EU foot-dragging puts rule of law at risk in Hungary, Poland

More recently, the EU's Court of Justice called a halt to the Polish government's efforts to force out Supreme Court judges in a case brought by the European Commission.

Those moves seemed to have brought back the rule of law to the center of the EU project.

But when it comes to one EU institution – the Council, made up of the bloc's member states, it's far from clear that there is a sufficient understanding of what is at stake.

During their last gathering on 12 November, EU affairs ministers appeared more focused on procedural questions than the need to mobilise to defend a Europe based on democracy and the rule of law.

It is pivotal for them to show more resolve in their next round of discussions on 11 December.

The threat is far from over.

At first glance, Warsaw appears to have complied with the EU Court of Justice's interim order to suspend the law that lowers the retirement age for sitting Supreme Court justices.

The affected judges were called back to work, and on November 21, the government confirmed that they had been reinstated.

Read the small print

But the reinstatement didn't explicitly guarantee they would have the same status and rights as before, as the EU court required.

And the National Council of the Judiciary, under criticism since a 2017 amendment that increased political involvement in its work, continues to appoint new judges to Supreme Court who are likely to be pro-government.

At the same time, several reinstated Supreme Court judges face disciplinary proceedings for challenging the government's attacks against the judiciary.

Finally, the Supreme Court is not the only judicial institution that is under attack.

Since 2015, the parliamentary majority has eroded the Constitutional Court's independence, and several presidents and vice presidents of common courts were also sacked or arbitrarily disciplined.

EU member states and the council should push Poland to carry out the full range of recommendations from the European commission to save the country's judiciary.

In Hungary, the government's attacks against civil society, the media and academic institutions is even deeper entrenched.

The Central European University was forced to move to Austria this month after the government introduced a law making it impossible for it to continue to operate in Hungary.

In July, the government banned gender studies from state universities and in October the Academy of Sciences, coming under increasing government control, scrapped two planned public presentations related to gender.

There are smear campaigns against civil society organisations.

Independent organisations working on human rights and migration face restrictions that affect their capacity to receive international funding and that criminalise services, advice and support to migrants and asylum seekers.

Last week, the owners of 500 pro-government media outlets announced that they would gather under a single umbrella aimed at preserving "national values" – raising fear of further reduction of media diversity in the country.

But the council and EU leaders have not held Hungary's ruling Fidesz party to account for its sustained assault on independent institutions that are the hallmark of a democracy. Even the European commission seems to be losing its nerve.

The European commission's vice president mentioned the European Court of Justice in the Central European University matter but didn't call for more action.

The commission's president, Jean-Claude Juncker, has yet to be heard.

The European commission and EU leaders are fooling themselves if they see the EU Court as the sole institution able to address the challenge.

Their support for the court is important, but they have a serious responsibility to hold the Polish and Hungarian leaders to account.

Just months before crucial European parliament elections, they should not shy away from this debate.

The attacks on democratic institutions in Poland and Hungary put EU's democratic foundations at serious risk.

The autocratic tendencies throughout the continent will not go away unless EU institutions and leaders clearly and consistently stress that there will be political consequences for member states that put rule of law and human rights at risk.

Not doing so would embolden further rights abuses in countries like Poland and Hungary and send the wrong message to other states tempted to follow suit.

Philippe Dam is European advocacy director at Human Rights Watch