Written by Marta Abelsen
The issue of a democratic deficit has long haunted the European Union (Kelemen, 2017). The primary concern among many scholars and politicians has long been the increase in ‘power transfer’ from EU member states to the EU system, and that the EU body increasingly resembles that of a supranational one (Kelemen, 2017). There are, however, reasons that one might want to focus on what is happening on national levels among member states, rather than on EU level. For the past decade or so, the EU has seen a shift towards authoritarianism in several member countries, Poland and Hungary standing out as the most pronounced examples (Ágh, 2018). While the democratic decline in these two countries has become obvious to the public, the EU has chosen to take action only towards Poland, while Hungary under Viktor Orbán’s rule seemingly goes on with its autocracy undisturbed. This raises a number of questions. Why does the EU allow this unfortunate development, being a union whose main pillar is democracy? How come the reactions towards the countries in question are asymmetrical?
The democratic deficit of the European Union
Since the beginning, the EU has been a union based on democratic values, and European Integration was meant to prevent future wars (Cini & Borragán, 2019). Through the Copenhagen criteria, the EU defines a general set of requirements that needs to be fulfilled in order for a state to join the Union. This includes ‘stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’ (Kelemen, 2017), many of which stand in strong contrast to the previously communist, autocratic countries (Azamanova, 2013). The inclusion of the Eastern European countries quickly came on the EU agenda following the fall of the Berlin Wall and the end of the Cold War. At some point, the EU considered that the newborn democracies of the East had reached a sufficient level of democracy (Ágh, 2018). The European Union expanded significantly in the years 2004 and 2007, the total number of members post-Brexit being 27. However, no further guidelines on Europeanization and Democratization were developed by the EU, hence limiting its influence on the further development in these countries, which could have been beneficial for further integration in the EU (Ágh, 2018).
Threats to democratic principles by Eastern European governments
The ongoing democratic backslide constitutes a threat to the EU, its vision, and purpose, and is by many referred to as the greatest contemporary challenge to the legitimacy of the European Union (Hooghe & Marks, 2019). The subject of democratic erosion in Hungary started in 2010, the year in which Victor Orbán’s government was elected – and violations of both Hungary’s own constitution, as well as the deliberate plan to diverge from European values, became visible soon after (Ágh, 2018). The plan constituted a take-over of the state machinery. Fidesz, Orban’s radical right party, quickly took control over media and institutions which were safeguarding democracy and attacked the judiciary, gaining control over the Supreme Court. This led to the initial reactions from the EU, in the form of ‘three letters of notice’ (Ágh, 2018). However, since the mid-2010s the EU has done surprisingly little to prevent the further decay of democratic institutions.
In the case of Poland, the Law and Justice (PiS) government was elected in 2015 and soon implemented similar measures as those seen in Hungary: unconstitutionally changing the law on the nomination procedure for the Polish Constitutional Tribunal as well as attacking public radio and broadcasting (Meijers & Van der Veer, 2019). There are several common characteristics of democratic backlash in the cases of Poland and Hungary. However, the reaction from the EU has not been what many would have expected. In 2016, the European Commission initiated dialogue with Poland regarding the negative development and threat to the Rule of Law. However, a lack of progress with dialogue led to the Commission triggering Article 7 proposals for the very first time (European Commission, 2019). Upholding the Rule of Law, whose core is effective judicial protection, is one of the fundamental values of the EU (enshrined in Article 2 of the Treaty of the EU), and Article 7 is the last resort to solving a crisis in which Article 2 has been violated (Upholding the rule of law, n.d.) (Rule of law framework, n.d.). However, due to the unanimity requirement, Hungary can veto any Article 7 reactions on Poland. While the Rule of Law framework was launched against Poland, it was not enforced against Hungary (Meijers & Van der Veer, 2019).
