Any sovereign state is free to reform its legal system, provided it heeds the principles of the rule of law. All member states of the European Union have committed themselves to the rule of law. Next to democracy and the protection of human rights, preserving the rule of law is one of the pillars of the European community of shared values.

The rule of law is the foundation of any responsible governance. It is indispensable in ensuring the state’s actions will be subject to independent checks as per constitutional legislation. In a country where the rule of law is given, these independent checks are implemented by an independent judiciary pursuant to the democratic principle of the division of powers.

Undermining the independence and impartiality of judges at its core by political decision-makers is to destroy this pillar of the rule of law. By joining the European Union, Poland and Hungary, too, expressly and of their own accord subscribed to the rule of law as a core feature of European values. It bears reminding that in the 2003 referendum, 77% of Polish voters voted to join the European Union; in Hungary, about 84% voted in favour of joining the Union.

Unfortunately, Hungary’s and Poland’s right-wing populist governments have let the rule of law slide in their respective countries, leveraging their large parliamentary majorities. The Polish government, for instance, used the so-called Disciplinary Panels to de facto bring the judiciary under political control. The Polish government has transformed public broadcasting into a national service void of any pluralist reporting. For years, the Hungarian government has been stirring public incitement against judges and public prosecutors through media outlets close to the government. As early as 2016, the European Court of Human Rights ruled that the Hungarian government had been in breach of judicial independence and disregarded equal access to the courts. In both countries, there have been attempts to amend extant electoral law to the benefit of the parties in government. Yet, however severe these instances might be, more is at stake than merely the future of these two countries.

The rule of law mechanism set to enter into force in connection with next year’s Multiannual Financial Framework is neither a lex Orban nor a lex Kaszynski. It is the EU’s long overdue attempt to create a bold instrument to safeguard the rule of law in all EU member states. Upon joining the EU, all member states were not only granted rights, but simultaneously accepted responsibilities. With this in mind, the rule of law has to apply across the EU even after EU accession. Were the governments of Poland and Hungary to set precedent in this instance, both of which pursue a type of parliamentary dictatorship of the majority and leverage their respective majorities to govern ‘no-holds-barred’, other EU members would soon want to test and expand the limits of what is acceptable politically and juridically. This would bring the paradox full circle that admissions criteria to the EU are stricter than the Union’s very own house rules. The situation is serious, given Poland and Hungary today would not stand a chance trying to fulfil the EU’s strict conditions for accession in light of their eroded legal systems. The Polish and Hungarian people deserve better than this undoing of rule-of-law standards. There is no negotiating the rule of law.

Michael G. Link, Member of the German Bundestag

Member of the Board of the Friedrich Naumann Foundation for Freedom

Article 2, Treaty of the European Union

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

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