Recent months have provided no shortage of reasons to worry about the state of liberal democracy in Europe. In Hungary, Prime Minister Viktor Orbán coasted to re-election after a controversial campaign that deployed the full resources of the state—and no small amount of disturbing, dog-whistling rhetoric—to ensure his third consecutive term in power. In Poland, the government is continuing its standoff with the European Commission over the country’s judicial reforms, which are accused of threatening the rule of law. And as Freedom House’s latest survey makes clear, the trend toward illiberalism is hardly confined to Warsaw and Budapest alone: countries across the continent witnessed important gains by far-Right and extremist parties over the past year.
The concern is not merely that illiberal parties can win elections but that they will pursue the constitutional capture of the state once in power—as is happening in Hungary and Poland. This not only makes challenging their policies near impossible, but also skews the playing field to make it harder to remove them from office, or to undo their changes even if they were to lose an election. The rise of illiberal, Euroskeptic forces is also intimately connected to the worldwide resurgence of a kind of nationalism that values sovereignty above all else and rejects any outside influence on domestic politics.
So far, the European Union has been very slow and ineffective in responding to this challenge, but this is gradually changing. Remarkably for a contemporary European leader, French President Emmanuel Macron tackled the issue head on last month in a speech to the European Parliament, where he warned of “a sort of European civil war” over values. Since these trends show no sign of reversing, the European Union should brace itself for more confrontations over the enforcement of its liberal democratic standards in the coming years. These clashes could redefine in a fundamental way what kind of union it really is—and even pose an existential choice for its members.
Liberalism, Democracy, and Sovereignty: The Growing Tension
For most of the 20th century, the existence of a radically different “other” in the form of communism and fascism helped bind Europe’s liberal and democratic instincts. The project that emerged after the Second World War was from its very start a liberal democratic one, born of a war that resulted in part from a failure of liberal institutions to contain the rise to power of Nazi and fascist movements. While the architects of the postwar order wanted to ensure that Europe would remain a continent of democracies, they also sought to constrain political power through the rule of law, impartially applied by independent institutions. As Jan-Werner Müller has put it, “Distrust of unrestrained popular sovereignty…[is] built into the DNA of postwar European politics.” It is not accidental that a potential uncoupling now takes the form of disputes over judicial matters rather than disputes over elections.
In Europe as elsewhere, recent political trends have exposed this fundamental tension between democracy and liberalism. Today’s populists and nationalists pursue politics in which the wishes of the majority are paramount and must not be denied by rules or institutions that protect the rights of the minority. Dissenters or critics of the alleged popular will are, at best, to be tolerated as long as they have little chance of gaining power; at worst, they are to be hounded and repressed. This kind of extreme majoritarianism directly challenges the underpinnings of the European Union, which is rooted in an attempt to make democracy and liberalism inseparable.
The illiberal movement also challenges post-Cold War assumptions about the inevitability of ever-deeper democratization and the impossibility of its reversal once countries become EU members. This is shown by the experience of some newer, post-communist members, which were arguably more vulnerable to backsliding given their decades-long legacy under an undemocratic system. But the trend is not exclusive to them, as the performance of illiberal and authoritarian-leaning parties in countries as diverse as Austria, France, Germany, Greece, or Italy shows.
The EU’s Impotence
The European Union is very poorly equipped to deal with these challenges, and its members are failing to enforce its liberal democratic values among themselves. Those that have publicly acknowledged the problem have so far outsourced it to the European Commission, the European Court of Justice, and the European Parliament. This outsourcing is the easiest, most non-committal course of action, acceptable to those governments that are influenced by solidarity among the European party “families.” The sympathy for Viktor Orbán within the conservative European People’s Party grouping, and especially with the two major German parties of the Right, is the most obvious example, though Europe’s left-wing parties have also tolerated abuses of democracy by their peers in other countries.
The Treaty of the European Union and the Copenhagen Criteria for applicants clearly require members to have liberal democratic systems, yet there are effectively no instruments to enforce this. Only Article 7 offers a path for reacting to a serious breach, culminating in the suspension of certain rights of the offending government. But there are no provisions for lower sanctions or for higher ones in the form of suspension of membership or expulsion. Meanwhile, Article 4.2 requires respecting the “national identities” of members “inherent in their fundamental structures, political and constitutional.” This allows accused governments to demand that EU institutions and members accept their domestic arrangements, and to argue that the EU treaties do not prescribe any single model of democracy.
In truth, however, EU treaties clearly set liberal parameters to the democracy required of members. The separateness of democracy from liberalism is clear in Article 2, which lists the former as just one of the European Union’s foundational values: “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.”
There is nothing undemocratic about members of a supranational community wanting to change its standards. The problem for the European Union today arises when members refuse to adhere to already agreed-upon standards, before the community has decided to change them. The sovereignty argument is fundamentally disingenuous, as all members have freely and in their sovereign capacity signed up to the liberal democratic standards in EU treaties. Older members may conceivably argue that the community they joined evolved into something not originally intended (though this is not very convincing, since they signed up to each subsequent treaty evolution) but newer members joined in the full knowledge of the explicit requirements.
