The Austrian aftermath – why the EU has a problem with sanctioning its member states for violating democratic principles

Wiebke Junge studied Political Science in Vienna and European Politics at LSE in London. She recently finished her dissertation on ‘European Sanctions and Democratic Principles’ and currently works as a Parliamentary Assistant to the MP of the Austrian NEOS party, a young movement of liberal democrats.

When the Austrian People’s Party (ÖVP) invited the right-wing populists into the government coalition in October 1999, the (then) EU-14’s reaction was pretty clear and pushed through without hesitation. Soft diplomatic sanctions were imposed against Austria in January 2000, which included keeping diplomatic relations to a technical level, no extracurricular meetings with Austrian officials and not supporting Austrians running for positions in international organisations.[i] The EU-14 made clear that especially the inclusion of Jörg Haider, the leader of the FPÖ, was a complete political ‘no-no’. Haider’s unhidden admiration for former SS-officers and Hitler’s employment policies had caused public outrage among the political elites in Europe before, and European social democrats in particular urged for clear and strict measures to weaken the FPÖ’s support in Europe.[ii]

But these so-called sanctions were inconsistent and inefficient, and generally a failure that backfired and rather strengthened not only the FPÖ at home, as the polls would suggest,[iii] but also right-wing populists throughout the EU. The first element of hypocrisy was that in 1994, Italian Prime Minister Silvio Berlusconi had invited the Alleanza Nazionale into the Italian government,[iv] which was often referred to as a neo-fascist and right-wing party.[v] This was before the FPÖ entered the government in Austria, and was never targeted with sanctions for this. Haider had been part of the political landscape in Austria in various roles and functions before, especially at state level, and no one seemed to care about it. Lastly, none of the EU institutions supported the sanctions officially, as there was no legal basis for invoking Article 7 (today’s Article 7(2-5)), which would directly call for sanctions against a member state that violated the principles of democracy, rule of law, and human rights, as stated in Article 2 TEU.

Another problem was that the Article 7(1) preventive mechanism did not exist at this point and was therefore hastily drafted later in the same year. As a consequence, the sanctions were lacking structure and consent among the EU-14. The social democratic parties in the EU backed the sanctions due to partisan political self-interests and their fear of rising right-wing populism at home. They hoped that sanctioning Haider would have a positive effect in their own countries and weaken right-wing parties at domestic level. The conservatives, however, were more careful and argued that besides a lack of legal basis for sanctions, the measures would be a clear interference with a democratically elected government in another sovereign EU member state and therefore not legitimate. Consequently, there was a clear dissent on how long the measures should last, what kind of justification they were based on and how efficient they would be, as official EU institutions were not supporting the sanctions and EU day-to-day politics continued without any changes. There was a clear inconsistency here: Group photos with Austrian politicians were taken at official EU conferences and summits, while in bilateral matters diplomatic relations with Austria remained frozen. No one was surprised that not only the Austrian media, but also the international press condemned the sanctions as unfair and considered them not only not credible, but also a complete disaster.[vi] As a result, the sanctions were hastily lifted in September 2000, after having been in place for only a few months.[vii]

When Orbán’s Fidesz party came to power in Hungary after the elections in 2010, it gained two thirds of the votes and held a supermajority in the Hungarian Parliament, which allowed Orbán to pursue constitutional changes. Within one month, he pushed through a new constitution, restricted the national media, staffed the Hungarian constitutional court with new judges loyal to the government and implemented controversial social policies that would rather benefit the rich then the poor.[viii] Human Rights Watch raised concerns about the reforms later in 2013[ix] and again, several governments in other EU member states were outraged, as they had been in the case of Austria. Still, no sanctions were imposed, even though the Socialists and Democrats (S&D) European Parliament Group in 2011 and the Alliance of Liberals and Democrats (ALDE) in 2013, called for the activation of Article 7(1). In both cases, the European People’s Party (EPP) blocked the proposal to activate Article 7, which seemed to be surprising given that it was quite clear what was happening in Hungary. So why were there no sanctions imposed against Hungary?

The fact that the EPP had, apparently unanimously, rejected to take steps against Orbán’s turn to illiberal democracy[x] seems surprising at first. However, Fidesz, other than the FPÖ in 2000, had been a member of the EPP for years and never acted radically anti-European but rather showed its euro-sceptic approaches. Fidesz was well integrated in the EPP and the political network in Brussels in general. This clearly shows the importance for political parties to find allies within their European Parliament (EP) group: The EPP may still be the largest party in the EP but with the right-wing populists and Eurosceptic gaining support, they are going to need all the support they can get and it would be self-destructive to pick a fight with Fidesz and risk losing their stand of majority party in the EP.

But there are more explanations for why Orbán never faced any official EU sanctions before. During the first months in office, the Hungarian government did not lack support at the domestic level. Controversial policy reforms were being implemented as an excuse for Hungary to get through the economic crisis,[xi] and by restricting the national media and constitutional courts, the government managed to bypass the two strongest national institutions of public scrutiny. Austria was a more sensitive case for the EU-14, as it had played a crucial role in the Second World War and had struggled for years with its Nazi past. Austria did not officially take responsibility for being an active ally of Hitler’s fascist regime until the early 1990s, when chancellor Vranitzky made clear that Austria was not the first victim of Hitler but had to take responsibility for cooperating with him and being responsible for horrible war crimes.[xii] With Jörg Haider on the official stages of Austrian politics, the EU-14 did not only condemn his rhetoric, which was more radical than Orbán’s comments on EU enlargement and integration, but also felt offended by the fact that Austria, which had just recently stopped to denied its historical responsibility during the Third Reich, had elected a politician like Haider to enter the public stage to undo all these positive developments.

