EU's CHALLENGING MISSION: SUSTAINING DEMOCRACY

NUR ECEM USLU

YEDITEPE UNIVERSITY

POLITICAL SCIENCE AND INTERNATIONAL RELATIONS

PSIR 332 EUROPEAN UNION

I- Introduction

As the world changes, political understanding and concepts are changing as well. Today, democratic backsliding we witness doesn't come as old forms such as coups d’état, executive coups, or election-day vote fraud, thankfully they are in decline. However, today’s democratic backsliding is backed by democracy, as Bermeo (2016) states, ‘’Ironically, we now face forms of democratic backsliding that are legitimated through the very institutions that democracy promoters have prioritized’’ (p.6). Today’s backsliding is taking time, occurs slowly, and consists of powerful strategic planning. Bermeo (2016) categories new forms of backsliding the most common one is worth mentioning for this paper, the executive aggrandizement, where elected executives make institutional changes and freer the check on the executive power therefore weaken the power of opposition that will cause them hardship. We can see the example of it in Urban’s Hungary and Poland’s court-packing. Politicians today manipulate elections strategically, it is a new form of backsliding that includes limiting media access, using government funds for their own campaigns, changing rules of elections in favour of themselves and harassing opponents, etc. Liberal democracies of yesterday become the electoral democracies today, tomorrow they may end up in autocracies. Mechkova et al (2017, p.7) mention that democracy is facing challenges worldwide, however, according to V-dem data there is no evidence that democracy caught in a global crisis, even though we can notify a slight decline in last few years, alarmist reports are not warranted. Even though the world may not be in a democratic crisis, the changing character of democratic backsliding is worrisome. Maybe democratic back-sliding on a global level is not worrisome enough to report even though rising populism and right-wing but what about the European Union (EU)? What is going on in Central and Eastern European Member States (CEES)? Can the EU close its eyes to democratically legitimized back-sliding or be tolerant of violations that are shadowed? If not, what EU can do in order to sustain its fundamental principle within its borders especially in the CEES? Thus, this paper will examine what instruments the EU has to intervene in the domestic politics of member states and what limits the EU action to the threat of democratic backsliding. Paper aims to fill the academic gap by providing an overview of the EU's democratic backsliding instruments whilst making a linkage between inefficient rule transfer in the pre-accession process and the limited power that the EU has in the post-accession.

II- Democratic backsliding in the Central and Eastern European States

The democratic backsliding may not seem worrisome as the new forms of backsliding are highly legitimized through democracy itself. Even though the sudden democratic breakdowns are in decline, we must not forget that ‘’ democracy is a collage of institutions crafted and recrafted by different actors at different times. It is put together piece by piece, and can be taken apart the same way.’’ (Bermeo, 2017, p.11). Some democracy violations are easier to detect but strategic democracy violations may not be detected and this may misguide us in taking an action. So, this section of the paper will be representing the democratic troubles in the region. This will be helpful for us to know the current situation and then be able to make a connection between the EU's role in democracy in the region from pre-accession and past accession later on.

Mungiu-Pippidi (2007) points out features of the democratically troubled countries in the region. These troubles are leading to democratic backsliding and are the reasons why the EU must pay attention and take action before it's too late. Firstly, populist and far-right parties are on the rise in Bulgaria, the Czech Republic, Romania, Poland, and Slovakia like in the rest of Europe (Mungiu-Pippidi, 2007). As will be discussed later on, the rise of populist parties and far-right discourses are a problem of Europe in general thus EU’s intervention to it, is challenging. Because the violation is hard to monitor or too weak for the EU to take action. Furthermore, the far-right domestic parties and politicians gain support in the European Parliament through party politics and that limits the EU action. Moreover, EU action to domestic politics is risky as it would change the domestic political structure. Secondly, political radicalization between two main parties leads to weak coalitions that result in political instability. The factional discourse of parties towards each other reinforces instability. The occasional acts concerning justice, media, and rights of opponents lead to distrust of citizens to the country's politics, damages the opponents, therefore, damages democracy. The changes made in the constitution to free the pressure on the executive branch by the changes made in the jurisdiction and limiting the media access like in Hungary and Poland is another trouble of democracy in the region (Iusmen, 2015).

