The rule of law and democracy in the EU

By Nicolai  Santaniello

The EC 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 to 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 also 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]. Similarly 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 justify 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

 

EU facing unfamiliar dilemmas in using nuclear option against Poland and Hungary

By Emma Myhre

When the Treaty of Amsterdam came into force in 1999, it made important changes for the EU. Perhaps the most important was the introduction of Article 7, the union’s only legal enforcement mechanism. Introducing such a mechanism held great importance in a time when the EU was preparing to bring in eight former communist countries1.  Member states would be expected to follow a set of common values, and the EU would have potential to suspend the membership rights of those who do not. Article 7 became a mechanism of serious implications, but has never actually been used – until now. The novelty of the situation creates several unfamiliar dilemmas for the EU, the solutions to which are yet to be determined.

Illiberal developments in Poland and Hungary

image3

A protest against PiS in Warsaw on May 7, 2016 | Wojtek Radwanski

Since the nationalist Law and Justice (PiS) party came to power in Poland in 2015, democracy has gradually been undermined. Poland has been criticized for its controversial reforms, including the empowerment of the Polish government to remove and replace up to 40 percent of the Supreme Court judges2.

Hungary has experienced a slide to a semi-authoritarian regime since the Fidesz party came into government in 20103. The constitutional structure has changed into one that empowers the centralized executive so much that it dismantles checks and balances and thus undermines the rule of law.  

Although Poland and Hungary are dealing with their situations differently, they share the way they are viewed by many Europeans: as success stories of European integration that turned into painful challenges for the EU4.

The EU having illiberal democracies as members will ultimately hurt the union as a whole. The democratic nature of EU decisions will suffer, and the democratic guarantees of EU-citizens will be threatened. EU companies and investments may suffer the same fate. EU foreign policy, rooted in EU values, will lose its credibility5. Thus, there is a common concern that EU rules and values are not being properly enforced, which is where Article 7 becomes relevant.

What is Article 7?

Article 7 acts as a procedure to be used against members that have violated fundamental rights. It spells out an expectation of all members to live up to EU values spelled out in Article 26:

image1

Signing of the Treaty of Amsterdam | Etienne Scholasse

Respect for human dignity, freedom, democracy,  equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The EU uses these values as a foundation to judge whether or not to trigger the rule of law procedure known as Article 7. There are two parts — Article 7.1 would allow the Council to give a formal warning to any country accused of violating fundamental rights. If that doesn’t have the desired effect, Article 7.2 would impose sanctions and suspend voting rights7.

Problems that arise

The idea behind Article 7 is clear. It was established as a way to hold countries accountable for rights violations. But recently the article has proven to have inherent weaknesses, as the EU has faced internal challenges. Undemocratic developments in Poland and Hungary have put pressure on the EU to act – and highlighting its lacking capability to do so.

A major problem arises in attempting to impose sanctions on members. To do this, the EU requires unanimity among its members and Hungary has already expressed that it will vote against such sanctions8. So then Article 7 remains a naming and shaming tool, failing to unite the EU under a common set of values in a time when it is sorely needed.

Furthermore, Brussels has shown reluctance to act too hurriedly on the Polish case, keeping in mind the possibility of being deemed illegitimate and handing a propaganda victory to Warsaw9.

The Hungarian case creates similar problems. Many EU countries have wanted to trigger Article 7 against Hungary because of its illiberal developmen10. The legitimacy of such an intervention would again be questioned, especially since the Hungarian constitutional changes were perfectly legal11. The situation also has an important cultural aspect. Hungary’s president Orbán has expressed a great disappointment in the EU for favoring Western and silencing Eastern values.

image2

Viktor Orbán at the European Parliament in Strasbourg on September 11, 2018 | Jean-Francois Badias

“We have a different view on Christianity in Europe, the role of nations and national culture. Even differences on the essence of the family and we do have radically different views on immigration. […] These differences cannot be a reason to brand any country and be excluded from joint decisions. We would never go as far as to silence those that do not agree with us.” 12

Orbán signals an east-west divide, raising a further question about what values should be considered “common”. In the future, the EU might have to refine exactly what its values are, making them clearer without making them exclusively western.

The way forward

The EU is faced with many tough dilemmas and has to be careful in its approach to tackle them. The legal weakness of Article 7 has become painfully evident. Hungary and Poland are challenging EU legitimacy and unity, in a time when it is sorely needed.  In finding solutions, the EU needs to pay attention to the legitimacy of its actions, what values to root itself in, and how to best respect cultural differences without hurting European unity.

