"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
|
|
It may appear paradoxical to an external observer that the European Union is a fundamental guarantor of pluralistic and constitutional democracy, which forms the basis of the relationship between democracy and the rule of law in the constitutionalism that was established in Europe after the end of the Second World War. The paradox arises because the European Union lacks a fully pluralistic and constitutional democracy. It has not yet built a constitutional order comparable to that of the Member States, nor has it managed to consolidate a democratic public space in which European issues are discussed from a European perspective for European citizens. In Europe, the fundamental dichotomy is not between the majority and opposition, as is typical in pluralist democracies, but between States and citizens. Unfortunately, citizens do not have the necessary presence at the European level because the States remain the primary actors.[01]
The paradox is real because, despite this, European integration has been the main promoter of democratic processes in Europe. It has facilitated democratic transitions in countries that previously had dictatorial or authoritarian regimes, to join a club of states where democratic conditions were considered essential for membership. Furthermore, upon admission, member States commit to maintaining democratic conditions that are linked to the essential principles inspiring the integration process. This is a specific feature of the European supranational institution that represents a new division of powers, in addition to those established in the internal constitutional sphere. In the context of constitutional pluralism, such as that of the European Union, the division of powers is transformed. Previously, the division of powers was an instrument for guaranteeing rights and implementing the national Constitution. Now, the national Constitution itself becomes another agent of the division of powers.[02]
Therefore, the EU exercises supranational control over the internal democracy of its member states. This is not incompatible with the fact that the EU has not yet established a fully pluralistic democracy. This control is based on the European constitutional heritage, which integrates the constitutions of the Member States and the constitutional law of the European Union, forming European constitutional law in a broad sense.[03] This work analyses the European Union's capacity to exert this control and tackles the issue of illiberal regimes within the Union. It questions the guidelines followed by the EU in addressing this problem.[04] The European mechanism on the Rule of Law integrates a series of complementary measures following the failure of the 2014 EU Framework to strengthen the Rule of Law.[05] However, the approach on which it is based is wrong. Although the Rule of Law Framework correctly identified the objective, the European mechanism on the Rule of Law[06] fails to address systemic threats to the Rule of Law. The means employed are insufficient to achieve the objective. The focus is now on all Member States, and the means employed are essentially preventive in nature. However, this approach may not be adequate to address an already established democratic regression, which can only be resolved through corrective instruments.
The European Union needs to acknowledge that the challenges presented by democracy and the rule of law in Europe, particularly the rise of illiberal regimes and populism, are profound and cannot be resolved through political marketing. It is necessary to assume that there are political tensions caused by globalization and amplified through communicative processes controlled by global agents, who defend interests that are different and sometimes contrary to those of European integration. The tensions have been exacerbated by the 2008 financial crisis and may be further intensified by the impact of the health crisis and the resulting economic downturn, which has been amplified by the conflict in Ukraine. This forces a global reflection on the European project and its current limitations.
Given this negative trend, the procedures for safeguarding democracy and the rule of law have proven to be inadequate, in stark contrast to the EU's relatively effective intervention in the economic sphere. This highlights the disparity between the ability of states to act in the economic sphere and their demonstrated impotence in addressing systemic threats to the rule of law. The European Union must recognise that its legitimacy is ultimately based on European citizenship. It is equally important to ensure democratic stability as it is to ensure economic stability.
In particular, the new European mechanism on the rule of law is further evidence of the weakness of the EU, leading to a series of dilatory procedures that could not resolve the problems except if threats to the rule of law were punctual and involuntary. This mechanism will be able to do nothing in the face of a systematic attitude of defiance of the values and principles that inspire the integration process. It is necessary to solve the problems and not wait for them to fade over time because they usually get worse when they are not addressed properly. It is a mistake to present the problem of democracy and the rule of law in Europe as a general issue affecting all Member States. Although specific problems with the rule of law can and do occur in member states, they are generally resolved through internal constitutional mechanisms. When discussing systemic risks, it is important to clearly identify specific countries and avoid disguising reality through an absurd generalization.
An adequate methodology should establish a gradation of the problems with European relevance (which does not include those that are normally resolved internally through the Rule of Law itself) from the issues of democratic quality that may occasionally arise in the member states to the democratic involution that has been generated in some of them, passing through the global risks that affect the entire European Union with the development of populism and that have to do with the successive constitutional crises that have occurred in the two decades into the 21st century.
Only by differentiating the problems according to their nature and severity can we give an adequate response. If, on the contrary, we mix everything into a single category, what we will do is give arguments to those who generate more serious problems to defend unacceptable anti-democratic positions on the basis that all States have democratic deficits. Thus, a “false equivalence” is generated in which countries can be blamed for issues that are not even an example of a malfunction of the system but quite the opposite, of the adequacy of internal control mechanisms to resolve democratic problems through democracy and the rule of law. At the same time, this false equivalence makes democratic setbacks seem less serious because they are legitimised by criticising the specific shortcomings (and even those that are not shortcomings but rather the normal functioning of the system) of other States.
It is enough to see the persistent regression in Hungary and Poland, which has not been substantially limited so far by the European Union (without prejudice to the hopes that arise with the change of government in Poland in December 2023), to realize that that situations must be differentiated instead of introducing confusion. Hungary's government continues to develop policies that are detrimental to the separation of powers, particularly the independence of the judiciary, and to fundamental rights, particularly in the matter of asylum. It has established limits to the application of European Law in its Constitution and has ensured that its Constitutional Court has ceased to be a majority control body and has become a majority-controlled body.[07] As regards Poland, until the recent change of government, policies contrary to fundamental rights have been implemented, attacks on independence of the judiciary have increased and control bodies, particularly the Constitutional Court, have been neutralized.[08]
In both cases we are facing a systematic attack against the Rule of Law that is carried out through actions that, as Carlos Closa points out, individually may not involve severe violations in themselves but which, taken together, undermine the rule of law.[09] Something that the CJEU also highlighted in case C-192/18, European Commission v. Republic of Poland, by indicating that certain measures taken in isolation are legitimate, but in combination with others they can produce effects contrary to the rule of law. The orientation of the ruling majorities in Hungary and Poland (until the change of government in December 2023 in the latter case) has nothing to do with the specific problems that may arise in other EU Member States, which are resolved with the normal functioning of constitutional guarantees, nor with issues that may affect the democratic quality of these States or even with global risks. On the contrary, it is a democratic involution whose severity cannot be compared to any of the other situations indicated that we will analyse.