Each CEES state has these interrelated issues regarding their politics at a different level. How does the EU reply to these features? Regarding the rise of populism and far-right parties, it seems to be a pan-European problem but the EU does not intervene after its failed attempt to boycott Austria under Jadier (Schlipphak & Treib, 2017). Also, the far-right parties find support from parties of the European Parliament. It is cruel for our last topic about the ability of the EU to use article seven of the Treaty of European Union (TEU). In the CEES, democracy is not the problem but the distrusted, corrupt government that is controlled by the political class who haven't learned democratic rules. The EU's intervention’s necessity can be discussed as well as it’s legitimation and fairness. There are various concerns on the EU's intervention, first one would be if only small countries will be targeted? (Muller, 2013).  How can the EU intervene in domestic politics for the sake of democracy where its own legitimation is in crisis? (Muller, 2013). The EU intervention has big impacts on domestic politics and can cause undesired outcomes like a rise in Euroscepticism. This external force can strengthen the power of the local governments and make them a safeguard against external interference if these illiberal forces ‘’play the blame game on Brussels’’ (Schlipphak & Treib, 2017). Thus, the EU must find a legitimate and just way to deal with the democratic backsliding within itself, EU action must be efficient and comprehensive, and should focus on long-term consequences. This paper, while putting aside outcomes of EU intervention specifically, will explain how the EU can intervene? The past experience showed us that EU action’s efficiency to democratic backsliding in the region differed from country to country. Why differentiation came from? It is time to discuss the efficiency of the EU's rule transfer to ECCS in the first place.

III- EU’s pre-accession inefficiency in transferring democracy

This part of the paper will be explaining the inefficient rule transferring of the EU under the EU conditionality through various studies conducted by Schimmelfennig and Sedelmeir who are the significant scholars in the conditionality field. The desire of Eastern European states to join the EU after the post-communist era paved a way to the EU's external governance in the region. To understand the dynamics behind the democracy threats in the CEES, we must understand the modes of how the EU exports its rules to new member states? Are they effective instruments to promote and sustain democracy in the region? The pre-accession process gives a chance for the EU's external governance to transfer its rules based on governance models, institutionalization, rule of law, and standardization of domestic political practices in the EU sense. The EU's relationship with CEES mostly in the sense of conditionality based on a bargaining strategy. However, EU's conditionality before membership does not guarantee successful rule transfer and may not be effective in some countries, the very ineffective rule transfer is the reason why today some member states taking an illiberal turn (Hanley & Vachudova, 2018). Schimmelfennig and Sedelmeier (2004) categories the EU’s conditionality to democratic conditionality and acquis conditionality while states three types of rule transferring. The EU can transfer its conditions by using the external incentives model, social learning, and lesson-drawing model. In line with our main argument, the paper will only examine the external incentives model and its challenges on the efficiency of a rule transferring that can help us to understand today.

As we mentioned before, the external incentives model is based on the bargaining process where the EU sets its conditions that CEES has to fulfil in order to receive the rewards. These rewards can be narrowed down as trade and cooperation agreements like the Schengen agreement. However, as a general bargaining problem, the EU's incentive model as a rule transfer through bargaining faces challenges, and the success of the bargain is tied to some factors. The biggest challenge in democratic conditionality is the domestic cost- benefits nexus. A state will adopt the EU rules if the reward is good enough to take a risk of domestic adoption cost (Schimmelfennig, 2007). In other words, as rule adaptation will change the domestic opportunity structure, the change will be supporting the pro-EUs and change the balance of power within domestic politics. The cost of the ‘’change’’ will tend to be risked in line with the benefits of the rewards. Therefore, other determinants on the success of rule transfers are; the determinacy of conditions if tied to a reward more efficient, the size and speed of the rewards, the credibility of the conditionality, the reward shouldn’t go beyond capabilities and EU must be able to pay, veto players and adaptation cost, efficiency is based on the preference of the government and the domestic veto players in regards to adoption cost (Schimmelfennig & Sedelmeier, 2004). Thus, the EU's transferring and the external rule is highly limited to domestic-context. Rule transfer regarding Acquis conditionality, was easier to accept for the ruling government as the conditions are not directly affecting the political structure or their rule, they have not fear from the adaptation cost, moreover, the reward was the membership. In contrast to acquis conditionality, democratic conditionally that concerns fundamental political principles of the EU and norms consisting of human rights and liberal democracy was challenging for many CEES states. As democratic requirements would have challenged the existing authoritarian power of the ruling government. In such cases where the authoritarian government wasn’t intended to do changes, the pro-European electorate mobilized and voted for the reformist parties and policies like in the Romainian case (Iusmen, 2015). The EU has supported reformist government change and indirectly affected the change, this was seen as necessary evils, however, the changed governments were able to concentrate the power in their hands after the accession like in power grab of oligarchs in Czech Republic (Hanley & Vachudova, 2018). That is one of the main reasons why there is democratic backsliding today. The effect of domestic adoption cost factor was decreased by change of the government. But this option does not guarantee the rule of law in these countries. As Mungiu-Pippidi (2007) mentions, in negotiation years most ECCS countries scored high in their democratic evaluations, but there was immediate backsliding after the accession except Baltic states. Mungiu-Pippidi concludes this may come from the Commission’s lack of monitoring that comes from the acceptance that candidate countries would fulfil Copenhagen criteria and would do the necessary changes. Furthermore, the Commission's focus on acquis conditionality is mostly shadowing its attention to the democracy issue of these countries like the media. So, once again the EU has focused on short-term integration rather than focusing on the long-term outcome of the ineffective integration.

