EU institutions are right in aggressively addressing the issue of illiberal reforms in some of the Member States. Even though the measures the Commission has at hand are largely symbolic, such acts could prove to be critical.
Floris Biskamp *
It has been more than three years since EU Commission president Jean-Claude Juncker slapped Hungary’s president Victor Orban in the face after greeting him as ‘dictator’ on stage at an EU summit in Riga. Yet this image remains emblematic of the conflict between the European Union on the one side and right-wing populist governments on the other side. The EU institutions can engage in dramatic gestures, but they have no effective means to actually affect their adversary; Orban stepped off the staged unharmed.
In this conflict, the two core components of liberal democracy clash with one another. In short, our notion of democracy is defined by two dimensions. The first dimension is the collective self-government of the people enshrined in the principle of popular sovereignty. The second dimension is the protection of individual liberties enshrined in the principle of the rule of law.
An illiberal representative democracy without the rule of law cannot be referred to as a democracy in any serious sense: Without legal guarantees of individual rights defended by an independent judiciary, there can be no honest public debate and no proper political competition; without honest public debate and proper political competition, the electoral process itself becomes all but meaningless. Under such conditions, the winners of elections cannot claim true democratic legitimacy.
An increasing number of EU Member States, particularly in central Europe (not to speak of membership candidate Turkey), are moving into this direction of illiberal democracy. Hungary is the Member State that has gone the furthest way down this road. In Hungary, freedom of the media has become all but meaningless since independent news outlets critical of the government were attacked and harassed with legal and extra-legal means until Fidesz affiliates gained control over all major media outlets. Currently, the ruling party uses media to organize incendiary campaigns against political opponents and NGOs. Moreover, the ruling party uses its supermajority in parliament to effectively overcome judicial oversight by the constitutional court, passing laws which allow it to capture the state institutions and constrain individual rights. The level of corruption continues to rise dramatically. The situation of minorities, immigrants and refugees deteriorates while support for gender equality and LGBTI rights has been rejected by the government in the name of Christian traditional ‘family values’.
Since PiS gained an absolute majority in the 2015 elections, Poland appears to be going down the same road. The most alarming signs so far have been the attempts of the government to exert pressure on public media and to gain control over the judiciary, trying to neutralize judicial oversight. Similar developments in Italy and other states seem likely in the near future.
Since the European Union considers democracy, the rule of law, and minority rights to be among its core values and conditions of membership, Brussels is right to be alarmed over these developments. As the ‘guardian of the treaties’, the Commission must defend the rule of law against majoritarian encroachments in the name of popular sovereignty. Yet the counter-measures at its disposal are in fact very limited.
The measures under Article 7 of the Treaty of the European Union, often referred to as ‘the nuclear option’, allow for suspending certain rights of a Member State for violating the principles of the EU. Taking into consideration that voting rights in the Council are among the rights that could be suspended, this would effectively mean that the country is under all obligations of EU law without being able to influence it directly.
The Commission did launch such a procedure for the first time over Poland’s judicial reform. But the eventual decision to enact Article 7 requires unanimity of all other Member States, meaning that Budapest and Warsaw could effectively safeguard one another. With more and more governments shifting into the illiberal direction – among them Austria, which has just assumed the Council presidency – it could be too late for such a move.
EU institutions could also try to work with ‘non-nuclear’ measures that do not require unanimity and could result in financial penalties. But despite Hungary and Poland being among the biggest net recipients of EU funds, it is unlikely that such measures will force the governments to back down.
The only real basis for hope is the Polish society itself which continues to strongly support EU membership, though rejects the accession to the Eurozone. About half of the Polish population is highly critical of its own government. In contrast, the Hungarian society supports membership in the Eurozone but strongly supports the right wing ruling party, which captured 70 percent of the vote in the last elections. Even if the measures enacted by EU institutions should remain largely symbolic in their direct effects, such symbolism could display an important sign of support to the civil society and opposition in Poland – and a new Polish parliament will be elected in little more than a year. Thus, the European institutions and governments should continue to highlight the problem of illiberal reforms and push back with all of the symbolic force at hand.
* Floris Biskamp is lecturer in the Department of Political Science at the University of Kassel.
