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E.U. Slams Poland and Hungary on Rule of Law, but to Little Effect

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Yearly reports on compliance with the rule of law in European Union member states depict problems in several of them with corruption and the independence of justice and media.

The European commissioner for justice, Didier Reynders, at a news conference this month in Brussels.The European commissioner for justice, Didier Reynders, at a news conference this month in Brussels.Credit…Stephanie Lecocq/EPA, via Shutterstock

July 20, 2021Updated 3:05 p.m. ET

BRUSSELS — Poland and Hungary were criticized sharply Tuesday by the European Commission in a set of reports that said recent actions by the countries threatened judicial independence and undermined the rule of law.

The reports reviewed the state of the rule of law in all 27 European Union member states, and its conclusions about Poland and Hungary were severe, notwithstanding their relatively bland bureaucratic language.

Their impact, however, is likely to be small.

The European Union has no effective tools for quickly disciplining member states, and a new initiative to at least allow the withholding of E.U. coronavirus recovery funds from countries found to be undermining the rule of law will not be put to the test before autumn, if then.

Hungary and Poland get the most attention because they are considered the main offenders when it comes to undermining the rule of law, the independence of the judiciary and media pluralism. But numerous other member states, including Austria, Bulgaria, Malta, Slovenia and the Czech Republic, also have serious problems with the same issues.

Hungary and Poland are still seeking commission approval for their recovery spending plans as part of the 800 billion euro — about $920 billion — pandemic fund. But E.U. officials made clear that the reports released Tuesday were entirely separate from the judgments to be made later about whether to approve or withhold money. Hungary is to get some 7 billion euros, and Poland about 24 billion.

The reports were presented by Vera Jourova, vice president for values and transparency, and Didier Reynders, commissioner for justice. They spoke generally of the effort to establish what Mr. Reynders called “a culture of the rule of law.”

A protester outside the Constitutional Tribunal in Warsaw in April.Credit…Czarek Sokolowski/Associated Press

In a background briefing for journalists, E.U. officials (under the ground rules, they do not allow themselves to be named) were relatively straightforward. About what has happened in Hungary over the last year, one official said: “The vast majority of the concerns remain present, and some of them have worsened.”

Issues raised in the reports include clientelism, favoritism, nepotism, corruption, pressure on the media and questions about judicial independence.

Hungary is also under renewed attention over its reported use of a sophisticated Israeli-developed spyware called Pegasus to monitor journalists, rights workers, opposition politicians and foreign heads of state.

A consortium of media organizations, including The Washington Post and The Guardian, reported this week that the sophisticated spyware has been used by more than 50 countries. At least five of the smartphones that appeared to be targeted belonged to individuals in Hungary, according to the consortium, and more than 300 Hungarian phone numbers appeared on a list of about 50,000 that included some selected for surveillance using Pegasus, the consortium said.

The European Union has commented carefully on those findings, which emerged after Tuesday’s reports were written. The European Commission president, Ursula von der Leyen, said Monday that if Hungary’s use of Pegasus was verified, “it is completely unacceptable and against any kind of rules we have in the European Union.”

“When the freedom of media is concerned,” she said, “free press is one of the core values of the European Union. It is completely unacceptable if this would be the case.”

The Chain Bridge in Budapest was illuminated in the colors of the Hungarian national flag in June, in commemoration of a World War I peace treaty.Credit…Ferenc Isza/Agence France-Presse — Getty Images

But once again, the question of any sanctions remains unclear.

There is no real avenue for them against E.U. members that does not rely on a lengthy court process or the unanimous vote of member states — which would be impossible, especially since Poland and Hungary have agreed to block any such actions. So-called Article 7 disciplinary proceedings initiated against Poland and Hungary, which in principle could see them denied voting rights, are therefore moot.

Hungary’s foreign minister, Peter Szijjarto, on Monday denied the use of Pegasus in surveilling civilians. At a news conference, Judit Varga, the justice minister, said: “Hungary is a state governed by the rule of law and, like any decent state, in the 21st century it has the technical means to carry out its national security tasks. It would be a serious problem if we did not have these tools, but they are used in a lawful manner.”

Analysts were skeptical about the impact of the rule-of-law reports.

“In the short term, this report primarily offers a facade of action,” said Laurent Pech, a professor of European law at Middlesex University in London, arguing that the commission should have prioritized “prompt and decisive enforcement actions.”

The findings, Mr. Pech said, may prove helpful in the long term, but he asked, “What is the point of a rule-of-law report if, due to lack of decisive action and enforcement, there is no rule of law left to monitor in some countries?”

The Parliament in Budapest.Credit…Akos Stiller for The New York Times

In Poland, one of the reports says, the situation for justice has generally deteriorated, with politicized reforms creating “serious concerns as regards the rule of law, in particular judicial independence.”

The European Commission is in a major struggle with both countries about the rule of law and the supremacy of European law over national courts. Poland has challenged the authority of the European Court of Justice, which has ordered the suspension of a disciplinary chamber for judges on the grounds that it is politicized and not independent.

Poland has refused, and the commission on Tuesday again warned that it would initiate further actions against the country. If Poland does not comply with the court orders by Aug. 16, the commission will ask the court to penalize Poland financially, Ms. Jourova said.

“E.U. law has primacy over national law,” she said. “There can be no compromise on this.”

The report on Poland also cited intimidation of journalists and a growing lack of media pluralism, with a state-owned oil refinery, Orlen, buying a local media group that owns 20 of the 24 regional newspapers in the country.

A worker fixing the Orlen logo at a gas station in Warsaw.Credit…Kacper Pempel/Reuters

Established a year ago, these reports are meant to be a kind of health check — and early warning system — on the state of justice, media freedom and other institutions. But they are written in collaboration with member states, so are inevitably blander than many critics and nongovernmental organizations would prefer.

Still, European Union officials insist that these reports prompt debate, influence political agendas and are used by member states and the E.U. Parliament in making decisions. Mr. Reynders also said they would play an important part in future decisions about disbursing recovery funds.

Mr. Reynders described the reports as “maybe one of the most important sources for the possible application of the new conditionality.”

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