Why the EU Needs a Democracy and Rule of Law Watchdog

Not so long ago, the German social scientist Claus Offe observed that the European Union might, as a result of the horrors of European history, have developed a kind of special capacity. Europe, he suggested, seemed to exhibit a unique ability for “self-critical normative scrutiny,” “self-monitoring reflexivity” and even “auto-paternalism.” In the EU, Offe seemed to suggest, democracy and the rule of law are perhaps more secure than elsewhere; and the Union itself constitutes what he called a “normatively valuable asset of mutual monitoring, supervision, and control of its citizens and member states.”

Or does it? What is by now routinely referred to as a “rule of law crisis” in Europe casts doubt on Offe’s empirical assessment of the institutions that until recently had been assumed to serve as reliable supranational checks on what the German sociologist calls dangerous “propensities, temptations and just conventional habits.” While the euro crisis has dominated headlines in the half decade or so, the rule of law crisis is arguably far more damaging for the political— and moral—core of the European project. As we now know, the eurozone was spectacularly misconceived; the euro crisis has had horrendous consequences in lives damaged; it is also likely to have long-term effects on how whole generations think about the European Union: as a zero-sum- game that pits nation against nation. But still: the euro crisis is mostly a matter of failed policies; it is not necessarily a sign of deep normative splits on the European continent. The rule of law crisis, on the other hand, is often equated with a “crisis of fundamental values” which all Europeans had been assumed to share (and to which EU member states had committed themselves in Article 2 of the Treaty on European Union). In other words, politics within the Union, for all its shortcomings, was supposed to take place within shared liberal democratic parameters. Yet, after what happened in Romania in summer 2012 and what has been unfolding in Hungary since 2010, this assumption can no longer be taken for granted. Both countries experienced what I would term attempts at “constitutional capture.” By this I mean a scenario where one set of partisan actors try to obtain control of the political system as a whole (as well as parts of the economy, the media, and civil society). In Romania, what has also been called a “constitutional coup” eventually failed, but in Hungary capture has proceeded to a degree that seemed unimaginable in a more or less “normal European democracy.”

A country in which constitutional capture has succeeded might still have rule by law, but no longer rule of law, to paraphrase a distinction developed by Gianluigi Palombella and Francis Fukuyama. Likely consequences of such a state of affairs are corruption and fundamental rights violations. Notice, though, that these are not necessary consequences, at least not in the short run. This point is not trivial, because framing a rule of law crisis with concepts that immediately point us to rights protection and building proper state capacity as remedies might result in missing important parts of the overall picture of political decay. Many well-meaning responses to developments in Hungary and Romania have been presented as essentially generous offers of assistance to “legally underdeveloped countries”— instead of understanding the rule of law crisis as part of a larger political conflict. They have also missed the fact that democracy itself might be at stake, and not just the quality of rights protection. After all, if media freedom is under threat, or the right to demonstrate significantly curtailed, or data protection no longer assured, it is far from obvious that even an election that is not rigged on the actual day of voting is sufficient to demonstrate the existence of democracy.

So far, the EU has appeared weak in the face of the challenge of constitutional capture and dramatic deteriorations in the rule of law. I propose that what’s needed is what colloquially might be termed an “EU democracy and rule of law watchdog” (something I tentatively call “Copenhagen Commission,” in allusion to the “Copenhagen criteria” for accession to the Union). If I may stick with the canine analogy: this should be a watchdog who cannot only bark, but also bite; even more, this watchdog should be able to sniff around wherever it likes.

To see the point of such a new institution, consider the question of what the main challenge in the EU today, as far as a deterioration of democracy and the rule of law in member states, really is. The goal is to locate an agent of credible legal-political judgment as to whether a country is systematically departing from what one could call the European Union’s normative acquis—a task which is different both from narrowly assessing compliance with EU law and from ascertaining belief in values (whatever the latter might mean concretely anyway: a Committee on UnEuropean Beliefs and Activities in the European Parliament?). Technical-legal judgment of rule compliance in and of itself is insufficient; and philosophical consensus about values is simply not the issue (all governments continue officially to profess faith in democracy, the rule of law, etc.). It is also not a matter of corruption, lack of state capacity, or fundamental rights violations—all of which can be very serious, but, as said earlier, might not be immediately present as a result of capture.

We are dealing, then, with systemic, mostly constitutional challenges which will require some understanding of context, some sense of proportion, and, not least, some meaningful capacity for comparison of what is actually occurring within different political systems. A simple check-list, like one so often used in the EU accession process (“Do the judiciary’s offices have computers? Check!”), will not do; somebody needs to see and understand the whole picture and also the particular sequencing of the creation—and possibly the dismantling—of a liberal-democratic system. As Dimitry Kochenov has shown, we cannot simply take the Copenhagen criteria off the shelf; after all, the criteria were never sufficiently defined and they were often inconsistently applied.

