Hungary and Poland to counter critics with ‘rule of law institute’

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Countries seek to hit back as EU debates harsher penalties for breaking bloc’s standards

Viktor Orbán
Viktor Orbán, the Hungarian prime minister, has overseen laws attacking transgender rights. Photograph: Johanna Geron/Reuters
Viktor Orbán, the Hungarian prime minister, has overseen laws attacking transgender rights. Photograph: Johanna Geron/Reuters
Central and eastern Europe correspondent and in Brussels

Last modified on Wed 28 Oct 2020 13.42 EDT

Hungary and Poland plan to set up their own “rule of law institute”, to hit back against criticism of declining democratic norms in the two countries, as well as point out flaws in the systems of their critics.

It comes at a time when many in the EU would like harsher penalties for countries that flout the bloc’s rule of law standards, and debate is under way about whether to link the next seven-year budget to a “rule of law mechanism” that would deny some funds to those in breach. Both Hungary and Poland have been accused, to varying degrees, of infringements on judicial independence, erosion of democratic norms and attacks on media freedom.

“We need to show to Europe that there might be an alternative interpretation,” said Hungary’s justice minister, Judit Varga, in an interview with hlcarpenter.com. She said Hungary and Poland hoped to bring other countries in the region into the initiative.

“The aim of the institute is not to be taken for fools,” said Hungary’s foreign minister, Péter Szijjártó, when announcing the plans together with his Polish counterpart recently. He said it would “prevent the application of double standards to Poland and Hungary” by analysing the situation in other countries, too.

“We think that in order to be better understood we need to enhance what our position is in many crucial legal questions which form the future of Europe,” said Varga.

Both Poland and Hungary have been subjected to article 7 procedures from the EU, and both countries were sharply criticised in a recent report that covered the rule of law in all 27 countries. Hungarian officials have also regularly been accused of corruption, with the EU’s anti-fraud office on one occasion demanding funds be repaid due to “fraud and possible corruption”.

Critics of Hungary and Poland in Brussels despair at the lack of EU mechanisms to inflict real punishment for these infringements, and accuse the two governments of making a mockery of European values. In Budapest and Warsaw, however, officials claim that the attacks against them are politicised and are simply a disagreement over values rather than real debates over the rule of law.

“If you look at central Europe, there is a very strong conservative policy being formulated. We share the same view on family policy and what we think about certain liberal ideologies. We see that all these ideologies are affecting the interpretation of the same rights,” said Varga.

Poland’s ruling party has carried out a sustained anti-LGBTQ+ campaign over the past year, and the country’s constitutional tribunal recently enacted an almost total ban on abortion, after the ruling Law and Justice (PiS) party had filled the tribunal with loyalists. Hungary has recently introduced a law banning legal gender changes, and the prime minister, Viktor Orbán, has repeatedly voiced his support for heterosexual marriage as his preferred lifestyle for Hungarians.

“A country with the overwhelming support of its citizens should have the right to declare that the basis of our society is the family, and the family by default the marriage of a man and a woman,” said Varga.

The rule of law institute is still in the planning stage, but Varga said it should be finalised during the first half of next year, and would involve a “professorial network” that would collaborate on different projects.

Adam Bodnar, the outgoing Polish human rights ombudsman, who has used his position to criticise democratic backsliding during the past five years of rule by PiS, said the institute was another sign of increased cooperation between the countries often seen in Brussels as the bloc’s two troublemakers, in the face of pressure from other EU members.

“It’s quite natural that they learn from each other in making all these practices and making pressure on EU authorities and creating collaboration with each other,” he said.

Critics of the two governments say the institute will simply act as a distraction mechanism. “It builds on one of their regular tricks, which consists of selectively using foreign examples or comparative law to distract and mislead, with the aim of leading to generalised whataboutism,” said Laurent Pech, a law professor at the University of Middlesex.

Final agreement on the EU’s €1.7tn (£1.5tn) seven-year budget and recovery package has been held up by a row over how a rule-of-law sanction would work. The leaders agreed in July there should be such a mechanism, which would potentially curb funding to countries found to be undermining democratic norms.

But the current proposal by the German presidency of the EU permitting the suspension of payments has upset Poland and Hungary for being too strict. When it comes to the budget discussions, the EU’s principle that decisions must be taken unanimously means that Poland and Hungary can block any measures they do not like.

“It’s a red line that rule of law should not be mixed up with any kind of budgetary conditionality. We can talk about it at another stage with heads of states and with unanimity,” said Varga.

The EU will return to discussions on the bloc’s next budget in coming weeks, and both countries have threatened to use their veto if necessary to stop the inclusion of a rule of law mechanism.

Meanwhile, the mechanism has faced heavy criticism from the Netherlands, Finland, Sweden and Denmark for being too weak.

The Dutch government has warned that the current proposal puts the threshold for action far too high, warning that its parliament would be unlikely to ratify the EU budget at all should it be put to the country’s MPs.

Negotiations between the member states and MEPs, who will also need to vote on the final budget and the rule of law clauses, are taking place this week in Brussels, with a delay to ratification by the national and European parliaments threatening the timely disbursement of billions of euros to EU programmes.