The inability to control populist and illiberal regimes has led to the design of misguided strategies that can create more problems than they seek to solve. These strategies have resulted in the principle of the rule of law being completely divorced from its constitutional basis, turning it into a principle devoid of content. It is this empty principle that the European institutions are now applying not only to illiberal regimes, but also to Member States that have consolidated constitutional and democratic systems, capable of resolving their shortcomings through the internal mechanisms that guarantee the rule of law. The European Union has established a system of control that remains incapable of resolving systemic problems with the rule of law in illiberal regimes, while contributing to the weakening of the rule of law in constitutional and democratic EU member states.
The new control system of the European Union can give rise to truly surprising situations, such as the fact that the normal functioning of constitutional controls is not only not perceived as something positive, but also as an example of a lack of democratic quality. This phenomenon is the result of a clear misunderstanding of the constitutional structures that form part of Europe's constitutional heritage and leads not only to an unacceptable paternalism on the part of the Union towards consolidated democracies, but also to a confusion of internal and supranational institutions of democratic control. Both must exist, but each has its own time and its own characteristics.
When the European Union warns Hungary of the possible negative consequences of an ongoing legislative project for fundamental rights, for the protection of minorities or for the balance of powers, it is doing the right thing. Indeed, in this Member State, constitutional controls have been weakened by the illiberal majority in power, and there is a logical assumption that their working will not be effective, so that this legislative project may create further problems from the point of view of the ongoing democratic involution. In a context of already consolidated democratic deterioration, new measures aimed at deepening the destruction of the democratic environment are part of the systemic risk and must be treated from this perspective.
If, on the other hand, the European Union warns a fully democratic Member State about a legislative project in progress, without waiting for the legislation to be approved in the context of a democratic parliamentary debate and, if necessary, to be corrected by the intervention of an independent constitutional court, the European Union will be interfering in a democratic process that has sufficient internal guarantees to produce an adequate result in accordance with the rule of law.
The fact that there are legislative proposals that are dubious from the point of view of their democratic and constitutional potential, even that there are dubious laws that must be controlled by the national constitutional court, is not an expression of a bad functioning of the democratic system, but of a normal functioning of the democratic system. These control mechanisms exist precisely to guarantee the functioning of the democratic system and the quality of democracy; they are not an expression of deficiencies in the democratic condition of a country or the strength of its rule of law.
When the European Commission designed the European framework on the rule of law in 2014, it was aware that it could not fit into the normal functioning of the rule of law: "The new EU Rule of Law Framework is not designed to be triggered by individual breaches of fundamental rights or by a miscarriage of justice. These cases can and should be dealt with by the national judicial systems, and in the context of the control mechanisms established under the European Convention on Human Rights to which all EU Member States are parties", so that " The main purpose of the Framework is to address threats to the rule of law (…) which are of a systemic nature".[10]
Already at that time, the European Commission itself recognised this subsidiary condition for its action in general: "The Framework will be activated when national "rule of law safeguards" do not seem capable of effectively addressing those threats"[11]. An approach that was later reiterated in the Rule of Law Mechanism: “the primary responsibility to ensure the rule of law rests with each Member State, and the first recourse should always be to national redress mechanisms”. In such a way that the EU should only intervene when these mechanisms fail: "when national rule of law safeguards do not seem capable of addressing threats to the rule of law in a Member State, it is a common responsibility of the EU institutions and the Member States to take action to remedy the situation.[12] All this without prejudice to the recognition that "To ensure a proper functioning of their state is an internal constitutional responsibility, but also a responsibility with regard to the Union and to other Member States".[13]
In short, the European Commission has highlighted the situations in which "recurrent problems" caused by these "threats to the rule of law" are revealed and which show clear signs of impacting on democracy and the rule of law. In listing these signals, the European Commission seems to describe very precisely what happened in Hungary or Poland (at that time): lack of respect for the law by ruling majorities, attacks on the independence of the judiciary, pressure on the media, weakening of constitutional courts and other checks and balances, abuse of power.[14]
It is therefore evident that the European Commission clearly understands the difference between these systemic risks and situations of constitutional normality. With regard to systemic threats, for which the EU framework for strengthening the rule of law was precisely designed in 2014, the European Commission itself recognised in 2019 that "The experience of the past years, as well as the broader dialogue on the issue, have clearly shown the need to improve the EU’s capacity to respond in case of serious challenges to the rule of law", while stating that " the diversity of rule of law challenges requires a diversity of responses at EU level".[15]
From this perspective, the worst thing that can happen to the European Union is that the reaction to the democratic involutions of some states ends up degenerating into a "false equivalence", in which the developments of the European constitutional heritage are called into question, being considered as manifestations of a lack of democratic quality, which are nothing but advances of constitutionalism and democracy.
Faced with the totalitarian involutions of the inter-war period, Europe in the second half of the 20th century developed antibodies to prevent future involutions. The most important of these was the construction of the rule of law by means of normative constitutions. The second, for some states, was European supranational integration itself. Each of these antibodies must function in the precise time in which it corresponds and in accordance with the characteristics of the social body to which it is directed. Weakening the antibodies of properly working national constitutions by interfering in their functioning, as the European mechanism on the rule of law does, by placing all Member States under suspicion, is not a good answer to the problem of the democratic regression of some Member States. What the European Union must do is to ensure that the constitutional systems in these countries adapt to the logic of the European constitutional heritage and are able to generate their own antibodies against the democratic involutions already under way.
