From Budapest to Rome: Can Europe's Courts Defend Themselves?

The distance between the Kuria, Hungary's supreme court in Budapest, and the Corte di Cassazione in Rome is roughly 800 kilometers. Along that arc, three EU member states have tested, within the span of a single decade, whether elected majorities can reshape the judiciary in their own image. In Budapest, the answer was yes - quietly and methodically. In Warsaw, it triggered the most severe rule-of-law crisis in the Union's history. In Rome, the voters themselves intervened.

The outcomes diverge so sharply that they resist a single narrative. But read together, they reveal something the EU's institutions have been reluctant to admit: the Union's ability to defend judicial independence depends less on Brussels than on the domestic institutional health of each member state. When that health fails, the EU's tools are slow, politically constrained, and frequently insufficient. When it holds, as Italy's referendum demonstrated in March 2026, external intervention becomes unnecessary.

This is not a story about whether the EU works. It is a story about where it works, where it does not, and why.

The Hungarian Model: Capture by Design

Viktor Orban did not dismantle Hungary's judiciary in one dramatic confrontation. He rebuilt it piece by piece over more than a decade, using the structural advantage that no other EU government seeking judicial control has possessed: a constitutional supermajority.

Fidesz won two-thirds of parliamentary seats in 2010 and held onto that supermajority through three further elections in 2014, 2018, and 2022. This was not merely a comfortable majority. Under Hungary's constitutional system, it gave Orban the power to rewrite the constitution itself without opposition consent, without referenda, without any of the institutional friction that would slow down similar projects elsewhere in Europe.

He used it. The 2011 Fundamental Law, which replaced Hungary's transitional 1989 constitution, reorganized the entire court system. The most consequential change was the creation of the National Judicial Office (Orszagos Biroi Hivatal, or OBH), a new administrative body with sweeping powers over case allocation and judicial appointments, headed by a single person elected by parliament. That person, Tunde Hando, was the wife of Jozsef Szajer, one of Fidesz's 37 founding members and a key author of the Fundamental Law itself. She held the position from 2012 to 2019, controlling which judges were appointed and which cases went to which courts.

In parallel, the government lowered the mandatory retirement age for judges from 70 to 62, a change that forced approximately 274 senior judges off the bench in a single stroke. Many were replaced by appointees more amenable to the government's priorities. The Court of Justice of the European Union later ruled that the age reduction violated EU law, but by the time the ruling came, the judges were already gone and their replacements seated.

The EU's response was real but slow. The European Parliament triggered Article 7(1) proceedings against Hungary in September 2018, eight years after the process began. In December 2022, the EU froze approximately 6.3 billion euros in cohesion funds, conditional on rule-of-law reforms. Hungary made partial concessions. Some funds were released in 2024. The judiciary's appointment structure remained largely intact.

The Hungarian model demonstrates what capture looks like when it encounters no effective domestic resistance. Orban's supermajority insulated him from the kind of constitutional friction that would later stop Meloni in Italy. There was no referendum mechanism to trigger, no opposition strong enough to deny a two-thirds majority, no independent judicial body capable of blocking the reforms before they took effect. The EU arrived late, applied financial pressure, and achieved partial results. The structural damage, more than a decade old, remains.

Poland's Collision Course: PiS Against Brussels

Poland's trajectory was louder, faster, and ultimately more reversible than Hungary's, though the reversal has proven far more complicated than anyone anticipated.

The Law and Justice party (Prawo i Sprawiedliwosc, PiS) came to power in October 2015. Within two months, it had begun restructuring the Constitutional Tribunal, the court responsible for reviewing the constitutionality of legislation. PiS refused to seat three judges legally appointed by the outgoing parliament and installed its own replacements. The president of the Tribunal was replaced. The institution that was supposed to serve as the ultimate check on legislative power was compromised before most observers understood what was happening.

The Supreme Court came next. A reform passed in 2017 and implemented in 2018 lowered the mandatory retirement age from 70 to 65, a move that forced out 27 of 72 sitting justices, including First President Malgorzata Gersdorf. The government also created a new Disciplinary Chamber within the Supreme Court, staffed through a reformed appointment process and given the power to sanction judges who challenged the government's reforms. The Disciplinary Chamber became the most contested institution in EU rule-of-law history.

The EU responded more quickly than it had with Hungary. The Commission triggered Article 7(1) proceedings against Poland in December 2017, just two years into PiS rule. The CJEU ordered the suspension of the retirement-age changes, and Poland formally complied. But the Disciplinary Chamber continued to function. In October 2021, the CJEU imposed daily fines of one million euros on Poland for failing to comply with interim measures ordering the suspension of the Chamber's activities.

The financial pressure was significant. Poland's Recovery and Resilience Facility plan, worth a total of 59.8 billion euros in grants and loans, remained largely frozen, pending judicial reform milestones. Unlike Hungary, where Orban could afford to absorb financial pressure through bilateral deals and Chinese investment, Poland's economy was more dependent on EU transfers, and PiS found the standoff increasingly costly to sustain politically.

