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:

And/or European Parliament Culture and Education Committee Chairman MEP Petra Kammerevert:

Twitter #istandwithCeu

Thank you for your support.

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

EU to the rescue no more?

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Lydie Cabane and Martin Lodge (Centre for Analysis of Risk and Regulation, LSE)

EU member states are said to have largely lost their national economic boundary control: contaminated food from one member state can cause death in another member state, competition over regulatory standards can create systemic risks as the financial crisis has highlighted, and asymmetric economic fortunes can lead to migration.

The European Union is traditionally at the heart of dealing with transboundary policy problems. Whether, however, EU governance can effectively deal with these varying types of transboundary crisis has been a long-standing preoccupation. Traditionally, these debates have sought to explain differences in governance regime by pointing to the type of policy (such as ‘barrier eliminating’ (negative) vs new policy-creating (positive) integration, the type of regulatory standards (market-making, market-correcting) or the diversity of member state administrative traditions.

Over the past decade, however, different factors have emerged on the political landscape. These factors are likely to have fundamental effects on the ways in which EU governance operates. One central trend is the re-nationalisation of electoral politics. Even before the Brexit-referendum, the EU was no longer seen as a solution, but as an electoral issue to be campaigned against. The other factor concerns financial depletion of national administrations in the aftermath of the financial and sovereign debt crises. At the same time, the EU has set up more or less visible transboundary crisis management systems to deal with potential threats to its existence and challenges to market integration.

So how do these factors affect the EU crisis management arrangements? Firstly, whatever the exact nature of regime, any policy requires systems for setting and updating its standards or goals. Secondly, policies need mechanisms for information gathering so as to detect the emergence of risks and the compliance of member states. Third, policies need mechanisms to change the behaviour of member states so as to ensure compliance. We are arguably observing challenges to EU governance across all these three regime components. Partly this makes the study of EU governance at this time particularly interesting. However, for those interested in effective crisis management, these dynamics are more problematic.

Take the regime for invasive alien species as an example. This is a risk that affects all member states at one level representing a cost of €12.5 billion per year to the EU. At another level, which species are regarded as invasive and are having an effect on local ecological systems varies across member states, given their climate, state of ecological diversity and trade connections. However, all states face similar challenges: changing temperatures mean that species spread into new territories and trade integration means that invasions are increasingly likely. It follows that member states need not just to agree what plants and animals represent invasive alien species, but they also need to commit to tackle species, even if their presence is largely a threat to other states’ ecology rather than their own. One recent example is the Asian Hornet which ‘landed’ in France and has caused considerable debate about (the lack of) effective management strategies, especially with bee-keepers whose hives were affected, and with neighbouring countries complaining about the failure to contain the invasion early on.

Invasive alien species represent a relatively new policy domain. The EU recently passed a Regulation (1143/2014) to tackle this transboundary problem. At the heart of the regime is a list of invasive species which attracted considerable debate among interested parties (such as plant export firms, environmental NGOs and the fur industry), inter-institutional conflict between the European Commission and the European Parliament, and debate about the quality of risk assessment that summarised scientific knowledge about particular species. The second pillar is the commitment by member states to establish systems to monitor species and take actions, when required. While it might be too early to tell whether the second pillar is functioning, it is presently not clear to what extent member states are committed to creating and maintaining such systems in view of resource depletion. The first pillar, the list, is arguably also under threat: updating of the list requires risk assessments and it is not apparent whether the European Commission and the member states have sufficient resources to conduct these. There is therefore a distinct risk of fossilisation and increasing irrelevance of this particular EU regime.

The UK plays a unique role in this context. It was central to the development of the EU regime and claims to have one of the most advanced risk assessment and management systems in place. At the same time, Brexit raises essential questions: does the UK want to adopt its own list which will require considerable negotiation with the EU, or does it want to continue shadowing the EU that may be less enthusiastic about this topic, as one of its central promoters is heading to the departure lounge rather than the negotiation table?