In sum, we have seen the limits of the EU's rule transfer regarding its Acquis conditionality and democratic conditionality. Where acquis conditionality is easier to adopt and paid more attention by the Commission, democratic conditionality that consists of the main political structure was challenging for the CEES government. Their decision on fulfilling democratic conditionality is based on the size, speed, determinacy, and credibility of the conditions. But, the biggest issue on the effectiveness of the EU’s democratic rule transfer seems to be domestic adoption cost. Authoritarian or illiberal states seem to fear changes in domestic politics, or tend to hold on to their power in politics. Many countries accomplished this issue by the change in the immoderate government and that the EU supported the change for the sake of the membership process (Mungiu-Pippidi, 2007). This led to the suppression of some domestic actors; however, this didn’t prevent them from gaining power after accession. Then, it became a problem of democratic backsliding as these actors seek to secure their power. Eventually, the lack of monitoring and noncomprehensive integration reinforced ineffective rule transfer that made it possible to take an illiberal turn. Therefore, as Schimelfennig and Sedelmeier ask (2004) if short-term effectiveness was achieved at the expense of long-term inefficiency, one can claim yes it was. The democratic backsliding after the accession can be an example of it. Iusmen (2015) explains the Commission's monitoring process in pre-accession as a ‘’prescription mechanism’’, where countries are examined by the number of rules adopted but not by the changes in the reality. She then likened the commission to a doctor who examines the patient by the prescribed medicines taken, instead of checking the effects of those medicines. And after the accession, the side-effects of the medicines had appeared where the EU's influence faded like an anesthetic. In short, the rush on membership accession and lack of monitoring made EU rule transfer ineffective and undermined the future of the EU’s rules as the EU had ignored the domestic complexities. And that what limits the EU action as after accession the outcomes of the ineffective rule transferring under conditionality are hard to fix even with the use of hard mechanisms (Sedelmeir, 2012).

IV- EU’s post-accession instruments and limitations in coping with democratic backsliding

Outcomes of ignoring long-term efficiency that Schimmelfennig and Sedelmeir (2004), mentioned is visible today. As we mentioned, the supplement of domestic actors both by the electorates who are pro-EU and the EU caused the change in the balance of power and led to acquiring membership. Where in the change of government brought the membership, what can ensure the future of rules is guaranteed? What can ensure democratic conditionality’s future? The EU has soft and hard mechanisms to deal with democratic backsliding. Some of the mechanisms deployed and some never used. The current attitude of the EU is pretty much shaped by the limitations of its instruments. This part of the paper will be explaining what kind of instruments the EU has after the accession? As the bargaining power of the EU on rule transferring and EU’s conditionality came to an end after the rewards received by the member states. How can the EU sustain the rules transferred in pre-accession once these states become a member? We will be explaining what instruments the EU has through the various studies of Sedelmeier, Kelemen, and Blemenger who are significant scholars in the field.

IV.I.  Soft mechanisms

The EU can intervene by the use of soft mechanisms without deploying the hard ones. As a soft mechanism, the EU often uses institutions' condemnation by naming or shaming. The EU shows its disapproval and creates a ‘’social pressure’’ on the target government. The social pressure is backed by the shadow of material sanctions as a hard mechanism, and persuasion through pressure requires objectivity, consistency, transparency in the relationship with the target government in a depoliticized setting (Sedelmeir, 2014). This may work for some cases even without deploying hard mechanisms as in Romania, but as Iusmen (2015) mentions, social pressure’s effectiveness based on domestic context, and the miscalculation of the government as well as the Euroscepticism of the public, this explains why social pressure led to different outcomes in Hungary under Fidesz than Romania. In countries where the majority of citizens support the EU, where they distrust their government and where the government failed in a strategic power grab, social pressure by the EU and the other member states can be effective. But generally, this social pressure had to be backed by the material sanctions or threats as in Romania's case. Even though the EU does not have such a policy, the government was threatened by the suspension of the country's Schengen agreement by a few member states and the commission president at that time. But this informal threat never took any action and social pressure had achieved its goals. But in Hungary, where the people supported their government and where the government was strategically making political changes the social pressure only was highly-limited (Sedelmeir, 2014).

