicial independence. However, Polish officials say they are needed to overhaul an inefficient system, and that the proposed rule-of-law mechanism would be open to arbitrary politically motivated use.

Budapest has refused to implement a decision that found that its requirements for non-governmental organisations to declare foreign funding above a certain threshold was contrary to the free flow of money and ideas. It has instead doubled down and made complying with the rule a requirement to access Erasmus funds — an EU programme to support education and training — in Hungary.

Hungarian justice minister Judit Varga said in an October interview that Hungary was complying with the judgment in the CEU case. Regarding the NGO funding law, Ms Varga said the government was “trying to find ways to comply” with the judgment.

Concerns in Sofia

Bulgaria’s recent history embodies the dangers of inaction when it comes to the union’s founding principles. Concerns about its governance flared dramatically this summer when photos of a sleeping Mr Borisov with a pistol on his nightstand were published in local media.

A second photograph showed two gold bars and wads of €500 notes believed to total €1m. Mr Borisov said the first photo was genuine but the others were manipulated. Nevertheless, the imagery has stuck in the public imagination.

Bulgaria and its neighbour Romania have both faced strict rule of law monitoring since joining the bloc almost 14 years ago. It was created especially for them, after European capitals worried they were not ready for full membership.

Anti-government demonstrations erupted in the Bulgarian capital Sofia after the chief prosecutor, an ally of Prime Minister Boyko Borisov, raided the offices of staff working for Rumen Radev, the president, who has clashed with the premier © Nikolay Doychinov/AFP via Getty

Crises elsewhere diverted the EU’s focus away from Bulgaria and its unresolved rule of law problems. Many observers say EU cohesion funds contributed to enriching a group of politically well-connected Bulgarian businessmen. The government in Sofia maintains that it has the trust of Brussels and has overseen a period of stability and infrastructural development.

“Countering corruption is one of the priorities of the cabinet,” says a spokesperson for the Bulgarian government. “Our anti-corruption laws are based on the best legislative practices around the EU.”

Mr Borisov has largely avoided trouble with either Brussels or fellow EU member states. Unlike Warsaw and Budapest, he did not antagonise other EU leaders and has not indulged in ideological debates about migration and identity politics, even as he pandered to socially conservative forces at home.

But rolling protests erupted in Bulgaria this summer after the chief prosecutor, a Borisov ally, raided the offices of two staff members of Rumen Radev, the president, who has clashed with the premier.

Unmoved by the demonstrations, Mr Borisov’s Gerb party has supported controversial amendments that would increase the power of the general prosecutor and shrink that of both the president and the justice minister.

Nelly Kutzkova, a former chair of the Bulgarian Judges Union, describes a culture of intimidation and pressure on judges who issue verdicts unpopular with political power brokers. “The most influential people in Gerb are not familiar with basic principles of rule of law,” she says.

Liberties under threat

The dangers posed by over-mighty national governments are by no means confined to a few countries in the east, according to Philippe Lamberts, co-president of the European parliament’s Greens grouping. Terror attacks, the political crisis over migration and now the pandemic have all given leaders extra pretexts to rein in civil liberties, he says.

He points in particular to France, where a security law approved by its lower house of parliament last month would make it a crime to publish the face of a police officer or gendarme with the aim of causing them “physical or psychological harm”. The government has promised an independent commission to rewrite parts of the law.

“It gives more alibis to the executive branches to capture ever more power,” Mr Lamberts says. “We should have much stronger ways of forcing member states to respect the obligations they have freely subscribed to,” while also being tougher in using existing powers, he adds.

Violations of basic EU precepts do not only damage the bloc’s image — they also undermine the ties of trust that help bind it together. “It is a potentially fatal problem in the long run: this is a community of law first of all,” says Robert Cooper, a former senior EU foreign policy official.

Earlier this year, the Dutch judicial system, for example, stopped extraditing people to Poland on the grounds that they could not be assured of a fair trial in the country. In October, Poland’s national public prosecutor Bogdan Swieczkowski responded by ordering subordinates to conduct a “thorough analysis” of whether there were “obligatory grounds” for refusing to comply with European arrest warrants issued by the Netherlands, according to Polish media reports. 

Viktor Vadasz, a criminal judge at the Metropolitan Court of Budapest and spokesperson of Hungary’s National Judicial Council, an independent, self-governing body, warns of the dangers posed by this erosion in judicial co-operation.

“If we are looking at an extradition hearing, and judges say ‘I won’t let my citizen be exposed to an unfair trial,’ that’s the end of the single market,” he says, noting the impact political verdicts could have on commercial affairs. “Without independent judges, the EU doesn’t function. Judges with mutual recognition and respect make it work.”

Line chart of % of respondents in each country saying the EU conjures positive feelings showing Despite dips in support, eastern Europeans still back the union

New mechanisms

The bloc has attempted in recent years to expand its arsenal to combat rule of law breaches. In September it launched its first ever peer-review report on the performance of every EU country, in part to counter allegations that some nations were being singled out. The bloc has created a new European public prosecutor’s office to pursue cases involving the fraudulent use of Brussels money, in the face of some member states’ historical reluctance to do so.

The EU’s July summit struck a landmark agreement to introduce the new mechanism allowing funding to be cut when countries breach key principles. And yet it is far from clear that the European Council EU summit on December 10-11 will herald a solution to the rule of law impasse that is blocking the EU’s entire seven-year budget, as well as an additional €750bn Covid-19 recovery fund.

Some diplomats and officials think the pandemic emergency money might have to be forced through via a route that excludes Poland and Hungary altogether.

Poland’s deputy prime minister, Jaroslaw Gowin, insisted on Thursday that there was scope for compromise. But even if Budapest and Warsaw do drop their objections, the bloc faces profound questions over how it can defend the primacy of its founding values. Many observers stress that the impetus must come ultimately from within countries themselves. While the EU can be both guide and guardian on the rule of law, it is neither feasible nor desirable for it to lead those efforts.

Above all, the rule of law battles expose a costly failure of EU foresight about how “fundamental things are actually much more fragile than we thought they were”, says Julia De Clerck-Sachsse, a former EU adviser who is now a senior non-resident fellow at the German Marshall Fund of the United States.

“There was so much euphoria that democracy was winning that there was a sense we didn’t need to protect it,” she says. “But it was much more vulnerable than we would ever think.”

Additional reporting by James Shotter in Warsaw

 

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