The institutional weakness of the European Parliament
Federalist theory does offer perspectives that can help understand how subnational authoritarianism has been allowed to develop right under the nose of a supranational institution such as the EU, with seemingly few reactions. Comparative federalist theory explains how increased democratization of the political institutions on the federal level can actually – ironically – allow for autocratic development on state-level (Kelemen, 2018). Fidesz, Viktor Orbán’s party, holds 12 seats in the center-right European People’s Party (EPP), which is one of the most powerful parties on the EU level. Meanwhile, PiS is part of the smaller and less influential ECR party (Meijers & Van der Veer, 2019). When the European Parliament (EP) attempted to condemn undemocratic practices in Hungary back in 2013 and 2015 respectively, members of the EPP voted against it. This is likely the result of the increasing political competitiveness on the federal level (Kelemen, 2018). Central party members in the EPP seem willing to tolerate attacks on democracy in Hungary, in order to maintain their position in the EU. Meanwhile, the European Commission was also led by EPP members Barroso and Juncker (and continues to be led today by the Von der Leyen Commission) (European Commission, n.d.).
Ironically, this happens after the EU has worked towards strengthening the European Parliament’s role as a step to increase democratization. The effect of this can have unprecedented consequences for democracy in the EU if Kellermen’s (2018) insinuations hold true: a ‘you scratch my back, I scratch yours’ attitude is gaining terrain on the EU level and EPP leaders close their eyes to the breaches on the main values of the EU in order to maintain the party’s position. Knowing this, it is not only the rise of autocracy in EU member states which threatens its core values but also the EU’s own top leaders who contribute to deterioration from within. These are the same who have vowed to the EU’s values and to practicing and safeguarding them.
Another unsettling fact about Hungary’s slide towards the radical right is how it can come to provoke similar development in other EU countries through the use of the veto. Its support to Polish authorities is an example. As mentioned previously, no guidelines were made for post-communist countries on how to enforce democracy (or Europeanization). Gibbson points to how subnational authoritarianism often persists in previously East bloc countries although they become democratic ‘on the outside’ (Kelemen, 2018). This means that there are weak constitutional governments in several Eastern European countries, such as Romania and Bulgaria (Azamanova, 2013), who are at risk of experiencing democratic declines similar to those of Poland and Hungary in the future.
If left undisturbed, the autocratic tendencies of Poland and Hungary might go on to spread to other European countries. Such a scenario would be highly unwanted from an EU perspective.
One can also ask to what degree the EU should attempt to enforce democracy in these countries. Another point, in this case, may be that some countries are not ready for democracy yet and that the wish to become one must come from inside – not be enforced externally. One thing is for sure: Hungary and Poland (as far as their powers go) will try to mask violations of the Rule of Law behind the argument of self-government and sovereignty. Both did file a complaint against the new requirement in the EU 2021-2027 budget. This states that ‘respect for the rule of law is essential for recipients of shares from the 750-billion-euro COVID-19 package in the budget (Sassoli & Roth, 2020). This issue remained unresolved for some time, but in February 2022, the EU Court of Justice dismissed the Polish and Hungarian actions against the Rule of Law Conditionality Regulation. This entails that complying to rule of law principles will be a requirement to access the NextGenerationEU funds. The Parliament followed up by welcoming this judgment in a resolution dated March 10th, 2022, stressed the responsibility of the Commission as the guardian of EU Treaties, and reacted to the ongoing violations of the rule of law principles in certain member states. The EP goes on to criticize the lack of action from the Commission since the ECJ ruling (European Parliament, 2022).
Although the budget conditionality regulation entered into force on January 1st, 2022, the Commission has so far been unable to apply it. The formal rejection of the claims by Hungary and Poland eliminates doubts regarding the regulation’s validity. It remains now to see whether the Commission can act according to its crucial role as guardian of the treaties and protect principles of the rule of law throughout the Union. There is little doubt that member states will continue to challenge the EU regarding these principles in the future. Standing up against these challenges means standing up for the very core values of the EU.