3.1. Democratic quality problems.
Problems of democratic quality should not be confused with the normal functioning of institutions through, where appropriate, control mechanisms designed to correct specific dysfunctions of the system, and which are part of the system itself. Issues of democratic quality arise when these control mechanisms do not work. For example, if a constitutional court is unduly dependent on majorities in power or on political parties in general. If this dependence goes so far as to adopt the political discourse of the majority in power in such a way that its counter-majoritarian function is compromised. If the media are not independent of governments and the public space is conditioned by the parties in power. When majorities and parties in general tend to increase their power by occupying independent institutions of control. When political corruption spreads without the judiciary being able to stop it.
All these signs of a loss of democratic quality have occurred to a greater or lesser extent in the Member States. It is the system itself that must fight them internally and try to find a solution. But we cannot speak of democratic involution or a systemic problem because a constitutional court does not function properly for a certain period, or because some media show an excessive dependence on the positions of some political parties. Sometimes these problems are corrected by the dynamics of the democratic system itself, through electoral processes that change majorities. On other occasions, they are corrected outside these electoral processes, because the judicial structure operates at higher levels and reviews the decisions of lower levels, or because there are reforms of the regulatory norms of the institutions that improve their functioning.
In short, problems of democratic quality are not the equivalent of democratic involution. For this to happen, something more than these specific problems is required; there must be a systemic configuration of deficiencies that persistently deactivates the control mechanisms. If, for example, a constitutional court is excessively oriented towards the positions of the ruling majority for a certain period, the change of power and the change of majority can contribute to solving the inefficiency of its counter majoritarian function. If there are shortcomings due to the bad design of certain laws, the new majorities can change them. However, if the change of power does not take place over a long period and democratic control weakens, we may be approaching a systemic problem in which deficiencies in democratic quality degenerate into democratic involution.
Reflection and debate on the quality of democracy in countries with consolidated democracies is appropriate and timely, since it is part of the very essence of democracy. But by its very nature it is an essentially internal debate, in so far as it requires, to be productive, a deep knowledge of the balances of the system, to prevent the remedies proposed from being more harmful than the dysfunctions identified. Of course, this does not mean that there cannot be contributions from other Member States and from the European Union. We will never be able to build Europe if we try to set insurmountable limits to debates on fundamental issues such as democracy and the rule of law, which will always be European in scope. But these contributions should be placed within the framework of democratic normality, to avoid the "false equivalences" that could arise if problems of democratic quality and criticism of the democratic involution experienced in some Member States are put on the same level.
One of the problems we have been facing in recent years is that the democratic normality of European states (as well as that of other democratic states in the world, to varying degrees) is increasingly affected by external and internal factors that challenge the very foundations of Europe's constitutional heritage. We cannot say that we are facing a systemic impact on democracy and the rule of law, but we are running a growing risk of democratic involution. The European Union tends to act on the consequences and not on the causes, because it is more difficult to intervene on the causes. An example of this misunderstanding can be seen in the policies promoted in the context of the 2008 financial crisis, or in their inability to address the problems that technology companies are creating in democratic processes through social networks and other internet applications.
However, it would be unfair to say that there is no sign of more decisive action by the Commission on the causes of these global risks, especially since the health crisis. Evidence of this can be seen in the economic recovery plan, in the reform proposals to promote a "European Health Union",[16] or in the initiatives to control tech companies and Artificial Intelligence, as well as to foster European technological development and intervention in data economy although the difficulties in the latter case are enormous.[17] The “European Democracy Action Plan" is an example of this concern on the part of the Commission and contains very positive initiatives to combat the global risks affecting our democracies.[18] What is needed, however, is an integrated plan that takes all perspectives into account and focuses more on the control of large technology companies.
Regarding the rule of law, the European Union has also taken a positive approach through the rule of law conditionality of EU funds. However, the clause should be activated not only in relation to the appropriate use of European funds in cases of fraud or corruption, but also when there are violations of the EU's fundamental values related to the rule of law (freedom, democracy, equality, fundamental rights, protection of minorities). The conditionality may lose its importance to control the violation of the rule of law if “the mere finding that a breach of the rule of law has taken place does not suffice to trigger the mechanism”, because “the causal link between such breaches and the negative consequences on the Union’s financial interests will have to be sufficiently direct and be duly established”.[19]
In any case, if this linking of European funds to democracy, fundamental rights and the rule of law were consolidated and properly applied, the European Union would have taken a big step forward in relation to the situation created by 2008 financial and austerity policies. Instead of conditioning rights to the budget, as was the case then,[20] the budget will now be conditioned to rights. This is undoubtedly a historic step forward that demonstrates the potential of the European Parliament in the European public debate in favour of rights and democracy.
3.2. Global risks.
Global risks to democracy and the rule of law are the next step in the gradation that we can establish in relation to the challenges that both currently face in Europe. Global risks affect the normal functioning of the system, weaken the democratic quality of States, and can lead to democratic involution. Unlike problems of democratic quality, which have an essentially national aspect, global risks are precisely the area in which the European Union may have a greater capacity to intervene than the States, to try to neutralise them. They are linked to the constitutional crises of the 21st century, which are already a constant, from the security crisis that has dominated the century to the health crisis, the financial crisis of 2008 and the crisis of democracy caused by tech companies, particularly Facebook, through its Internet applications.[21] In addition, there is the crisis of globalisation, which is giving rise to a fragmented globalisation, depending on geopolitical conditions, especially since the war in Ukraine.[22]
All these crises share a common pattern: they have arisen outside the borders of the European States and cannot be resolved by the States alone, as is the case with internal crises. This inability of the States is perceived by the citizens as a manifestation of the malfunctioning of the institutions, which ultimately affects democracy and the rule of law. The slogan "they do not represent us", which has emerged in response to the policies developed to tackle the financial crisis, expresses a reality: these policies have not been decided democratically within the States, but have been imposed from outside. Representative democracy is thus subjected to a structural tension that ultimately affects the entire constitutional system, from fundamental rights to the division of powers, through political pluralism, territorial pluralism, and the normativity of the constitution itself.
The deterioration of the democratic system would be partially reversed with the end of the financial crisis, while States would again have budgetary margin to implement their own public policies. However, what we learned after the Brexit referendum[23] and the 2016 North American presidential elections regarding the interference of large tech companies (especially Facebook) in electoral processes through their internet applications showed us that there are other global risks that no longer come from the economic sphere, but from the technological field.
