Backsliding in the European Union

By March 28, 2018Uncategorized

By Nick Sitter (Central European University and BI Norwegian Business School)

On 9 March 2018 the prime ministers of the three Baltic states announced that they would not back any attempt to censure Poland over democratic backsliding. Coming on top of Hungarian assurances that Budapest would veto any attempt to sanction Warsaw under Article 7 of the Treaty on European Union, and the Bulgarian government’s concern that a move against Poland would cause ‘sleepless nights’ in Sofia, this meant that the Polish government could rest easy. Under Article 7, the Council would need 22 votes simply to determine that there is a ‘clear risk of a serious breach’ of the rule of law. Given Bucharest and Zagreb’s hostility to EU action on backsliding, this take the count well past the break-even point. In Warsaw, Budapest and Sofia (which currently holds the rotating Presidency of the Council) this might look like a crisis averted. But for the EU it could be the beginning of a bigger crisis over how to handle backsliding.

Since Fidesz won power in Hungary 2010, re-wrote the constitution and concentrated power in the hands of Viktor Orbán, democratic backsliding has become a big question in the EU. How far the can a member state be allowed to go back on the commitments it signed up when it joined the EU? Until Jarosław Kaczyński’s Law and Justice party won power in late 2015, the answer seemed to be ‘quite far’. With the European People’s Party reluctant to criticise one of its members, Orbán had considerable room for manoeuvre. But the Poles defied the EU openly. As prime minster Beata Szydło put it in November 2016: compliance with the Commission’s rule of law recommendation was ‘incompatible with the interests of the Polish state’. A year later the Commission lost patience, and invoked Article 7.

But what is backsliding, and how widespread is it? The TransCrisis project answers this question by defining and mapping backsliding in the EU. The academic literature on backsliding is still developing, but three themes stand out: backslidings as a reversal of democratization; backsliding as oligarchic state capture; and backsliding as ‘bad governance’. In the EU context, backsliding could be defined member state policies that contravene the EU’s fundamental laws and values. Even limiting this to policies that violate the values set out in Article 2, it is clear that backsliding involves a broader set of problems than Kaczyński and Orbán’s ‘illiberal democracy’ projects.

The chart below provides a simplified snapshot of backsliding in the decade following the financial crisis in three different domains: the rule of law, corruption and social equality policy. The member states are arranged by date of accession to the EU. Low bars indicate some problems related to backsliding (or in the case of corruption, long-term inability to live up to corruption control expectations); medium height bars indicate a degree of backsliding; and high bars indicate substantial backsliding. The chart does not capture change over time, but all the data and time-series are available in two TransCrisis policy briefings: one on mapping backsliding up to 2015, and one on case studies carried out in 2016 and early 2017.

The data on backsliding on the rule of law are drawn from reports by the European Commission, the Venice Commission and Freedom House, as well as country case studies. Cases classified as ‘some backsliding’ include France (criticised by the Commission over its 2010 deportation policy aimed at EU citizens of Roma ethnicity) and Greece (low and declining scores on the Freedom House Rule of Law index). Bulgaria’s medium score reflects negative Venice Commission opinions combined with low and declining scores on the Freedom House Rule of Law index. The classification of Poland, Hungary and Romania as cases of substantial backsliding is based on their negative assessment by all of the above institutions, as well as in-depth case studies.

The data on corruption are drawn from Transparency International’s Corruption Perception Index, between 2008 and 2014. The TI CPI scores draw on perceptions of corruption rather than ‘solid’ data on actual occurrence of corruption. This captures low-level administrative corruption better than the type of ‘grand corruption’ that occurs when corrupt elites capture the state apparatus; and is not sensitive to capturing change over time. The group of lowest-scoring countries over the 2008-2014 period includes Bulgaria, Greece, Romania, Slovakia and Italy. Five others feature slightly higher average scores (and improve somewhat over the decade): Latvia, Lithuania, the Czech Republic, Poland and Hungary. The middle group in the EU, going by their average CPI scores, includes Cyprus, Estonia, Malta, Slovenia and Portugal. However, more in-depth investigation of for example government contracts suggests that even as administrative corruption stagnates or declines, grand corruption might be on the rise in countries such as Croatia, Slovenia and Hungary. Grand corruption is also documented in Slovakia and Romania, whereas it seems to be on the decline in the Czech Republic, Estonia, and Latvia.

The classification of states in terms of backsliding in three aspects social equality policy – gender, race, and disability – is based on data on agencies and policies collected for the TransCrisis project in 2016 and in-depth case studies of Poland, Hungary, Romania, Spain and the UK. Until 2015, only Hungary and Latvia showed unambiguous backsliding in all three areas; but at the end of that year the Polish government moved swiftly to reverse policy trends in all three. The Czech Republic, Ireland, Lithuania, Romania, Spain and the UK feature backsliding in two out of three equality policy areas, while another eight states have seen some form of backsliding with respect to either gender, race, or disability.

The TransCrisis project analysed backsliding both as a set of crises in its own right, and as a potential source of a systemic crisis for the EU. The organisation’s capacity to detect and sanction backsliding is limited. More importantly, so is its political will. When it comes to policies on social exclusion, the EU’s limited capacity and will is unlikely to make matters worse. In terms of corruption control, however, there is a danger that failure to recognise the seriousness of the policy problem and take more decisive action might leave the EU with a blind spot to real a threat to its economic and political system. But it is democratic backsliding in the rule of law that poses the biggest potential threat to the EU: Tough action against Poland and Hungary, for example by linking EU funding to compliance, could alienate several of the eastern member states. Failure to act could undermine the north-western states’ willingness to pay, or even to recognise the integrity of backsliding states’ legal systems. Kicking the debate on democratic backsliding into the long grass might be tempting, but will only make the problem worse.

The blog summarises the work on ‘backsliding’ as part of the TransCrisis project. The author is writing in a personal capacity and the views do not represent the TransCrisis consortium as a whole.