The Challenge of Protecting Democracy and the Rule of Law within EU Member States

Not just British Eurosceptics complain incessantly about the EU’s ‘democratic deficit’. Across the continent, European citizens feel that, as the cliché goes, ‘distant and bureaucratic Brussels’ is not democratically accountable. It may turn out that this year’s elections to the European Parliament, for all their faults, were a start in rendering the Union more democratic. However, in this bird’s eye view of the EU’s political problems, a different challenge to democracy in Europe easily gets overlooked: a hollowing-out of democracy and the rule of law within Member States of the Union, or what the American political scientist Dan Kelemen has called ‘Europe’s other democratic deficit’ — with Hungary being deepest in the undemocratic red, so to speak. The EU has proved ill-equipped to deal with this deficit; addressing it should be a priority for the new European Commission headed by Jean-Claude Juncker. Even those loath to increase Brussels’ powers should understand that all Europeans have an interest in preventing the emergence of illiberal ‘rogue states’ in their midst – for as long as such states have a vote in the European Council, they have a say in how all of us Europeans live.

Euroseptics – and, for that matter, many left-wing critics of the EU, joined in a politically somewhat curious chorus – will immediately respond to this political diagnosis that it is Brussels itself that is to blame for a hollowing-out of liberal democracy; hence making the EU meddle even more in the internal affairs of member States is adding insult to injury. After all, have we not learnt during the Eurocrisis that national parliaments would effectively be disempowered by a coalition of the stronger Eurozone members, once the latter had decided to impose austerity measures on Southern Europe? This is a serious issue, to be sure – but the fact is that some of the most dramatic crises of democracy and the rule of law in Europe today are largely home-made, so to speak. Take the example of Hungary: under the leadership of right-wing populist Viktor Orbán and his Fidesz party, the country is experiencing what can only be called a Central European version of Putinism: checks and balances are dismantled (with the independence of the judiciary being curtailed in particular); the state is effectively occupied by one party; the media are brought in line; and much of the economy is handed over to Fidesz-friendly oligarchs. In a speech this July Orbán announced that he has embarked on building an ‘illiberal state’. He also said that the EU could not hinder him. Is he right?

A Politically Helpless Union?

So far, the Union has achieved mixed results at best when dealing with states that appear to be violating Europe’s ‘fundamental values’. Officially, the latter are enshrined in the Lisbon Treaty – or what is now simply called the Treaty on European Union — as ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. And officially, of course, no Member State government opposes such declarations. The devil is in the details, and the European Commission, the designated ‘guardian of the treaties’, can only address such details through demonstrating that a country is infringing EU law. Yet EU law, for the most part, is about the main business of the EU — which is to say: business. Politicians sometimes make it sound as if European integration had been started in the 1950s in order to strengthen democracy after the horrors of totalitarianism and the Second World War. But this is a myth. The internal market was to ensure prosperity and peace by making nation-states highly dependent on each other – so economics was indeed to serve political ends. But in its essence the EU was and remains a market, so much so that EU law, including the most far-reaching decisions by the European Court of Justice, have to be tied back to market-related freedoms, such as freedom of movement to find employment in another Member State.

Conflicts between the European Commission and the Hungarian government in recent years provide a telling example of what this means in practice. In 2011 Fidesz drastically lowered the retirement age of senior judges, with the result that the party could staff the judiciary with loyalists. The Commission took Hungary to the European Court of Justice – charging the government with age discrimination. Brussels eventually won its case, but few judges were re-instated. Discrimination, after all, can be compensated with individual payments. The underlying political problem – a weakening of checks and balances – went unaddressed. Politically, Fidesz got its way.

To be sure, the European Commission is not the only player in this game. Article 7 of the European Treaty provides for an option to suspend the voting rights of a Member State in the European Council, if that Member State is in persistent breach of fundamental European values – according to the judgment of the Commission, the European Parliament and all other Member States. The idea for such an article had in fact been pushed by two paragons of Western European democracy, Italy and Austria, in the run-up to enlargement of the EU to Central and Eastern Europe in 2004. They had been motivated by the fear that those uncouth Eastern Europeans might screw up politically (the irony being that European sanctions – though not under Article 7 – were first applied against Austria in 2000, after Jörg Haider’s far-right Freedom Party had become part of a new governing coalition). Today Article 7 is widely considered a ‘nuclear option’ – a term even used by outgoing Commission President José Manuel Barroso to signal that it is widely deemed unusable. Countries seem simply too scared that sanctions might also be applied against them one day; sometimes regional solidarity (especially in Central and Eastern Europe) also plays a role.

Irrespective of practical obstacles to invoking Article 7, there is an issue with what such sanctions against a Member State actually mean. Taking away voting rights in the European Council is not the same as intervening within the Member State concerned. Rather, the core of Article 7 consists of a mechanism to insulate the rest of the Union from the government of a particular Member State deemed to be in breach of fundamental values; it enables a kind of moral quarantine, not an actual intervention. Other European governments are essentially saying: we want nothing to do with you, as long as we have serious doubts about your government, the way it came to power, and the way it exercises power.