Beyond interference in electoral processes, large technology companies have developed Internet applications that cause massive violations of constitutional rights (protection of personal data, privacy, secrecy of communications, etc.) and that destroy public space and the conditions for democratic development, promoting fragmentation, radicalisation of political positions, confrontation, instability, and social divide to extremes that we have not seen for many decades.[24]
These companies have been the main promoters of populism through social networks, favouring the spread of fake news and the spread of 'post-truth', thus destroying the essential elements that make a pluralistic democracy, based on deliberation and consensus, possible. In addition, the constitution itself is being progressively displaced and isolated in the public sphere, while new cultural patterns are being established, especially among the new generations, which put into question the viability of its essential functions.[25]
None of these global risks can be avoided by states, which lack the capacity to confront large technology companies and financial speculators. In order to solve the problems, the European Union must act on their causes, since the states can hardly intervene in their consequences. Populism will not be prevented by marketing policies at the European level but rather through a good functioning of the European Union that contributes to solving citizens' problems.
The European Union must do what is necessary to strengthen the internal democracy of its member States and avoid global risks. This means more regulation of the activities of tech companies and a more effective control of the causes that deteriorate coexistence and promote radicalisation and extremism. It must be considered that the problems are not only manifested in the communication space and social networks, but also in the economy, with the transformation of the economic model developed by the large global technology companies, none of which is European.
Avoiding global risks to democracy and the rule of law also means strengthening the economy and adapting it to the global environment. Tech companies are transforming the economies of European countries from outside, without them being able to do anything about it. But the European Union can and must help to ensure that these economic changes do not create social problems and to facilitate Europe's presence in the new digital economy.
With the health crisis and the war in Ukraine, the European Union seems to have woken up from a dream to the reality of a global world in which the absence of a European policy in many areas means that Europe and the European States are beginning to take a secondary position in the decision-making centres of major global transformations. There are signs that, for the first time in this century, the European Union can try to reduce these global risks, which affect our democracies, our constitutional culture, and the European way of life.
The "European Democracy Action Plan" should be seen as a very positive step in the fight against global risks affecting our democracies, even though it should focus more on the control of technology companies. However, it lacks a more integrated perspective for European action. Firstly, the elements that constitute the rule of law, which are part of different lines of action, as if democracy, rights, and the rule of law could be addressed independently. It gives the impression that the European Union still has a perverse suspicion of the constitutional dimension of the problems, and therefore needs to isolate each of the aspects: democracy, the rule of law and fundamental rights, so as not to have to define them according to their authentic constitutional nature, which requires an integrated analysis of all of them.[26]
This does a disservice to Europe's constitutional heritage and complicates the fight against democratic regression by weakening the constitutional principles and values that should serve as a reference. Moreover, there is a need for an integrated perspective between the various factors that impact on the global risks to democracy. There are aspects of European policy that need to be strengthened, on very different issues, ranging from the promotion of innovation and digital transformation in the European Union, to the control of tech companies on issues such as competition or compliance with their tax obligations.
The last stage in the seriousness of the difficulties that are facing democracy and the rule of law in Europe is the rise to power of populist majorities that configure illiberal regimes. Unlike problems of democratic quality, which have an essentially national solution, and global risks, which have an essentially European solution, democratic involution must integrate internal and European responses in a balanced way. The problem with populist regimes is that they tend to neutralise the antibodies generated by the constitutional rule of law in Europe in the second half of the twentieth century, following the model of the Italian and German normative constitutions. As we have already pointed out, these antibodies are based on the establishment of limits to the power of the ruling majorities, in particular jurisdictional limits that guarantee constitutional rights and the normativity of the constitution.
If we compare the totalitarian regimes established in Europe between the First and Second World Wars with today's illiberal regimes and populist governments, we find significant differences that must do precisely with the antibodies that have developed since then against totalitarianism. The most important of these is undoubtedly that of normative constitutions, with their systems of judicial guarantees. But European integration itself, although it was initially built outside the framework of constitutional law, is also generating antibodies, precisely because it represents a new division of powers with the capacity to control the Member States. Finally, globalisation has also generated antibodies precisely because it enormously weakens national States, making it very difficult for them to evolve into totalitarian systems. The national State no longer has the power it had a hundred years ago, neither over its economy, nor over politics, nor over the factors that now condition public life, and which depend largely on global actors.[27]
These three sources of antibodies combined (constitutional, supranational, global) mean that populism cannot drift towards genuine totalitarianism. Its political projects are impregnated with rhetoric rather than based on real and effective action against globalisation, supranational integration, or the constitutional order. This is not to say that populism is not dangerous for democracy and the rule of law. It simply means that the most serious risks of democratic backsliding into a totalitarian regime, like the fascist regimes of a hundred years ago, are faced by these antibodies. The European States, due to the development of globalisation, have less power and are subject to constitutional and supranational controls in the exercise of power.
But there is a democratic regression in some European countries. These are countries where the ruling majorities use all their rhetoric against these antibodies: against globalisation, against Europe and against the democratic constitution. The correspondence between this rhetoric and reality is uneven. On globalisation, it is null. Regarding the European Union, these governments use a double language: on the one hand, they willingly accept European funds, which are essential for their economic development. On the other hand, at home, they have an aggressive nationalism against the European Union, from which they do not accept the rules that limit their repressive and regressive policies.
The same can be said of the constitutional order: it is a typical attitude of populist movements to use constitutional mechanisms to distort the constitution itself. These movements break the spatial and temporal coordinates of the constitution, transforming the power of the majority into a sovereign power operating within the constitutional order, thus creating a permanent constituent power at the service of the interests of the ruling majority. They appeal to symbolic references prior to the constitution (the people or the nation), of which they consider themselves the exclusive interpreters and which they place above the constitution. In this way, they override the constitutional limits on the power of the majority because they consider themselves to be the people or the nation and exclude those who do not agree with their political project from the people or the nation that only they represent.[28]
It is no coincidence that these movements have succeeded in establishing illiberal regimes. The lack of previous democratic references is combined with their distance from a European Union which they distrust and which they do not consider capable of defending them (as the United States would do) against their most recent historical oppressor: Russia. The false equivalence that these governments implicitly or explicitly draw between the European Union and the extinct Soviet Union[29] is, of course, an outrage for the European institutions and the democratic States of Europe. But the European Union has so far failed in its attempt to control these governments, which is reflected in the arrogance of their leaders.
