Concilium Civitas Almanac 2020/2021 – Professor Jan Zielonka „Is the European Union Keeping a Close Watch on Democracy?” –

Is the European Union Keeping a Close Watch on Democracy?

Jan Zielonka

Since the fall of communism, and even earlier, the European Union has served as a natural haven for Polish democrats. It has stood as a symbol not only of the rule of law, but also of prosperity and solidarity. Citizens have felt safe within the EU, with no threat of democracy being overthrown, the economy crashing or an armed attack from the outside. Whenever the Law and Justice Party (PiS) has been in power in Poland, the opposition has viewed the EU as the guardian of common liberal values and a barrier against instances of aggressive nationalism. Although voters gave PiS a mandate to govern in 2005 and 2015, this did not mean they supported the party’s Eurosceptic rhetoric. Support for the EU has always been high among Poles, giving democrats hope that the EU would establish limits to the arbitrariness of the Law and Justice Party’s rule. There was also the conviction that close ties with the EU would be rewarded by voters, who were displeased by the war PiS was waging on the EU. Voters could potentially accept the party’s ‘reforms’ of the courts or the civil service, but it was widely believed that nobody would be pleased with the loss of money from Brussels.

This vision was first challenged during the elections to the European Parliament in 2019. PiS won this election by seven points, although European politics was, by definition, the democratic opposition’s arena. Have Polish voters become critical of the EU? Did they support the Eurosceptic vision of the union that the Law and Justice Party promoted in those elections? Opinion polls did not reveal Euroscepticism, so the democratic opposition assumed that the European Parliament elections had been not about Europe but about Poland, and more specifically about the 500+ cash child benefits programme and other elements of the social package that had been introduced or promised by PiS. National issues did in fact dominate the electoral campaign for the European Parliament, and not just in Poland.

The next shock came in July 2020. Mateusz Morawiecki, the prime minister, returned from the historic EU summit in Brussels at which a coronavirus rescue package was negotiated with a promise of a mountain of money that did not, in his view, have any special conditions attached. A discussion started as to whether Article 22 or 23 of this agreement was more important (the latter includes sanctions for breaking the law). This dispute will resolve itself in due course, because politicians put forward different arguments, depending on which party they belong to. There is, however, a real danger that the Law and Justice Party will continue with its legal and cultural offensive) using European funds. This has been the case for many years in Hungary, and it is no wonder that Viktor Orbán triumphantly announced the victory of his policy following the Brussels summit.

The matter is serious enough to merit detailed consideration. For if Orbán and Morawiecki are right, then the EU may, in the future, harm rather than foster democracy in Poland. Is it possible to imagine such a scenario? Could the EU become a weapon in the hands of autocrats and nationalists? A few years ago, a similar scenario would have been unthinkable in the case of the United States of America, but today it is safe to say that under Donald Trump, the US is favouring nationalists and autocrats. In the case of the EU, however, things are more complicated.

What does EU law say?

Article 2 of the EU Treaty states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’ The now famous Article 7 of this Treaty provides for sanctions for undermining these common values, including the suspension of certain membership rights. Furthermore, the Charter of Fundamental Rights of the European Union contains a long list of rights and freedoms, including, for example, the prohibition of discrimination based on sexual orientation.

This is not the end of the matter, however, because Article 4 of the Treaty to a certain extent restricts the role of the EU in defending democracy in the member states: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.’

As we know, politicians have different ideas about how to defend national identity, the Constitution and public order. The Law and Justice Party constantly repeats that it is defending the Constitution and argues that maintaining public order requires ‘decisive police intervention’ against, for example, LGBT activists. In addition, Article 5 of the EU Treaty mentions the much-noted principle of subsidiarity. This can be interpreted as meaning that, if a member state is better able to resolve certain matters, the EU should not interfere in them. Even the opposition’s favourite Article 7 says that a decision on whether fundamental values are being violated requires unanimity, except for the accused state. A subsequent imposition of sanctions requires a qualified majority, not a simple majority. This explains why there has never been any recourse to this article.

