Unlike Its Austerity Rules, the EU’s Democracy Standards Lack Teeth

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When a far-right political party with a nationalist, anti-immigration, and Euroskeptic agenda joined a coalition government after Austria’s 1999 parliamentary elections, the 14 other countries of the European Union (EU) balked. The inclusion of Jörg Haider’s Austrian Freedom Party (FPÖ) challenged an implicit agreement among EU members that extremist parties would be barred from central government positions. Austria’s violation of this tacit understanding, which was rooted in the shared experience of the Second World War, led the other member states to erect a diplomatic cordon sanitaire around the country. Even though the nine-month suspension of diplomatic relations came to be viewed as a fiasco—the FPÖ stayed in the government, and sanctions were scrapped after Austria threatened to veto the accession of new member states—it can also be seen as a rare example of the European community standing up for its values.

Where is this resolve today? The question of how or whether the EU as a whole can respond to violations of liberal democratic norms among its members has come up frequently in discussions about Hungary since Viktor Orbán and his Fidesz party came to power in 2010. Over the past three years, the government has taken a number of steps that resulted in the erosion of checks and balances and the rule of law, eliciting widespread criticism from the international community. However, seemingly hamstrung by its limited competencies in this area and preoccupied by the economic crisis, Brussels has been hesitant in its reaction to apparent democratic backsliding. Sooner or later the EU will be forced to take a firmer stance on the protection of democratic institutions within its member states.

Hungary might just turn out to be a test case. Fidesz’s sweeping electoral victory in April 2010 gave the party a rare two-thirds parliamentary majority that allowed it to pass a new constitution and overhaul core legislation affecting the judiciary, the media, and electoral process. As a result of these changes, the country’s democracy score has dropped significantly in Freedom House’s Nations in Transit report, edging close to the Semi-Consolidated Democracy category. Hungary has also become Partly Free in Freedom of the Press, joining countries like Serbia, Croatia, and Italy. Though the Fidesz government has responded to EU pressure by adjusting some of its legislation—reversing the mandatory retirement of judges at 62, reducing the extensive powers of the head of the National Judicial Office (NJO), and modifying certain provisions of the media laws—many problems remain. Arguably the most serious of these is the government’s new practice of circumventing Hungary’s Constitutional Court by inserting the content of voided laws into the constitution.

With a few notable exceptions, there is an overwhelming consensus among EU member states that Hungarian governance since 2010 has jeopardized the health and independence of key democratic institutions. However, sustained criticism from Hungarian citizens, from Brussels, and from international organizations has not been enough to reverse the most troubling developments, and it is not clear what else the EU can do.

Since the suspension of diplomatic relations with Austria in 2000, Brussels has never used its powers to punish a member state. Having failed to prove that the Austrian government was committing a “serious and persistent” breach of the principles upon which the union is based—an assessment that, under the 1997 Amsterdam Treaty, could have resulted in suspension of some of Austria’s voting rights—European leaders moved to create a firmer legal basis for preventative action in cases of democratic backsliding. The text of the 2001 Nice Treaty widened the definition of a breach to include the “risk” of a violation, stipulating that it would result in a warning issued to the state in question.

Recent cases have demonstrated that this prevention and punishment mechanism, defined under Article 7 of the most recent treaty, the Treaty of the European Union, is considered to be too harsh and too politicized. Member states intent on protecting their sovereignty have been unwilling to resort to the mechanism, often dubbed the “nuclear option,” and are more inclined to curb the EU’s authority to interfere in domestic matters than to hold fellow member states accountable for the commitment to democratic values they agreed upon in writing just a few years ago. It is worth noting that Hungary, by now a symbol of resistance to EU pressure, was the first country to ratify the 2007 Lisbon Treaty, which deepened European integration, gave more powers to the European Parliament, and made the Charter of Fundamental Rights legally binding.

Indeed, enthusiasm for the “ever closer union” in general is dwindling, and not only in the countries hit hardest by the economic crisis. Even countries whose economies have been comparatively stable are afraid that relinquishing sovereignty would tie their hands in a crisis and force them to bail out fellow member states. Euroskeptics also justify their hostility to intervention from Brussels by emphasizing the Union’s own alleged democratic deficit—the well-known assertion that policymaking on the Europe-wide level is too far removed from voters and dominated by a combination of major powers and unelected bureaucrats. Unfortunately, such arguments may serve to protect illiberal political behavior at the national level and lead to an erosion of national democratic institutions.

