Mapping Attacks on Courts and the European Union’s Protection of the Rule of Law in Hungary and Poland

Hungary and Poland are both contemporary cases of democratic and rule of law backsliding in the European Union. Hungary is now categorized as a ‘transitional or hybrid regime’ by Freedom House (2020) and the V-Dem institute codes the country as an electoral autocracy (Lührmann et al. 2020). Poland similarly has declined in rule of law and democracy scores and was downgraded by Freedom House (2020) to the category ‘semi-consolidated democracy’. The ruling parties of both countries have followed the authoritarian playbook and removed checks on their power by undermining judicial independence. While Hungary and Poland eroded the rule of law and democracy at home, they remain members of the largest democratic Union in the world that has democracy and rule of law as two of its founding values (Article 2 TEU). Therefore, they face some constraints that other backsliding countries do not. The European Union has legal and political tools available to support democracy and rule of law that could, if not prevent, at least slowdown backsliding in its member states. In fact, the EU has created many new tools for the protection and strengthening of the rule of law in the last decade but has often been reluctant to apply them rigorously. This paper studies attacks against the courts in the two Member States as well as the reactions of the European Union. While researchers have looked both at causes and functions of backlash against courts, relatively little attention has been paid to the form this takes. This paper maps attacks on courts, judges, and their independence using Poland and Hungary as case studies. Furthermore, it connects the backlash against courts with the European Union’s efforts to protect the rule of law. I propose mechanisms through which attacks on national courts are linked to EU rule of law enforcement.