We can find similar dynamics also in other regimes that are associated with different EU decision-making procedures. Take, for example, the case of youth unemployment. The promotion of the so-called Youth Guarantee was seen as a noteworthy policy development in the aftermath of the financial crisis. It was promoted by member states (especially Germany and France) and by the European Commission, and it, somewhat uniquely, combined traditional elements of benchmarking and peer-review (as part of the ‘European semester’) with substantial financial commitments (totalling €12 billion). There are, unsurprisingly, debates about the level of solidarity, funding commitments and the choice of policy tools. Member states, such as Spain, with devolved competence for such youth schemes, had problems in coordinating and dispensing monies. Member states with the highest youth unemployment figures (above 40%) were also those whose administrative capacities were the most affected by the financial and debt crisis. Local administrations were faced with the problem of identifying potential recipients of such schemes, especially in those member states whose youth unemployment figures were reaching historically high levels (Italy, Greece and Spain). Others (UK) considered this kind of active labour market policy to be ill-suited to their own local conditions and did not implement the Youth Guarantee. Beyond the problem of administering such schemes, there was also the concern with the use of indicators. For some, data-gathering and comparing exercises offered scope for comparison and learning. For others, these exercises were largely decoupled from the real political decision-making on particular issues, especially as it was not clear how much effort member-states actually placed in providing relevant data. In short, the ability of the EU to be seen doing crisis management for its youth is largely dependent on member states goodwill and capacities.

These are just two examples that highlight the critical role that member states play in EU governance. Member states are central to the updating of regimes, they are central to the reporting of the information that informs decision-making, and they are central to ensuring that policies are put into action. Their actions (or rather lack of) can have considerable effects on other member states and the EU. It highlights the highly fragile nature of EU governance: it depends on the motivation and the capacity of member states to contribute to standard-setting, information-gathering and behaviour-modification. Motivation to contribute to the existence of these regimes is not just shaped by domestic interests and partisan orientations, it is also affected by the wider commitment towards supporting the EU as a legitimate source for addressing transboundary crisis management issues. Not unrelated, however, are questions about capacity: it is not clear whether administrative systems are in place that support the effective organising of EU multi-level governance regimes, given limited resources and the limited legitimacy attributed to the EU.

While it may be too early to write an epitaph to EU governance as legitimate source for crisis management, it is important to realise that the foundations for effective EU crisis management are cracking at the seams.

The authors of this blog write in a personal capacity and do not represent the TransCrisis project team as a whole.

Why the EU’s migration policy is unlikely to succeed

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Fulvio Attinà, University of Catania

In 2015, the EU’s management strategy for dealing with local and global causes of migration was to keep migrants outside of the EU’s borders. This strategy represented a mix between some established measures, such as a tightening of border controls, and some new ones, namely bilateral agreements with transit and origin countries. In these agreements, the EU exchanged financial aid and political concessions for the detention and return of migrants. This policy was shared by all member states who customise their action to their particular national conditions and political interests. In other words, EU member states recognise the transnational nature of the migration phenomenon as well as the need to control and manage migration through common actions and coordinated strategies. However, they nevertheless maintain their own national interpretation as to the underlying nature of the migration phenomenon. Member states prefer their own policies in making the common management strategy happen. Most member states are keen to insulate their societies from the dynamics and underlying conditions that drive contemporary migration flows.

To reduce the negative impact of immigration on any society, policy-makers are faced with choices. These can include options such as:
1. The formation of long-term partnerships with international actors so as to address the global and local causes of migration flows
2. The tightening of border controls and strengthening of coordination with transit and origin countries so as to reduce the size of the migration flow
3. The strengthening of societal and state capacities to accommodate and integrate migrants, thereby increasing resources available to deal with the migration crisis and facilitating a return to ‘normal’ public life
4. The adoption of a policy that communicates the importance of developing open and inclusive societies in an age of population movements and soft borders.

The European response, so far, has been to rely largely on the first and second option. The second option is the one that appears to be preferred by European citizens as far as opinion polls and recent election results seem to suggest.

However, it is questionable whether this response offers a valid long-term option for at least three reasons:
1) A policy to limit immigration cannot resolve the migration crisis as it does not address the causes of migration. These causes are unlikely to weaken in the short to medium term. Cooperation with the countries of origin and with transit countries is essential; but these governments benefit from allowing emigration to happen given their dire economic circumstances.
2) A policy to restrict immigration flies in the face of the long-established advocacy of a ‘well-managed immigration’ policy. It does not deal with the needs of European labour markets, especially in light of the needs of certain sectors, such as construction, agriculture, fisheries, care, cleaning and catering.
3) A restrictive policy violates the principles of an open society that used to be espoused by European states. Adopting restrictive approaches will leave its imprint on the civil values of European citizens and will inevitably damage the reputation of the EU and its member states as defenders of humanitarian values, human rights and international law. It risks cutting off Europe from broader developments in global society.