Although the EU establishment has reacted very slowly to the rise of illiberal and undemocratic forces, this is beginning to change as the threat crosses borders—as when Hungary directs its fire at international targets like the Central European University and George Soros, and the likes of Orbán openly tout their illiberalism as a model for others to emulate.
Consequently, the European Parliament has begun to criticize breaches of liberal democratic standards. In 2014, the European Commission adopted a framework to address systemic threats to democracy and the rule of law. It used this for the first time against the government of Poland for its changes to the judiciary, leading to the triggering of the Article 7 process this past December. Politicians on the Left and the Right have become more vocal in criticizing actions targeting civil society. Since Hungary’s elections, voices within the European People’s Party have taken a more critical position towards Orbán. Germany’s new Foreign Minister, Heiko Maas, raised the issue of EU funds in reference to Poland’s judicial reforms during a recent visit there.
Prognosis: More of the Same
In the coming years, the European Union can expect more clashes between illiberal, sovereigntist governments and those that want to defend the liberal democratic status quo. In Hungary the re-elected Fidesz faces an opposition in utter disarray, and in Poland PiS retains strong popular backing. Elsewhere on the continent, recent elections in Italy and Austria hardly paint a picture of liberal values on the ascent. Further economic shocks or migration surges could well spur more support for illiberal, populist, and extremist parties.
Meanwhile, the limited steps taken by the European Union have had no great impact. Hungary’s government has engaged the European Commission in drawn-out dialogues about the legal technicalities of complying with EU standards, making minor concessions while proceeding with its overall concentration of state power. Orbán’s words during and since the elections strongly suggest that he will not change course. The government in Poland seems to have opted for an accelerated version of the Orbán playbook for the de-liberalization of the state, seeking to mollify the European Commission through never-ending dialogue.
At the same time, it is unlikely that the EU stakeholders that care will give up on their pushback. They may even try to step up the pressure on recalcitrant members, especially if violations become more brazen. This could include conditioning the receipt of EU funds on observance of democracy and rule-of-law standards. This year could also see the conclusion of the Article 7 process against the Polish government. Even if a unanimous verdict against Poland is highly unlikely, many members voting for a sanction would be a landmark moment.
The Illiberal Strategy
Despite their rhetoric, there is little to indicate that illiberal governments would seriously consider taking their countries out of the European Union if they are criticized or sanctioned. What they want is to have no limits placed by EU membership on how they choose to re-organize their countries’ politics. Hungary and Poland are already implementing a two-pronged strategy to achieve this end, which will serve as a model for others.
First, given the near impossibility of altering EU standards through treaty changes, illiberal governments will lobby for the rules to be interpreted and applied in a way more to their liking. They will work to change the EU discourse to one upholding sovereignty as the supreme value, while portraying themselves as the true defenders of democracy and interpreters of Europe’s “real” values. The Hungarian and Polish governments are already attempting such a rhetorical reframing. It is accompanied by a push to convince other members that EU unity is vital for dealing with Europe’s economic and security challenges, and thus should be put above any disagreement over political standards. This resonates with many EU members.
Second, the illiberal governments will go beyond relying on their individual veto power in EU decisions that require unanimity to build a non-interference coalition of members to protect themselves. Such a coalition, or even variable ad hoc ones, will be in a position to block any kind of sanctions that would need to be decided by qualified majority voting. The Fidesz and PiS governments are natural champions for such an approach, not only out of short-term self-interest but also because of ideological conviction. As Piotr Buras of the European Council on Foreign Relations argues, “the [PiS] government has sought to shape the future of the Union in a way that fits with its sovereigntist vision for the future.” The same applies for Orbán’s vision of an illiberal state, which requires not only repatriating more powers from Brussels, but also the European Union turning into a community organized along sovereignty principles.
An Existential Choice
If successful, this strategy will make it even less possible to enforce the European Union’s political standards. Those members that still adhere to the vision of a community of liberal democratic values may then be forced to accept that it will evolve toward some kind of “economic NATO” instead. But there is also a worst-case scenario, so far unlikely but not unthinkable, should such a division grow among members.
Since it is not possible to expel a member, and since on current evidence there is no strong prospect of members voting unanimously to sanction a peer under Article 7, a different “nuclear option” exists. This would see those that want a union of liberal democracies leaving so as to re-create a smaller union, more deeply integrated in terms of political standards. While this may appear inconceivable, the so-far fringe talk of a re-founding that sometimes simmers under the discussions about a “core” European Union could become part of the mainstream discussion if there are more years of clashes over liberal democracy.
Ultimately, the governments of Hungary and Poland, and those Europeans that share their views, are confronting EU members with a choice that none of them expected to make. If the trend towards more illiberalism and more sovereignty continues, all EU countries will have to ask themselves the uncomfortable question of whether liberal democratic values are the most important thing about the union, or whether it is more important to have the widest possible union that serves their economic and security purposes, even at the cost of downgrading those values. This is the existential choice that looms for the European Union as a supposed community of values: its members may have to choose what is most important to them—the community or the values.