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Europeâ€™s rule-of-law headache is turning into a serious migraine â€” but no one seems to have a remedy.
Years of clashes that pit EU institutions and many member countries against Poland and Hungary have grown even more severe in recent months. Hungarian Prime Minister Viktor OrbÃ¡nâ€™s government has faced widespread condemnation over anti-LGBTQ+ legislation while Polish authorities have effectively declared they donâ€™t accept the supremacy of EU law.
But various efforts by Brussels â€” from legal action to threats to cut off funding â€” have failed to prompt a change of course in Warsaw or Budapest. Instead, the gulf between the two rebel member countries and the EUâ€™s political core over the blocâ€™s values seems to be growing even wider. All of which prompts a fundamental question: How does this end?
Here are five possible scenarios:
1. Poland and Hungary back off
If Brussels intensifies pressure or imposes significant financial sanctions, it might force Warsaw and Budapest to back off from some of their controversial policies.Â
The European Commission has already delayed approval of Poland and Hungaryâ€™s post-pandemic economic plans, in a signal they will have to bring some concessions to the table in order to access billions of euros in EU recovery funding.
â€œItâ€™s evident that one of the reasons why the Commission is delaying this decision â€¦ is the rule of law. The Commission is not going to say it publicly, but it uses the endorsement of this plan as a way to pressure Poland to make changes in its rule-of-law policy,â€ said Jakub Jaraczewski, a research coordinator at Democracy Reporting International, a Berlin-based NGO.
Separately, if Poland refuses to comply with rulings by the EUâ€™s Court of Justice, it could face significant fines.Â
Jaraczewski said that the more moderate part of the ruling coalition â€” which includes Prime Minister Mateusz Morawiecki â€” might not be willing to lose the money and face the ultimate clash with the Commission. Thereâ€™s a possibility the government would reverse at least its stance on a disciplinary chamber for judges, which is now the main bone of contention.Â
Morawiecki has already hinted in recent interviews that the controversial disciplinary chamber â€œneeds reforms.â€
However, both governments have made battles with Brussels a core part of their political identity and itâ€™s unclear how much (if at all) they would be willing to change course â€” and risk losing support from their base.
2. New bosses in Budapest and Warsaw
If the ruling parties in Poland and Hungary lose power in elections in the coming years, that would almost certainly defuse tension with Brussels and other EU governments.
Hungarians are set to go to the polls in spring 2022, while Poland is expected to hold its own parliamentary election in 2023.Â
The ruling Fidesz party in Hungary and the Law and Justice (PiS) party in Poland face opposition forces that are broadly pro-EU and have pledged to return to respecting democratic norms if elected.
â€œThe most important division line in both Poland and Hungary is increasingly the relationship towards Brussels and the European Union,â€ said PÃ©ter KrekÃ³, executive director at the Budapest-based Political Capital Institute. If opposition forces win, the new governments would â€œdefinitelyâ€ take â€œsteps to re-establish the independence of the institutions,â€ he said. Â
In Hungary, a diverse six-party coalition has come together to try to defeat OrbÃ¡n. In Poland, the opposition has just got heavyweight leadership with the return of former European Council President and ex-Prime Minister Donald Tusk.
Meanwhile, Polandâ€™s controversial judicial reforms and internal divisions have created tensions within the ruling coalition â€” making the alliance a shaky one and raising the possibility of an early election.Â
However, both PiS and Fidesz have proved extremely adept at winning elections and wielding power. Both also enjoy large amounts of favorable coverage from state media and other friendly outlets. In Hungary, polls put Fidesz neck and neck with the opposition alliance; in Poland, the opposition has been gaining support but PiS has a 10-point lead.
The two parties also face alliances that could easily become divided in the months and years to come. In other words: Donâ€™t count either government out.
That said, if even one of the two lost power, it would have a major impact on the other. The alliance between Hungary and Poland could crumble. The breakdown of the illiberal coalition would change the dynamics in the Council of the EU, where at the moment each government effectively protects the other from potential sanctions through veto power.
3. Muddling on
The EU could remain locked in repeated spats with Budapest and Warsaw, launching infringement proceedings and holding regular hearings about the situation in the two countries without a real endgame.Â
Many pro-democracy advocates have placed their hopes on a new mechanism that allows the EU to cut funding to member countries over rule-of-law violations that impact the blocâ€™s financial interests. But it remains unclear how the instrument would be implemented â€” and whether it could place sufficient pressure on the governments in Hungary and Poland to make fundamental changes in their behavior.Â
French Green MEP Gwendoline Delbos-Corfield, the European Parliamentâ€™s rapporteur for the situation in Hungary, is pushing for the upcoming French presidency of the Council of the EU to pursue â€œrecommendationsâ€ for Hungary â€” a procedure under Article 7 of the EU treaties that allows four-fifths of member states to issue a warning to another member over rule-of-law concerns before pursuing sanctions.Â
â€œI think that would be a big step,â€ said Delbos-Corfield. While acknowledging that â€œit will not change the everyday life of Hungarian people,â€ she said that â€œthese recommendations would isolate OrbÃ¡n even more.â€Â
In Poland, there are fears in opposition ranks that Warsaw will suggest a fudge to break the impasse with Brussels that would resolve some problems on paper but not in practice â€” and the European Commission will accept it in a spirit of compromise.