I can already see many lawyers questioning my ‘cynical’ interpretation of the EU Treaty: it is hard to deny they have a point. The problem is that European law is ambiguous on this and other issues, which opens the door to different interpretations. It is true that the European Court formally has the last word on interpretations of European law. The problem, though, is that it acts slowly, carefully and under pressure from member states. Besides, the court’s legitimacy to define the law has recently been called into question, not only by Poland but also by Germany, and more specifically by the Federal Constitutional Court in Karlsruhe.

As for sanctions, the EU rarely imposes them on member states, even if provided for by law. One example is the famous decision of the Council of the EU in 2005 refusing to impose financial sanctions on Germany and France for ostentatious violations of the financial deficit rules (the European Commission had demanded sanctions). In the explanatory memorandum to its position, the Council of the EU stated that procedures for financial discipline were not intended to ‘punish, but to offer [states] incentives’ to apply the law. The council prefers ‘supervision, assistance and [delicate] pressure’ to sanctions. In simple terms: the EU prefers to use the carrot, rather than the stick, for countries that violate European laws and values.

The EU’s ambivalent nature

EU law has always been ambiguous, vague and soft. A similar ambiguity, even an internal contradiction, applies to historic political decisions. There is much evidence of this during the EU’s history of integration. A union of many countries with different strengths, economic profiles and political cultures must, by nature, involve the building of difficult compromises. Successive generations of European politicians have faced various challenges and problems. National leaders have not always known how to solve them, and when they have, they have failed to find enough support from the rest. The more ambitious the idea, the more difficult it has been to get everyone to agree. The differences have related to fundamental issues, such as the extent and the areas of integration, or the number of new members. The admission of new countries has always meant increased diversity and the need to bend existing rules to different cultures and requirements.

The July summit in Brussels could not give a clear answer to the basic questions it was facing: levels of funds intended for member states, sources of funding and the conditions for receiving European funds. There were just too many conflicting interests on the table.

Ambivalence has its advantages. Without the availability of equivocal solutions, it would be difficult to imagine any progress in the integration of member states. An example is the history of the European Defence Community, a project put forward by France’s government in the early 1950s and rejected by its parliament, above all because its federalist intentions were too explicit. In other words, European politicians must often choose between integration in disguise and backing down. The same was true at the July summit in Brussels. The financial package for countries affected by the pandemic would not have been adopted without a certain amount of ambiguity. The summit’s failure would have brought economic disaster to many countries, and the media would have announced a complete fiasco of the European idea.

Nevertheless, ambivalence also has its drawbacks, because it generates solutions that, in practice, are easy to undermine. Ambiguous laws and political decisions often exist only on paper because there is lack of consent for their implementation. This has gained importance in the post-truth era, which is characterized by a different understanding of reality and the mixing of facts with opinions. PiS and the opposition both maintain that they are the guardians of the Constitution. It is obvious that one of them cannot be right. The same applies to the interpretation of the July summit in Brussels. Both sides of the political conflict in Poland are claiming success for the line they have taken. It is hard to imagine how both sides could have won at the Brussels summit. This leads to a discussion on the procedures to be followed for interpreting and enforcing the decisions that have been taken.

This discussion focuses on the principles of unanimity and majority (simple or qualified). Each side has a different opinion. However, let us assume that the opposition is right and a vote on the withdrawal of European funds for violations of the rule of law could be passed by a minority in the Council of the European Union. Is there any guarantee that such a minority can be found? Let us look more closely at who makes the decisions and on what basis.

A community of states or values?

The EU is, of course, a community of values, but the interpretation of those values and the limits to their violation are in the hands of the states, namely, the prime ministers and presidents of the member states sitting in the Council of the European Union. The European Commission and the European Parliament have a formal right of opinion, and some decisions require their consent. There is no doubt, however, that the treaties and the practice of European integration have given precedence to state leaders. The Commission may refuse grants to small districts that discriminate against LGBT, but when large amounts of money are at stake, the decisions are taken by the EU Council, partly with the consent of the European Parliament. The EU Council’s previous dependence on the Commission’s administrative assistance has led to the creation of a competing civil service at the EU Council.

