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Democracy and the rule of law in the EU

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This article was published as a guest post for OneEurope. My special thanks to editor Leonidas Asimakopoulos for taking care of all the necessary arrangements.

On October 25, 2016 the European Parliament adopted a resolution which calls on the European Commission to establish a mechanism for safeguarding democracy, the rule of law and fundamental rights.1 This is another step in the process of providing the Union with the necessary tools to safeguard its core values. It follows the adoption of the Tavares report and the introduction by the Commission of the new Rule of Law Framework (the informal pre-Article 7 procedure).

To understand the content of this resolution, one needs to account for the context. The present article focuses on the latter. The European Union has some core democratic values. These are enshrined in Article 2 of the Treaty on European Union (TEU). They cover democracy, human rights and fundamental freedoms, the rights of minorities, and the rule of law.

Countries that are to join the EU must comply with these values, which are codified and expanded upon in the form of the so-called “Copenhagen Criteria”. A state that fails to meet the desired standard cannot gain accession to the Union. But the same rigour is not applied to existing members. There have been no institutional arrangements in place to monitor the compliance of national governments with Article 2 TEU and related principles.

The original design was flawed

That state of affairs had traditionally created a mismatch of priority setting. A ‘double standard’ as it were. When it came to candidate countries, the EU stood as a paragon and protector of democracy and freedom. Meanwhile the Member States were merely assumed to be complying with their commitments on that front. The misguided belief was that there could practically be no deterioration in the quality of democracy within the Union. A return of authoritiarinism was ruled out as a realistic possibility.

The shortcomings of the original model were first exposed by the Hungarian government of Mr. Orbán. By making use of their outright majority in the national parliament, the conservative Fidesz party proceeded with sweeping reforms to the justice system, the independence and plurality of the media, and other areas pertinent to democratic expression. Fidesz was taking firm control of the state, installing its people in all important positions of power, while pushing dissidents to the margin. The EU was confronted with a challenge it was not prepared to deal with. There were no effective instruments for protecting European values from the policies of the Orbán government.

The ongoing constitutional crisis in Poland is another case in point. Constitutionality is being contested. There are indications of a systemic threat to the rule of law. The EU is eager to stand up for its values but cannot act with full force without the necessary tools. The Commission is making use of an informal dialogical procedure referred to as the “Rule of Law Framework”. It is a process for determining whether further action against the government in question in needed. In practice, such ‘action’ amounts to the activation of Article 7 TEU.

‘Nuclear’ is not the most desired option

Article 7 envisages the suspension of the voting rights of the state concerned. It has never been activated, partially because there was no such need, but also due to its inherent requirement for widespread political support. The politics of the matter are two-fold:

  1. Intergovernmentalism. Unanimity in the European Council is needed. National governments would have to make a political decision to penalise one (or more) of their peers for what can be perceived as the expression of self-determination. They would also be opining on their interpretation of such magnitudes as democracy and the rule of law. That arguably is a controversial and indeed confrontatial approach. Diplomacy seldom works in such ways. Political leaders would rather concoct some compromise plan than proceed with the outright marginalisation of their peer(s).
  2. Party politics. National governments are not the only ones that would opt for a negotiated result. Political parties would find it expedient to do the same, mostly to maintain their influence. Fidesz, for instance, is part of the centre-right European People’s Party (EPP), which is the largest group in the European Parliament. If the EPP were to come out against one of its members it would risk losing it to another pan-European party further to its right.

The politics of the matter are complicated. The supranational level can only rely on Article 7 TEU, which is more of a nuclear weapon than a conventional implement. That makes it useless for most circumstances. The EU is thus caught in a crisis that partially is of its own doing. The institutional framework was largely inadequate. Ad hoc measures such as those now adopted by the Commission and the ones demanded by the European Parliament are unlikely to deliver sufficient results. Thoroughgoing reform is necessary to reverse any democratic backsliding and to render concrete the Union’s commitment to its normative objectives. The prevailing conditions may, nonetheless, impede concerted efforts in that direction.

Integration as a reaction to the crises

The rule of law crisis has some parallels to the financial and sovereign debt crises of the past few years. Economic policy was another area where the EU’s institutional order left much to be desired in terms of sufficiency and overall effectiveness. Under the pressure of the euro crisis reforms were made to the effect of thoroughly redrawing the delineations between the national and Union levels with regard to fiscal and macroeconomic policy. European integration was accelerated, indeed catalysed by, an economic shock. A similar description applies to the current efforts to set up a comprehensive framework for the protection of Europe’s democratic foundations.

To this end, the resolution adopted by the European Parliament has to be treated as an instance in a continuum. This is neither the beginning nor the end. It is another concrete step towards realising the desired end of a Union that credibly safeguards its core values. We should expect yet more suggestions, reforms, policy reorientations. The EU is in a state of flux. It will take a few years before we can tell with certainty whether the democracy, rule of law and fundamental rights framework is appropriate for the sought ends.

The incompleteness of current policies

In the meantime, questions persist as to the modalities of the mechanism proposed by the European Parliament as well as the overall direction of the Union in this area of policy. The matter is couched in terms of the vertical distribution of power. It is the EU against a national government or group thereof. The tacit proposition is that the Union level is, by default, the one holding the moral high ground. Only national governments can be found at a fault. Whereas one would expect the EU to show the same zeal when it comes to possible violations whose origin is the supranational level as such.

The dubious legal gymanistics that brought the ‘troika’ to eurocrisis-struck countries; the legal uncertainty surrounding the ever-elevated role of the Eurogroup’s presidency; the nuances in the recent conduct of the European Council’s dealings with Turkey over the control of migrant and refugee flows. These are just a few of the cases that could be scrutinised for their possible implications on democracy and rule of law in the Union at-large.

For the time being, there are no such concerns among policy-makers. They are narrowly focused on the politics that surround the power play between the national and supranational levels in the areas of justice, the rule of law, and fundamental rights in general. While there is nothing untoward with such efforts, one must expect the method to be holistic and universally applicable, at least as a matter of principle.

Democracy and the rule of law are essential

A few years back the assumption was that EU Member States would not allow their democratic order to deteriorate. A return to authoritiarinism was practically impossible. This proved to be an egregious error. Attempts to correct it are underway. Whether they suceed or not remains to be determined.

What has not been addressed is yet another much-vaunted, albeit questionable, belief: the impecable moral standard of the EU order as such. It is what permeates the current policy orientation of the Union in the area of freedom and justice. Will we someday arrive at a similar conclusion with regard to it? That it too is pushing things in the wrong direction, concrentrating power at the supranational level while not placing the necessary checks on it?

Whatever the case, democracy, the rule of law and fundamental rights lie at the core of modern European societies. They have come to form the essence of Europe’s constitutional identity. Safeguarding them is a matter of priority, indeed civic duty. Constraints must be placed on all authorities that exercise discretion, national and European ones, so that policies to prevent a constitutional meltdown do not themselves plant the seeds of a new crisis.

  1. The official adopted text can be found here. All information about the procedure file is here[^]