We have had many examples in recent years of the inability of the European Union to enforce the European constitutional heritage against these governments. The attitude has been more than permissive, to the point that they have benefited from multi-million subsidies in euros, they have had better conditions for European aid than fully democratic states that meet European standards[30], and their anti-European rhetoric has been tolerated by the European Union without giving the firm response that this kind of attitude deserves. The European Union's strategy so far has basically been to wait and see, hoping that the problems will resolve themselves.
The Commission itself has not evaded criticism of the Council in this area: “Whereas the full consequences of the procedure under Article 7 TEU are very significant, and whilst the dialogue with the Member State concerned within the Article 7 TEU framework has in itself an intrinsic value, progress by the Council in these two cases could have been more meaningful. The Council has had to establish new procedures to apply the Article in practice, which still need to prove to be fully effective.[31]
The latest manifestation of this delaying strategy is the European Mechanism on the Rule of Law, which has been set up to monitor the situation of democracy and the rule of law in 'all' member states. Instead of focusing on systemic risks or threats, as the 2014 Rule of Law Framework did, the European Commission now intends to extend suspicion to all Member States, so that “To strengthen the EU’s capacity, the Commission therefore intends to deepen its monitoring of rule of law related developments in the Member States. In cooperation with Member States and the other EU institutions as necessary, it will take the form of a Rule of Law Review Cycle”.[32]
This review cycle “would cover all the different components of the rule of law, including for example systemic problems with the process for enacting laws, lack of effective judicial protection by independent and impartial courts, or non-respect for the separation of powers. The review would also examine the capacity of Member States to fight corruption and, where there is a connection with the application of EU law, look at issues in relation to media pluralism and elections. There is also a link to monitoring of the effective enforcement of EU law, notably the capacity of all actors playing a role in the enforcement of EU law to perform their duties: courts, prosecution services, law enforcement authorities, independent authorities, public administrations with a supervisory role, ombudsmen and human rights institutions and defenders”.[33]
In short, a total confusion, in which everything is subject to review, in all Member States, without any gradation, as if there were no internal guarantees capable of solving the problems of functioning democratic systems. With the only nuance that “While the monitoring would cover all Member States, it would need to be more intense in Member States where risks of regression, or particular weaknesses, have been identified”.[34] Once again, the degree of confusion is remarkable: we have left behind the "systemic threats", just when it is most necessary to combat them, because they are consolidating and expanding (due to the inaction of the European Union), which are now becoming "deficiencies or particular risks".
The new mechanism is based on the idea - certainly mistaken, as the Commission's own experience shows - that populist and illiberal governments will cooperate in denouncing their own attacks on the rule of law. Therefore, on the basis that "a network of national contact points in Member States should be set up for dialogue on rule of law issues", it entrusts them, like the other Member States, with the task of designating their national contact points. In the beatific vision in which this new mechanism operates, it is understandable that it is said that “The regularity and intensity of the cooperation would have to be stepped up in Member States where rule of law challenges are more apparent, again with the objective of finding cooperative solutions to problems before they escalate”.[35] The Commission seems to be unaware that the problems have been complicated for a long time and that we are in a phase of clear democratic involution in those countries where the problems related to the rule of law are “more apparent”.
Under the new mechanism, the Commission will have to publish an annual report about the rule of law in each Member State, which would provide a "synthesis of significant developments" both in the Member States and at the EU level. In addition to these preventive measures, the Commission reiterates the need for the European institutions to work together under Art. 7 TEU and welcomes the intention of the Council to agree on new procedures in respect of Article 7 hearings. It also calls on the European Parliament and the Council to adopt rapidly to adopt rapidly the Regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States. Furthermore, in relation to the 2014 rule of law framework, it points out that “The Commission will also reflect on how to further involve other institutions at an early stage of the process on the 2014 Rule of Law Framework, whilst respecting the need for confidential dialogue with the Member State concerned at the start of the procedure. The main objective should always be to find solutions as early as possible. However, when this does not succeed, ensuring that the European Parliament and the Council are fully updated and can express informed views before a critical stage is reached can help find a settlement. This will be coherent with a more collective approach to the rule of law among the institutions”.[36]
The first annual report on the rule of law referred to the year 2020.[37] Without denying the value of any information or reflection that could contribute to the promotion of the democratic quality of States and the improvement of the configuration of the rule of law, the methodology of the report is clearly wrong regarding the Member States experiencing democratic involution, Hungary, and Poland (at the time of writing the report). Firstly, because the report does not fully incorporate all the essential elements that express the threats to the rule of law in these countries, such as fundamental rights (except for a specific reference in the case of Poland), and that determine the breakdown of internal constitutional balances. This omission is intended to be compensated for by a reference to other future initiatives that should supplement the report.[38] Once again, we must question the lack of an integrated treatment of all these aspects, whose constitutional nature cannot be ignored by the European Union.
These gaps in the report contribute to the general effect that States undergoing democratic regression are analysed on an equal footing with States that are in a normalised situation from a constitutional point of view. References to these States are limited to expressing concern about the specific violations of the rule of law that occur in these countries, which, in the case of judicial independence, are of “serious concern” or even “particular concern”.[39] This contrasts with the fact that the only specific reference to a violation of fundamental rights in the case of Poland is only of "concern": “Actions of the government aimed at LGBTI+ groups, including arresting and detaining some of the groups’ representatives, and smear campaigns conducted against such groups have raised further concerns”.[40]
On the other hand, the report operates within the terms of the new mechanism, which, as we have already pointed out, in comparison to the 2014 Rule of Law Framework, which was correct in defining the objective (systemic threats to the rule of law) although not in the means, fails both in defining the objective and in the means to achieve it. As regards the objective, because it inappropriately extends suspicion and control to all Member States, thus favouring non-compliant States. Regarding the means, because they are essentially preventive in nature, which is inappropriate for resolving a consolidated democratic involution that needs to be corrected, not prevented.