States intentionally do not want to share power, arguing that they are the main holders of real democratic mandates. However, democracy has its ups and downs, as seen not only in Bulgaria or Poland, but also, for example, in Italy under Berlusconi and under the Yellow-Green Coalition following the 2018 elections. The greater the chicanery that a government has on its conscience, the more it opposes the EU Commission or the European Parliament interfering in its decisions. Besides, EU member states’ autonomy is not just defended by autocrats and thieves. Prosperous EU countries also do not want someone from outside telling them what to do with their money. The authorities of individual states also seek to defend their own ‘sovereign’ rights. The best-known example is the German Constitutional Court, which has repeated on several occasions that it alone is responsible for interpreting the law in Germany, not European bodies.

During the first years of integration, Europe’s decision-making table was made up of leaders of various countries and parties that shared a liberal ideology. Both social democratic and Christian democratic parties believed that democracy demanded respect for minority rights and the separation of powers between the courts, the executive and parliament. Also, they all believed that European integration required not only compromises, but also restriction of national sovereignty. They considered solidarity between poor and rich countries and citizens as self-evident. In parallel with the crisis of liberal ideology (about which I have written extensively in my book Counter-Revolution: Liberal Europe in Retreat), politicians who were promoting national egotism and absolute sovereignty began to gain a voice in individual states. Today, such politicians are in the governments of not only the new member states in Central and Eastern Europe, but also in the United Kingdom, Austria, Denmark, Slovenia, Croatia and Italy. Moreover, many liberal prime ministers have remained in power, adopting some of the anti-liberal rhetoric. Dutch Prime Minister Mark Rutte and Austrian Chancellor Sebastian Kurtz are the best examples. Even Emmanuel Macron uses populist rhetoric, and Chancellor Angela Merkel has defenders of Viktor Orbán in her party. All this makes discussions at the EU Council ever less in tune with Polish and Hungarian democrats’ way of thinking.

Populists do not yet hold a majority in the EU Council, but they are able to block many decisions. Many of them are convinced that the wind of history is blowing in their favour. I have no wish to speculate whether they are right on this. Donald Trump’s defeat in the US autumn elections may change this wind’s direction. The pandemic has exposed the ineptitude of populist-controlled governments. Nonetheless, there is still a real possibility that anti-liberal forces will continue to grow in strength. Progressive coalitions at the helm of governments in Spain and Italy are literally hanging by a thread. Another victory by Macron in France does not seem very certain today. Even in Germany, the xenophobic Alternative for Germany Party (AfD) is setting the tone for many discussions on Europe. A dark scenario not only anticipates the EU’s indifference to violations of democracy in our part of Europe, it also implies EU financial and political aid going to authoritarian governments. We should prepare ourselves for this bleak scenario, instead of abiding in the cheerful hope that the EU will bring democracy’s salvation. The fundamental challenge for democrats now is how to forestall this grim prospect?

How can we help democracy

Democracy may be supported from the outside, but there is no such thing as imported democracy. Democracy means not just free elections, although it is also difficult to imagine democracy without elections. This means that democrats must first convince their fellow countrymen of their idea. Effective democrats work mainly on the ground, not in Brussels. To win elections on the ground it is necessary above all to have a programme, credibility, good organization and determination. Leaders, media and compliance with electoral procedures are, of course, also important, but it should be remembered that in 2015, Poland’s incumbent Civil Platform (PO) lost the elections twice despite the existence of free media and secure procedures. By contrast, in August 2020 democrats won the presidential elections in Belarus with an impromptu leader, deceitful media and systematic violations of electoral procedures. (Independent observers estimate that Svetlana Tikhanovskaya received over 70 per cent of the vote, and over 90 per cent in the capital, Minsk.)

The EU should help democrats, not hinder them. Unfortunately, legitimizing autocrats on geopolitical or economic grounds has become commonplace. Meetings, handshakes and joint declarations with politicians who notoriously violate democratic constitutions are not a sign of realism, but of hypocrisy and opportunism. The passivity of EU politicians also deserves criticism: one should not turn a blind eye to civil rights breaches in member states. In politics, symbols are just as important as actual deeds.

