The rule of law and democracy in the EU

By Nicolai  Santaniello

The EU has been defined as a “Community based on the rule of law”, as to make clear how neither a member state nor an organ of said community can act in ways non-conformed to the laws and treaties which regulate the behavior of states and their existence in the European Community [1].

In recent years there have been instances in which the rule of law has been challenged indirectly using another founding principle of the European Union: democracy. This comes from two factors: considering democracy as a synonym for majority rule, and using majority rule as a reason for unconstitutional decisions in domestic policy. The differences between majority rule and democracy are nicely outlined in an article by Ben Snauders who argues that majority rule is about choosing an option which is supported by most people in a group, while democracy constitutes choosing an option which appropriately reflects the wishes of the members of the group [2].

The second point, regarding using popular support for legitimizing unconstitutional domestic policies, is relevant to this article because domestic decisions can have an effect on international events and are hence regulated by the rule of law of the community that states are a part of. The Stanford Encyclopedia of Philosophy outlines the concept of legitimacy regarding actions in a democratic context, explaining them as decisions made following a democratic process. However, the encyclopedia does state soon after that there is a clear distinction between a legitimate decision and a just one, and that because legitimacy is a stronger concept than justice in our modern society, it is generally enough for a decision to be seen as legitimate for it to be accepted [3].

The practical examples to which these two concepts relate are decisions made by the Polish and Hungarian governments, which have received extensive criticism on behalf of the international community and EU institutions. The ruling party in Poland has, for example, initiated many reforms of the judiciary system forcing, amongst other things, many supreme court justices to retire on age grounds [4]. This was an unconstitutional move by the PiS party, but also a move which had little popular uproar and did not shift support for the party. Hence, speaking from a majority rule point of view, the move was legitimate.

Legitimacy, however, is always a debated point depending on who you ask. For PiS and its supporters the move might seem legitimate, but the remaining proportion of the population might not view it as such. As a professor at Leiden University with a specialization on political actors explained, the decision is only legitimate for the people who are represented, and not for the other people or the European Union itself. The latter especially should and does consider the moves against the judiciary as a breach of the founding principle of rule of law on behalf of Poland, and as a general breach of the democratic pillar of judiciary independence [5].

As said before Hungary similarly challenges EU laws and EU values. Viktor Orban’s government is in fact accused of targeting the independence of the judiciary, but also NGOs and the media. This recently led to the triggering of article 7 of the Lisbon Treaty which could mean sanctions for Hungary, and potentially the country could lose its voting rights in the EU [6]. Similar to Poland, Hungary’s democratic institutions are threatened by a majority-ruling right-wing party which justifies breaches of the rule of law and undermining international agreements because of their self-centered national interests.

These two countries are both rules by right-wing parties, but it would be wrong to think that this side of politics is the only one to behave like this. A professor at Leiden University pointed out that Euro-skeptic and nationalist views were present in both extremes of the political spectrum in many European countries, and that extreme left-wing parties could be just as willing to implement radical and unconstitutional changes using the same justifications as their right-wing counterparts. The same professor also elaborated on how different views of legitimacy could be applied to this situation. She distinguished between input legitimacy, which depends on how inclusive the decision process is, and output legitimacy, which depends on the effectiveness of the decision in terms of outcome. Rather than justifying or not the governments we are looking at, the distinction allows us to understand the complicated theoretical framework behind the legitimacy of decisions, and how it is almost never a black and white situation that can be judged.

The rule of law in the European Union is today being challenged by political actors who use majority-rule to legitimize decisions of international concern. Regardless of the legitimacy or illegitimacy of these actions, they create practical problems with the concepts of democracy, majority-rule, and how the two relate to the rule of law in the EU. It is in fact quite paradoxical that states are able to manipulate one of the founding principles of the EU in order to exercise practices which go against the values of, and damage, the EU itself. Article 7 is definitely a step towards forcing non-compliant states to change their policies. However, if this were unsuccessful because of Poland and Hungary’s respective “veto promises” to each other, the EU must find different measure for its laws to be respective and the principle of democracy to stand in its true definition and not a distorted variant which fits some groups’ self-interests.

Sources used in this article:

  1. Laurent Pech, “The Rule of Law as a Constitutional Principle of the European Union,” THE JEAN MONNET PROGRAM, April 2009
  2. Ben Saunders, “Democracy, Political Equality, and Majority Rule,” Ethics 121, no. 1 (October 2010)
  3. Stanford University, “Political Legitimacy,” Stanford Encyclopedia of Philosophy, last modified April 24, 2017
  4. Anna Wlodarczak-Semczuk, “Chronology: Poland Clashes with EU over Judicial Reforms, Rule of Law,” U.S, last modified July 4, 2018
  5. Source requested anonymity.
  6. Rebecca Staudenmaier, “EU Parliament Votes to Trigger Article 7 Sanctions Procedure Against Hungary | DW | 12.09.2018,” DW.COM, accessed October 30, 2018