Thus, in 2014 the Commission adopted a new framework, a structured response mechanism in order to prevent illiberal turn; The Commission’s rule of law framework. The new framework entails three stages. In the first stage, the Commission evaluates if there is a democratic threat to rule of law, if it comes to the conclusion that there is, it specifies its opinion in the ‘’rule of law opinion’’ which member states can respond to. As the second stage, ‘’rule of law recommendation’’ where Commissions points out the changes that should be made and specify a deadline to the member states. In the third stage, Commission monitors the appliance of the change if it’s not satisfied, Commission can propose the use of Article 7 of TEU (will be explained, later on) as a material sanction. The limitation of the framework is that it doesn't give the Commission new powers but structures the earlier informal practices of the commission. Moreover, the stages are leading to the use of Article 7 therefore, the Commission’s power is limited as the deployment of article 7 is decided by EP and the Council. However, the legitimacy of the Commission on the process as a supranational body may not require the creation of a new body or led to the search for alternatives. But to protect its legitimacy and credibility, when using the rule of law framework, the Commission must act equally to each member states (Sedelmeir, 2017).

Another soft mechanism that is complementary to the rule of law framework was developed by the Commission in 2013: The EU justice scoreboard. The scoreboard is published annually and monitors the effectiveness of national justice systems. However, as Sedelmeir (2017) mentions, the monitoring focus of the scoreboards is narrow, as it is mostly focusing on judicial independence in the sense of economic growth. Thus, it becomes a tool to identify threats to liberal democracy rather than democracy. The annual monitoring and reports could be efficient in diagnosing democratic threats and in showing the areas that are in threats.

Just like the inefficiency of the Justice Scoreboard, The Council’s rule of law dialogue seems to be inefficient too. They are inefficient in the manner of democratic backsliding; however, they have benefits in other regards. The very principle of the dialogue which points out cooperation, respect to national identities, and a non-partisan, evidence-based approach limits the dialogue. Therefore, instead of discussing and naming a country, it launches general subject discussions (Sedelmeir, 2017). It is understandable for the member states to not create a scene where they would be named and shamed but the dialogue has untapped potential in the sense of social pressure.

IV.II. Hard mechanisms

There have been times that soft mechanism was challenged even though there was a shadow of the material leverage of the EU. In the times where efficiency and stronger measures were needed urgently, the use of Article 7 has been discussed. Article 7 of the Treaty of European Union gives the union the right to suspend a member state’s certain rights like limiting budget funding, voting rights in the council when it decides that there is a violation of article two which concerns core European values such as freedom of speech and human rights (Iusman, 2015). However, the use of Article 7 is limited. The barriers in the implementation of Article 7 are broadly caused by the voting requirements such as unanimity in the European Council and a two-thirds majority in the EP to implement it (Sedelmeir, 2017). This, therefore, leads to party and member state politics. Unanimity to begin with, is an obstacle as states concerns about the national sovereignty principles, they tend to be against the use of Article 7 as well as politically close countries tend to vote in favor of each other like how Hungary announced it won't support any sanctions to Poland. Requirement of a two-thirds majority in the EP is another obstacle as it turns to party politics. Like far-right governments are backed by the right parties in the EP. Moreover, the use of article 7 can be opposed in regards to the political group’s approach to European Integration. Furthermore, an illiberal government may risk the EU membership to retain its power. This is possible if the public also supports anti-EU policies due to Euroscepticism. Therefore, as mentioned in pre-accession conditionality and the domestic-cost remains the most significant in regards to democracy even after the accession.

In conclusion, the use of article 7 is bound to partisanship, to European integration as well as domestic-cost adaptation. Thus, article 7 seems unlikely to be adopted. Therefore, it is not an effective way of responding to democratic backsliding. Automatically, the Commission’s rule of law which leads to the use of article 7 in the end is left out as well. In short, Article 7 may be threatening if the government is not backed by the parties of EP, other member states, and by the citizens.