This does not mean that one should not talk to autocrats. Politics is a bargaining process. But this does not mean betraying the fundamental values for which the EU stands. Bargaining should lead to greater respect for democracy, not its erosion. Contacts with a government that is undermining democracy should go hand in hand with aid to those who are fighting for democracy. Yet the EU has a serious problem in this area. It is primarily an organization of states, not social institutions. While it provides financial support to various grassroots social movements, this is channelled through individual governments. Moreover, the EU is a terribly formalized organization. Everything it does progresses slowly and may be formally or informally blocked by representatives of member states. At the same time, the EU is not an organization that provides undercover assistance to persecuted democrats. This has its pluses, not just minuses. The rule of law and compliance with procedures is the basis of democracy, not only in the member states, but also in the EU itself. The history of South America, Africa and Asia shows that the activities of Western countries’ secret services have done democracy more harm than good.

However, if there is little room in the EU for persecuted democrats, this becomes a problem. If financial aid for building democracy is routed through governments, there is no guarantee that it will end up in the right hands. Moreover, the funds for supporting democracy in the EU are very small: the main funding goes to agriculture and the economy. Economic development is important for citizens, but its benefits are not always shared equally. The EU is accused, all too often, of tolerating or even abetting corruption among politicians. There is the infamous case of Agrofert, a company informally controlled by the prime minister of the Czech Republic, Andrej Babiš, which receives large subsidies from the EU. Recently Hristo Ivanov, the leader of the Bulgarian party Yes, Bulgaria!, accused the EU of turning a blind eye to Prime Minister Boyko Borisov’s corrupt conduct. Corruption is one of the symptoms of a dying democracy. The EU talks a lot about combating corruption, but its own transparency is poor. Various lobbyists are making a lot of money in Brussels. There is also a serious problem with controlling the spending of European funds in individual member states.

In my opinion, the greatest danger lies in the fact that autocrats will continue strengthening their power using EU funds. Individual parliamentary resolutions and statements made by the European Commission President Ursula von der Leyen are of secondary importance, although it is of course better if such resolutions and speeches support the democrats. EU funds should not be spent according to a bureaucratic formula, with limited control over decisions and their implementation exercised by the media and social organizations. Lobbying at the EU should stop being a gravy train. There should be an end to tax havens in the EU and to banking secrecy, including in EU-dependent countries such as Switzerland. That is where corrupt politicians deposit their illegal incomes.

The greatest hope is that, following a few illiberal years spent gasping for air, democrats in EU countries will start winning elections again. It is also my hope that the EU reforms itself. The EU’s democratic deficit can only be eliminated if citizens, not just governments, however democratic, gain access to decisions and money within the EU. It is not obvious to me that the way to achieve this is to strengthen the powers of the European Parliament. The parliament has been receiving more powers with every subsequent treaty, but this has not stopped the rise of populism in Europe. Ironically, the greatest anti-European populists are, or have been, members of the European Parliament; people such as Nigel Farage, Marine Le Pen and Matteo Salvini, let alone Beata Szydło and Jacek Saryusz-Wolski.

The greatest favour that the EU could render democracy would be to build a genuine rather than a notional channel for civic participation. An example of such illusory activity is the European Citizen’s Initiative, which has achieved symbolic success in just five cases, including use of the herbicide glyphosate and vivisection. The European Ombudsman’s activities can be rated more highly, although the council and parliament often ignore her questions and appeals. The EU is open to various public consultations and gives EU citizens the right to submit petitions. But in my opinion, this has little to do with genuine democratic participation. Citizens are the true sovereigns in a democracy. Consultations and petitions were already practiced back in the times of monarchical absolutism. The EU should also be more transparent, because without openness it is difficult to talk about democracy. For example, it is difficult for citizens to control authorities that are not obliged to report the pressure coming from states and lobbyists on their decisions, expenditures and activities. As long as the EU fails to strengthen its internal democracy, it will have limited credibility in promoting democracy in its member states.