It is only with the mention of Article 7 TEU that the report briefly acknowledges the clearly different dimension of the cases of Poland and Hungary, although it does so to show what we already know: the total ineffectiveness of EU intervention to guarantee the rule of law in these countries: “Until 2017, the procedure had never been triggered. Proceedings were launched in December 2017 for Poland by the Commission, and then in September 2018 for Hungary by the European Parliament. These procedures continue in the Council with hearings and updates on the situation in the two Member States concerned, but most of the challenges identified remain unresolved. The Commission calls on the Member States concerned and the Council to invest in accelerating the resolution of the problems raised under these procedures, finding solutions that protect the rule of law and the values common to all Member States”.[41]
Similar considerations could be made for subsequent annual reports. The 2021 report states that the report “is designed (…) as a yearly cycle to promote the rule of law and to prevent problems from emerging or deepening and to address them, looking at all Member States equally”.[42] Again, a false equivalence between States that is clearly inappropriate if we consider the differences between those who have systemic problems and those who do not. For the rest, it is reiterated that “The Council remains seized in two procedures, brought by the Commission against Poland in 2017 and by the European Parliament against Hungary in 2018, with a view to determining that there is a clear risk of a serious breach of the Union’s values”.[43] The same can be said of the 2022 report: “The procedure for upholding the common values of the EU set out in Article 7 TEU continues in the Council as regards Poland and Hungary. This procedure allows the Council to determine the existence of a clear risk of a serious breach of the Union’s values and follow up on such risks”.[44] And in the 2023 report: “The procedure for upholding the common values of the EU set out in Article 7 TEU, which allows the Council to determine the existence of a clear risk of a serious breach of the EU’s values and follow up on such risks, continues in relation to Poland and Hungary”.[45] This reference is also included in the recommendations to these States made in the annex to the 2022 and 2023 reports.
In short, the new orientation of the European Union, represented by the European mechanism for the rule of law, is not only proving ineffective in protecting the rule of law where it should be protected, against illiberal governments, but it is also contributing to weakening the strength of the principles and values that States in a situation of constitutional normality can oppose to authoritarian States. By bringing them all under the same scrutiny and control mechanism, it breaks down the basic distinctions that serve as the for the control of authoritarian States, grouping together in the same category serious violations of the rule of law with matters and actions that are not susceptible to control because they reflect the normal functioning of the system and others that should be resolved internally by the States because they reflect problems of democratic quality that can be settled by the logic of domestic constitutional law.
Weakening the antibodies of properly functioning national constitutions by interfering with their functioning, as the European rule of law mechanism does by placing all Member States under suspicion, is not a good answer to the problem of democratic regression in some States. What the European Union must do is to ensure that the constitutional systems in these countries adapt to the logic of the European constitutional heritage and are able to produce their own antibodies against the democratic involutions already under way.
European inaction, together with the weakening of democratic States caused by the new mechanism for the defence of the rule of law, gives rise to the challenges that some constitutional courts in Eastern Europe have brought before the ECJ, most notably that of Poland. On the other hand, the introduction of conditionality had raised some hopes for more effective EU action against illiberal regimes, especially after the two CJEU judgements rejecting the claims of Hungary and Poland against Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.[46] However, the major limitation of this procedure remains its link to budgetary issues.
A decoupling of conditionality from the strictly budgetary framework would be highly recommended to extend the protection of the rule of law against illiberal regimes. Proposal 25 of the Conference on the Future of Europe suggests in section 4 that its extension to new areas should be considered, regardless of its relevance from the point of view of the EU budget. In any case, the application of current conditionality offers possibilities, if it is not mediated by other political considerations that diminish the effectiveness of EU action in defence of the rule of law, as seems to be happening at present.
The analysis of the relationship between democracy and the rule of law in Europe must start from a basic distinction that has not been made by the European institutions, and from a gradation of the different problem areas. The basic distinction is the one that must be made between the normal functioning of the constitutional guarantees of the Member States to resolve problems that may affect the internal democratic balances, and problems that have to do with an abnormal functioning or failure of constitutional guarantees. The first type of problem is not susceptible to European control because it does not reflect a democratic deficit, but rather the opposite: the effectiveness of a constitutional democracy configured in accordance with the European constitutional heritage.
Regarding the real problems of democracy and the rule of law, a gradation should be established. On the one hand, there are the problems that affect the quality of democracy and that must essentially be resolved internally through the mechanisms that mature democracies, such as those that exist in most of the Member States of the European Union, have. At a higher level of severity, there would be global risks, the causes of which are essentially outside the State, in the major global players, and for the solution of which the intervention of the European Union is fundamental since the States lack the necessary capacities to tackle these problems. Finally, at the most serious level, there would be democratic regression, as in the case of illiberal governments. In this case, the solution must be based on a combination of decisive European action and internal institutions.
Mixing all these problems together, as the European Union has done with the new mechanism on the rule of law, is not a good strategy for facing the challenges that democracy and the rule of law currently have in Europe. Especially when they include elements that are not problems, but rather expressions of the vitality of a constitutional democracy with the capacity to resolve its shortcomings through the instruments provided by the Constitution. Behind this European mechanism, which is based on a “false equivalence” between undemocratic regimes and consolidated democracies, lies a manifest misunderstanding of the profound meaning of constitutional democracy.
Consolidated democracies have democratic problems that the system itself resolves through its internal control mechanisms, other problems that reflect a deficit in democratic quality that is generally also resolved internally, and they also face global risks for which they need help (not supervision or control) from the European Union. What they do not have is a problem of democratic regression. Putting all these problems in the same category can only prolong the excessive tolerance that the European Union is having towards illiberal governments.
