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Central Europe shows rule of law is Europe’s central problem

Three political earthquakes in three days in central Europe have underscored how upholding the rule of law has become a defining issue for the EU — and how allowing it to unravel poses an existential threat to the union.

On Thursday, Poland’s constitutional tribunal dropped a bombshell on the EU’s legal order with a judgment that said elements of EU law relating to judicial independence are incompatible with the Polish constitution.

On Saturday, voters in the Czech Republic backed the centre-right opposition against their prime minister Andrej Babis in a general election. Since he became premier in 2017 Babis has been dogged by allegations of fraud and conflicts of interest relating to the payment of EU subsidies to his business empire.

On the same day, Austrians were stunned when their chancellor Sebastian Kurz, once celebrated as the wunderkind of European conservatism, stepped down after being named as a suspect in a corruption probe into alleged government payments for favourable media coverage.

Kurz denies any wrongdoing, has not been charged with any offence and will probably try to return to the chancellery if and when he clears his name. But the fact that he was forced to resign is testament to the functioning rule of law in his country. It is hard to imagine the same due process in today’s Poland.

Babis has brushed aside the corruption allegations against him but persistent investigators backed by the country’s chief prosecutor and EU auditors have kept the case alive. The billionaire businessman is almost certainly heading into opposition because he is deemed too toxic for the other parties in parliament to team up with.

The political pressures on judges and prosecutors are much greater in Poland than Austria or the Czech Republic. But, said Daniel Hegedüs of the German Marshall Fund in Berlin, these three events underline the point: “Without the rule of law, you can have neither democracy nor a framework for fighting against corruption.”

Poland’s constitutional tribunal ruling amounts to a rejection of the even application of EU laws across its 27 countries. If Polish judges actually enforce it, which is moot, EU rules would gradually cease to apply. Poland would, in effect, incrementally exit the bloc while formally staying inside.

Political abuse of power in Europe is neither new nor confined to former communist states. But it was largely a national problem. Even when Hungary’s Viktor Orban returned to power a decade ago and began to dismantle democratic checks and balances and silence independent media it was easy for the EU to gloss over, says Heather Grabbe of the Open Society Foundations in Brussels.

But the rot has spread to Poland, while Bulgaria and to a lesser extent Romania have struggled with corruption and cronyism. Together they account for a much bigger share of EU spending. Politicians and taxpayers in the bloc’s richer countries are no longer willing to turn a blind eye, said Grabbe, especially when pro-government oligarchs who have benefited from EU largesse use the media to bash the EU.

“It is this nexus now between corruption, EU money and anti-EU propaganda that makes this matter a much more serious issue than before and harder to deal with,” Grabbe said.

The European Commission, which in the past has tended to deal with rule of law breaches with kid gloves, is now under intense pressure from some governments and the European Parliament to get tough and withhold EU funding.

On Poland, commission president Ursula von der Leyen faces a difficult dilemma: stand firm and protect principles of judicial independence or compromise to avoid an escalating and debilitating confrontation that could snarl up EU decision-making. Warsaw’s publication of the tribunal ruling on Tuesday, making it official, narrows the scope for a deal. A reckoning over the rule of law may be hard to avoid.


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