* * *
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.
Let me, then, say something briefly about the current
challenge of how to respond to what I think by now can be called Orbán’s
national-populist regime. It seems a reasonable conclusion that Europe’s
record so far, while somewhat uneven, has not been as bad as some of us worried
it might be. In particular, both the European Commission and the European
Parliament have kept up more pressure than might have been expected; and the
European Court of Human Rights as well as the Venice Commission have also clearly
tried to show the limits of what the Orbán government can get away with – and
all have done so, I would argue, without giving the impression that rules are
simply made up as they go along to make life difficult for self-declared
Hungarian ‘national revolutionaries’.
The reasons for this relative success are somewhat
contingent, however, and of course we do not at this point know the overall
conclusion to the story. In particular, the Commission has been so
comprehensively sidelined in the Eurocrisis that it has had every reason to
re-assert itself as the proper guardian of the treaties. Moreover, a lot
– too much — has depended on the interests and initiatives of individual
Commissioners. In short, one cannot conclude that all is likely to be
well – and, even less so, that if everything is left as it is, we have a
response ready for the next government set on deviating from European
standards. Especially if the Commission were to become something like a
quasi-government, with an elected president – in other words, if it was
consciously re-designed as a visibly partisan actor — then it would,
in my view, largely drop out as a guardian of liberal democracy. And the
Parliament now already has the problem of being confronted with the charge of
partisanship, despite the fact that the Tavares Report went out of its way to
offer concrete examples of violating European principles and standards (terms I
would prefer to the cloudy talk of “European values”) and to draw on a wide
range of expertise. Still, despite major efforts by Fidesz and some of
its allies in the EPP to emasculate it, the report passed the LIBE committee
largely intact this past week and will now be voted on in the European
Parliament as a whole. This should give us some hope that, at least in
very serious situations, Europe’s institutional machinery is not entirely
gridlocked or ineffective. So it would be wrong to conclude that either
the Commission or the Parliament should stop being involved in democracy
protection: for instance, both the German Parliament and the German government,
can initiate an attempt to ban an antidemocratic party – the point is
that they cannot have the final say in whether, effectively, one of their
competitors disappears from the political scene.
Hence my proposal for an independent institution
specifically tasked with alerting Europe to the kinds of dangers we have been
seeing in Hungary stands. On Verfassungsblog.de and elsewhere a number of
important concerns have been raised about this, and most of these concerns can
be placed in what I described at the outset as the category of normative, as
opposed to practical, considerations. However, some are also of a more
practical nature, and I shall start with addressing these:
When Europe cannot solve a problem, it invents a new
institution instead, as Jan Komárek puts it succinctly (and very nicely).
Indeed: if the political will is lacking that would be needed for an Article 7
procedure, or for a revised mandate for the Fundamental Rights Agency – what
hope is there that a Copenhagen Commission would fulfill the task of democracy
protection? First of all, some support has in fact been building for a
new ‘mechanism’ that would send an early warning signal – witness the Tavares
report which explicitly calls for a Copenhagen Commission-style institution and
the letter to President Barroso signed by four EU foreign ministers which
stressed the need for mechanisms short of Article 7. Second, neither the
invocation of Article 7 nor the FRA is particularly good for, so to speak,
giving an early warning signal. Building support for Article 7 is likely
to take too long, and the FRA, at this point, simply does not have the
appropriate mandate. A properly designed Copenhagen Commission would have
the right mandate and, above all, it would concentrate minds in a highly
fragmented political space and in a weak, some would say non-existent, public
sphere. Europe, to put it bluntly, suffers from a perennial political
attention deficit disorder. And to remedy that disorder at least
somewhat, the idea is simply this: there should be a clear sense that when the
people on the Copenhagen Commission – the Copenhageners, so to speak – raise an
alarm, then something must really be going wrong somewhere. And European
elites – and European citizens — ought to pay attention.
