Latest Articles


21.11.2014
Carl Henrik Fredriksson

Vienna has fallen!

The challenges of a European public sphere

How much in common must a community have? Quite a lot, says Eurozine's Carl Henrik Fredriksson. At the very least a common public sphere. Because without it, Europe's publics will be easy prey for those who know how to play the strings of history. [ more ]

19.11.2014
Eurozine Review

Another music! Or no music at all!

19.11.2014
Johanna Rolshoven

Open city calling!

19.11.2014
Almantas Samalavicius, Sajay Samuel

Notes from a technoscape

New Issues


Eurozine Review


19.11.2014
Eurozine Review

Another music! Or no music at all!

"Dilema veche" says Romania's new president had better lead the country out of the swamp; "Krytyka" invests its hopes for Ukraine in a new generation; in "Vikerkaar", Rein Müllerson says increasing western pressure on Russia is a mistake; "New Eastern Europe" takes stock of the Maidan one year on, and celebrates literary Krakow; "Blätter" publishes Jaron Lanier's 2014 Peace Prize speech; "Polar" considers debt not a curse but a blessing; "Arena" notes how a feminist party has changed Swedish politics; "Dérive" inspects the "safe city"; in "Kulturos barai", Sajay Samuel warns of the perils of checking your smartphone; and "Multitudes" scopes out the anthropo-scene.

29.10.2014
Eurozine Review

A centre receding

15.10.2014
Eurozine Review

This revolutionary moment

17.09.2014
Eurozine Review

Independence in an age of interdependence

03.09.2014
Eurozine Review

Was Crimea a preliminary exercise?



http://www.eurozine.com/articles/2011-05-02-newsitem-en.html
http://mitpress.mit.edu/0262025248
http://www.eurozine.com/about/who-we-are/contact.html
http://www.eurozine.com/articles/2009-12-02-newsitem-en.html

My Eurozine


If you want to be kept up to date, you can subscribe to Eurozine's rss-newsfeed or our Newsletter.

Articles
Share |

Rising to the challenge of constitutional capture

Protecting the rule of law within EU member states

Despite being well aware of the stakes involved in member states such as Hungary, writes Jan-Werner Müller, the European Commission still lacks fully convincing instruments to deal with constitutional capture: a government's systematic weakening of checks and balances.

This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU member states.[1] Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within member states, so to speak) effectively? The clear-cut answer is: yes and no. The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings. Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work. But if it doesn't, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change). As such, the new framework formalizes – or, in the words of Commission President Barroso, "consolidates" – the Commission's de facto approach in recent years. This is not a trivial achievement; and it's probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency. It may well deter some governments. But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before.

EU leaders gathering for an official family photo. Photo: European Council. Source: Flickr


The Commission's initiative comes against the background of threats to liberal democracy in Hungary and Romania since about 2010 – and an acute sense among many observers (and also among political actors) that the Union has been ill-equipped to deal with a challenge one might call "constitutional capture." Constitutional capture is different from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but it is also different from individual rights violations, grave as the latter might be. Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult. Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (a case of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantly tried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy, the President of Romania (this being a matter of attempting an informal constitutional capture).

Read also


Jan-Werner Müller On the side of democracy
In both cases, the Commission got into a direct confrontation with the respective national governments. While the EU arguably helped to avoid the worst, the experience seemed to point to a significant weakness of the Commission as a guardian of the treaties: it could take governments to court for individual infringements of EU law, but it proved incapable of addressing systematic attempts to undermine the rule of law. In some cases, it could not "read" certain laws for what they were, but had to reinterpret them in an EU framework such that their real political meaning was officially missed. When Orbán's government effectively decapitated the Hungarian judiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination. Brussels won its case, but the judges were never re-instated; the political situation remained more or less as Orbán's government wanted it.

The Commission now explicitly makes the point that there can be systematic threats to the rule of law within member states and that Article 2 TEU – which specifies the EU's fundamental values, such as democracy and human rights – gives the Commission, as the guardian of the treaties, the mandate to intervene. The Commission also reiterates in plain words the basic legal and normative argument that is crucial to counter the claim that such an intervention somehow constitutes an illegitimate meddling in internal affairs: the EU relies on the mutual trust of the member states in each others' legal systems (just think of the European Arrest Warrant). Hence the Commission is spot-on in stressing that "the confidence of all EU citizens and national authorities in the legal systems of all other member states is vital for the functioning of the whole EU."

So far, so good. But what is the concrete content of the new framework? The Commission envisages a "structured exchange" with a member state that appears to be undermining the rule of law. This would start with an assessment of the situation in a particular country, which could result in a "rule of law opinion" expressing the concerns of the Commission vis-ŕ-vis the national government in question. If the government fails to respond appropriately, Brussels will issue a "rule of law recommendation"; if the state still fails to comply, "the Commission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU" (which allows, at the limit, the suspension of a country's voting rights in the European Council, imposing a kind of normative quarantine on a member state).

