It has been more than three years since Brussels and Budapest first clashed over the “national revolution” undertaken by Viktor Orbán and his Fidesz party. The latter had won around 53 percent of the vote in the April 2010 election, which, due to the peculiarities of the electoral system, translated into a two-thirds majority in parliament. Orbán used this majority—interpreted as a “revolution in the voting booths”— for far-reaching changes in politics (a new constitution in particular), the economy, and, not least, culture. Critics from the very beginning charged that Orbán was creating a “Fidesz-state,” staffed by party loyalists, and a nationalist “Fidesz-constitution,” which entrenched many of Orbán’s policy preferences. Even if a party other than Fidesz won an election, Fidesz, or so critics worried, would not really lose power. Some of these critics happened to be sitting in the European Commission. It is time to take stock of how well the EU has been doing in reigning in Orbán’s illiberal ambitions.
It is crucial to distinguish two challenges: one is the question how the European Union should or should not have responded 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 balance sheet here is not as bad as some skeptics’ concerns about the EU’s capacity to protect liberal democracy would lead one to believe—though it needs to be added that we have of course no real counterfactual and that only future diplomatic historians might be able to reconstruct the exact interactions between Brussels and Budapest—and what changed because of the EU and what might have changed for reasons that had nothing to do with “Europe.” However, 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. The latter challenge has yet to be addressed seriously.
So, on the first point, the EU’s actual record: both the European Commission and, in particular, 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. 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 particular Viviane Reding, who, some observers suspect, has also been trying to position herself as a plausible Commission President in the future. Along with Neelie Kroes and Martin Schulz she made herself extremely unpopular with Hungarian nationalists, facing accusations of being Europe’s“bulldog” in the conservative press and worse insults by individuals who claimed she was helping the opposition. If nothing else, though, she created a sense that Europe was watching and was increasingly trigger-happy with infringement proceedings—and this, in itself, might partly explain why Fidesz retreated at least somewhat on the media and the election law.
Even those inclined to celebrate Brussels’ “soft power” in these matters have had to admit, however, that the political and legal instruments the EU has at its disposal are often not a good match for the actual challenges in a Member State. Infringement proceedings can, of course, be based only on EU law—which often does not cover the relevant areas of democracy and the rule of law, other than in the very generally worded Article 2 of the Treaty on European Union. This makes it harder to address systemic problems and comprehensive efforts to undermine the liberal rule of law. The most striking example here is the Hungarian government’s de facto decapitation of the judicial system by lowering the retirement age. The Commission charged Hungary with age discrimination— and won its case. But the judges were never re- instated and, despite its nominal legal success, Europe appeared impotent in getting at the real issue.
Of course, there is an option already in the treaties precisely to address specifically political challenges: Article 7 of the Treaty on European Union, which allows for the suspension of voting rights in the European Council for states persistently violating basic European values. Yet in the past few years academics no less than leading political players—starting with Commission President Barroso—have repeated the mantra that Article 7 is a “nuclear option.” In other words: it is deemed unusable (making the mantra a kind of self-fulfilling prophecy). Countries seem too scared that sanctions might also be applied against them one day.
That then has left few other options in dealing with the Orbán government. It is highly probable that some fellow European centre-right politicians criticized Orbán behind closed doors—but none of them ever spoke out publicly in a way that could be classified as an effective form of“naming and shaming.” A report by the Portuguese MEP Rui Tavares—and approved by the European Parliament this past July—broke important new ground in suggesting the possibility of monitoring Hungary closely and also developing a new “Copenhagen mechanism” to apply sanctions to EU Member States violating the “Copenhagen criteria”—once developed to ensure that only full-fledged liberal democracies would enter the EU. But neither the European Commission nor the European Council has properly picked up the ball that Tavares kicked into their courts. Time is running out for this Commission and Council action is highly dependent on who happens to be in charge at any given moment. It seems fair to say that the Irish presidency was significantly more interested in questions to do with rule of law protection than the Lithuanian presidency, which succeeded it. In fact, the most remarkable fact about the Tavares report might turn out to be that it was actually the Parliament which overcame partisanship, since there was nominally a centre-right majority in the legislature—and yet the report passed.
