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Guidelines for Effectively Protecting Democracy in the European Union

The EU responds with a blunt sword to dubious moves by member-states of the kind recently observed in Poland. Kai-Olaf Lang lays out some guidelines under which the blunt sword could become an effective instrument for protecting democracy.

Point of View, 18.01.2016 Research Areas

The EU responds with a blunt sword to dubious moves by member-states of the kind recently observed in Poland. Kai-Olaf Lang lays out some guidelines under which the blunt sword could become an effective instrument for protecting democracy.

The first actions of the new Polish government have generated concern over the health of democracy and rule of law in Poland. Specifically, the new media law and the conflict over the constitutional court have generated sharp criticisms at home and abroad. While the government in Warsaw treats this as an exaggerated and ideologically motivated campaign, calls for a determined response have been heard in Poland itself and across the European Union: as a democratic value-based community, the Union cannot simply accept violations of democratic standards, it is asserted. Representatives of the EU have not hesitated to speak out; the Commission in particular feels obliged. After warning letters and public criticism, the Commission applied its new mechanism for safeguarding the rule of law for the first time on 13 January. But is the “framework to strengthen the rule of law” introduced in 2014 actually a practicable procedure for protecting the democratic process? And how can the EU effectively prevent member-states from sliding into semi-authoritarianism, perhaps also with recourse to other instruments?

Early Warning and Flexible Response

The establishment of the framework to safeguard the rule of law grew out of the necessity to close the gap between the EU’s rather technical and purely legal infringement procedures for treaty violations on the one hand and the ultima ratio of the much more broadly couched Article 7 of the Treaty on European Union on the other hand. Article 7, which for good reason imposes strict procedural and material hurdles, permits an affected country’s membership rights to be suspended, although only after determination of “the existence of a serious and persistent breach” of fundamental values. To put it bluntly, the requirements for such a decision (including unanimity of all other member-states) mean that it is unlikely to happen short of a military coup. In advance of an Article 7 process (but not as a precondition for it), the new framework to safeguard the rule of law is supposed to be an early-warning system and flexible response to undesirable developments that often unfold in rapid succession.

It is doubtful whether the new mechanism will be sufficient to persuade a determined government to draw back from an agenda of change. This is not because the process of assessment, recommendation and deadline-setting ends without any direct sanction, but merely a »follow-up« in the form of possible initiation of the Article 7 process. In fact, a government straying from the path of democracy likely would present even proper sanctions as unjustified punishment of the nation and exploit them to circle the wagons. In other words, external threats and efforts to discipline a member state accused of democratic non-compliance will hardly produce the desired effects. Nonetheless, even the blunt sword of a process based on dialogue and public rebuke should not be underestimated as it can have indirect consequences. Especially in countries like Poland, where there is a strong underlying pro-European current in society, ongoing highlighting of possible internal aberrations by the EU can certainly create tangible domestic political challenges for governments. Especially because these governments increasingly have to justify what they do and explain on the national level what a possible deterioration of the country’s position would mean. At the same time, the EU has to be aware that a monitoring and dialogue process can fizzle out: If the government under scrutiny is not willing to change its controversial policies and the Commission stays firm, triggering Article 7 (by the Commission) might be fruitless, because the successful initiation of this mechanism requires the determination of a »serious breach« of EU values by more than four-fifths of member states. Such a situation – a frustrated Article 7 procedure – would certainly play into the hands of the government concerned, as it would be able to argue that there are not enough reasons for the EU to take action.Irrespective of these implications, an effective policy of protecting democracy will require the Union and its member-states to remind themselves of certain facts.

Define the Acceptable Spectrum of Representative Parliamentary Democracy

There is a certain tension between the requirement for member-states to observe the values upon which »the Union is founded« (Article 2 TEU) and the promise to respect the »national identities« and »fundamental structures, political and constitutional« of the member-states also laid down in the Treaty (Article 4 (2)). Especially where governments are operating on the basis of clear majorities they will assert their claim to democratic legitimacy. Expressions of external criticism must therefore be insistent but not hysterical, watchful without outrage. It is important to avoid conducting an emotionally driven dialogue with a paternalistic attitude, and instead to introduce continuity into the political response to possibly problematic developments. The ebbing away of attention and a rapid habituation effect can lead to abuses being tolerated, or no longer noticed.

The Union and partners of »problematic« member-states must pay particular attention to two aspects. Firstly, a distinction must be made between matters that are politically unaesthetic or simply different, and those that are unacceptable. Not every reform step that Brussels regards as questionable represents a rule violation. While the marginalisation and de facto paralysis of a constitutional court certainly gives great cause for concern, a discussion about the problem of excessive juridification of politics must also be possible – even in a democracy built on the division of powers. The debate about rule of law is too narrow. For instance, one could imagine a situation where rule of law structures function well enough but great deficits exist in terms of democracy. Accordingly, assessments of the situation in a member-state must not be made in isolation or in formal legalistic terms, but require a comprehensive political (but not party-political!) perspective and contextualisation.

Finally, if the EU wishes to improve its safeguards for democracy, it should avoid entering into another debate about additional institutions and new instruments. It may be the case that an advisory group of political heavyweights and authorities could contribute to the deideologisation of assessment issues. Equally, European state of democracy reports could be useful as long as they avoid degenerating into bureaucracy. But aside from such proposals – which have been under discussion for some time – the member-states will ultimately have to agree on a relatively clearly defined catalogue of democratic essentials representing more than a list of general values. Without such a basis, laying out the acceptable spectrum of representative parliamentary democracy, it is unlikely to be possible to persuade the actors ultimately responsible for collectively defending democracy, pluralism and rule of law, namely the member-states, to shoulder greater responsibility.

A German Version of this »Point of View« has been translated into English by Meredith Dale.