Resumen: Pese a que la Unión Europea no es una democracia plena, esta se ha convertido en un garante fundamental de la democracia, implicada en la solución de los problemas democráticos y de los Estados de Derecho de los Estados europeos. Sin embargo, la UE no ha hecho una distinción entre los distintos problemas democráticos, lo que le permitiría una actuación más coherente con su naturaleza. Conviene pues que la UE distinga los déficits en la calidad democrática, que deben ser confrontados exclusivamente por los mecanismos de los Estados; de aquellos que derivan de riesgos globales, y que demandan la ayuda (que no de la supervisión) de la UE; y, por último, de los problemas de regresión democrática propios los Estados iliberales, que demandan una eficaz acción conjunta de la UE y los Estados.
La falta de esta distinción condiciona las estrategias de la UE, como es el caso del nuevo Mecanismo Europeo del Estado de Derecho o el Plan de Acción para la Democracia Europea, cuyos aspectos positivos no ocultan cierta confusión entre la situación de las democracias consolidadas, frente a situaciones tan distintas como los meros déficits democráticos y los riesgos procedentes, por ejemplo, de las compañías tecnológicas, de la situación de los Estados iliberales.
Palabras claves: Democracia, Estado de Derecho, calidad democrática, riesgo, compañías tecnológicas, regresión democrática, iliberalismo, Mecanismo Europeo del Estado de Derecho, Plan de Acción para la Democracia Europea.
Abstract: Although the EU is not a full democracy, it has become a fundamental guarantor of democracy, involved in the solution of democratic problems and the rule of law in European states. However, the EU has not made a distinction between different democratic problems, which would allow it to act in a way that is more consistent with its nature. The EU should therefore distinguish between deficits in democratic quality, which should be dealt with exclusively by state mechanisms, from those arising from global risks, which require EU assistance (but not supervision), and finally, from problems of democratic regression in illiberal states, which require effective joint action by the EU and states.
The lack of this distinction conditions EU strategies, such as the new European Rule of Law mechanism or the European Democracy Action Plan, whose positive aspects do not conceal a certain confusion between the situation of consolidated democracies, as opposed to situations as different as mere democratic deficits and risks from, for example, technology companies, and the situation of illiberal states.
Key words: Democracy, rule of law, democratic quality, risk, technology companies, democratic regression, illiberalism, European Rule of Law mechanism, European Democracy Action Plan.
Recibido: 2 de mayo de 2023
Aceptado: 2 de mayo de 2023
______________________________________
[01] Cf. F. BALAGUER CALLEJÓN, “Continuidad y discontinuidad del proyecto europeo frente a la crisis sanitaria y la globalización”, LCE 1/2020. Cf. also Id., “Die europäische Verfassung auf dem Weg zum Europäischen Verfassungsrecht, Jahrbuch des öffentlichen Rechts der Gegenwart”, Tübingen, Bd. 53, 2005.
[02] Cf. F. BALAGUER CALLEJÓN, “A divisão territorial do poder num contexto supranacional. O exemplo da Espanha na União Europeia”, in A. R. TAVARES, I. W. SARLET Y G. S. LEITE (org.) Estado Constitucional e Organização do Poder, São Paulo, 2010.
[03] Cf. P. HÄBERLE, “¿Tienen España y Europa una Constitución?”, trans. M. Azpitarte Sánchez, Fundación El monte, Sevilla, 2004. Cf., also P. HÄBERLE, “Europa –eine Verfassungsgemeinschaft?”, in P. HÄBERLE, Europäische Verfassungslehre in Einzelnstudien, Baden-Baden, Nomos Verlagsgesellschaft, 1999, pp. 84 and seq.; P. HÄBERLE, “Europa como comunidad constitucional en desarrollo”, trans. F. Balaguer Callejón, Revista de Derecho Constitucional Europeo, núm. 1, enero-junio de 2004, pp. 11-24; P. HÄBERLE, Europäische Verfassungslehre, 5. Auflage, Baden-Baden-Zürich-St. Gallen, Nomos/Dike, 2008 and F. BALAGUER CALLEJÓN, “Profili metodologici del Diritto Costituzionale europeo”, LCE 1/2015.
[04] Cf. F. VECCHIO, “El Estado constitucional en peligro”, in P. HÄBERLE, F. BALAGUER CALLEJÓN, I. SARLET, C. L. STRAPAZZON Y A. AGUILAR (eds.), Derechos fundamentales, desarrollo y crisis del constitucionalismo multinivel. Libro Homenaje a Jörg Luther, Madrid, 2020; Id., “Los ordenamientos constitucionales de Hungría, Polonia y Eslovenia”, ReDCE, 14, 2010, and “Quo vadis Europa? La degenerazione populística ungheresse tra crisi economica e crisi costituzzionale”, in G. M. TERUEL LOZANO, A. PÉREZ MIRAS Y E. C. RAFFIOTTA (eds.), Desafíos del constitucionalismo ante la integración europea, Murcia, 2015.
[05] A new EU Framework to strengthen the Rule of Law, European Commission, Brussels, 11.3.2014.
[06] Strengthening the rule of law within the Union. A blueprint for action. European Commission, Brussels, 17.7.2019.
[07] Cf. E. BODNÁR, F. GÁRDOS-OROSZ, Z. POZSÁR-SZENTMIKLÓSY, “Hungary”, in R. ALBERT, D. LANDAU, P. FARAGUNA, S. DRUGDA (eds.), The I·CONnect-Clough Center 2019 Global Review of Constitutional Law, Clough Center for the Study of Constitutional Democracy, 2020 (www.iconnectblog.com | www.bc.edu/cloughcenter).
[08] Cf. P. MIKULI, G. KUCA, M. PACH, “Poland”, Ibid.
[09] Cf. “La UE y la amenaza al Estado de Derecho en Polonia”, Real Instituto Elcano, 21/7/2016 (http://www.realinstitutoelcano.org/wps/portal/rielcano_es/contenido?WCM_GLO BAL_CONTEXT=/elcano/elcano_es/zonas_es/economia+internacional/ari60-2016-closa-ue-amenaza-estado-derecho-polonia).
[10] A new EU Framework to strengthen the Rule of Law, European Commission, Brussels, 11.3.2014, p. 6 and 7.