PiS lost power in October 2023, defeated by a coalition led by Donald Tusk. The new government pledged to reverse the judicial reforms. Two and a half years later, that process is still underway and has exposed a fundamental difficulty: unwinding institutional capture is far harder than implementing it. Judges appointed under PiS rules sit on courts alongside judges who consider those appointments illegitimate. The Constitutional Tribunal remains contested. Poland now operates what some legal scholars have called a two-track judiciary, where the legitimacy of rulings depends on which side of the reform divide the issuing judge falls on.

The Polish case offers a paradox. EU pressure was more sustained and more consequential than in Hungary. But it was voters, not Brussels, who ultimately removed the government responsible for the reforms. And even after that democratic correction, the institutional damage has proven stubbornly durable.

Italy's Third Way: Reform, Referendum, Rejection

Italy's judicial reform attempt looks like the same European pattern at first glance. A right-wing government proposes changes to the judiciary. Concerns about judicial independence are raised. Comparisons to Poland and Hungary appear in the press.

On closer examination, almost everything is different.

Giorgia Meloni's reform centered on separazione delle carriere, the separation of career paths between judges and prosecutors. In Italy's current system, judges and prosecutors belong to the same professional body, the Consiglio Superiore della Magistratura (CSM), and can switch between roles during their careers. Meloni's proposal would have split the CSM into two separate councils, one for judges and one for prosecutors, and changed the composition and selection mechanisms of both.

This is a substantive institutional question with legitimate arguments on both sides. Proponents argued that separating the careers would eliminate the appearance of collusion between judges and prosecutors who share training, professional networks, and a governing body. Opponents countered that the reform would weaken prosecutorial independence by isolating prosecutors from the broader judicial community that currently provides institutional protection.

The critical difference from Poland and Hungary was procedural. Meloni's government used the legitimate constitutional amendment process under Article 138 of the Italian Constitution. The reform passed both chambers of parliament. But it fell short of the two-thirds supermajority that would have made the amendment final without a popular vote. Under Article 138, any constitutional amendment approved by less than two-thirds triggers the possibility of a confirmatory referendum. Unlike Italy's abrogative referenda under Article 75, which require a quorum of 50 percent plus one of eligible voters, constitutional referenda have no quorum requirement. Every vote counts regardless of overall turnout.

The referendum, held in March 2026, produced a clear result. Approximately 54 percent voted against the reform. The amendment was dead.

The contrast with Budapest and Warsaw is structural, not just political. In Hungary, Orban's supermajority made a referendum impossible. In Poland, PiS bypassed constitutional safeguards by capturing the very institution meant to enforce them. In Italy, the constitutional mechanism functioned as designed. A government proposed a change, parliament approved it without the margin needed to bypass popular consent, and the citizenry vetoed it.

The EU Commission's Rule of Law Reports on Italy reflect this difference. While Poland and Hungary received detailed criticism of systematic threats to judicial independence, Italy's reports focused on practical issues like case backlogs and court efficiency, not structural interference with judicial independence. Brussels did not need to intervene in Italy because Italy's own institutions did the work.

The EU's Rule-of-Law Toolbox: What Works and What Doesn't

The European Union has assembled an increasingly elaborate set of instruments to protect the rule of law since the Hungarian crisis began. The question the Italian case forces is whether those instruments are adequate, or whether the EU has been building a fire brigade that arrives after the house has either saved itself or burned down.

The earliest instrument, the EU Rule of Law Framework, was established in 2014 as a pre-Article 7 procedure, a structured dialogue between the Commission and a member state that was supposed to resolve concerns before they escalated. It was applied to Poland and achieved nothing measurable. The dialogue produced recommendations that PiS ignored.

The annual Rule of Law Reports, launched in 2020 and covering all 27 member states, represent a monitoring approach. They document concerns, compare national systems, and create a public record. Their political impact is debatable. Governments under criticism dismiss them as interference. Governments not under criticism ignore them.

The most consequential tool has been the Conditionality Regulation (2020/2092), which entered into force in January 2021 and allows the EU to suspend fund disbursements to member states where rule-of-law breaches affect the financial interests of the Union. Hungary and Poland both challenged it before the CJEU, which upheld the regulation in February 2022. In practice, the regulation has been applied primarily to Hungary, where approximately 6.3 billion euros in cohesion funds were frozen in December 2022.

Financial conditionality has proven to be the EU's most effective lever. Unlike Article 7 proceedings, where the European Council must unanimously determine a "serious and persistent breach" before any sanctions can follow, the Conditionality Regulation operates through qualified majority voting. Money speaks a language that diplomatic statements do not.