A combination of the four options outlined above is therefore not just inevitable but also appropriate. Apart from fine-tuning policies that deal with bilateral agreements and tightening borders, it requires policies that enhance societal receptiveness to the integration of refugees and forced immigrations. These policies will boost economic growth in the long-term. Furthermore, they require a communications approach that explains migration as an unavoidable consequence of global trends and that endorsing these trends will put Europe at the forefront of global dynamics.

Adopting such a mixed approach is by no means easy. It involves reform of entrenched principles regarding the organisation of the state, it requires a redefinition of what qualifies as a state community and it therefore also requires a redefinition of citizenship. It is fashionable to speak of a ‘new normal’ in the face of economic and financial volatility, terrorism and climate change. It is important to understand that migration is different. Migration is about much wider social processes that call for a complete overhaul of our understanding of the nation state.

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

Do citizens support the EU management of the migration crisis?

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Fulvio Attinà, University of Catania

It has been widely suggested that the rise in irregular immigration since 2011 has encouraged the growth in support for anti-immigration parties. These parties have traditionally campaigned against the allegedly permissive approach of European governments towards irregular migration of third-country nationals. Citizens are said to have demanded the speedy adoption of consistent policy responses. The response by their political leaders was the well-documented tortuous decision-making process that sought to reduce immigration and minimise humanitarian duties as much as possible. At the same time, European governments reserved the right to tailor their common (European-wide) responses to national circumstances.

Does such a view of public opinion stand up to scrutiny? Has the management of the refugee crisis by European governments been supported by public opinion? Public opinion data provided by EuroBarometer (EB) surveys offers some indications. They also give rise to new sets of questions.

EB surveys (click on link below) highlight that only few EU citizens regarded immigration as a major European or national level issue at the time when irregular migration flows started to rise markedly. A small set of citizens did regard immigration as an issue of concern for their own private lives. Public concern did increase following the Italian government’s decision to carry out the Search and Rescue (SAR) operation  Mare Nostrum in October 2013 and it continued to rise until the completion of the EU-Turkey deal. Since then, levels of concern have declined; it appears that citizens are increasingly trusting their political leaders to manage the refugee crisis.

Immigration as one of top two most important issues

EB data also suggests that since 2010, and across the EU, most people perceive immigration as an issue of EU-level salience, fewer are concerned with the consequences at the national level and fewer than 10 per cent are concerned about immigration at a personal, or individual level. In other words, surveys suggest that EU citizens perceive immigration as a problem affecting Europe as a whole far more than as a problem affecting them personally. The data also reveals that it is economic issues that are at the forefront of individuals’ concerns.

In the view of Europeans, migration is a transboundary problem calling for a transboundary solution: 60 per cent of Europeans have been in favour of a common European policy on migration (click on link below). Indeed, when asked who should be taking additional measures against illegal immigrants, 30 per cent of Europeans favour the EU, and another 30 per cent a combination of EU and national measures, whereas 20 per cent advocate solely national policy responses.

EU 28 support for common migration policy

Concern about migration started to grow, therefore, around 2013 – at a time when EU leaders were arguing about responses to the refugee crisis. Concern grew further when acrimonious negotiations led to the first common EU management responses. However, following the ‘deal’ with Turkey and the creation of a common coastguard, public concern with migration has fallen away (since May 2016). It therefore appears that European citizens are largely content with the policy responses of their leaders. However, the question remains whether the current crisis management response provides a sustainable solution to the much broader migration problem.

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

Yellow Card to Hungary’s Backsliding PM, EU Trans-boundary Crisis on Hold

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Nick Sitter

On Sunday October 2nd, the majority of Hungarian voters handed a yellow card to Hungary’s football-loving prime minister simply by staying at home during a referendum that asked ‘Do you want the European Union to be able to mandate the obligatory resettlement of non-Hungarian citizens into Hungary even without the approval of the National Assembly?’ By doing this, they threw a spanner in the works of Prime Minister Viktor Orbán’s attempt to lead a Central European nationalist ‘cultural counter-revolution’ to reform the EU. The prospect of several states backsliding on their commitment to implement EU laws – and even on their commitment to liberal democracy – continues to represent a problem for the EU. But the danger of a ‘backsliding-crisis’ just became a little less acute.

In the four-month long referendum campaign, Orbán made much of the need to ‘send Brussels a message that they too can understand’ – as government billboards proclaimed in July.  If this was indeed the main motivation for the referendum, then it failed twice over. Although 3,282,928 ‘No’ ballots were cast in favour the government’s policy (98% of the valid votes), the referendum was invalid because it failed to reach the required 50% turnout. A valid referendum was the prime minister’s own criterion for success. He abandoned this only in the run-up to the referendum, when opinion polls began to indicate that many voters might stay at home. On the day, the government’s own criteria for success was simply a ‘No’ result. As expected, it achieved this. Indeed, in some districts not a single ‘Yes’ vote was cast. But the low turnout – only 40% of voters turned up and cast a valid ballot – makes it difficult for Orbán to try to impress ‘Brussels’ with his new mandate.