Another explanation for why there had been sanctions against Austria, and not Hungary, could be found in the way in which EU member states handle rising right-wing populism at home. When the Freedom Party entered the Austrian government following the 1999 elections, the established majority parties in Belgium, France, and Germany faced the challenging rise of right-wing populism in their own countries, with the Vlaams Belang, Front National and the NPD gaining popularity among voters. The reaction to impose sanctions against Austria was not just because of Austria’s Nazi past, nor pure constructivist commitment to European values and normative rules. It was also part of the rationalist strategy of the major political parties in Europe to maintain their influence at home and to defend the power structures they had been working on for so many years.[xiii]

It is possible that the strategy on how to deal with ring-wing parties has changed among European countries. The Austrian approach has always been very inclusive, for instance by inviting right-wing parties into the public sphere and giving them an official platform in order to pressure them into taking responsibility. Taking into account that the Freedom Party managed to destroy itself and suffered from a massive loss of votes following their inclusion in government, the inclusive model might be a successful strategy. It does not only expose the populists to public scrutiny but also makes them easy to control.

However, there are numerous member states where voters favour populist parties and fall for their promises, with the PIS government in Poland, Brexit in the UK and the presidential elections in Austria being just two current examples. Germany has always tried to keep the nationalist NPD out of government and out of the sphere of electable parties, even trying to prohibit the party by the constitutional court on a regular basis.[xiv] However, with the rising Alternative for Germany (AfD), next years’ elections will put this model of exclusion to the test.

All in all, the sanctions against Austria have shown that, practically, not even the reform of Article 7 has helped to find a more credible – and most importantly – a legitimate way of teaching anti-democratic policy makers in Europe a lesson. The Article 7(1) preventive mechanism is ready to be applied, but still this has not been used so far. EU member states have rather gotten more reluctant about interfering with right-wing populists in national governments. This might be a lesson learnt from the sanctions against Austria, which backfired and were publicly denounced as a joke rather than helped to strengthen commitment to European norms and fundamental values. This is why the EU has a problem with sanctioning its member states and invoking Article 7(1) when they suspect a breach of community values and democratic principles: It is easy to agree on common values, but it is complicated to agree on when exactly these values have been violated. Furthermore, with the current political issues the EU is facing at the moment, it is hard to justify interference in another country’s democratically elected government, as this could backfire and strengthen political opponents both at home and abroad.

Interfering in another sovereign member states’ governmental affairs is a sensitive issue and balancing the legitimacy of sanctions is a challenge. However, this must not keep the EU from taking a stand and defending the very basic values it was founded on: ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’.[xv] Democracy is its own most powerful enemy and needs to be protected by all means. In the case of Austria, measures were hasty, inefficient and not credible. With a preventive mechanism like Article 7(1) in place, there is a way for the EU to collectively address concerns in case a member state gets out of line without causing a diplomatic disaster and public confusion, like Austria in 2000.

[i] See Merlingen, Michael et al. (2001): The Right and the Righteous? European Norms, Domestic Politics and the Sanctions Against Austria. Journal of Common Market Studies, Vol. 39(1), p. 59-77.

[ii]https://www.theguardian.com/world/2000/oct/02/austria.kateconnolly.

[iii]BMI Austria statistics on National elections 2002, 2004, 2008.

[iv] See http://www.nytimes.com/1994/05/12/world/berlusconi-and-cabinet-with-neo-fascists-take-office-in-italy.html

[v] See http://www.policy-network.net/pno_detail.aspx?ID=4894&title=Italy%e2%80%99s+far+right+is+on+the+march

[vi] See https://www.washingtonpost.com/archive/opinions/2000/02/18/europes-austria-hypocrisy/6cdca06a-4c66-41af-9de0-aae96f097d0d/?utm_term=.a22c6eca49ed.

[vii] See https://www.theguardian.com/world/2000/sep/12/austria.ianblack.

[viii] For more on Orbán’s policy reforms see: Szirka, Dorottya (2015): Democracy and welfare in hard times: The social policy of the Orbán Government in Hungary between 2010 and 2014. Journal of European Social Policy, Vol. 24(5), p. 486-500.

[ix] See https://www.hrw.org/report/2013/05/16/wrong-direction-rights/assessing-impact-hungarys-new-constitution-and-laws.

[x] See Batory, Agnes (2013): Uploading as political strategy: the European Parliament and the Hungarian media law debate. East European Politics, Vol.30(2), p. 230-245.

[xi] See Szirka, Dorottya (2013).

[xii] See http://www.nytimes.com/1991/07/09/world/leader-says-austria-must-face-its-nazi-past.html.

[xiii]See Merlingen, Michael et al. (2001).

[xiv]See https://www.theguardian.com/world/commentisfree/2016/mar/04/germany-ban–neo-nazi-npd-refugees-far-right

[xv]Art.2 TEU