Poland and Hungary are the EU’s most prominent renegades, infamous for defying the block’s rule-of-law agenda. Has the EU mellowed towards them in the context of Russia’s war against Ukraine and the need for internal solidarity? And has Poland, as a vocal supporter of Ukraine, received ‘differential treatment’?
Poland and Hungary are long known to be the European Union’s troublemakers. But have the security imperatives of supporting Ukraine and the urge to close ranks weakened Brussels’ determination to discipline Hungary and Poland for their democratic backsliding and infringement of the rule of law? With Warsaw staunchly defending Ukraine and Budapest maintaining close ties with Moscow, has Brussels treated the two nations differently? And more importantly, can the EU differentiate in practice between internal solidarity and the values and norms it stands for?
Differences between erstwhile allies
The Kremlin’s war against Ukraine has led Warsaw and Budapest to adopt diametrically opposed foreign policy stances. With a war on their doorstep, the erstwhile ‘partners in crime’ find themselves with starkly different preferences and behaviours. For instance, while Poland has been a strong supporter of sanctions on Moscow and of Ukraine’s accession to NATO, Hungary has delayed or blocked almost every single EU sanction on Russia (e.g. on oil imports) as well as obstructing ministerial-level negotiations between NATO and Ukraine since 2018, citing concerns over Hungarian minority rights in Ukraine. For similar reasons, Budapest is likely to be a stumbling block to Kyiv’s accession to the EU. Hungary has also obstructed Finland and Sweden's bid to join the military alliance. While Warsaw never misses an opportunity to condemn the Kremlin, Budapest has been walking on a tightrope.
The two also differ in their relations with China and the US. While the Polish Government is concerned about Beijing’s tacit support for Russia, Hungary has largely continued with its business-as-usual approach, contrary to the EU’s ongoing de-risking strategy. And while Budapest is hostile towards the current US administration, Warsaw is deferential.
Polish prime minister Mateusz Morawiecki remarked in April that his country’s relationship with Hungary has ‘changed a lot because of the position of Hungary towards Ukraine and Russia, that’s a fact. We had once very strong cooperation on the level of the Visegrad group, now it’s much less so.’ Yet it would be an overstatement to say that they no longer have anything in common. Both have adopted a more welcoming approach to forced migrants from Ukraine than they did during the 2015 refugee crisis, which is seen by some as an example of flexible solidarity with the EU. In addition, both are among the few EU member states that have banned grain imports from Ukraine. More significantly, they are both bound by their mutual reliance in the Council of the EU regarding Article 7 on membership suspension. Yet this is likely to change with a new government in Warsaw, which may reinvigorate Poland’s relations with Brussels.
Housekeeping in times of war?
So far, the EU has generally not let the imperative for solidarity water down its disciplinary proceedings against the two member states. The EU institutions have invoked the rule-of-law conditionality regulation and the ‘horizontal principles’ in the Common Provisions Regulation to withhold tens of billions of euros in funding from both countries in reaction to their violations of the EU’s norms and principles. Around two months into the war, the Commission triggered the conditionality regulation against Budapest over corruption and suspended 65 per cent of funding from the Cohesion Fund. Five months later, the European Parliament labelled Hungary an electoral autocracy. In December 2022, the Commission referred Poland to the European Court of Justice in response to the PiS party’s infringement of judicial independence. Furthermore, the Commission has not only invoked economic conditionality to block funding to both countries from the Recovery and Resilience Facility, but has also invoked the ‘horizontal principles’ and frozen all eight funds under the Common Provisions Regulation until each country restores its judicial independence.
So it seems that the EU is not shying away from disciplining its member states when confronted with an external threat. Pundits observe that Brussels has gone beyond legal procedures by applying financial instruments to reverse democratic backsliding in both countries. This has worked to some extent. In order to unblock part of the Cohesion Fund, in 2022 the Hungarian Parliament enacted a range of anti-corruption laws, and earlier this year it approved a judicial package including provisions to strengthen the National Judicial Council. The Polish Parliament has passed two bills to reach the milestones set by the EU and to unblock part of the Recovery and Resilience Facility. In both cases, EU officials and NGOs welcomed the move but cautioned that significant improvements would still need to be made and that the proposed laws should be put into practice before further funds are reinstated.
Isolated cases of leniency and ‘differential treatment’
Yet the EU might have let solidarity eclipse its housekeeping role momentarily. In defending the decision to approve Poland’s Recovery and Resilience Plan against opposition from five commissioners, in June 2022 President Ursula von der Leyen stressed the need for ‘solidarity with the Member States most impacted by the shockwaves of this war, in particular those who, like Poland, are the object of the Kremlin's energy blackmail.’ The Council of Finance Ministers then signed off on the plan, which was seen as a gesture of goodwill to Warsaw amidst the war. One EU diplomat even confirmed that nobody really wanted to confront Poland because of its stance on the war.
In a separate move, as part of the Temporary Crisis and Transition Framework the European Commission approved EUR 1 billion in funding to support Polish agricultural producers in the context of the war against Ukraine, and another EUR 1 billion to help Hungarian enterprises adversely affected by elevated energy costs.
However, the EU’s alleged ‘differential treatment’ of Poland has been contested by the EU’s own institutions and civil society. In August 2023, four key associations representing European judges sued the Commission over its approval of Poland’s Recovery and Resilience plan. The Good Lobby Profs, a network of academics, lawyers and activists, endorsed the lawsuit. This led the Commission to stipulate that funds would only be released if PiS complied with a series of rule-of-law reforms and milestones. In parallel, the more critical European Parliament has been urging the Commission to take a tougher stance on Warsaw.
Thus overall, the EU has been able to keep things separate: thanks to its own institutional set-up and a robust civil society, it manages to distinguish internal solidarity from rule-of-law disputes by using extraordinary measures to impose compliance.
Dr. Lunting Wu is a researcher at ZOiS, Associate in the Cluster of Excellence ‘Contestations of the Liberal Script’ and the Center for European Integration at Freie Universität Berlin, and a Fellow of FGV Europe and the Instituto do Oriente of the University of Lisbon.
Kamil Matusiewicz is an MPP Candidate at the Hertie School and an Assistant in the ‘Recharging Advocacy for Right in Europe’ (RARE) project.