â€œPoland will offer some sort of watered-down solution â€” the disciplinary chamber [of the Supreme Court] will get suspended but the revised law would water down the system rather than annul whatâ€™s wrong,â€ said Barbara Grabowska-Moroz, a research fellow at Central European Universityâ€™s Democracy Institute.
4. Polexit and Hexit
In theory, Poland and Hungary could quit the EU or at least be politically pushed toward the exit by other member countries â€” even if the chances of either of those outcomes right now seem remote.
Surveys have repeatedly shown that citizens of both Hungary and Poland back EU membership. Only 39 percent of Poles and 28 percent of Hungarians believe their countries could better face the future outside the EU, according to a winter 2020-2021 Eurobarometer study.Â Both governments have also benefitted greatly from EU funds, and Polandâ€™s Morawiecki has repeatedly said he has no intention of leaving.
A decision to withdraw from the bloc would be â€œpolitical suicideâ€ for PiS, said Jaraczewski at Democracy Reporting International.
Rather than leaving completely, itâ€™s more likely that Poland would become â€œa dead tooth in the EUâ€™s mouth,â€ he said.Â â€œIt would function, it would take part in some actions, but it would exclude itself from the legal system,â€ he said. â€œPoland would become more similar to an associated country, such as Norway or Liechtenstein and the others, than a member state that fully respects the EU law.â€
In Hungary, members of the governing party have expressed mixed views on EU membership.
Earlier this summer, LÃ¡szlÃ³ KÃ¶vÃ©r, speaker of Hungaryâ€™s National Assembly and one of the founding members of Fidesz, said that if a referendum on EU membership took place now, he would vote against joining the bloc.Â
Hungaryâ€™s finance minister, MihÃ¡ly Varga, said in an interview this week that if the question arose in 2021, he would vote in favor of membership.Â â€œBut,â€ he told television channel ATV, â€œby the end of the decade, when according to our calculations we will already be net payers to the EU, the question could get a new perspective.â€
Some of OrbÃ¡nâ€™s opponents believe he doesnâ€™t want to leave the EU â€” but could weaken and fracture the bloc more deeply by staying within it.
â€œAs the main danger, I see the disintegration of the EU: the kind of divisive populist policy that OrbÃ¡n is pursuing is leading to the disintegration of the EU community,â€ said Bernadett SzÃ©l, an independent opposition member of the Hungarian parliament.
Analysts say that while the Hungarian population is pro-EU and OrbÃ¡n understands the benefits of membership, increasingly Euroskeptic rhetoric could have unpredictable consequences.
â€œDavid Cameron did not want the U.K. to leave,â€ said KrekÃ³. â€œWhen you start to play with fire, it is hard to control.â€Â
5. Fidesz and friends: A more populist EU
Fidesz and Law and Justice could stay in power â€” while friendly far-right parties gain power in big EU countries such as Italy and France, moving the bloc away from concerns about democracy and rule of law.
OrbÃ¡n and PiS leader JarosÅ‚aw KaczyÅ„ski have both invested in building good relations with populist parties across the bloc, and have argued that the EU should be primarily an economic project â€” with less political integration.Â
â€œThe moralistic overactivity that we have seen in recent years in the EU institutions has resulted in a dangerous tendency to impose an ideological monopoly,â€ 16 European right-wing populist parties â€” including Fidesz, PiS, French presidential candidate Marine Le Penâ€™s National Rally and Matteo Salviniâ€™s League in ItalyÂ â€” said in a joint statement last month.Â
While the pandemic has put populists on the back foot in much of Europe, two right-wing populist parties are riding high in the polls in Italy, each scoring around 20 percent. And Le Pen is currently projected to take 44 percent of the vote in a run-off with French President Emmanuel Macron, according to POLITICOâ€™s Poll of Polls.
While a Le Pen presidency is often seen as a long shot, it canâ€™t be ruled out. And OrbÃ¡n, for one, has increasingly aligned himself with a vision of the Continent that fits with hers.
â€œThe phrase â€˜an ever closer unionâ€™ must be struck from the text of the Treaties of the EU at the first available opportunity,â€ the Hungarian prime minister said in a June speech.