The Catalan dispute: A new transboundary crisis in Europe?

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By Jacint Jordana, IBEI

Over the past few weeks, the Catalan dispute with the Spanish government has attracted international attention. While the non-negotiated referendum on self-determination held in Catalonia on 1 October (1-O), which was forbidden, persecuted and partially blocked by the Spanish executive and judiciary, made the global headlines, this case has been incubating for at least the last five years as tension between these two levels of government in Spain has grown.

This is a very complex territorial dispute that we do not aim to interpret or disentangle here. The dispute has increasingly hardened and we still do not know if it will escalate even further. The conflict has diversified into many battlefields; it involves the legal and constitutional dispute, the political legitimation argument, economic struggles to influence firms to move their location, frenetic foreign policy pressure, and competing journalistic narratives on the logic and justification of the dispute.

This is an extraordinary territorial dispute, an (almost) non-violent war in Europe, that also involves two global cities (Barcelona and Madrid) sharing the same state, where the former perceives there to be a lack of state support to compete globally. The dispute has not ended and currently we are witnessing a peak in political tension between these territories. It is therefore very difficult to predict what will happen after the crisis.

Our purpose here is to discuss whether this conflict can be considered a European transboundary crisis. In addition, we consider the potential implications, in the short and long term, of these developments from a European-wide perspective. First, we should establish the preferences of the Spanish and Catalan actors as to the role of European institutions. On the one side, the Spanish government frames the dispute as an internal territorial issue, one of misbehaviour by a subnational government that has to be addressed according to existing constitutional tools. On the other side, the Catalan government aims to Europeanise the conflict, expecting EU institutions to act as mediators in the dispute between the two levels of government.

We can identify some clear evidence of the involvement of EU institutions during the weeks after the referendum. For example, the European Parliament had a debate on the Catalan referendum a few days after the referendum, on 4 October. Also, some EU Commission officials made declarations about the importance of respecting the constitution, but also asked for dialogue and negotiation between the two sides. Possibly more significant was the direct intervention of the President of the European Council, Donald Tusk. On the same day (10 October) the Catalan President was expected to declare Catalonia’s independence, Tusk declared on Twitter: ‘I appeal to @KRLS not to announce a decision that would make dialogue impossible.’ This apparently deterred the declaration of independence that day. Thus, it is clear that different EU institutions were directly involved during the two weeks after the Catalan referendum, not taking sides, but advising on two main issues: respecting the Spanish constitutional rules, but also starting a dialogue between the two parties.

Many reasons exist for EU institutions to be involved in this politico-territorial crisis, but two are most evident. First, there are the European-wide financial risks this crisis could trigger, considering the heavily indebted Spanish state and the weakness of the Spanish economy. A sudden paralysis in Catalonia could have direct effects in many European economies. Existing connections and interdependencies could attract risk-takers from the entire world to bid against the Spanish treasury. Second, a massive violation of citizen rights in Europe, if it happened, could seriously undermine European soft-power worldwide. This is not a minor issue as European soft-power is the most powerful weapon European countries have. Police attacks on voters, even for a non-legal referendum, are not easy to digest and raises concerns about the ability of European countries to manage their territorial conflicts.

Apparently, the EU’s involvement in dealing with this crisis was quite effective as political tensions de-escalated and independence was not declared. However, since then, the expected dialogue has not materialised. The Catalan and Spanish governments did not establish any form of conversation. There was only a letter from the Spanish government to request the Catalan government’s obedience to Spanish law. This letter prompted a critical reply by the Catalan government, which conceded, however, that independence had not been declared. In any case, it appears that this exchange took more account of the respective electoral constituencies than anything else. At the same time, a request made by the Catalan government to look for a conflict mediator, either appointed by EU institutions or jointly nominated, was rejected out of hand by the Spanish government.

This episode illustrates a more profound disagreement: the Spanish government considers a hierarchical logic in its relationship with Catalonia, derived from the unitary nature of the Spanish state and its administrative culture. In contrast, the Catalan government intends to establish a horizontal relationship with the Spanish government, arguing that sovereignty also emerges from the Catalan parliament and the Catalan citizens, as expressed in the 1–O referendum and previous regional elections. Arguing this, the Catalan government would easily concede that, due to the plebiscite’s unclear procedures, there is always the possibility to convene a new, mutually accepted self-determination referendum. However, the Spanish government is not open to this option, insisting on the subordinate character of Catalan institutions to the Spanish-wide ones.

A new episode of EU involvement occurred during the European Council on 19 and 20 October. This was a turning point regarding the role of EU institutions in dealing with this politico-territorial crisis. Despite several attempts by EU officials to include the Catalan case on the Council agenda, the Spanish government successfully resisted, arguing that this was an internal matter. According to some press reports, a final attempt was made during the Council meeting when Angela Merkel asked Mariano Rajoy if he had anything to say regarding the Catalan case. Rajoy did not answer. After that meeting, some politicians recognised the limits of EU institutions in playing a major role in the conflict when the member state concerned is not interested. Tusk said at the time: ‘All of us have our own emotions, opinions, assessments, but formally speaking there is no space for an EU intervention.’

However, the positions of member states were far from homogeneous. While large and centralist countries like France were the most supportive of Rajoy, some small countries with a history of self-determination struggles, or with highly decentralised structures, sympathised with the Catalan position. In the end, a sort of political realism prevailed and an informal consensus emerged in the sense that any reaction against the Madrid government might create problems for future EU decision-making processes.

Backed by the non-discussion of the Catalan case at the European Council, the Spanish government reacted quickly to prepare its intervention on the Catalan semi-autonomous government, taking over the Catalan key institutions and firing top Catalan government officials, including its president. This was consistent with the hierarchical power logic declared by the Spanish government. It discarded any type of external mediation between the two governments that might have opened up a political dialogue as to the restructuring of territorial politics in Spain or any other possible outcome. To this end, Rajoy accepted a vague promise to reform the Spanish constitution soon, aiming to maximise support among Madrid’s political and economic elites, while ignoring or dividing Catalan ones.

