Nick Sitter
The danger that one or more member states might give up on liberal democracy and slide back into authoritarianism has haunted the EU ever since its first institutions were designed more than 60 years ago. Only a quarter of the member states had more than 15 years of uninterrupted democracy at their time of joining. The original six members included two recent dictatorships and four countries they had invaded in 1940. Enlargements in the 1970s and 1980s brought in long-established and new democracies in equal numbers, one of whom (Spain in 1981) had experienced a (short-lived) coup d’état only five years prior to joining. The end of the Cold War opened the integration process to a few long-established neutral liberal democracies and many more former Warsaw Pact dictatorships.
The ECSC and the EEC were established to use supranational economic integration to protect peace, prosperity and democracy. The Six’ common commitment to liberal democracy, market economies and the rule of law was at the core of the new project in the 1950s. When EU leaders placed eastern enlargement firmly on the agenda in Copenhagen in June 1993, they stipulated that new member states must be liberal democracies, respect human rights, have a functioning market economy and be capable of implementing the acquis communautaire. More recently, however, academics, journalists and politicians have begun to ask whether some EU states are going back on these commitments. In the process they coined the term democratic backsliding.
The first warning signs that European democracies might go back on their commitments to democracy and the rule of law came at then end of the 1990s. In 1997, the Commission relegated Slovakia to the back of the membership queue on the grounds that under Vladimír Mečiar’s government, it did ‘not fulfil in a satisfying manner the political conditions set out by the European Council in Copenhagen, because of the instability of Slovakia’s institutions, their lack of rootedness in political life and the shortcomings in the functioning of its democracy’. But after changing government, Slovakia caught up and joined among the first wave of post-communist member states in 2004. The second case, two years later, was more difficult to handle: When, after the Austrian elections of October 1999, the far-right Austrian Freedom Party (FPÖ) joined the conservative Austria People’s Party (ÖVP) in government, the other 14 member states responded with a combination of bilateral boycotts of the Austrian government and the appointment of a committee of three ‘wise men’ to report on developments. The next autumn, upon the wise men’s recommendation, sanctions ended.
One real (Slovakia) and one potential (Austria) instance of backsliding could be dismissed as isolated accidents. But this encouraged the EU to put in place rules to deal with countries that violate its fundamental values as set out in Article 2 of the Treaty, including freedom, democracy, equality, the rule of law and respect for human rights. Article 7 effectively allows the remaining member states to agree by unanimity to suspend the membership of such backsliding states. In 2014 the Commission added its Rule of Law Framework: a three-stage process that begins with an assessment of potential systemic threats to the rule of law. It may issue a Rule of Law Opinion; which could be followed up with a Rule of Law Recommendation, including a time table for compliance; and finally, if all else fails, could end with an Article 7 procedure.
The first real test of the EU’s ability to deal with backsliding came after the Hungarian 2010 election saw the national populist Fidesz (a member of the European People’s Party) win an absolute majority of the votes and a two-thirds majority of the seats. Over the next seven years, the government introduced a new constitution, centralised political power, and passed a number of laws that the Commission deemed incompatible with EU rules and in breach of the EUs fundamental values. This culminated with prime minister Viktor Orbán’s ‘illiberal democracy’ speech in 2014, where he set out his vision of a non-liberal democracy, and the party’s wholehearted turn from national populism to a radical right wing profile.
The European Commission chose to deal with Hungary through a two-track strategy of diplomatic pressure and a rather timid application of ordinary EU infringement procedures. For example, when Fidesz lowered the retirement age for judges and politicised the judiciary through replacement appointments, the Commission chose to confront this on the grounds of illegal age discrimination. At the same time, Commission President Barroso voices his concerns ‘about the quality of democracy in Hungary’. Something similar happened with the media law, laws on relocation of court cases, political advertising, and special taxes to raise money in the event of EU fines. The overall results were not impressive: The government formally adjusted its legislation where necessary, but implemented its policies anyway. In effect, Hungary invented a new strategy of creative compliance with EU law – disloyal implementation. It got away with this partly thanks to the protection that EPP membership offered to the government, and partly because the Commission was reluctant to back up its diplomatic pressure with forceful use of its legal tools. Moreover, if Slovakia in 1997 was a lone backsliding accident, Hungary after 2010 could be dismissed as a once-in-a-decade coincidence.
The third serious challenge came as a consequence of the Polish Law and Justice Party’s (PiS) election victory on 25 October 2015. The new parliament used an accelerated procedure to amend the Law on the Constitutional Tribunal and annulled its predecessors’ judicial nominations. When the constitutional court overruled this, the government curtailed the court’s powers and raised the threshold for future rulings. In the following months, the government blocked the publication of the court’s judgments, thereby preventing constitutional court rulings from taking effect.
This time the Commission reacted more forcefully – at least at first. As Ian Fleming’s Goldfinger put it, once might be happenstance, twice a coincidence, but the third time it is enemy action. The Commission started investigations under the Rule of Law Framework, and published its first Rule of Law Opinion 1 June 2016. A Rule of Law Recommendation followed on 27 July. But the Polish government simply ignored the Commission’s three-month limit. The Recommendation was, in prime minster Beata Szydło‘s words, ‘incompatible with the interests of the Polish state’. A new deadline followed in December, and duly expired in February 2017. At the time or writing, the stand-off was unresolved.
The EU is based on the assumption that member states loyally implement EU law to the best of their abilities. To be sure, the EU has struggled with individual member states’ occasional lack of compliance, but this has mostly been a matter of limited capacity or poor implementation in practice. Open defiance of EU rules has been the extreme exception – as testified by the 1995 ‘beef crisis’ when the UK abstained from votes in the Council in protest over veterinary restrictions on beef exports. Member states could voice their opposition to any given rule or proposal, but if they were unable to accept the overall political system, with all its trade-offs, compromised or package deals, Article 50 offered another option: Exit.
Fidesz’s political genius lies in the invention of a third strategy, beyond voice but short of exit – disloyalty. During its first seven years, this strategy has worked well for Fidesz. It allowed the Commission to claim a degree of victory by forcing formal compliance, while, in Hungary, Orbán could present himself as the defender of national interests against foreign agents.
PiS’ victory in Poland changed all this. Although the Polish election provided Fidesz with an ideological ally in the Council, it also drew attention to the problems of backsliding and the inadequacies of the Commission’s two-track political pressure-plus-infringement strategy. Lech Kaczyński’s party seems to have learned the Hungarian lessons well, and gotten away with defying the Commission even without EPP protection. Will this encourage others to follow suit? Can the EU stop this with one or two cases of firm action? The problem is that double backsliding presents a particular challenge because the rules for suspending membership require unanimity among the remaining states: Orbán promised to veto any Article 7 move against Poland, and could reasonably expect the favour to be returned. Can the EU opt for a double Article 7 procedure against two backsliding states at the same time?
PiS seems determined to defy the European Commission openly. The big question is whether the Polish strategy of open defiance will turn backsliding into a problem of such magnitude and salience that the Commission and the rest of the member states can no longer ignore the systemic threat this poses to the EU?
The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.