[11] Ibid., p. 7.
[12] Strengthening the rule of law within the Union. A blueprint for action. European Commission, Brussels, 17.7.2019, p. 5 and 13.
[13] Ibid., p. 3.
[14] Cf.A new EU Framework to strengthen the Rule of Law, cit., pp. 6-7 and Strengthening the rule of law within the Union. A blueprint for action, pp. 11-13.
[15] Further strengthening the Rule of Law within the Union. State of play and possible next steps, European Commission, Brussels 3.4.2019, p. 9.
[16] Cf. Building a European Health Union: Reinforcing the EU’s resilience for cross-border health threats, European Commission, Brussels, 11.11.2020:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020DC0724.
[17] Cf. F. BALAGUER CALLEJÓN, “Continuidad y discontinuidad del proyecto europeo frente a la crisis sanitaria y la globalización”, LCE, 1/2020.
[18] Cf. On the European democracy action plan, European Commission, Brussels, 3.12.2020 and On Defence of Democracy, European Commission, Strasbourg, 12.12.2023.
[19] Cf. European Council meeting (10 and 11 December 2020) – Conclusions, p. 2.
[20] Cf. S. GAMBINO, “Estado social y crisis económica. Los nuevos desafíos del constitucionalismo contemporáneo”, ReDCE, núm. 28, 2017.
[21] Cf. F. BALAGUER CALLEJÓN, “El constitucionalismo en su hora crítica. Crisis clásicas y crisis inéditas”, in F. BALAGUER CALLEJÓN, E. GUILLÉN LÓPEZ, M. AZPITARTE SÁNCHEZ, J.F. SÁNCHEZ BARRILAO (eds.), Los derechos fundamentales ante las crisis económicas y de seguridad en un marco constitucional fragmentado, Madrid, 2020.
[22] Cf. F. BALAGUER CALLEJÓN, “Il futuro del costituzionalismo in un mondo (ri)globalizzato: mediazioni negative nella globalizzazione frammentata”, Nomos. Le attualità nel diritto – 3/2023.
[23] Id., “Alcune lezioni dalla Brexit per il Diritto costituzionale europeo. Referendum e social network versus democrazia pluralista”, in G. D’IGNAZIO, G. MOSCHELLA (eds.), Giornate in onore di Silvio Gambino, Napoli, 2019.
[24] Id., “Social network, società tecnologiche e democracia”, Nomos, núm. 3/2019.
[25] Cf. F. BALAGUER CALLEJÓN, La constitución del algoritmo, Fundación Giménez Abad, 2022 (2nd edition 2023); portuguese version A Constituição do Algoritmo, Editora Forense, Rio de Janeiro, 2023; italian version, La costituzione dell’algoritmo, Le Monnier Università/Mondadori Education, Milano, 2023.
[26] “This European democracy action plan, taken together with the new European rule of law mechanism, the new Strategy to strengthen the application of the Charter of Fundamental Rights as well as the package of measures taken to promote and protect equality across the EU, will be a key driver for the new push for European democracy to face the challenges and reap the benefits of the digital age”, On the European democracy action plan, European Commission, Brussels, 3.12.2020, p. 25.
[27] F. BALAGUER CALLEJÓN, Le due grandi crisi del costituzionalismo di fronte alla globalizzazione nel XXI secolo, in F. LANCHESTER (eds.), Passato, presente e futuro del costituzionalismo e dell’Europa, Padova, 2019.
[28] F. BALAGUER CALLEJÓN, “Constitutional interpretation and populism in contemporary Spain”, in F. GÁRDOS-OROSZ, Z. SZENTE, (eds.)Populist Challenges to Constitutional Interpretation in Europe and Beyond, Routledge, London and New York, 2021.
[29] Cf. “Orban compara a la UE con la URSS por su resolución de proteger el Estado de derecho”, Reuters, 13.11.2020: https://es.reuters. com/article/idESKBN27 T17X)
[30] The contrast between the conditions of the rescue of Portugal and Hungary during the financial crisis is overwhelming: “Whereas Hungary was required to comply with fewer than 60 unique conditions, Portugal was faced with around 400”. Cf. European Court of Auditors, “Special report no 18/2015: Financial assistance provided to countries in difficulties”, p. 40:
https://www.eca.europa.eu/Lists/ECADocuments/SR15_18/SR_CRISIS_SUPPORT_EN.pdf.
[31] Further strengthening the Rule of Law within the Union. State of play and possible next steps, European Commission, Brussels, 3.4.2019, p. 3.
[32] Strengthening the rule of law within the Union. A blueprint for action. European Commission, Brussels, 17.7.2019, p. 9.
[33] Ibid., p. 9 and 10.
[34] Ibid., p. 10.
[35] Ibid., p. 10.
[36] Ibid., p. 11-16.
[37] 2020 Rule of Law Report. The rule of law situation in the European Union. European Commission, Brussels, 30.9.2020.
[38] “It will be complemented by a set of upcoming initiatives including the European Democracy Action Plan, the renewed Strategy for the Implementation of the Charter of Fundamental Rights, and targeted strategies to address the needs of the most vulnerable in our societies to promote a society in which pluralism, non-discrimination, justice, solidarity and equality prevail”, Ibid., p. 4.
[39] Ibid., p. 11 and 18.
[40] Ibid., p. 24. Concern that is reiterated in the 2023 report, while in those of 2021 and 2022 some specific reference is made to this issue.
[41] Ibid., p. 25 and 26.
[42] 2021 Rule of Law Report. The rule of law situation in the European Union. European Commission, Brussels, 20.7.202, p. 1.
[43] Ibid., p. 28 and 29.
[44] 2022 Rule of Law Report. The rule of law situation in the European Union, European Commission, Luxembourg, 13.7.2022, p. 30.
[45] 2022 Rule of Law Report. The rule of law situation in the European Union, European Commission, Brussels, 5.7.2023, p. 31.
[46] Judgment of 16. 2. 2022 – Case C-156/21, Hungary v. Parliament and Council and Judgment of 16. 2. 2022 – Case C-157/2, Poland v. Parliament and Council.