The Catalan crisis is still far from being resolved, or even stabilised. The millions of Catalan citizens that did participate in the referendum cannot be disregarded completely. In other words, the elephant is still in the room. EU institutions have stepped back and have not encouraged any dialogue or mediation, despite their claims immediately after the referendum. Thus, is the Catalan case actually a transboundary European crisis? Despite there being no formal involvement of EU institutions, it is evident that it is a crisis that is debated intensively by the European media, closely scrutinised by European institutions, and that might be having potential economic and social consequences for all European countries.  In fact, it is a crisis Europe cannot evade.

Salient transboundary crises emerge in Europe quite often. Those kind of crises relate to the environment, public health, financial markets or other issues that arise from the interdependencies of integrated and integrating markets, entrenched multi-level public policy and the emerging European citizenship. Whatever is creating a big shock in one corner of the EU might have consequences for the entire Union, either in terms of reputation, public health or material welfare. Multiple mechanisms and institutions have been created at the EU level to cope with transboundary crises of this type and, most importantly, to prevent them in the future. The newly created banking crisis schemes are a case in point.

However, Europe lacks effective mechanisms to cope with political crises, despite the complexities of the emerging European polity. Whether it is a threat to the constitutional division of powers, the presence of a salient territorial dispute, or the restriction on constitutional rights, such dynamics at the member state level are currently dealt with through inter-governmental procedures, basically at the European Council. Member state governments are naturally very reluctant to have other member states meddle in their domestic affairs. The existing procedures, as already illustrated in the case of Poland and Hungary, are very slow, they are very modest in their impact, and, what is much worse, they do not provide credibility-enhancing mechanisms to ensure that democratic institutions work, or that political compromises are respected.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

German politics – steady course in uncharted waters?

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By Martin Lodge, carr

The 2017 federal elections in Germany highlight the fragmented nature of German society. Beneath the appearance of stability under Chancellor Merkel, the tectonics of electoral politics seem to have shifted under the challenges of the Euro and refugee crises. While the vote shares for the two main parties, the Christian Democrats (CDU/CSU) and the Social Democrats (SPD) are at historically low levels, another major source of concern is the rise of the right-extreme ‘Alternative für Deutschland’ (AfD). Germany – internationally regarded as the exceptional island of electoral and economic stability only a few days ago – seems not that different from other countries anymore.

But what does the result mean for the forthcoming years, for German and for wider European politics?

Turning to German politics first, few major developments can be any time soon. As the different parties digest the election results of the regional election in Lower Saxony, initial coalition talks will be announced. In the meantime, parties will seek to mark their territory in public, while leaving sufficient room for manoeuvre for the inevitable compromises in the coalition agreement and over cabinet portfolios.

The SPD has indicated that it will not consider joining any government and will therefore lead the opposition in the Bundestag. Whether this position will be sustainable over time remains to be seen, should the other coalition option fall by the wayside. For the moment, this leaves Angela Merkel’s Christian Democrats with the sole option to form a coalition with the Liberal FDP and the Greens in a so-called ‘Jamaica’ coalition (signifying the different political parties’ colours). Outside local government, ‘Jamaica’ type coalition arrangements have been trialled only twice before, coming undone in the Saarland (‘Saarmaica’) after two years, but functioning relatively smoothly in Schleswig Holstein. However, that arrangement is only of very recent origin.

For some, it is very difficult to see how economic liberals, green environmentalist and conservatives can easily work together at the federal level, especially after a campaign in which the Greens and the FDP directly attacked each other. Attempts at joint working will become even more difficult given the position of the Bavarian CSU which suffered disproportionate losses and faces its own Land election next year. Any agreement at the federal level is therefore likely to be most affected by an election-nervy Bavarian coalition partner with a keen eye on outmuscling the AfD on issues relating to migration and highlighting that it managed to impose its imprint on the coalition agreement. The regional elections in Lower Saxony are likely to cause further concern. Some will argue that they suggest insufficient understanding by the CDU politicians in power of the need to take the federal election results seriously. FDP and Green politicians will look with some concern at their electoral prospects. Under such conditions, it is difficult to see how a coalition can function for more than a few years before it will come crushing down on internal disagreements, whether it is due to declining electoral popularity in forthcoming Land elections, divided party memberships (especially in the case of the Greens), concern about leadership succession (especially in the cases of the CDU and the CSU) or dissent over key electoral promises.

At the same time, a Jamaica coalition might work if it calibrates its priorities carefully around the different parties’ core interests. There are areas of overlap among these parties, whether it is about tax reform, environmental and agricultural policies, and the need to enhance digital (and other) infrastructures. Agreement on a points-based immigration system is likely to pitch Liberals and Greens against a divided larger CDU/CSU coalition partner. Coalition conflicts are most likely to emerge over the means to achieve certain goals than the goals themselves. In other words, Jamaica may just work if it can overcome squabbling and the various anxieties, for example, that the smaller coalition parties will be dominated by the Christian Democrats on the one side, or the fear that the Christian Democrats will be held at ransom by their coalition parties on the other.

But what about Europe? Anyone hoping that the final months of 2017 would be defined by major EU initiatives is likely to be disappointed, especially if coalition negotiations will take until late December, if not longer. Stabilising the European Union will remain at the heart of German policy, especially, in the context of external challenges, (Ukraine, Brexit, Trump, increasing backsliding on EU commitments by fellow member states, such as Hungary and Poland, Turkey). None of the Jamaica coalition partners disagrees with the view that the European Union and its stability remains at the heart of Germany’s interests.

Despite this broad agreement, the disagreements about the appropriate way forward point to some major tensions in the future. Plans to launch major initiatives to advance European integration at large (as reflected in Juncker’s recent speech at the European Parliament) or deepening the Eurozone by advocating redistributive mechanisms will face resistance by German Liberals and conservative Christian Democrats. They will also be attacked by the AfD. However, there is agreement on the importance of deepening European-level solutions, especially in the areas of migration, in defence or civil protection. And whether resistance to a ‘transfer union’ cannot be circumvented by carefully linking tight financial control with more redistribution in the Eurozone is also an open question.

