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How to cope with illiberal MS
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Transcript
Overview
- Value Conditionality in the EU
- Signs and reasons of backsliding
- Traditional mechanisms: infringement procedure and Article 7
- The ROL Framework
- Assessment of the Framework
- Additional recommended tools
- Conclusion
Gábor Halmai
Value Conditionality in the EU
Article 2: 'homogeneity clause'; constitutional identity of the EU; infringement cannot be justified by reference to Article 4(2)
constitutional pluralism is limited by the common constitutional identity of the EU
Earlier violations of Article 2:
- Roma census in Italy (2008)
- Attempt Roma expulsion in France (2010)
Systemic violations: Hungary after 2010; Poland since 2015
Rule of Law Conditionality in the EU. How to Cope with Illiberal Member States?
Signs and reasons of backsliding
The illiberal agenda
- lack of checks and balances: constitutional courts, independence of the judiciary
- lack of fundamental rights guarantees: media freedom, religious rights, freedom of assembly
Illiberal Member States
Hungary and Poland
Differences: 2/3 majority, strenght of opposition and civil society, EP fraction
Explanations
- authoritarian past, no liberal democratic traditions
- disappointment in quick economic changes and rising living standard
- no consensus among the elite on liberal democratic values
- legal constitutionalism without constitutional culture, lack of participatory democracy
- external stimulus: low threshold of the Copenhagen criteria, lack of review mechanism
Traditional mechanisms: infringement procedure and Article 7
Hungary:
- 2012: infringement action re: lowered retirement age of judges; ECJ: Commission v. Hungary - violation of age discrimination
- 2013: EP - Tavares report: call for a new system of monitoring
- 2014: new ROL Framework
- 2015: EP's two calls on the EC to launch the Framework; infringement action on immigration laws instead
- 2016: two other infringements
- 2017: infringement on CEU and 'foreign agent' NGOs
- 2018: activation of Article 7 (1) by the EP
The ROL Framework
Poland
- January 2016: triggering the Framework - 1st stage: assessment
- April 2016: EP resolution - danger to dem., ROL, fund. rights
- June 2016: recommendation - 2nd stage
- July-Dec. 2016: new laws on the CT> new President, packed CT
- December 2016: 2nd recommendation - dismissed by the GoP
- July 2017: new laws on the judiciary > 3rd recommendation
- December 2017: Article 7 by the EC
Assessment of the Framework
General
- Cameron government: duplication
- Council's Legal Services: ultra vires
- J. Weiler: 'appetite for jurisdictional expansion' and democratic deficit
- Palombella, Kochenov, Blokker: instead of formal conception of ROL substantive requirements
- AvBogdandy: complementary political approach
In the case of Poland
- dialogue with a not-willing partner
- why not Article 7 in the first place against Hungary too
- not effective without the threat of economic sanctions
Additional recommended tools
- October 2016: EP resolution based on a LIBE report - interinstitutional pact: annual monitoring and EU policy cycle for democracy
- German gov. proposal: to link receipt of EU cohesion funds to respect rule of law and democratic principles
Conclusion
EU institutions have proven incapable of enforcing compliance with core values
Possible reasons:
- fear from the unanimity requirement of Article 7 (2)
- political reasons: in the case of Hungary - FIDESZ' EPP membership
Perspectives:
- two-speed Europe> leave the backsliding member states behind
- 'more united, stronger, and more democratic Europe'