The Commission gets the point – but not necessarily the instruments

european-union-flags-at-t-0021Jan-Werner Müller

This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU Member States.[1]  Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within Member States, so to speak) effectively?  The clear-cut answer is: yes and no.  The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings.  Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work.  But if it doesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new framework formalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de facto approach in recent years.  This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency.  It may well deter some governments.  But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before.

The Commission’s initiative comes against the background of threats to liberal democracy in Hungary and Romania since about 2010 — and an acute sense among many observers (and also among political actors) that the Union has been ill-equipped to deal with a challenge one might call “constitutional capture.”  Constitutional capture is different from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but it is also different from individual rights violations, grave as the latter might be.  Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult.  Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (a case of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantly tried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy, the President of Romania (this being a matter of attempting an informal constitutional capture).

In both cases, the Commission got into a direct confrontation with the respective national governments.  While the EU arguably helped to avoid the worst, the experience seemed to point to a significant weakness of the Commission as a guardian of the treaties: it could take governments to court for individual infringements of EU law, but it proved incapable of addressing systematic attempts to undermine the rule of law.  In some cases, it could not “read” certain laws for what they were, but had to reinterpret them in an EU framework such that their real political meaning was officially missed.  When Orbán’s government effectively decapitated the Hungarian judiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination.  Brussels won its case, but the judges were never re-instated; the political situation remained more or less as Orbán’s government wanted it.       Continue reading

What, if anything, is Wrong with a Copenhagen Commission? The Idea of Democracy Protection in the EU Revisited

Jan-Werner Muller

It is important that we distinguish two challenges: one is the question how the European Union should respond to the actions of the current Hungarian government (I insist on the importance of choosing words carefully here: the problem is not ‘Hungary’, but a particular set of politicians and their disregard for the rule of law.  Remember how Wolfgang Schüssel and others managed to convince practically everyone that in 2000 we were witnessing ‘sanctions against Austria’ — as opposed to bilateral measures designed to express concerns about the ÖVP-FPÖ coalition).  The other challenge is how to devise, for the long term, a new set of institutions or ‘mechanisms’ to respond to deteriorations of democracy and the rule of law in a Member State.  Both challenges can be looked at from at least two crucial, but in the end clearly different perspectives.  One is a practical one: what is deemed politically feasible and what is likely to be effective in changing the conduct of a Member State government?  The other one is more clearly normative: what can be justified from a, broadly speaking, liberal democratic perspective?  How can one ensure that responses to violations of the rule of law are not themselves in danger of looking like arbitrary ad hoc measures (again, a complaint that was often voiced against the EU-14 by the Austrian government in 2000 – and not entirely without reason)?  The latter peril is already pervasive in today’s EU because of the Eurocrisis – and the danger of a Europe of permanent exceptions should not be compounded. Continue reading

Protecting Democracy and the Rule of Law inside the EU; or: Why Europe Needs a Copenhagen Commission

Jan-Werner Mueller

Could there be a dictatorship inside the European Union?  If such a spectre appeared, should Brussels somehow step in to shore up democracy?  Or would this constitute an illegitimate form of meddling in the domestic affairs of countries which, after all, have delegated only specific powers to Europe – and not empowered Brussels to lecture Europeans from Lapland to Lampedusa on how popular rule is correctly understood, let alone to be a policeman for liberal democracy across the European continent?  All these are no longer theoretical questions: recent developments in Romani and especially in Hungary have put such challenges squarely on the agenda of European politics.

I have argued in a short book and in a paper for the Transatlantic Academy that it is legitimate for Brussels to act as a guardian of liberal democracy.   The problem is more of a practical nature: as of now, the EU has no convincing tool kit to deal with situations which probably not many Eurocrats – or, for that matter, European elites more broadly – ever foresaw.  To be sure, the repertoire of legal and political instruments the EU has at its disposal at the moment to exert pressure on Member States might occasionally work — but it can also appear arbitrary and opportunistic.  I propose extending this repertoire as well as the creation of a new kind of democracy watchdog – tentatively called the ‘Copenhagen Commission’ – which can raise a Europe-wide alarm about deteriorations in the rule of law and democracy. Continue reading