German politics is moving into uncharted waters with a potential Jamaica coalition in federal government and with a party of the extreme right, the AfD, in the federal parliament. That party is most likely to make headlines for infighting between its ‘moderate’ and radical wings and attempts at scandalising political debate. For some, therefore, new coalition politics and rise of right-extreme parties in parliament highlight a substantial weakening of the ingredients that have ensured that Germany played the role as stabiliser in European affairs in the past (i.e. stable coalitions at the centre, widespread resistance to right-extreme discourse).

There is however also another view that points to broad stability in outlook even when party systems seem to be fragmenting: The inbuilt constitutional mechanisms that emphasise stability and compromise as well as the commitment to seek European solutions means that the broad trajectories in German policy, especially European policy will continue. This stability on the one hand and more complex politics at the national level on the other might encourage continued ‘muddling through’ rather than grand visions at the EU-level, but it nevertheless involves a pragmatic approach to European-wide challenges.

 

An earlier version of this blog was published here . The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Beware of calls for strong and visionary European leadership

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By Femke van Esch, University of Utrecht

The multiple crises the European Union (EU) has faced over the past decade have triggered repeated calls for more strong and visionary EU leadership. Recently, such calls have been replaced by structural plans to fortify the EU’s internal leadership. In his recent State of the Union, for instance, Commission President Juncker proposed to merge the presidencies of the European Commission and European Council for the EU. According to Juncker, the EU would function better with one captain at the helm. In addition, French President Macron has been touring European capitals, advocating the creation of a European minister of finance for the Eurozone to help weather future crises. Irrespective of the details of these plans, both proposals aim to provide the EU with stronger and more centralised leadership.

The emergence of such plans should not come as a surprise. They fit a general pattern that occurs during times of crisis: When faced with an urgent threat and faltering decision making power, calls for strong visionary leadership are never far away. In the EU context, they are usually directed at the political leader of the most powerful state (‘Empress Merkel’), the Franco-German axis, or the President of the European Commission. Moreover, such calls are often accompanied by nostalgic reminiscing about particular historic European leaders who – according to legend – did have the resolve, personality and vision to provide ‘true’ leadership. According to such claims the EU would not be in such disarray, if only Chancellor Merkel had the European commitment of Helmut Kohl, if only Jacques Delors had still been at the helm, if only the current Franco-German axis was rooted in a personal bond as strong as that between Adenauer and De Gaulle.

Though somewhat naive, there is a certain logic to this perspective: when the institutions, the directives and the inter-institutional agreements fail, when political negotiations appear hopelessly deadlocked, agency and power are the only factors left to turn to. The idea that an institutional perspective explains stability, but a combination of agency, ideas and power is needed to understand change is well-rooted in the theoretical state of the art on (European) policy change. So, when faced with large-scale crises it is only logical that all eyes turn on the transformative potential embodied in key European leaders.

However, as a diagnosis of, and solution to the EU’s problems this view is one-sided, unrealistic and morally flawed. First, accounts of the leadership and achievements of supposedly great historical leaders are often simplified and a-historical. Critical in-depth analyses reveal that the French-German motor often faltered and that the successes of Jacques Delors and Helmut Kohl were highly dependent on the broader political context.

Moreover, academic studies suggest that capable leadership only accounts for a fraction of a successful outcome. It is evident that the opportunity to learn from historical successes is limited for the simple reason that both the European political arena as well as the European electorate has undergone dramatic change. The enlargement of the EU to 28 (soon to be 27) states not only makes reliance on leadership by one (or a tandem of) member state(s) politically unlikely, it also severely limits the room for pan-European agreement.

In addition, recent years have seen a trend towards the polarisation of European politics and the euro crisis has shown that the EU has significant distributive consequences for its member states and people. This has not only led to a divergence of interests amongst the member states, but also contributed to the rise of the so-called ‘dismissive dissensus’ among the ever more critical and better-informed European people. In such an environment even the heroes of Europe’s past would be hard pressed to offer a solution to multiple crises the EU had to face in recent years.

More fundamentally, however, is the normative question of whether we truly want strong, visionary European leaders? I suspect not. In fact, many people would argue that there have been far too many strong visionaries in the history of the European Union. Moreover, when people talk about ‘vision’ in the European context, they often mean ever-closer union, but grand plans for federalisation or political unification of the EU no longer appeal to large sections of the European population.

Finally, strong visionary leadership often implies top-down leadership. The advantages of this type of leadership are clear as it promises determinate and effective action. However, top-down leadership is at odds with the democratic ideals of the EU as well as the sovereignty of its member states and their national parliaments. Moreover, if one takes the idea seriously that leadership is a relation between leader and follower, involving hierarchy and power, the question arises on what grounds is it legitimate for the leader(s) of the EU’s most powerful states, a Commission president or a pan-European minister of finance to exert leadership over the European people(s)?

It is precisely because of these reasons that the EU decision making structure was designed to prevent decision making dominated by a single strong leader, be it a person or a state. Division of power and democracy may hamper swift and efficient decision-making, but leadership is and should be inseparable from follower’s needs and goals and never be left unchecked. There are ample examples in history or even at the EU’s current borders that illustrate the vital importance of this point. So, as Europe struggles to find a way out of its economic, refugee, rule of law, Brexit and legitimacy crises, its first imperative is not to deepen the latter in name of the former.

 

For a more elaborate discussion of issues related to legitimate EU leadership, see: Van Esch, F.A.W.J. (2017), The nature of the European leadership crisis and how to solve it. European Political Science, 16(1): 34-47.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Catalonia’s drive for independence and the emergence of global cities

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By Jacint Jordana, Institut Barcelona d’Estudis Internacionals (IBEI)

The pro-independence movement in Catalonia has created a singular coalition that includes the beneficiaries of globalization, the elites of a global city, and those left behind by globalization.

There are two large metropolitan areas in Spain: Barcelona and Madrid. While Madrid, with a population of 6.5 million, sits in third place in Europe, after London and Paris, Barcelona is in sixth place, with nearly 5 million. The two are global capitals and compete primarily in a European and international arena, although the tensions between them can be seen as drivers of the current political-territorial dispute in Spain.