The ruling Fidesz party’s second problem with the referendum was that even if it had secured a valid result, other leaders in the EU could simply have dismissed the whole thing as an expensive propaganda exercise (Hungarian media reports put the costs at some 50 million Euro). The very wording of the referendum question invited ridicule: there was not even a pretence of a neutral formulation. The contrast with the British prime minister’s changing the wording in the Brexit referendum from ‘Should the UK remain a member of the EU?’ to the more neutral ‘Should the United Kingdom remain a member of the European Union or leave the European Union’ at the advice of the Electoral Commission is telling.

Moreover, the Hungarian government’s ‘information campaign’ showed what a real ‘project fear’ can look like. A year before the referendum was announced, the government carried out a ‘national consultation concerning immigration, economic immigration and terrorism’. And should anybody be in doubt as to the link between immigration and terrorism, the government helpfully placed billboards around the country in August asking voters if they were aware that ‘the Paris attacks were carried out by immigrants’ and that ‘since the start of the refugee crisis more than 300 people have been killed by terrorists’. This ‘did you know’ campaign was spoofed by the Two-Tailed Dog Party (which had also mocked 2014 Fidesz’ populist election campaign by promising eternal life and free beer). Its crowd-funded campaign asked if voters were aware that ‘there is a war in Syria’, ‘a tree could fall on your head’ and that since the refugee crisis broke out more than 300 people had travelled on the new 5-km narrow-gauge tourist railroad to the prime minister’s home town. The last ‘No’ campaign posters urged voters not to gamble with the country’s future and to vote ‘No’; the canine satirists responded with a call for voters to take no chances and cast a ‘Yes’ vote next to their ‘No’ vote (thus spoiling their ballot paper).

But referendums are seldom only about the issue that voters are called upon to settle in the voting booth. Most referendums on EU-related issues that governments call voluntarily also have something to do with party management, electoral strategy and efforts to influence voter preferences. Assuming that this referendum campaign is more or less in line with Fidesz’ overall political strategy, three other aims can be inferred. The final score in the domestic politics game seems to be Fidesz 2 – the opposition 1.

Fidesz’ first goal (both literally and metaphorically) was to maintain its popularity and avoid the kind of mid-term slump in the polls that all Hungarian governing parties have experienced since the end of communism, even Orbán’s own 2010-2014 government. The refugee crisis was too good an opportunity to miss. Both the governing party and their far-right rival Jobbik ‘own’ the immigration issue in the sense that they benefit from immigration (and terrorism) rising in salience, whereas the parties in the centre and left struggle with this kind of issue. If the polls are anything to go by, Fidesz succeeded. And it did so largely based on government expenditure, not the party’s own money. The opposition parties – both Jobbik and the centre left – point out that all this focus on the refugee crisis drowned out more pressing matters, such as government corruption.

Fidesz’ second goal was probably to prevent a loss of votes to their rival on the extreme right, by demonstrating the that the government is willing and able to take a strong stand on the refugee/terrorist threat and stand up to the supranational bullies in Brussels. This also seems to have worked, with support for the governing party running at 36% in the latest polls, ahead of 11% for Jobbik, 10% for the Socialists and 5% for the Democratic Coalition (formerly the Socialists’ right wing). Jobbik had no choice but to recommend a ‘No’, even though it criticized the government for wasting time and money. 2 – 0 to Fidesz.

Fidesz’ third aim was to confront the opposition parties in the centre and on the left with the unpalatable dilemma of either supporting the government’s call for a ‘No’ vote or advocating that the European Union should indeed be able to mandate the obligatory resettlement of non-Hungarian citizens into Hungary even without the approval of the National Assembly.  The tiny Liberal Party obligingly recommended a ‘Yes’ vote, but the rest of the ‘democratic opposition’ simply circumvented the problem by asking voters to stay at home. In the words of former prime minister Ferenc Gyurcsány’s Democratic Coalition: ‘stay at home, stay in Europe’. 56% did. Perhaps even more impressively, 223,193 voters (6.3% of those who turned up) followed the Two-Tailed Dog party’s recommendation to give a silly reply to a silly question and spoil their ballots. 2 – 1 at the final whistle.

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