The flip-side of this idea, though – and this is an important lesson for British Eurosceptics of whichever party – is that indifference is not an option. After all, EU law applies across national borders, after having been created by individual Member States acting together. Hence, every European citizen has an interest in not being faced with an illiberal Member State in the EU, since that state will make decisions in the European Council and therefore, at least in an indirect way, govern the lives of all citizens.

Put more bluntly: it may well be true that there are far-away countries containing people about whom we know nothing – but as long as they are in the EU, they do concern us. This fact of interdependence has recently been brought home to Europeans by the Eurocrisis in a very costly manner. But it has mostly been interpreted in financial and economic terms – when, in fact, there is broader political interdependence, too. Given that European integration has always had an ulterior political purpose – as I said above, the market was just the means – the rise of ‘illiberal states’ is a far greater threat to the EU’s foundations than the Eurocrisis.

Is Party Politics the Answer?

One might be tempted to say, then, that a plainly political challenge should be met with a plainly political response. In a sense, Article 7 does fit this requirement – its invocation, if it ever happened, would be based on a distinctly political judgment by EU institutions and a country’s peers in the EU on the country’s democratic performance. But given its seeming ineffectiveness, an alternative would be party politics within and outside EU institutions. After all, it has often been said that the Eurocrisis has brought about the politicization of Europe — and that it is now time for the Europeanization of politics: citizens of many Member States – possibly all Member States — have woken up to the fact that what happens elsewhere in Europe has a direct impact on their lives; what we need, then, are ways to internalize these externalities and reach common European policies that can be justified on the basis of election outcomes across Europe. Hence the call for a genuine European party system or at least a continuation of the Spitzenkandidaten-process (as practiced in this year’s elections to the European Parliament).

Alas, a less desirable effect of such a Europeanisation of politics is also becoming apparent: the conservative European People’s Party (EPP) firmly closed ranks around Orbán, when he was taken to task by the Commission; on the other side of the political spectrum, Martin Schulz, President of the European Parliament and one of Orbán’s most outspoken critics, defended his fellow Social Democrat Victor Ponta in Bucharest — at least initially — when Ponta was rightly criticized in 2012 for disempowering the Romanian Constitutional Court and trying to rig a vote to impeach the president, a political opponent of Ponta.

To be sure, partisanship might not always trump all other considerations: Slovakia’s arch-populist leader Robert Fico was temporarily ostracized by his fellow European Social Democrats; and it seems that in the European Parliament at least some members of the European People’s Party chose not to oppose the 2013 ‘Tavares Report’ that called for continuous political monitoring of Hungary, enabling the adoption of the Report in an assembly in which the center-right had a clear majority. Yet in spring 2014 the then president of the EPP, Joseph Daul, was actually campaigning for ‘mon cher ami Victor Orbán’ on Budapest’s Heroes’ Square in the run-up to the Hungarian national elections. Talk of sanctioning Fidesz in the EPP or even expelling it altogether ceased abruptly. Daul went on to congratulate Orbán on his election victory at the beginning of April – and added that the latter had always spoken the truth to the Hungarian people (which, among many other curious utterances by Orbán, would have included the ‘truth’ of comparing Brussels to the Soviet Union, the Habsburg Empire and the Ottomans – all oppressors of the freedom-loving Magyars). The lesson from this story is sobering: vectors for democracy point in two different directions at the supranational and at the national level respectively. The Lisbon Treaty effectively gave the Parliament the power to appoint the next Commission President; but one consequence is that the party groups now really need every vote they can get. Party size and discipline will trump political ethics.

A Proposal

So how could the EU deal with challenges to liberal democracy more effectively? First of all, Article 7 ought to be extended. There might be situations where democracy is not just slowly undermined or partially dismantled – but where the entire edifice of democratic institutions is blown up, so to speak (think of a military coup). In such an extreme case, the Union ought to have the option of expelling a Member State. Under current law, states may decide to leave voluntarily (though, as the UK might find out, this is still a lengthy, drawn-out process) – but there is no legal mechanism for actually removing a country from the Union. In that sense, thete is a basic contradiction in the European polity as it has evolved up until now: every political community either has instruments for internal intervention or something like a right to expel one of its parts. At the moment, the EU has neither.

But then, short of military coups, who and what decides whether a Member State is violating fundamental values? We need what one might call an agent of credible legal-political judgment as to whether a country is seriously departing from the main, fairly broad road of liberal democratic institutions and practices in the EU – a task which is different both from narrowly assessing compliance with EU law and from ascertaining belief in values (whatever the latter might mean concretely anyway: a Committee on UnEuropean Beliefs and Activities in the European Parliament?). Technical-legal judgment of rule compliance in and of itself is insufficient; and philosophical consensus about values is not really the issue (all governments, after all, continue to profess faith in democracy and the rule of law).