Both are members of a small group of cities – not more than a dozen in Europe – where resources and information flow at high speed, in a game of planetary dimensions. In this sense there is no direct competition between Madrid and Barcelona; it is only that they compete in the same league, each with its own strengths and weaknesses.

However, the current conflict between Catalonia and Spain cannot be fully comprehended without understanding that, in the context of globalization, both cities, and the large metropolitan areas in which are embedded, are trying to concentrate the prominence and accumulate most of the resources linked to growth and power. For this reason, any analysis of the territorial conflict in Spain should incorporate this dimension if it is to avoid falling into an outdated understanding of the current political conflict.

Asymmetric competition 

It must be understood that a metropolitan area is a top-level node in this globalized world, drawing resources from its surroundings while it distributes them. So, it requires a political articulation that normally implies the recycling of traditional state models that emerged in the 19th century, albeit with some significant changes.

Obviously, if this state recycling does not take place smoothly, adopting new functions that permit develop intense relations with other areas and territories, the development of the metropolitan area and its global position can suffer, even though (of course) it all depends on its competitive advantages. Global cities need states; in fact, they certainly need to make them theirs. A state can serve a single metropolitan area converted into a global city, as in the cases of Paris and London, or it can serve more than one, as we see in Italy and Germany. Logically, if such support is distributed, the capacity and projection of global cities does not reach the same proportions, as shown in the cases of Milan and Rome, or Berlin and Frankfurt; but note that these are cities belonging to two relatively new states, both formed in the second half of the 19th century.

Without digging into historical revisions, tensions between Barcelona and Madrid in recent decades, and especially since the start of the great economic crisis initiated in 2008, contain an element of dispute over the role of the state in supporting the construction of global cities. Barcelona’s economic, cultural and social elites perceive that they do not receive enough support from the Spanish state, since it directs its support towards turning Madrid into a global city. They complain that Spain’s model is a state with a single global city, having the largest possible projection and heaviest possible economic weight.

Madrid’s political and economic elites perceive Barcelona as something alien to their state model, and consider that in any case its global positioning should be subordinated to the objectives of promoting a single great global city in Spain. Unlike Italy or Germany, the Spanish state has bet on a single global city. Or, to put it in other way round, Madrid elites have mainly captured the state.

It is obvious that this is a conflict between the elites of two European global cities which share a state, where one of them has captured the state, to propel its own development in the global arena. Therefore, it is unsurprising that the elites of the other global city in Spain are considering the idea of building a state of their own. The awareness of such a need is a fundamental difference in the political positions in recent years of much of the Catalan elites, compared to their positions over the previous two centuries, when there were no major claims for a state of their own.

This ambition is often formulated through nationalist speech, but also with cosmopolitan arguments, and discussion of investment and the distribution of fiscal resources. In many cases, this involves a similar tension, based on the absence of a state capable of backing and assisting the position of Barcelona and its surroundings as a global city.

Without going more deeply into Spain’s current political configuration, it should be noted Spanish state’s significant weaknesses in knowledge and specialized skills. Outdated and widely inefficient recruitment procedures, an old-fashioned organizational model, and its numerous bodies of civil servants undergoing constant internal struggles and heavily corporate, have together generated a weak state when it comes to acting in a globalized environment. It is unable to autonomous leadership as to territorial matters and depends heavily on the large business corporations that have contributed to made Madrid its global capital. This interpenetration among a few national champions –that benefited from state support, and very much so, in their global expansion – and within the state itself as an organization, has been consolidated in the age of globalization, contributing to the upholding and projecting of its global city.

Will the state evolve into a model of two global cities?

It is difficult to imagine how this model can be reversed, and how Spain could adopt a state model with a number of global cities, or at least two, and evolve into a format of neutrality. There are examples in Europe, but the difficulties of such a transformation would be extreme, given the existing historical and social conditioning.

In fact, one could view the efforts to reform the Catalan Statute in 2006, and the claims for a fiscal pact for Catalonia at the beginning of the 2010s, as a bid by its political and economic elites to establish a model that would permit the absorption of additional resources and capabilities from the Spanish state, yet which would still be compatible with the state’s commitment to support Madrid as a global city.

Divergent perceptions and other commitments – all in the middle of a harsh Spanish fiscal and financial crisis – prevented the completion of such agreements, triggering higher-risk alternatives that had been discarded until that moment by the Catalan elites. Besides, EU single market and globalization also helped to consider alternative scenarios.

There’s something else

A struggle between elites of two global cities favoured very asymmetrically by a state can become bloody, but this would be a limited explanation of the aggravated social and political conflict between Spain and Catalonia over the last few years. As much as one cannot look upon the role of the state in the territory as if we were at the beginning of the 20th century, this alone is not enough to explain the mobilization capacity and the intensity of the feelings aroused. There is something else.

Globalization has not only generated the phenomenon of global cities, it has also produced profound changes in the distribution of income between different social sectors, as well as access to well-paying jobs. Following the studies of Branko Milanovic and other analysts, we know for a fact that among those left behind by globalization there are numerous segments of the middle class and skilled workers from the developed countries.

The reasons for this relative impoverishment are related to global competition that led to open trade agreements and promoted new technologies; its political consequences have become apparent in recent years. Events such as the recent election of Trump in the United States, or the UK voting in 2016 to leave the EU, are in a way related to this process of relative impoverishment of some social groups in the developed countries, to the extent that speeches calling for a reversal of globalization and a return to models of markets protected by states can now be perceived increasingly as a political option.

These developments are also present in Spain and in Catalonia – not in the form of a rise of the extreme right, fortunately, as in France or just recently in Germany, but in forms buried in numerous political behaviours, conditioned political strategies or multiple social mobilizations. We cannot analyse in detail the political implications of these social changes in Spain, but we can highlight some very visible aspects.