A few weeks ago, the European Parliament adopted a report on Hungary that calls for the reversal of several laws and measures instituted by the Fidesz government, condemning them as “incompatible with the values” of the EU. In addition to reproaching Hungary, the report—authored by EU rapporteur for fundamental rights Rui Tavares—suggests an improved and more comprehensive approach to potential breaches of common values. It proposes the creation of an early warning mechanism called the “Alarm Agenda,” the establishment of a so-called “Copenhagen Commission” that would monitor human rights compliance inside the Union, and strengthening the role of the Fundamental Rights Agency (FRA).

The creation of an effective monitoring mechanism is in the interest of every member state, as it is becoming more and more difficult for countries facing deep economic problems to maintain the normal democratic order. In Bulgaria, for example, ongoing demonstrations over economic conditions and pervasive corruption have raised concerns about the longevity of the current government, which was formed after the country’s largest protests in 16 years forced early elections in February, and which relies on the silent support of the ultranationalist Ataka party. Bulgaria’s overall democracy score in Nations in Transit has declined almost twice as much as Romania’s since the two countries joined the EU in 2007, and its Freedom of the Press score reached its lowest point in 10 years in the most recent edition.

Romania’s scores have also declined in both Nations in Transit and Freedom of the Press following a tumultuous summer last year. Even though Prime Minister Victor Ponta, unlike his Hungarian counterpart, gave in to EU pressure when his relentless efforts to impeach the president threatened to cause a major political crisis in the country, his actions inflicted some longer-term damage to the already waning confidence in political institutions and democracy in the region.

Even older member states have faced serious democratic setbacks recently. Political turmoil and social unrest in Greece escalated in 2012 as a result of continued fiscal cuts and economic depression, while the right-wing extremist Golden Dawn party embarked on a campaign of terror aimed at immigrants, the political left, and gay men and lesbians. The legal, political, and economic environment for the media has become increasingly hostile, with a rise in physical and verbal attacks on journalists, closures of outlets, and the unexpected shutdown of the public broadcaster. The country’s political rights rating has been declining in Freedom House’s flagship Freedom in the World report, and its Freedom of the Press score exhibited an unprecedented 11-point drop in the most recent edition. So far, concerns about Greece’s democratic backsliding have been drowned out by alarm over the broader, Europe-wide debt crisis. Many argue that the austerity demands imposed by Brussels are aimed at influencing markets and other debtor states, rather than responding properly to conditions in Greece itself.

In addition to reviewing its internal human rights mechanisms, the EU has reason to reexamine the metrics by which it assesses the health of key democratic institutions in aspiring member states. Although the procedure for accession has become more rigorous with each wave of candidates, it is notable that the Nations in Transit democracy score for the worst-performing EU entrant in 2004 was higher than that of Bulgaria or Romania when they joined in 2007. Similarly, Croatia, which joined the EU at the beginning of this month, did so with poorer ratings in the areas of media and judicial independence, electoral process, and local democratic governance than Bulgaria or Romania had six years ago.

The current rules governing democratic standards in the EU are clear in substance, but they are not enforceable in practice. The reforms suggested by the Tavares report—which will be discussed by the European Commission at the end of August—would create a much-needed intermediary mechanism to curb future violations without resorting immediately to extreme diplomatic sanctions of the kind levied against Austria. Such a system could even encourage aspiring member states to commit to more difficult, fundamental reforms early on. A more transparent and incremental EU-wide monitoring process, with independent evaluation, could also address smaller states’ complaints about double standards, and offset accusations of underlying partisan interests. For these reasons, it is supported by the European Parliament’s largest group, the conservative European People’s Party (EPP), which counts Fidesz among its members.

Most importantly, the report sends an important message to heads of government in the European Council that the majority of their own countries’ parliamentarians want democratic violations in fellow member states to be addressed. European leaders who claim to value national sovereignty should heed their call.

Photo: Screengrab from Al Jazeera English

Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.

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