Enforcing the Rule of Law in the EU: The Case of Poland and Hungary

Abstract

The Commission’s 2022 Report on the Rule of Law highlights serious concerns about the independence and impartiality of the judiciary, particularly in Poland and Hungary. The ongoing consolidation of illiberal democracies in these countries has led not only to a stagnation but also to an erosion of the fundamental principles of the rule of law. In Poland, the ruling PiS government’s judicial reforms have sparked controversy and pose a threat to the rule of law. Forced retirements, disciplinary proceedings and political appointments of judges have exposed the judiciary to legislative and governmental control. The decision of the Polish Constitutional Tribunal to declare EU primary law unconstitutional testifies to the Polish institutions’ departure from the common values enshrined in Art. 2 TEU. The Union’s regular control and sanction mechanisms have proved inadequate in the face of this crisis. Budgetary sanctions, such as those applied to Hungary under the Conditionality Regulation to protect the EU budget and to Poland and Hungary by withholding funds under the Union’s Recovery and Resilience Facility, provide a means of pressuring those countries to halt further erosion of the fundamental guarantees and institutions of the rule of law. However, given the systemic deficits evident in both countries, doubts remain about the effectiveness of such measures.