One central element is the challenge to the maintenance of the classical benefits of the welfare state, focused on the distribution of resources in a passive way to many social groups affected by economic changes, direct or indirect, as a result of globalization, that are especially intense in some areas of the country. To some extent, strong state support to launch a global city was legitimized by keeping such policies for large social groups across the entire Spanish territory.

To oversimplify, we could point out two large groups. There are several generations of workers who have experienced relatively stable employment and the welfare state benefits established in the 1980s by socialist governments. There are also professional sectors and large groups of young people who have enjoyed hardly any welfare safety nets, and whose prospects of stability and professional advancement are slim. Both groups share expectations and frustrations about the political-economic model, betting on different policy options to avoid welfare dismantling.

Although Catalonia benefited also from the afore mentioned territorial pact, the weight and the visibility of its global city destabilized the equation, as well as its particular social and cultural integration with different legitimate discourses. Yet in Catalonia it has generated an additional alternative, which attracts a broad segment of the second group and, possibly, some members of the first group. That alternative is the option of an independent state of Catalonia.

Setting aside its eventual plausibility, these perceptions encourage the mobilization of broad sectors of losers – or potential losers – due to globalization in Catalonia, and those who in recent years have experienced wage reductions, lack of opportunities, professional stagnation, or even exclusion from the labour market.

Among the attractions of this additional alternative are the expectations of better social benefits, because the new state will have, predictably, a greater income. There may also be higher expectations of growth, with the perception of a more sustainable economic model, as well as diffuse expectations about state-building opportunities and further potential support for professional careers.

A singular coalition

The pro-independence movement in Catalonia has created a singular coalition that includes: beneficiaries of globalization, the elites of a global city, those left behind by globalization, and the popular sectors that are losing opportunities in comparison to previous generations and are witnessing shortages or are being left out of the welfare state.

This alliance, not so conspicuous in daily politics in Catalonia, but very effective, is held together by three very important conditions. First, there is the common perception that it is a non-zero sum game bigger that zero, where everyone will benefit. Secondly, there is the shared perception of belonging to a political community, a well-defined territory with elements of cultural identity, widely recognized; and third, the balance between rural territory and a global city that does not generate major tensions.

Thus, the independence movement in Catalonia is not only a nationalist movement, although there is a strong nationalist component within it; nor is it a movement based on irrational feelings, mired in a glorious past. It is also a political response, with a strong strategic component of territorial base, to the challenges that globalisation is creating in all developed countries, particularly in its current multi-polar phase.

The struggle for survival and well-being of political communities in the developed north has just started. Global cities and regional integration mechanisms have much more capacity to adapt to these changes than European states established many centuries ago -unless they actively transform and innovate themselves. However, cities still need states.

This blog was originally published here (9 October 2017). The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

The European Parliament’s oversight powers in economic governance

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By Maja Kluger Dionigi, Think Tank Europa

The EU’s response to the European debt crisis has given rise to executive-dominated politics and a weakening of directly elected institutions, such as national parliaments and the European Parliament (EP). The increase in executive powers has led scholars to criticise the EU for moving towards executive federalism and a state of exception, undermining representative democracy.

The EP has largely been absent in key decision-making moments during the crisis, not least because the EU’s crisis response represents a patchwork of intergovernmental agreements adopted outside the EU’s legal framework, coordination efforts, and secondary EU legislation. Even on crisis legislation where the EP has enjoyed co-decision powers, its role has been constrained to agreeing to increase the discretion of executive bodies instead of playing a central role in the execution of that authority. For instance, within the strengthened excessive deficit procedure of the Six-Pack, the EP cannot determine the area of national competence to be controlled by the EU or the requirements and conditions under which they could be enforced. The EP has however not been an idle bystander to its limited role in economic governance.

The EP has gained formal oversight powers…

Some scholars argue that the EP’s limited role in influencing the substance of crisis legislation has partly been compensated by giving it more oversight powers. One example often pointed to is the introduction of the economic dialogue in the Six-Pack and Two-Pack, despite initial reluctance from the Council. The economic dialogue allows the EP to invite the President of the Council, the Commission, the President of the European Council, or the President of the Eurogroup to report on, and explain their decisions taken in the context of the reinforced Stability and Growth Pact and the European Semester. It also makes it possible to invite individual member states, breaching EU rules, to explain themselves.

These new oversight provisions – albeit voluntary in nature –indicate a greater emphasis on input legitimacy in Economic and Monetary Union (EMU), than before the crisis.

Research shows that the EP was successful in gaining more oversight powers because it used a wide repertoire of negotiating strategies. Among others, these include: (1) exerting public/normative pressure on other institutions (by arguing that deepened integration requires representation); (2) creating issue linkages between files negotiated at the same time (using its veto powers on one file to exert influence on another file for which its formal consent is not needed), and (3) playing on the urgency of solving the crisis and the difference in time horizons between the EP and the Council to threaten to delay decisions if its views are not accommodated.

…But how are the oversight powers used in practice?

One thing is to acquire new formal oversight powers in the legal text, another matter is how actively and diligently these provisions are used in practice.

My research on the economic dialogue with member states shows that only a fraction of member states qualifying for a hearing (i.e. in breach with reinforced Stability and Growth Pact) actually appear before Parliament’s economic and monetary committee (ECON). For instance in 2016, 10 countries were ‘eligible’ for being invited to a hearing, but only 3 hearings actually took place. Since the economic dialogue came into being in 2012, the ECON committee has held 15 hearings with finance ministers. This relatively low number may reflect both a low acceptance rate of invitations to hearings and/or limited resources and interests of the EP to hold more hearings.

Once appearing before the ECON committee, there is a clear pattern in the engagement levels of MEPs, in terms of the number of MEPs taking the floor. An analysis of 12 of the hearings with finance ministers that have taken place between 2012 and 2016 shows that MEPs are more active in taking the floor when the minister under scrutiny comes from a large member state and his/her country has received financial assistance from the EU.

