Viktor Orbán and his brand of conservatism faced a crucial popularity test in Sunday’s general elections, a test he passed with flying colors. The Hungarian premier and his Fidesz party thumped the opposition’s unity coalition—composed of liberals, greens, Communists, and the neo-Nazi Jobbik—by a humiliating margin of nearly 20 points; opposition leader Péter Márki-Zay was defeated even in his own district.
Orbán also struck a painful blow against his critics in Brussels. Ever since he returned to power in Budapest in 2010, and especially in recent years, Orbán has played lightning rod for seemingly the entire EU establishment, even as he has galvanized populist and national-conservative forces on the Continent. Reviled, denounced, sanctioned, and banished from the European Parliament’s center-right bloc, he has gone from internal critic of Brussels to an outright dissident.
In this, Orbán hasn’t been alone. For the past five years, the European Union has also locked horns with the national-conservative Law and Justice party, or PiS, in neighboring Poland. Both countries allegedly fail to uphold “rule of law,” as defined by Brussels. The European Commission charges Hungary and Poland with threatening media freedom and judicial independence, with not doing enough to tackle (or actively engaging in) systemic corruption, and with violating LGBT and minority rights—charges denied by political leaders in Budapest and Warsaw.
Russia’s invasion of Ukraine has added a new dynamic. Though Hungary and Poland long saw themselves as allies in a struggle against the Brussels elite, the war in Ukraine has created some fissures between the pair. Warsaw is among the Kremlin’s most vociferous critics, calling for ever-harsher sanctions against Moscow and for more Western arms for Kyiv and even offering to host US strategic weapons on its territory.
Orbán, by contrast, has taken a more neutral stance, condemning the invasion and accepting tens of thousands of refugees while refusing to arm Kyiv or to permit military aid to transit his country. Budapest has also vowed to maintain close economic ties with Moscow, including continuing to import Russian energy on favorable terms. This posture hasn’t made Orbán any new friends in Brussels, but he knows that the conflict also gives him leverage: Right now, no one wants to ruffle the feathers of a crucial NATO ally.
Still, once the Russo-Ukrainian dust settles, it is likely that the older dynamic—Budapest and Warsaw together in the anti-EU trenches—will resume. PiS might have won some temporary favor with Western hawks by toeing a hawkish line on Russia, but the underlying tensions haven’t eased. Indeed, the issue that has received the most attention in recent years is the Polish government’s decision to establish, in 2017, a new judicial disciplinary body, composed of jurists appointed by the lower house of Parliament, to hear complaints against judges facing misconduct allegations. European officials claim, not entirely without reason, that this exposes the Polish judges to political control.
This clash is often framed by both camps in stark culture-war terms. “Pro-European” liberals and EU officials themselves present it as a conflict between the liberal-democratic values of the union and the illiberal and undemocratic practices of the two countries’ nationalist governments. Partisans of Hungary and Poland, meanwhile, frame the contest as one between two traditional and religious nations and an imperialistic Brussels bent on pushing a left-wing, globalist, and anti-Christian agenda.
Things are a little more complex. For starters, the crimes Hungary and Poland are accused of aren’t unique to those two countries, not by EU standards, at least. The high courts of EU states, where they exist, are all highly politicized, which usually means they hardly ever dare challenge the wisdom of EU legislation.
As for corruption, it’s notoriously hard to measure. To the extent that some institutions try to gauge it, on the basis of people’s perception of the levels of corruption in their country, Poland’s and Hungary’s governments come out as significantly less corrupt than those of other Eastern nations, such as Romania, Slovakia, Slovenia, and Bulgaria; they also come out better than governments in Spain, Portugal, and Italy.
On media freedom, Hungary and Poland do indeed fare pretty badly in Reporters Without Borders’ Press Freedom Index, with Hungary ranking second to last among EU countries, after Bulgaria. But the pair is in good company: Last year, the European Commission issued its first-ever recommendation on journalists’ safety, in which it noted that 908 journalists and media workers had been attacked in 23 EU member states in 2020 alone.
Dutch crime reporter Peter de Vries was murdered on a busy Amsterdam street in 2021, and Greek investigative reporter Giorgos Karaivaz was gunned down on his way home from work. And Slovakia and Malta have both recently witnessed the assassination, by criminal gangs connected to government circles, of independent journalists investigating corruption in high places.
As for LGBT issues, it’s true that Hungary last year enacted a law, overwhelmingly reaffirmed by voters in a referendum Sunday, to restrict “gender ideology” in classrooms. But as for day-to-day anti-LGBT discrimination, it isn’t unique to the two countries, either. “Poland and Hungary are not anomalies,” says Evelyne Paradis, executive director of the European branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe). “In the past year, we’ve seen increased political repression against LGBT people … and the spreading of LGBT-phobic hatred on the streets and online across [Central and Eastern Europe].” One may also mention the discrimination suffered by unvaccinated citizens as a result of the introduction of “vaccine passes” in various European countries, in direct violation of several EU regulations, which Brussels has remained silent about.