Three aspects are notable here: first, the Commission gives itself leeway to draw on whatever sources it chooses for its assessment: the Venice Commission, the Fundamental Rights Agency, but also other, as yet unnamed sources. This gives it a fair amount of power to come up with a comprehensive judgment – as opposed to mechanically working through checklists, as has too often been the case in accession processes, or entirely relying on one institution that the national government under suspicion might try to capture. Second, the Commission emphasizes the "duty of sincere cooperation" as set out in Article 4(3) TEU. This clearly reflects lessons learnt from the Orbán government's rush to go ahead with the fourth amendment to the new Hungarian "Fundamental Law", when the Commission had asked it to take a pause and talk. A government acting in bad faith or defiance is presumably now more likely to be faced with a "recommendation" and, ultimately, an attempt to get the European Council to vote for Article 7. Third, the Commission seems to hope for the effects of a kind of naming and shaming. The fact of an assessment and a rule of law opinion will be publicly known, but the content won't be; in the next step of escalation, the recommendation as such would be made public. Clearly, the Commission itself has drawn the conclusion that its very public conflicts with the Hungarian and Romanian governments helped to prevent the worst.

Will the next Orbán think twice, then? That's not obvious. A government intent on constitutional capture knows that it is on a confrontation course with the EU – and, if anything, will try to mobilize public opinion against Brussels even pre-emptively (and not care much about the views of other governments in the EU). Shaming might sometimes work – but it is less likely to do so in the absence of credible penalties. And in this respect not much has changed: no new sanctions are envisaged, and the hurdles for Article 7 ultimately remain as high as before. To be sure, the Commission might be making a bet that creating a public record of rule of law abuses – certified by everyone from the Venice Commission to prestigious judicial networks in the EU – and thus pushing the European Council on the basis of a "reasoned proposal" (as the Treaty puts it), would actually shame the European Council into getting serious about Article 7.[2] Still, because everything will come down to Article 7 in the end, it would be a mistake to sit back and relax, in the knowledge that, across the Union, the rule of law will now be safeguarded by the Commission. Further thinking and further action are needed.

So let me suggest two further thoughts right away. First, if the Commission really were to become more consciously politicized – appearing as a quasi-government with a recognizably partisan agenda – for the sake of increasing the Union's "democratic legitimacy", then the whole confident self-presentation of the Commission as "objective" (something stressed a great deal in the Communication) would become much less credible. A Schulz Commission might go head to head with an Orbán government, but Orbán's habitual argument that all criticism of his government is just a matter of the European Left going after a successful conservative revolutionary might look a touch more credible in the eyes of observers. Second, it might be unclear who makes the assessments, crafts the opinions, and issues the recommendations. Rival proposals – such as my colleague Kim Lane Scheppele's idea of systematic infringement proceedings or the creation of a Copenhagen Commission – suggest highly visible (and, ideally, prestigious) actors with a proven capacity for comprehensive legal and political judgment as ultimately making the calls. To be sure, the ECJ and a Copenhagen Commission would also be open to charges of partisanship or excessive political subjectivity, but much less so. Furthermore, such rival proposals suggest not just intermediate mechanisms (intermediate, that is, between soft power, i.e. persuasion, and Article 7), but intermediate penalties. Any of this, it seems though, will have to be for the next Commission, and, ultimately, the next treaty.

The author wishes to thank Gábor Halmai, Dan Kelemen, and Kim Lane Scheppele for their comments on a draft of this article.

 



Published 2014-03-21


Original in English
First published in verfassungsblog.de, 15 March 2014

© Jan-Werner Müller
© Eurozine
 

Focal points     click for more

Beyond Fortress Europe

http://www.eurozine.com/comp/focalpoints/lawborder.html
The fate of migrants and refugees attempting to enter Fortress Europe has triggered a new European debate on laws, borders and human rights. A debate riddled with the complex, often epic, narratives that underlie immediate crisis situations. [more]

Russia in global dialogue

http://www.eurozine.com/comp/focalpoints/eurocrisis.html
In the two decades after the end of the Cold War, intellectual interaction between Russia and Europe has intensified. It has not, however, prompted a common conversation. The focal point "Russia in global dialogue" seeks to fuel debate on democracy, society and the legacy of empire. [more]

Ukraine in focus

http://www.eurozine.com/comp/focalpoints/publicsphere.html
Ten years after the Orange Revolution, Ukraine is in the throes of yet another major struggle. Eurozine provides commentary on events as they unfold and further articles from the archive providing background to the situation in today's Ukraine. [more]