Furthermore, MEPs from Eurozone countries proportionally asks more questions than MEPs from outside the Eurozone. There is also a clear national dimension to the engagement-levels. MEPs from the same country as the finance minister ask more questions than MEPs from other countries. On average, 61% of MEPs asked questions when they were from the same country but only 33 % of MEPs asked a question that are from a different country to the one being scrutinized. However, there is no significant difference between national MEPs from opposition parties versus those from governing parties. This suggests that there are differences in engagement levels depending on key characteristics of the country under scrutiny and the MEPs taking the floor.

The relatively low level of member states appearing before ECON compared with the number of ‘eligible’ countries brings to the conclusion that there is scope for making a more active use of the economic dialogue with member states to serve the purpose of a more democratically accountable European Union.

 

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Surviving Brexit: twelve lessons from Norway

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Nick Sitter and Ulf Sverdrup

One year after the referendum, after losing its majority in the general election, the UK government is revising what Foreign Secretary Boris Johnson famously labelled the ‘Cake-and-Eat-It’ approach to Brexit. In this context, it might be worth asking if there is anything the UK can learn from Norway’s quarter of a century experience as a ‘quasi-member’ of the European Union.

The first lesson is that no lessons apply. Tolstoy wrote that all happy families are alike, but each unhappy family is unhappy in its own way. Much the same can be said about European countries that opt out of the EU. Each has its own reason, and its own challenges. But with the exception of Greenland, all experience builds on states that have negotiated closer relations with the EU – not a departure. And back in 1982 it took Greenland three years to negotiate a deal with the far simpler pre-Single Market EEC. Having said that, Norway’s experience might still suggest some valuable lessons.

The second lessons is that there is life outside the EU, and it can be quite good. But, non-membership should not be confused with non-integration and non-cooperation with the EU: Norway, Iceland and Liechtenstein are members of the Single Market through the European Economic Area; Switzerland take part by way of some 100 or so interlinked bilateral deals. If there is political will in the UK, access to the Single Market is feasible.

Lesson three is a warning: The fact that both the UK and the EU are interested in free trade does not mean that this will be easy to achieve. Norway’s approach to participation in European integration without EU membership shows that it is easier to agree on policy than on politics and institutions.

A stable and well-functioning relationship between the EU and the UK needs to be based on trust. In political life, trust is first and foremost guaranteed through institutions. The EU and its member states (including the UK) have always insisted that market access should be based on common rules, and that there must be some form of monitoring and dispute settlement mechanisms. It is inconceivable that the EU will accept agreements that dilute the role of the Commission in terms of oversight and the Court in terms of adjudication. The EEA system initially envisaged a joint court, but ended up with a regime that gives the EU institutions jurisdiction over joint cases.

For Norway and Switzerland, institutional issues have caused delays and frictions. This is not surprising, as it goes right at the heart of the trade-off between market access, on the one hand, and national autonomy and self-determination, on the other. The UK should prepare itself for this delicate balancing act, and it should know where to look, as only the EEA-model, or some modifications thereof, meets the EU requirements. The Swiss model is by many seen as an ‘accident’, not to be replicated.

The fourth lesson is therefore about the importance of implementation and adjudication. The EFTA Court and Surveillance Authority have jurisdiction in cases that only involve the EFTA states. Both institutions were purpose built for the EEA regime.

The fifth lesson is about the fact that negotiating with the EU is not a one-off event, but a series of negotiations. Any sensible Brexit agreement will have to involve a mechanism for ensuring that rules and standards are regularly updated. If not, the agreement will be outdated as soon as it enters force. The EEA agreement started in 1994 with around 1800 legal acts. 8000 new acts have since been added. In addition, as the EU expands into new fields, there will be a need for additional agreements between the EU and UK. Norway and Switzerland had just a few agreements in the 1990s, both have now close to hundred agreements with the EU. A sustainable Brexit agreement therefore has to solve the problem of dynamic development, and the parties must prepare for repeated, if not continuous, negotiations, not a one-off. Long term success will therefore depend on the ability to create a spirit of trust and sustainable cooperation, not on whether one of the parties ‘win’ in the first round.

The sixth lesson concerns the importance of formal sovereignty. Even if policy issues such as agriculture and fisheries were important in the 1972 and 1994 referendums, national sovereignty was the heart of the matter in Norway. The EEA deal allowed Norway to maintain formal sovereignty, even if it delegated actual sovereignty, hooked itself up to a steady flow of EU rules, and found practical arrangements about the application of EEA law in Norway and the role of the EFTA Court and the EU Court of Justice in adjudicating this. In spite of the democratic deficit, most would agree that Norway is still a good and healthy democracy. The Norwegian model is integration without representation, and for many voters, keeping formal sovereignty seems to matter more than delegating actual sovereignty.

The seventh lesson is about political leadership. Put simply, the prime minister must acknowledge ownership of the problems and the solutions. A succession of Norwegian prime ministers and coalition partners have defended the EEA staunchly, whether they saw it as the best or second-best solution. From day one, the assumption was that a deal would be worth defending. No PM ever suggested that ‘no deal’ was ‘better than a bad deal’.

Indeed, political leadership on EU issues means taking the long-term view, eschewing short-term party politics, and broadening support for a deal. The compromise must have cross-party support, at least from the mainstream parties, as well as from business and labour organizations. In Norway, the EEA was the best solution for the divided Labour Party and the soft Eurosceptic Christian People’s Party. It was a second-best option for the pro-EU Conservatives, as well as the divided (populist) Progress Party and the Liberals. Opposition to the EEA from the hard Eurosceptic (agrarian) Centre Party and Socialist Left was therefore largely inconsequential. In fact, these parties have been in government, respecting the platform, and even promoting closer cooperation with the EU. For the UK the eight lesson is therefore that this is not just about the final vote in the Commons; it is about the domestic process. Involving the opposition in formal negotiations could help ensure that the deal survives a future change of government.

The ninth lesson came slower to Norway. The EU is remarkably united when dealing with third countries, in particular when it comes to financial issues. After Sweden and Finland joined the EU in 1995, Norwegians learnt that having a fellow Scandinavian chairing the Council was no guarantee of favourable treatment. For a UK government tempted to explore opportunities to divide and rule in the EU, the warning signs are legion.