In light of all of the above, the real question isn’t whether what’s happening in these two countries is indeed worrying, or whether an a-democratic, supranational body like the European Union has any right to lecture the governments of two democratic member states and the people who elected them. The more interesting question is why Brussels has singled out Hungary and Poland for problems common to the bloc as a whole.
The answer has relatively little to do with the charges brought against the two countries, though of course they play a role. In the eyes of the European gatekeepers, the pair has committed a much more heinous crime: Hungary and Poland have openly challenged the authority and legitimacy of the European Union itself. More specifically, they have dared to reject what is arguably the most important article of faith of EU doctrine: the primacy of EU law over national law.
Thus, when Brussels claimed that Poland’s judicial disciplinary body, created in 2017, violated EU law and should be revoked “in accordance with the principle of the primacy of EU law,” the Polish government refused to comply, contending that the demand represented an unacceptable infringement on the country’s national sovereignty. In an attempt to resolve the dispute, Polish premier Mateusz Morawiecki asked the Polish Constitutional Tribunal in Warsaw this question: If push came to shove, and EU law were ever to clash with the Polish constitution, which should prevail?
The tribunal delivered its verdict in 2021: It voted 12 to 2 for the national constitution, holding that “the attempt by the [European Court of Justice] to involve itself with Polish legal mechanisms violates … the rules that give priority to the [Polish] constitution and rules that respect sovereignty amid the process of European integration.”
The Polish tribunal, in other words, insisted that national law enjoys primacy over EU law—a principle without which “the Republic of Poland cannot function as a democratic and sovereign state.” More than that, the tribunal accused the European Union and the ECJ of violating EU treaties themselves by claiming otherwise. Quite the bombshell.
Suffice to say, EU officials and pro-EU elites didn’t take it well. Luxembourg’s foreign minister, Jean Asselborn, claimed that the tribunal’s ruling put the very existence of the European Union in jeopardy. “The primacy of European law is essential for the integration of Europe and living together in Europe”, he said. “If this principle is broken, Europe as we know it, as it has been built with the Rome treaties, will cease to exist.”
To understand why the ruling represents such an existential threat to the EU, one must comprehend the fundamental role of EU law in the bloc’s superstate-building project. Legal scholars have contested the supposed primacy of EU law for half a century. In practice, however, national courts and governments, which tend to have an engrained pro-EU bias, have hardly ever contested the primacy principle. This has allowed the ever-expanding body of EU legislation, the so-called acquis communautaire, to become the main engine for so-called integration by law—the hollowing out from above and within of national constitutional and legal systems.
EU legal primacy has also bestowed huge powers upon the ECJ: Despite lacking the democratic legitimacy and accountability of national courts, the European court, by constantly creating new “laws” through its rulings, almost always in favor of “more Europe,” has effectively become the bloc’s most important legislative and, indeed, constitution-writing body. Alec Stone Sweet, an international-law expert, has termed this a “juridical coup d’état.”
By going against this principle—and by asserting the primacy of national sovereignty over EU law—Hungary and Poland have thus dealt a potentially deadly blow to one of the bloc’s main empire-building tools. This is ultimately what the two countries are being punished for. And to do so, the European Union is resorting to the most powerful tool at its disposal: money. Last year, in a move clearly aimed at Hungary and Poland, Brussels adopted for the first time ever a Rule of Law Conditionality Regulation, which allows the European Commission to withhold the payment of EU funds to member states that are found to be in breach of the rule of law—as defined by the EU/ECJ itself, of course.
The commission has already used the new rule to refuse to approve the Next Generation EU Covid-19 recovery funds for the two countries—€7 billion for Hungary and €36 billion for Poland. And more funds may be withheld in the future. Budapest and Warsaw challenged the new rule at the ECJ, which predictably dismissed the two governments’ complaints.
How this will pan out remains to be seen. The European Union isn’t new to this kind of blackmail. The European Central Bank has repeatedly choked member states, to bring recalcitrant eurozone governments to heel or even to force regime change (the removal of Silvio Berlusconi in 2011, the shutdown of Greece’s banks in 2015). EU leaders seek a similar coup in Hungary and Poland. Only, Hungary and Poland aren’t in the eurozone; they control their own currencies. The money the pair receives from the European Union is significant, but it isn’t a lifeblood: Between 2010 and 2016, annual net transfers from Brussels—the difference between the total expenditure received and contributions to the EU budget—amounted to 2.7 percent of GDP in Poland and 4 percent in Hungary. This puts the two countries in a very different position than, say, Greece.
For now, the contest is likely to be paused as a result of the conflict in Ukraine. Even so, the fundamental battle playing out in Hungary and Poland—between national sovereignty rooted in a demos, on one hand, and demos-less supranational elite management, with its reassuring emphasis on individual rights, on the other—will continue to shape the future of the Continent for a long time to come.
Thomas Fazi is a contributing editor of Compact.