But the Italian case reveals the toolbox's limitations from a different angle. The EU's instruments are designed to respond to threats. They are reactive by nature. In Italy, the threat was addressed before the EU had reason to deploy any of them. The Rule of Law Reports noted Italy's judicial efficiency problems but did not flag the constitutional reform as a systemic risk, because, in strictly institutional terms, it was not one. The reform was proceeding through legitimate channels.

This creates an uncomfortable insight. The EU's rule-of-law architecture is designed for cases where domestic institutions fail. When they succeed, the EU is irrelevant. The architecture has no mechanism to strengthen domestic institutions before they come under pressure, no way to export the institutional redundancy that saved Italy to countries where such redundancy does not exist.

Why Domestic Resistance Succeeded in Italy

The referendum defeat was not a historical accident. It was the product of specific institutional features that distinguished Italy's situation from both Hungary and Poland.

The first and most obvious factor is Article 138 itself. Italy's constitutional amendment process contains a built-in democratic safeguard: any amendment passed without a two-thirds supermajority can be subjected to a popular referendum. Hungary has no equivalent mechanism that could realistically be triggered against a government holding a constitutional majority. Poland's constitutional amendment process requires a two-thirds majority in the Sejm, which PiS did not have, which is precisely why PiS used ordinary legislation and institutional capture rather than constitutional amendments.

The second factor is the Italian Constitutional Court, the Corte Costituzionale. Unlike Poland's Constitutional Tribunal, which was the first institution PiS targeted, Italy's Constitutional Court has a long track record of independent action and has never been structurally compromised. It struck down Berlusconi-era immunity laws twice, the Lodo Schifani in 2004 and the Lodo Alfano in 2009, establishing that no government is above judicial review. The Court's institutional credibility provided a backstop that reinforced public trust in constitutional mechanisms.

The third factor is organizational. Italy's magistrate associations, led by the Associazione Nazionale Magistrati and its internal factions, are political actors with decades of experience in mobilizing opposition to reforms they consider threatening. No equivalent organized judicial opposition existed in Hungary when Orban began his reforms, and Poland's judicial associations, while vocal, could not prevent the capture of the Constitutional Tribunal.

The fourth factor is Italy's opposition parties. Despite deep fragmentation on policy questions, the Partito Democratico, the Movimento 5 Stelle, and smaller parties unified around the "No" campaign. This echoed the pattern of the 2016 constitutional referendum, when Matteo Renzi's reform was defeated with 59.1 percent voting against. Italian opposition parties have proven consistently capable of uniting against constitutional overreach, even when they cannot agree on anything else.

Together, these factors amount to what institutional theorists call redundancy: multiple independent mechanisms that can each, on their own, provide a check on executive power. Italy had all of them. Hungary had none. Poland had some, but the most important one, the Constitutional Tribunal, was captured before it could act.

The Unfinished Map: Where Judicial Independence Remains Fragile

The Italian referendum settles one question and leaves many others open. It demonstrates that domestic democratic mechanisms can stop a government from reshaping the judiciary through constitutional means. It says nothing about what happens when governments bypass constitutional means entirely, as in Hungary, or when democratic corrections produce institutional chaos, as in Poland.

Hungary's judicial appointment system remains largely unreformed. The partial release of EU funds in 2024 reflected political calculations within the European Council, not a genuine resolution of the rule-of-law concerns that triggered the freeze. The OBH's successor structures still give the government significant influence over case allocation and judicial careers.

Poland's judicial restoration under Tusk has demonstrated that undoing institutional capture is a multi-year process fraught with legal contradictions. Judges appointed under PiS-era rules continue to serve. Their rulings are treated as legitimate by some courts and illegitimate by others. The Constitutional Tribunal, whose composition PiS altered in 2015 and 2016, remains a contested institution. The two-track judiciary is not a metaphor but an operational reality.

Romania, initially praised for its judicial reforms under EU accession pressure, has seen backsliding on some measures. The EU's Cooperation and Verification Mechanism for Romania was formally ended in 2023, but questions about prosecutorial independence persist.

The Conditionality Regulation, the EU's most effective tool, has been applied selectively. Its use against Hungary followed years of political debate and legal challenges. Its deterrent effect on other governments is uncertain. A tool that takes years to deploy and depends on qualified majority voting in the Council is not an instrument of rapid response.

The Venice Commission's opinions on judicial reforms across Europe remain advisory and non-binding. They carry significant moral authority in some capitals and none at all in others. Hungary has repeatedly disregarded Venice Commission recommendations.

What the Italian case adds to this picture is both encouraging and limiting. Encouraging, because it shows that where domestic institutions are healthy, they can do what the EU cannot. Limiting, because the health of those institutions is precisely what varies across the Union, and the EU possesses no mechanism to build in another country what Italians have built for themselves over decades of democratic practice. The most effective defense of judicial independence in Europe continues to originate not from Brussels but from the courthouses, the parliaments, and the ballot boxes of individual member states. That is a reassuring conclusion for Italy. For countries where those institutions have already been compromised, it is no consolation at all.