The ends of democracy

http://www.eurozine.com/comp/focalpoints/democracy.html
At a time when the global pull of democracy has never been stronger, the crisis of democracy has become acute. Eurozine has collected articles that make the problems of democracy so tangible that one starts to wonder if it has a future at all, as well as those that return to the very basis of the principle of democracy. [more]

The EU: Broken or just broke?

http://www.eurozine.com/comp/focalpoints/eurocrisis.html
Brought on by the global economic recession, the eurocrisis has been exacerbated by serious faults built into the monetary union. Contributors discuss whether the EU is not only broke, but also broken -- and if so, whether Europe's leaders are up to the task of fixing it. [more]

Support Eurozine     click for more

If you appreciate Eurozine's work and would like to support our contribution to the establishment of a European public sphere, see information about making a donation.

Time to Talk     click for more

Time to Talk, a network of European Houses of Debate, has partnered up with Eurozine to launch an online platform. Here you can watch video highlights from all TTT events, anytime, anywhere.
Dessislava Gavrilova, Jo Glanville et al.
The role of literature houses in protecting the space for free expression

http://www.eurozine.com/timetotalk/european-literature-houses-meeting-2014/
This summer, Time to Talk partner Free Word, London hosted a debate on the role that literature houses play in preserving freedom of expression both in Europe and globally. Should everyone get a place on the podium? Also those representing the political extremes? [more]

Eurozine BLOG

On the Eurozine BLOG, editors and Eurozine contributors comment on current affairs and events. What's behind the headlines in the world of European intellectual journals?
Ben Tendler
Law and Border - House Search in Fortress Europe: Further resources

http://www.eurozine.com/blog/
In addition to the Official conference report on The 26th European Meeting of Cultural Journals and all the articles in the focal point Beyond Fortress Europe, we've begun to collect resources mentioned during discussions in and around the sessions in Conversano, Italy. [more]

Vacancies at Eurozine     click for more

There are currently no positions available.

Editor's choice     click for more

Felix Stalder
Digital solidarity

http://www.eurozine.com/articles/2014-02-26-stalder-en.html
As the culture and institutions of the Gutenberg Galaxy wane, Felix Stalder looks to commons, assemblies, swarms and weak networks as a basis for remaking society in a more inclusive and diverse way. The aim being to expand autonomy and solidarity at the same time. [more]

Literature     click for more

Olga Tokarczuk
A finger pointing at the moon

http://www.eurozine.com/articles/2014-01-16-tokarczuk-en.html
Our language is our literary destiny, writes Olga Tokarczuk. And "minority" languages provide a special kind of sanctuary too, inaccessible to the rest of the world. But, there again, language is at its most powerful when it reaches beyond itself and starts to create an alternative world. [more]

Piotr Kiezun, Jaroslaw Kuisz
Literary perspectives special: Witold Gombrowicz

http://www.eurozine.com/articles/2013-08-16-kuisz-en.html
The recent publication of the private diary of Witold Gombrowicz provides unparalleled insight into the life of one of Poland's great twentieth-century novelists and dramatists. But this is not literature. Instead: here he is, completely naked. [more]

Literary perspectives
The re-transnationalization of literary criticism

http://www.eurozine.com/comp/literaryperspectives.html
Eurozine's series of essays aims to provide an overview of diverse literary landscapes in Europe. Covered so far: Croatia, Sweden, Austria, Estonia, Ukraine, Northern Ireland, Slovenia, the Netherlands and Hungary. [more]

Debate series     click for more

Europe talks to Europe

http://www.eurozine.com/comp/europetalkstoeurope.html
Nationalism in Belgium might be different from nationalism in Ukraine, but if we want to understand the current European crisis and how to overcome it we need to take both into account. The debate series "Europe talks to Europe" is an attempt to turn European intellectual debate into a two-way street. [more]

Conferences     click for more

Eurozine emerged from an informal network dating back to 1983. Since then, European cultural magazines have met annually in European cities to exchange ideas and experiences. Around 100 journals from almost every European country are now regularly involved in these meetings.
Law and Border. House Search in Fortress Europe
The 26th European Meeting of Cultural Journals
Conversano, 3-6 October 2014

http://www.eurozine.com/comp/conversano2014.html
Eurozine's 2014 conference in southern Italy, not far from Lampedusa, addressed both EU refugee and immigration policies and intellectual partnerships across the Mediterranean. Speakers included Italian investigative journalist Fabrizio Gatti and Moroccan feminist and Nobel Peace Prize nominee Rita El Khayat. [more]

Multimedia     click for more

http://www.eurozine.com/comp/multimedia.html
Multimedia section including videos of past Eurozine conferences in Vilnius (2009) and Sibiu (2007). [more]


powered by publick.net