 

Communism, Democratic Transition and Debates on the Rule of Law

by Norbert  Rebow

A glance at news headlines on Poland and Hungary in recent years would suggest that the radical changes to judicial systems can be explained fundamentally by describing them as actions of two parties, Law and Justice (PiS) in Poland and Fidesz in Hungary, aiming to consolidate power in their respective countries[1]. This, however, begs the question of why changes to state and especially judicial institutions would be necessary when these parties consistently record high levels of public support[2][3]. Given the experience of communist dictatorship and subsequent transition to democracy common to both these countries, we could suspect that these could be related to the underlying issues associated with the developments in recent years. To investigate this proposition, I spoke to two Leiden University professors – Professor Antoaneta Dimitrova at the Institute of Global and Security Affairs and Professor Petr Kopecky at the Institute of Political Science – as well as my parents who experienced the later stages of the communist regime in Poland and the subsequent transition to democracy themselves.

How might the experience of communist dictatorship help explain decisions made by PiS and Fidesz today as well as the public reaction to them? Professor Kopecky suggests that having lived in a dictatorial period, the leaders of the political parties may be more afraid of the consequences of defeat – in their minds it might not just lead to a change of policy but could be an threat to the party’s ability to ever win in the future. Just as important is the effect on ordinary citizens – it is difficult to imagine how state institutions that served dictatorships propped up by the Soviet Union could inspire trust among citizens. My parents remembered the alienation of the political process during this era – elections with predetermined outcomes just seemed like a game for a staunch party loyalists. My mom also mused on the effect of conscious exposure to propaganda in schools and the media, suggesting that it had an impact undermining general trust in Polish society, making people more sceptical of others’ motives.

The democratic transition has many potential avenues for influencing the current political situation. Professor Dimitrova believes that the privatisation of state assets during the move toward a market economy deserves particular attention: it was the members of the former communist elite that had the best information on these assets and in the 1990s and early 2000s they were able to gain ownership of them for themselves and their political allies. This led to a sense of injustice among the populations of the former communist countries, a sense that the former elites from that time still held disproportionate power. Parties such as Fidesz and PiS have been able to harness this in their political strategies. The behaviour of the former communist elite has been used as a justification for personnel changes in state, including judicial, institutions. This was the case recently in the Polish government’s defence of the changes to the Polish Supreme Court[4]. Professor Dimitrova also suggests that the exploitation of state resources by former communist elites also provided a model for how any party in power may use state institutions for the material gain of key member or supporters.

My parents’ take on this issue was that originally in the 1990s there was a sense of optimism about the transition, giving way to a feeling of injustice more recently. A large segment of Polish society is now critical of the ‘Round Table’ talks between the communist government and the democratic opposition that led to the first partially free elections in Poland in June 1989. Could then a negotiated settlement ending the communist era be the determining factor leading to frustration with the persistence of access to wealth for former communists? Professor Dimitrova is not convinced. She points out that while the end of dictatorship was particularly violent in Romania and remarkably peaceful in Hungary, in both countries former communists were successful in guiding privatisation in their favour.

This discussion raises the question – how common are the underlying factors that have influenced developments in Poland and Hungary across the former communist-dominated states that have become members of the EU? There are already signals that the Romanian government’s moves to roll back anti-corruption measures are causing some in the EU to think about action similar to the steps taken in the cases of Poland and Hungary[5]. Professor Dimitrova pointed to Bulgaria as another case where the economic elite’s relationship with political parties was not conducive to healthy democracy. On the other hand, as Professor Kopecky noted, the Czech Republic’s political scene is divided in a more standard way along class lines – there is less appetite for parties to make appeals to history.

It can be difficult to tease apart how exactly the communist past and the transition to democracy are affecting the politics of Poland, Hungary and other central-eastern European states today – it is by no means a homogenous region. However, an image seems to emerge of publics that are less trusting and more frustrated, and political leaders that are able to harness this thinking to pursue radical changes to how these states are run. As the EU acts against the governments of Poland and Hungary it must remain aware of the effects of history on how the citizens of these countries relate to their political institutions and how they perceive political parties.


Sources used for this article:

  1. https://www.washingtonpost.com/world/europe/polands-judges-boycott-supreme-court-posts-accusing-the-government-of-a-takeover-bid/2018/08/17/8a9a5590-943a-11e8-818b-e9b7348cd87d_story.html?utm_term=.0018d03a2e3d
  2. https://pollofpolls.eu/HU
  3. https://pollofpolls.eu/PL
  4. https://www.bbc.com/news/world-europe-45917830
  5. https://www.politico.eu/article/romanian-prime-minister-viorica-dancila-clashes-with-commission-over-rule-of-law/

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