Making such a comprehensive judgment about a whole political system might at first sight seem impossible: do European really agree on fundamental values mean in practice? Is the EU not also committed to respecting the ‘national identities’ of its Member States? Do legitimate national differences in how the parameters of politics are understood not matter? Is such political policing by Brussels, from Lapland to Lampedusa, not rightly the stuff of Eurosceptic’s worst nightmares? Yes – but: the EU is already making precisely such comprehensive judgments every single time it decides whether a country is ready to accede to the Union. Every club checks out its prospective members – there is nothing strange about also wanting to know how members inside the club are behaving. The real question is not whether one can judge, or whether one should judge. The question is: who’s to judge?

At first sight, the most plausible answer would seem to be: a European Commission with more powers. But there is a problem with the idea of the Commission as an agent of impartial legal-political judgment, one that could become acute in the near future. Many proposals to increase the legitimacy of the Commission contain the suggestion purposefully to politicize the Commission: ideas to elect the President directly or to make the Commissioners into a kind of politically uniform cabinet government all would render the body more partisan – a process which arguably has already begun with Juncker’s election this year. The partisanship is well-intentioned, of course – it is meant to make the EU more democratic. But a side-effect is that the Commission loses credibility as an agent of impartial judgment.

An alternative to the Commission undertaking the task of monitoring – and, if necessary, sanctioning – Member States would be to delegate it to another institution, such as the EU’s Fundamental Rights Agency in Vienna. My preferred outcome would be a new body modeled to some extent on the Council of Europe’s ‘Venice Commission’ (whose official name is European Commission for Democracy through Law), which advises on constitution-making in European Council Member States. An EU-specific democracy watchdog might be called a ‘Copenhagen Commission’, as a reminder of the ‘Copenhagen criteria’ of democracy and respect for human rights that prospective Member States had to fulfill before they could join the EU. Such a Commission should be staffed with legal experts (comparative constitutionalists in particular) as well as elder stateswomen and statesmen with a proven track record of political judgment. They should loosely monitor developments in the EU, drawing on help from the European Commission, the Fundamental Rights Agency and other bodies, as they see fit.

The real question is of course: and then what? The Copenhagen Commission should, I think, be empowered to investigate a situation in potential ‘rogue states’ and then trigger a mechanism that sends a clear signal (not just words), but far short of the measures envisaged in Article 7. Following the advice of the Copenhagen Commission, the European Commission could be required to cut subsidies for infrastructure projects, for instance, or impose significant fines. Especially the former might prove to be effective, if the EU budget as such were to be significantly increased in future years (a measure included in many proposals to tackle the Eurocrisis).

At the same time, all the existing tools would remain in place: Member States could vote on Article 7, and the Commission could keep taking a Member State to the European Court for infringement of the treaties. Also, nothing prevents politicians from having a serious word with one of their peers in another Member State (behind closed doors, if they prefer), when they worry that the country in question is leaving the broad European road of liberal democracy. And, lest anyone think all these approaches suggested here too elite-driven, legalistic or bureaucratic: nothing prevents civil society organizations from mobilizing across borders against a rogue government; and nothing prevents individual citizens from starting a ‘European Citizen’s Initiative’ (a novelty in EU law – with a rather high hurdle of one million signatures, though).

Still, there is an obvious worry here: would sanctions not create a nationalist backlash and thereby actually help populist politicians? This question is more complicated than it might seem. First, for Europe to try to ‘hold back’ or try to be ‘neutral’ in highly charged domestic conflicts is not costless and, in the end, actually also not really ‘neutral’. A reluctance to try to protect liberal democracy in a Member State will betray the hopes of all those citizens of the country in question who did put their trust in the Union as some sort of guarantor against new forms of illiberalism or outright authoritarianism. Moreover, any political actor eager to dismantle checks and balances, for instance, will on some level know that they are heading for a conflict with European institutions – hence they have every incentive to whip up Eurosceptic sentiments as soon as possible, whether the EU actually does very much or not. In other words, pre-emptive nationalism is likely to rear its ugly head in any case.

Second, there is little evidence that any such nationalist campaigns have worked, or, for that matter, that strong exercises of EU leverage before a country’s accession to the EU have produced any severe backlashes. Orbán’s self-declared ‘war of independence’, or so polls suggest, has not proven popular. Few members of a club really want to be seen as seriously misbehaving all the time, and especially in the newer EU Member States, there is still a sense that getting into the Union was a major historical achievement which should not be jeopardized.

How likely is such a Copenhagen Commission? Of course, as of now, David Cameron is holding all of Europe hostage: nobody wants to open the question of treaty change, as long as the British prime minister will use any negotiations to blackmail other EU Members into concessions for the UK. But sooner or later treaty change will be on the agenda again – and at that point European elites should remember that we now, after Hungary, know that serious threats to liberal democracy within a Member State are a real possibility. Establishing a Copenhagen Commission would be an important step in combating them.



Jan-Werner Mueller is Professor of Politics at Princeton University and a former Visiting Fellow at the Institute for Human Sciences in Vienna. He is the author of Contesting Democracy: Political Ideas in Twentieth-Century Europe (Yale University Press, 2011).

First published by Juncture on September 16, 2014

© Author / Juncture