Before considering what else might be done, let me say a few words about how EU actions have been received in Hungary itself—which also relates to the larger question whether criticisms from the EU will necessarily always lead to a “nationalist backlash” and rising anti- Europeanism, as the Austrian example suggests. Orbán himself clearly became very adept at playing a certain game with the European institutions: two steps forward and one step back, after having done what he himself called a “peacock dance” for eternal consumption in order to suggest proper compliance with European values. At some points he even seemed determined to start a pan-European Kulturkampf, pitting conservative, Christian and nationally-minded Europeans against a Brussels supposedly dominated by left-liberal, atheist Europhiles. At other moments he flirted with the idea of leaving the EU altogether, hinting at China and even Russia as future partners and expressing admiration for model democracies such as Azerbaijan.
For all these highly charged symbolic confrontations and geopolitical gestures, the results might actually not be what the Orbán government would likely consider a strategic success. For one thing, what has sometimes been called Fidesz’s “war of independence” has not proven popular within Hungary itself, beyond a committed nationalist right (if polls are to be believed). There is a more general lesson here: yes, EU action will turn out to provoke anti- Europeanism. But a government set on a course that is likely to lead to violations of EU values will preemptively stoke resentments of Brussels anyway. In other words: Europe should have the faith of its convictions; it will be attacked whether it does so or not.
Second, if the EU in fact does nothing, the outcome is by no means neutral. Failure by Brussels will disillusion all those citizens of new Member States who trusted that locking a country into supranational institutions such as the EU and the Council of Europe would make a return to authoritarianism impossible. Hence Brussels and European elites in general should be much less fearful about “nationalist backlashes”: they will get one, no matter what; and those who actually have faith in European institutions should not be disappointed.
There is one other remarkable result of the altercations between Brussels and Budapest, one that has escaped many commentators’ notice. The fact remains that Orbán, for all his talk of Brussels as a quasi-colonial power and all his invectives against the European Parliament, did in principle accept both as legitimate interlocutors—and, in particular, conceded the role of the Commission as the guardian of the treaties. If one is at all inclined to believe—with Machiavelli and Albert Hirschman, for instance—that conflicts can also help people to clarify what they really believe in and what they consider the legitimate boundaries of a shared political project, then the conflicts between Brussels and Budapest might ultimately help European integration.
On a less Panglossian note, however, it still has to be asked what the EU can do beyond its confrontations with Hungary to protect liberal democracy in Member States more effectively. One step would be to bundle infringement proceedings to make systemic problems in a Member State more visible, as Kim Lane Scheppele has suggested recently—a proposal which has the advantage of not requiring treaty revision. Another would be to strengthen the role of the European Court of Justice in addressing fundamental rights violations in a Member State, even if the violation in question does not immediately touch on EU law. Then there is the idea of establishing an EU analogue to the Council of Europe’s Venice Commission— tentatively to be called Copenhagen Commission, as a reminder of the Copenhagen criteria. In contrast to the Venice Commission, this body would not just offer expertise, but could also proactively raise an alarm and even trigger a limited set of sanctions.
As the Czech legal scholar Jan Komárek has pointed out, this can look like a typical EU pattern: when Europe cannot solve a problem, it invents a new institution instead. However, a properly designed Copenhagen Commission would have the advantage of concentrating minds in a highly fragmented political space and in a weak pan-European public sphere. Europe, to put it bluntly, suffers from a perennial political attention deficit disorder. And to remedy that disorder at least somewhat, there should be a clear sense that when the Copenhagen Commission raise an alarm, then something must really be going wrong somewhere.
One might still object that the EU would be duplicating institutions that have worked well— especially the Venice Commission. Such a criticism overlooks that the EU has reached a depth and density of integration (and a level of interdependence) that finds no equivalent in the Council of Europe. For instance, EU law is much more specific in areas such as data protection, and the Council and the Venice Commission could not really comment on them. Second, 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. 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.
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, 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.