Should Hungary and Poland benefit from next EU budget?

It turned out that the laws of most EU member states were not well designed for a fast response to a major health emergency. Scrambling to react quickly, many European governments resorted to measures that were legally dubious.

In early March, many governments massively restricted freedom of movement by decrees with unclear legal bases and adopted a plethora of legal acts that sometimes amounted to an authorisation to any public authority to do "whatever it takes" to deal with the situation.

As we now know, the speed of the response was essential to its success. Greece managed to keep its numbers low because its government acted so fast.

Mistakes - can be rectified?

Mistakes can be made in such a situation.

Yet, government based on the rule of law cannot operate based on "whatever it takes" for more than a few weeks. The question then is if they act in good faith and remedy early mistakes quickly. Most did by the end of March.

The Italian government adopted a new decree law that included important safeguards, such as an obligation to report to parliament every two weeks.

The German parliament changed its law on infections to provide a stronger legal basis for the measures it has taken.

The French parliament passed a new law to define what constitutes a health emergency and clarify its own role during such an emergency.

The Hungarian government went into the opposite direction. It made things worse.

Its first state of emergency declaration was limited to two weeks, but when that period was over, parliament passed a new law that includes several features that are unique in the EU.

The government can suspend the application of laws, it can divert from laws, and criminal provisions were included targeting people who "distort the truth" in a way that may be alarming to the public.

The Polish government did not use existing constitutional provisions and laws, because they would have obliged it to postpone planned presidential elections for at least 90 days.

Judging that the incumbent president, a close ally of the ruling Law and Justice (PiS) party, could win, the government created new legislation to avoid postponing the election.

The government plans to hold the elections by postal ballot on 10 May despite reservations by the election commission and Europe's official election watchdog, the Organization for Security and Co-operation in Europe (OSCE).

The election campaign is unfair because opposition cannot speak at rallies while the president remains visible.

Not trying very hard to avoid accusations of a biased process, the government appointed a PiS stalwart as the head of the Postal Service's management board, responsible for administrating the voting by mail.

The crisis once again displayed the bad faith by both governments, which keep undermining democratic checks and balances. The EU and its member states need to urgently re-think this untenable situation.

One often hears that 'Hungary is not very democratic anymore, but no opposition politicians or journalists are being arrested, so it's not a dictatorship either'.

Salami-slicing

But the EU Treaty is more demanding than merely excluding hard dictatorships. EU member states must be functioning democracies, built on the rule of law and respecting human rights.

The Hungarian and Polish governments have deeply divided their societies and reduced democracy and the rule of law through salami tactics.

They slice the pieces small enough so that a strong response always seems disproportionate. This was especially the case in the early years when the EU was too trustful that all its member state governments were democrats acting in good faith.

We see the result: if you now say that the new emergency arrangements in Hungary do not require parliament to approve government measures and leave the government to do whatever it wants to do, people respond that parliament is controlled by the ruling Fidesz party anyway, so it would not make a difference.

If you argue that it is difficult to bring cases to the Constitutional Court, people point out that the court – whose judges were appointed by Fidesz – is not likely to make any significant decisions against government interests.

These answers are correct.

They tell us that the system was already broken. Elections in Hungary have not been fully democratic since 2014, as highlighted by OSCE observers.

In American criminal jurisprudence there is a doctrine called the fruit of the poisonous tree. Any evidence in a trial that can be traced back to illegally obtained evidence is not admissible.

This is how we need to think about the situation in Hungary and Poland.

The 2010 Hungarian constitution rammed through by Fidesz without serious parliamentary consultation or public referendum is the root that has poisoned everything that followed.

In Poland, the cloak-and-dagger exchange of judges of the Constitutional Tribunal has meant that constitutional justice stopped functioning.

The serious economic crisis that is now unfolding requires a rethink.

If the North-South divide is bridged by a significantly increased EU-budget for the next seven years, anti-democratic governments should not continue to benefit.

Both countries have been huge net beneficiaries of EU payments, but it becomes ever harder to convince European taxpayers that they should subsidise governments that offend European values.

Even more provocative, there are massive corruption allegations in Hungary, where prime minister Orban's son-in-law and the mayor of his small hometown became extremely rich through public contracts which have not been effectively investigated by Hungarian authorities.

If the EU allows this to continue, it risks alienating its most supportive constituency: those who are in favour of democracy and in favour of Europe.

What is needed then is a strict conditionality in the new EU budget that ensures that governments that work against democracy receive no more funding.

With so much EU money at stake, it should be self-evident that every member state accepts the mandate of the European public prosecutor who helps ensuring that EU funding does not fuel corruption.

In short, the new budget should revive economies, not authoritarianism.