One might still object that we’d just be duplicating
existing institutions – after all, have the Venice Commission and the European
Court of Human Rights not done relatively well in addressing the situation
created by the Hungarian government, a fact that should support the views of
subtle critics like András Jakab? My answer is that first of all, the EU
has reached a depth and density of integration (and a level of interdependence)
that finds no equivalent in the Council of Europe. There is, for
instance, nothing in the Council of Europe like the principle of mutual
recognition (and what might follow from it normatively – which is actually
rather a lot for demoicracy-theorists such as Kalypso Nicolaïdis); EU law is also
much more specific in areas such as data protection, and the Council and the
Venice Commission could not really comment on them. Second, it deserves
mention that the Council of Europe is an even more fragmented political space
(with no shared public sphere at all); moreover, one might say – to put it
bluntly – that the Council contains members who probably would have a hard time
meeting the Copenhagen criteria. The problem of double standards –
charges of hypocrisy abound in virtually any discussion of democracy-protecting
interventions – would be further exacerbated; we might eventually face
situations where Russia can gloat that the European Council has certified a
country within the EU as undemocratic, while Strasbourg remains
condemned to inaction on Putin’s ‘guided democracy’. Finally, Strasbourg
can only properly address individual rights violations – whereas the Copenhagen
Commission could take a more holistic view; the Venice Commission cannot be
proactive, whereas the Copenhagen Commission could routinely monitor the
situation in Member States and raise an alarm without having to be
prompted. It would thus also build up an institutional memory that would
make it easier to prevent double standards both in assessing an individual
country over time and in comparing different countries (thanks to Kim Scheppele
for this point). In sum: without wanting in any way to fault the actions of the
Venice Commission so far, I insist on the point that I do not see a principled
argument for the Union permanently ‘contracting out’ core normative concerns to
do with democracy, the liberal rule of law, and individual rights.
To be sure, there might be a pragmatic worry among some
Member States that the EU is likely to deepen its own legitimacy crisis if it
were to pass judgment not just on budget numbers, but also on liberal democracy
and the rule of law. To deflect the blame, some Member State governments
might think, it should delegate the unpopular work to the Council of Europe –
just as some of the blame for what Paul Krugman has called ‘austerianism’ might
be laid at the doors of the IMF, which was consciously brought in by European
elites during the Eurocrisis. But if one is serious about sanctions – and
one ought to be – then it would still in the end have to be the EU who does the
sanctioning. So one might as well accept the responsibility for forming
judgments (and not just for implementing them), since, after all, there are
also enough EU citizens who precisely placed their trust in the Union as a
strong guardian of liberal order (as opposed to the Council which can hardly be
said to have any ‘normative power’ at all). Contracting out might have
some short-term benefits, if Europeans will really only blame the Council of
Europe – but it might also have very significant costs in further eroding the
legitimacy of the EU which is already suspected by enough people as caring more
about the rights of multinationals than the rights of individual citizens, as
stressed recently by Dimitry Kochenov.
That leaves one important normative concern: the idea that
what is distinctive (and valuable, an demanding) about the EU is, in the end,
pluralism: tolerance instead of homogenization;mutual opening and respectful
peer review instead of a centralized institution defining and defending
democracy and thereby destroying the precious heterarchy of norms that has
emerged in the Union, as well as a highly demanding ‘ethics of a dialectic
open-self’, in the suggestive words of Matej Avbelj. One could – and
ideally should – have a longer argument about arguments from pluralism, which,
after all, is not a first-order value such as liberty, dignity or equality, but
which, to gain any normative traction, usually has to be justified with
reference to another value: cultural diversity perhaps, or democratic autonomy,
or the beneficial moral-psychological effects of living with differences.
For my purposes here it suffices to say that the EU has always been about pluralism
within common political parameters. After all, the accession process has
never been about maximizing difference, but about ensuring sameness in certain
regards (democracy, rule of law, state capacity, etc.). As long as it has
been taking in new members, the EU has been in the business of making
definitive judgments on whether a country really is a liberal democracy or
not. In that sense, mandating a distinct and highly visible body with
keeping an eye on whether everyone is remaining a liberal democracy does not
constitute a fundamental break with EU principles and practices at
all. And, as pointed out in my initial contribution to the debate,
neutrality or indifference are not an option: Europeans have decided to share
their fate in certain areas, they have opted for interdependence, and that
means that as long as a Member State government has not lost its voting rights
in the Council, all EU citizens are subjected to its decisions. One could
of course say the same about the UN: we are all subject to the decisions of the
permanent members on the Security Council and thus at the mercy of undemocratic
powers such as China and Russia. The difference is that in the EU we have
a real chance of doing something about it.
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