Tenth, the need for a non-EU state to establish clear priorities and to pick its fights cannot be overstated. A non-member can have an impact in a policy area if it prioritizes, and explains its domestic constraints. But going for the ‘select all’ option on the conflict menu is not wise. Norway has managed to keep fisheries, agriculture as well as oil and gas out of the EEA. The UK government is well advised to decide – and to signal clearly and openly – what its real red lines are.

In the light of recent reports about civil service confusion over the different departments’ roles in Brexit, the eleventh lesson from Norway is about the need for expertise and coordination across departments both during negotiations and after a deal is in place. As an outsider, the UK will need a lot of expertise on EU affairs, in order to influence effectively and adapt swiftly. At least as much as an EU member. Already five years after the EEA deal took effect, the Norwegians found that the EU expertise built up during negotiations had begun to fade. Consequently, a new effort was made to strengthen Europe competence and to enhance the foreign office’s role in cross-departmental coordination.

The final lesson concerns life outside the EU. Non-members are in effect relegated to the role of a lobbyist – albeit sometimes very important lobbyists. This is a new role, in which expertise, policy competence and the wisdom to gather information, advocate solutions, and intervene at the right time counts for more than formal power. As a lobbyist on the outside, the UK will compete with many governments, organizations and firms. Norway’s experience shows that outsiders can have influence on the EU system, particularly in policy sectors where it is a ‘super power’ – such as oil and gas, but most often such influence depends on successfully aligning with the interests of key member states, and arguing in line with what is best for Europe and the EU, not on the need for special exceptions.

Indeed, Norway’s experience with non-membership of the EU shows that it is perfectly possible for non-members to work closely with the EU in new policy areas – at a price. Norway is more closely integrated into Schengen than Denmark and the UK. It joins in on EU research and higher education policy initiatives. It works with the EU on foreign operations and sanctions. Pragmatic participation in a range of new EU initiatives is part and parcel of Norway’s relationship with the EU, well beyond the EEA deal. The trick is to frame this as pragmatic cooperation in low politics, not the high politics of sovereignty. Pragmatic compromises might often be good and stable, but they are neither simple nor elegant. When searching for solutions, it is often not about maximising one’s own interests, but rather about finding solutions that are acceptable.

Nick Sitter is Professor of Public Policy at the Central European University. Ulf Sverdrup is Director of the Norwegian Institute of International Affairs (NUPI).

Non-Governmental Search and Rescue Operations: So contested, yet so crucial

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Daniela Irrera

For the third consecutive year, growing numbers of migrants have been crossing the central Mediterranean to reach the shores of Europe. The European Union (EU) has remained without an effective policy or a common solidarity approach to address this challenge. In the meantime, national coastguards have returned to patrol and monitor at sea in order to rescue people in need. They do so with the (not always indispensable) support of Frontex.

One central pre-requisite for managing transboundary crises is coordination across different types of actors, including non-governmental organisations (NGOs). Search and rescue operations (SARs) by NGOs have complemented existing EU and member state operations and have significantly mitigated the effects of the humanitarian emergency: since 2015 a growing number of people have been rescued every year. Nevertheless, there have been continued and aggressive attacks against NGOs. For example, according to Frontex and a public prosecutor from Catania (Italy), NGOs are alleged to have colluded with people smugglers in illicit activities. They are also accused of contributing to destabilising the wider area because of their ill-managed SAR operations.

What explains such criticisms? The relationships between NGOs, member states and the EU regarding the humanitarian crisis in the Mediterranean has gone through four different phases, each responding to particular aspects of the wider crisis.

Initially, non-governmental SAR represented a new phenomenon in the Mediterranean. NGOs have been regarded as controversial actors, particularly within the wider humanitarian sector. Ranging considerably in their size and resources, they have been extremely active across almost all areas at issue. Their presence is essential for intergovernmental organisations and national states. They are closely involved in the international system. The first SAR in the Mediterranean in Spring 2015 challenged the popular perception of NGOs: traditionally, NGOs were involved in humanitarian efforts following man-made and natural disasters. Despite the novel environment of the refugee crisis, the NGOs’ SAR actions were nevertheless consistent with their earlier activities in protecting human lives.

Subsequently, NGO activities turned into a convenient phenomenon. In Spring 2016, their operations intensified and also became more specialised. Well-established NGOs, such as the MSF and Save the Children, and newly created ones, such as MOAS and SOS Méditerranée, provided examples of (sometimes uneasy) cooperation among organisations. They offered well-equipped vessels, rescue facilities and medical services that complied with international maritime law and were supervised by competent authorities. In doing so, NGO SARs proved extremely useful in addressing the worst effects of the refugee crisis, by reducing the number of fatalities, and, more importantly, by mitigating the lack of serious EU commitment and the failure of the solidarity approach.

More recently, especially following the agreement with Turkey, the intention to replicate this agreement with other countries, and the launch of a resettlement plan, non-governmental SARs represent a troublesome phenomenon. Unable to cope with new arrivals and constrained by populist campaigns, political elites would prefer approaches that, without violating their international humanitarian duties, would prevent people from travelling by sea and would support their electoral needs.

In the absence of any major change, it is likely that NGOs’ SARs will become an ‘uncontainable’ phenomenon. NGOs are becoming increasingly efficient and professionalised in their activities. They could extend their activities into states that are close to collapse. NGOs could be deployed in any rescue operation, as the example of the MOAS operation in the Adaman Sea in the Indian Ocean demonstrates.

This trajectory of increasing NGO prominence also reflects on the different phases of EU performance throughout the refugee crisis. The refugee crisis produces transboundary implications which require the involvement of different actors, instruments and procedures. The management of the humanitarian dimension of the refugee crisis requires the adoption of a comprehensive and collective approach.

If member states wish to preserve the moral high ground by prosecuting NGOs alleged of colluding with smugglers, then this requires the adoption of an effective and comprehensive set of transboundary policies and measures that set aside state-centred perspectives regarding asylum requests. NGOs would then no longer be required to continue their rescue missions at sea and could return to their more traditional fields of activity.

