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.