Last week, the European Union’s highest court ruled that Brussels can withhold funding from member states that violate the rule of law, slapping down a legal challenge from Hungary and Poland. The ruling clears the way for the European Commission to levy certain penalties against Budapest and Warsaw, including suspending payments to both countries from the EU’s budget. These payments are in the billions of euros and are important to these countries for sustaining their economies.
What is important is that this decision, pending for more than a year, was published in the midst of the face-off with Russia over Ukraine, at a time when Europe needs to present a united front. Now, courts are known at times to be oblivious to realities outside the courtroom, but not to overwhelming realities. I doubt that two days after Pearl Harbor, an American judge would have sentenced a group of American sailors for drunken brawling; stern warnings would be given and the sailors returned to their ship. There was a war on, and sailors would be fighting it.
Poland and Hungary are part of the line running from the Baltic to the Black Sea that would absorb any Russian attack on Europe. There will likely not be such an attack, but “likely” is not a term much honored in the history of geopolitics. Poland guards the North European Plain, the main path of invasion – in both directions. Poland’s fear of and opposition to Russia is built into its DNA. It recently bought about $6 billion worth of tanks from the United States. Those tanks will stand between Belarus and Germany. The European Court of Justice’s ruling not only grants Brussels the legal authority to divert critical money from Poland, but also signals to Poland that for the EU it is business as usual. Poland may be facing its ancient enemy, but the EU lacks the wit to postpone the ruling.
The Hungarian situation is the opposite of Poland. Viktor Orban, Hungary’s prime minister, visited Russian President Vladimir Putin shortly after the Ukraine crisis broke. He said he agreed with Putin’s demands for security guarantees and was allowed to purchase a great deal of Russian natural gas at a discount. Hungary is not as strategically significant as Poland, but shifting toward alignment with Russia at this time is not in the interest of those resisting a potential attack. The EU should be doing what it can to draw Hungary out of the Russian relationship and into the European system, but instead it chose this moment to chastise Budapest and threaten to cut funding. Orban is not in the minority in Hungary with his distrust of the EU, and the bloc’s action at this moment reduces the chances of drawing Hungary back into the fold.
Europe is a strange place. On one hand, senior European leaders in Germany and France have sided with the United States in the crisis. Both countries are aware of the fragility of Europe’s eastern front and the need to stiffen it. Poland and Hungary are members of NATO, and as such, Poland should be supported on all levels, while Hungary should be reminded of the benefits of membership as well as its obligations. On the other hand, in spite of declarations by major European leaders, and NATO’s policy and mobilization, the EU seems oblivious to the dangers and allowed serious actions to be imposed at this moment against two significant members of NATO, one committed to defending Europe and the other in need of persuasion.
As I said at the beginning, courts must frequently be oblivious to what is happening around them – or at least pretend to be. But there are also times when it is impossible to ignore what is happening. At that point, prudence and a sense of proportion would dictate a postponement of a verdict that runs counter to overriding needs. And when the judges are unable to grasp reality, a retired judge invites someone for lunch. I know that the EU legal system is so pure that the needs of Europe never enter their minds. But the fact is that they are neither so pure nor blind. There was something malicious in acting as they did when they did.
Whether Russia’s actions are real or feigned is not the point. The fact is that there is an insularity that has emerged in Europe since 1991 that holds that the only thing threatening Europe is the exaggerated fears of the Americans, and that the rule of law transcends the reality of tanks. This is a nuisance to the United States but a deep danger for Europe. There are real dangers out there (whether Russia’s military buildup is one or not is irrelevant), and Europe can be blind to them but cannot avoid them. The rule of law does not trump military force. The last is well known to Europe.
The decision to rule against Poland and Hungary is not the pivot of history. But it derives from a system of law and governance that is willfully and pleasantly blind to what is out there.