The question therefore is whether EU member state governments are ready to change their present approach. If they are not, then migration will continue and humanitarian emergencies will require responses. In that case, regardless of whether one considers their activities as legitimate or not, the NGOs’ activities will be essential in mitigating the well-organised, but, as yet, ineffective actions by states, and supplementing the lack of a collective response by the EU.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Voice, Disloyalty and Brexit: The Attractions and Pitfalls of Differentiated Integration

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Nick Sitter

The European Union is fundamentally about power-sharing. The original six member states built a political system based on consensus. It allowed a supranational executive to manage day-to-day policy, but legislation required the consent of most of its members. In practice, this meant unanimity. As the EU grew, member state governments accepted that participation in the EU came at the price of having to accept some policy measures with which they did not agree.

In general, EU’s member states have been able to live with the resulting set of compromises. Broadly speaking, their options were – as Albert Hirschman memorably put it half a century ago: Exit, Voice, and Loyalty. If governments could not loyally implement EU policy (or get away with creative forms of transposition), they could voice opposition and attempt to change it. This resulted in a range of opt-ins and opt-out – or differentiated integration.

Ultimately, a dissatisfied state could leave the EU. Greenland did so in 1985, and now the UK is on its way out. But, in the meantime, others have explored a new option – disloyalty. Since 2010, the Fidesz government in Hungary has confronted the EU openly, demanding substantial changes to EU policy and circumventing EU law by way of creative compliance. Since December 2015, the newly elected Polish Law and Justice (PiS) government has embarked on a similar strategy.

Voice has proven to be the easiest and most effective option by far. When the Danish government failed to secure a positive vote in the referendum on the Maastricht Treaty, it negotiated a series of opt-outs with its EU partners, secured the approval of almost all Danish parties, and won a second referendum. Sweden held a referendum on the common currency, and when the government’s effort to secure a ‘yes’ failed, it argued (successfully) that it was not legally obliged to join EMU. In similar vein, the UK opted out of the Schengen arrangements, but ‘opted in’ to a number of specific policies. In all three cases, the governments worked from a relatively weak domestic position, inasmuch as internal party dissent or opposition in parliament made it essential to accommodate Euro-scepticism. The EU’s history shows that voice actually works well. The danger comes when a prime minister too obviously uses the threat of a referendum to press for concessions that no other member state is prepared to accept – as David Cameron learnt in February 2016.

Disloyalty has been the most creative approach to European integration, and it seems to have served the Hungarian government well. Despite criticism from the Commission for its persistent effort to centralise political and economic power and limit the rule of law, Hungary has so far avoided anything more serious than ordinary infringement procedures. What Viktor Orbán proudly calls his ‘illiberal democracy’ thrives in the EU, has been supported by EU funding and has been, at the time of writing, protected by his fellow members of the European People’s Party. The danger for Fidesz is not so much that the disloyalty strategy might not deliver the goods, but rather that their Warsaw-based ideological bed-fellows’ more open and assertive confrontation might provoke a more resolute response from the EU.

All three options – voice, disloyalty and exit – involved their own false promises and pitfalls. A governing party that voices too much protest about its being outvoted in Brussels, might find itself outflanked by genuine Eurosceptics. A government that bends the laws too far might find itself on the receiving end of ever sharper criticism from its fellow member states. And the Eurosceptic government of a state on the way out runs the danger of overestimating the importance of its own power.

Brexit has taken the question of differentiated integration to a completely new level. The Brexit process is fraught with far more uncertainty than any other of the EU’s relationships with its other ‘quasi-members’ – Norway, Iceland and Liechtenstein. The Norwegians opted to join the Single Market, including free movement, supranational courts and all. For more than two decades, the European Economic Area agreement has worked due to goodwill on both sides. Most Norwegian governments have been more pro-EU than their parliaments (and, arguably, their voters), and carefully balanced their quest to take part in the Single Market against the constraints imposed by Eurosceptic electorates. The result may not be that pretty, but it has proven remarkably durable.

Theresa May has made it clear that she believes beating ‘saboteurs’ (as the Daily Mail put it) with an enhanced Conservative majority in the June election will make it easier for her to confront ‘Brussels’. This might go down well among those celebrating the achievements of the colonial ‘perfidious Albion’, but half a century of Scandinavian experience suggests that she might well be wrong.

A big lesson from the Scandinavian experience is that an outsider’s most important task is to exert influence on EU decision-making. The danger that Theresa May will face if her party wins a big Commons majority in June is that she will not be able to point to domestic constraints when trying to work out compromises with her EU partners. In zero-sum negotiations it might be useful to have strong backing at home and room for manoeuvre – but when negotiating complex institutional arrangements with the EU, the Scandinavian lesson is that it may be far more productive to emphasise the need for broad consensus at home and a willingness to accommodate both Eurosceptics and the EU’s legal system. In other words, modesty and being in tight domestic spots enhance negotiation positions with EU member states, not sabre-rattling hubris.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Democratic backsliding in the EU: accidents, coincidences or systemic crisis?

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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.

Statement on Hungarian government’s attack on CEU

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We are writing to draw your attention to the Hungarian government’s current attack on Central European University, one of the partner institutions of the TransCrisis consortium.

As many of you know, CEU is a private university located in Budapest and chartered both in the US (New York) and Hungary. According to the latest QS rankings, the university is ranked 42nd globally in Politics and International Studies. Viktor Orban’s government has tabled legislation that will effectively prevent CEU from continuing to operate in Hungary. The move is part of a wider campaign against independent institutions in Hungary, which Orban explicitly set out to turn into an ‘illiberal democracy’.

You can read CEU Rector and President Michael Ignatieff’s statement here

And some background in the Guardian

All of you who want to support CEU may send a statement to European Commissioner Tibor Navracsics: cab-navracsics-contact@ec.europa.eu

And/or European Parliament Culture and Education Committee Chairman MEP Petra Kammerevert: petra.kammerevert@europarl.europa.eu

Twitter #istandwithCeu

Thank you for your support.

Nick Sitter & Agnes Batory (CEU, TransCrisis partners)
Martin Lodge (TransCrisis coordinator)