Due to hardship in adopting article 7, the EU has practiced similar processes but not as harsh as article 7. Such as the Cooperation and Verification Mechanism (CVM) that is implemented in Bulgaria and Romania after accession. The mechanism meant the EU's assessment in judicial reform, corruption, and organized crime and meant the Commission's monitoring of judicial independence as well as the independence of the constitutional court. Even though there was no leverage in regards to CVM, Commissioner Reding and some other member states linked undemocratic changes and negative CVM outcomes to the Schengen agreement (Iusmen, 2015). But again, the limitation of CVM resides in a member states’ desire to stay in the membership. The usage of CVM shows us the linkages between requested changes as the outcome of an evaluation can be indirectly linked to some rewards of the EU membership as in the Romanian case. Moreover, the need to adopt CVM shows how the pre-accession monitoring process rushed and left loopholes.

The commission may deploy material leverage through Infringement procedure like in Hungarian case in 2012 (Iusmen, 2015). In this case, The Commission starts to investigate and identify infringements of EU law based on the complaints coming from the citizens, businesses, and other stakeholders. This is what ‘’private litigation’’ is called. It is similar to the Commission's rule of law framework, the Commission sends a notification to a country, once reply received, it can send reasoned opinion and asks compliance with the EU law once if it decides, it is violated. If a country does not comply, the Commission can take the case to the European Court of Justice (ECJ) and ECJ can issue financial penalties for the country that does not comply with the EU law (Klemen & Blemenger, 2017). However, the Commission's approach limits the legitimacy of the procedure due to the selectivity of the cases. In other words, the Commission avoids initiating the procedure to some conflicts and chooses the ones that seem to be solved through to procedure (Klemen & Blemenger, 2017). Moreover, the Commission's ability to initiate procedure is limited due to the absence of justiciable EU rules that are certainly defined. This ambiguous EU norm challenges the initiation of legal action (Blauberger, 2014, p.459). Private litigation is limited as a country can comply with the EU law in earlier stages and then make new amendments later on, like in Hungarian case. So, the infringement procedure has to be undergirded by the other instruments or linkages (Iusmen, 2015). Therefore, for defending democracy European leaders should politically intervene alongside judicial intervention. If not, the leaders will burden the judiciary, damage it by politicizing it.

V- Conclusion

The EU's instrument’s capacities in the fight against democratic backsliding and violation of the very fundamental principle of the union are limited. Democratic backsliding is an inevitable outcome of the rushed pre-accession process. The biggest challenge of the democratic conditionality of the EU is the domestic-cost adaptation. One’s intent to accept the conditionality is based on the bargaining process, the domestic cost of adaptation, and the benefits of the EU’s rewards. Thus, in order to achieve the reward, a state may comply with the democratic conditionality, or government change demanded by the citizens and backed by the EU can lead to EU membership. However, due to the lack of efficiency of the EU's rule transfer, democracy is not internalized nor by the political groups that are suppressed by either the citizens who support the far-right parties. Therefore, after acquiring the membership, a state can turn to illegal practices after getting the reward, especially if the EU is not able to show a solid response and efficient way. In this regard, the difference between Romania and Hungary is important. In Romania, the EU was able to prevent illiberal turn thanks to social pressure that is backed by material leverage. But what happened in Hungary? To what extent, the EU be able to intervene when the government is backed by EU’s very own institutions? To what extent will the EU be able to force the government when the citizens are already Eurosceptic?

In conclusion, the EU’s capacity to fight against democratic backsliding seems to be weak and that is the reason why democratic backsliding continues and occurs. The governments that are able to strategically undermine democracy through the very use of democracy can use the weakness of the EU as well. Once the EU lets or turn blind eye to the illiberal turn what will happen to the values the EU depends on? Thus, the EU must be able to renovate its instruments. Commission’s monitoring both pre-accession and after membership should have a broader scope, and if the Commission will be viewed as the guard of Democracy, additional powers should be given to it. Moreover, EU’s promotion of democracy through incentive model of rule transfer shouldn't be this focused on the bargaining process and shouldn’t suppress some political groups when it reaches to a dead end in the negotiations, instead EU must work on lesson-drawing and social learning ways of rule transfer in this way a member state will be able to see the benefits of the EU’s rules. It may sound optimistic; however, the EU must find a better way to promote democracy in these troubled countries. Further research can be made on democratic backsliding in core Europe as democratic backsliding in the EU is not only about the enlargements but is also a problem of core Europe. As we mentioned, the authoritarian leaders of CEES backed by the populist and right-wing parties in the EP as well as supported by the other member states. Do the EU institutions and other member states approach and can approach to democratic backsliding in core Europe as they do/did in the CEES? Democratic backsliding and actions to fight against are significant for the future of Europe and if actions taken to it are not equal, it would damage the legitimacy and the solidarity of the EU.