An additional challenge is posed by the fact that authority in the EU remains highly diffuse and fragmented; there is not much by way of a consciousness of common European political space (let alone a shared public sphere where substantive arguments could be debated seriously across borders); it can be hard to get (let alone direct) something like common political attention. As of now, no legal or political actor is clearly charged with, so to speak, pushing a red button first in order to alarm others about a potential deterioration in democracy and the rule of law inside a member state (unless the European Commission could make it credible that it now fulfils this function within the framework of the new rule of law mechanism that it presented in March 2014).

As a solution, I suggest a Copenhagen Commission, somewhat analogous to the Council of Europe’s Venice Commission—a body, in other words, with a mandate to offer comprehensive and consistent legal and political judgments. However, where the Venice Commission offers opinions essentially as forms of advice and recommendations, the institution I envisage would generate judgment also in the sense of condemnations—and with such condemnations necessitating a range of sanctions.

Ideally, the new institution should be composed of legal experts (such as judges seconded from national systems, or retired judges, or also academics) as well as statesmen and stateswomen with a proven track record of political judgment. The Copenhagen Commission should meet regularly and have a bureaucratic apparatus that allows it closely to investigate the situation in a particular member state, if necessary. There is no reason why the Commission could not work closely with the Fundamental Rights Agency or also draw on other sources of research on legal and political developments in the EU (even if in the initial process of set-up other institutions would no doubt try to protect what they regard as their “normative turf,” so to speak—witness the actions of the Council of Europe institutions in the run-up to the creation of the Fundamental Rights Agency, and think of the current debate about the accession of the EU to the European Convention on Human Rights).

It’s crucial that the Commission should be able to take the initiative in cases of possible threats. In other words, it should not be dependent on any other body, as far as triggering an investigation is concerned. I realize that this is a very controversial demand, perhaps even for those generally favorable to the idea of insulating certain institutions from electoral competition. After all, it might look like the Commission is entirely at liberty on the input side, and yet produces binding decisions as “output”—something that might result in arbitrariness and lack of accountability. However, investigations are not the same as judgments, and every member state ought to have at least three occasions to put its case to the Commission: before an official investigation starts, during an investigation, and just before a report with specific recommendation as to sanctioning is released. Member states will always get a hearing—but so will any other actor who, in the eyes of the Commission, might offer important insights: legal experts, historians, representatives of civil society, those who think they are victims of a fundamental rights violation but have yet to have their day in (the Strasbourg) court, to name but a few. Needless to say, all member states would be treated equally— unlike the European Commission or member state governments, the Copenhagen Commission would not need the vote of a member state “going rogue” for its political and legal projects in other contexts (because it would not have any).

The Copenhagen Commission would make specific recommendations, but leave as much room as possible for different ways of addressing particular problems. However, when these recommendations are not complied with, the Commission ought to make a final determination that a member state is violating particular principles to which all member states are committed by force of the Treaty on European Union. It should issue a report that is as specific as possible about the remaining problems in a member state, and also demonstrate how attempts, if any, to return a country to a functioning democracy and rule of law have fallen short.

The European Commission—and here my proposal begins to overlap somewhat with ideas put forward by my Princeton colleague Kim Lane Scheppele—should then be required to deduct funds for a country. It is crucial that there is no further decision-making step between the two Commissions, so to speak. Once Copenhagen has spoken, Brussels needs to act. Now, as critics have pointed out, it is probably a pious hope that financial sanctions will miraculously accomplish what public naming and shaming cannot, and it is entirely possible that countries buy themselves non-compliance by just making penalty payments more or less forever. But for some countries money might indeed talk.

A last, but crucial, point concerns the question of who will guard the guardians. A member state should be in a position to take the Copenhagen Commission to the European Court of Justice for violating the law (and, of course, also for acting ultra vires)—the law in question being what I presume to be a new Treaty (and the safeguards against abuse of power by the Copenhagen Commission contained therein). No doubt, a government that feels severely under attack, is mobilizing a nationalist backlash domestically, and, in any case, has nothing to lose, would probably always take this measure. Let us bear in mind, though, that these would in all likelihood still be exceptional cases—the European Court of Justice would not be flooded with cases alleging that a body of experts had just on a whim victimized a member state of the EU.

A skeptic of this entire proposal might say that, if one transposed it to a domestic context, the whole idea would look rather peculiar. Persistent political misbehavior is supposed to be punished with fines. It’s as if a neo-Nazi were told that if he keeps acting in a racist way, his unemployment benefit will be cut. Would the truly ideologically committed care? Probably not. Would those who are in it for the money somehow care? Probably not, because the schemes they’ve concocted make them much more than what they might lose with fines. So what is the point, then?

First, someone actually really watches. This might deter at least some potential offenders in the face of what Offe called “temptations.” Second, dialogue might actually result in reasonable outcomes: not everyone is a deeply committed ideologue or indifferent to what the rest of Europe might think—and the rest of Europe will be made to think, if the Copenhagen Commission manages to generate enough attention in specific cases. Finally, other options, such as Article 7, which allows the suspension of a member state’s voting rights in the European Council, will remain on the table. A whole group of member states might go against the opinion of the Copenhagen Commission— but they would have to justify publicly why they do so. Could this create real rifts within the Union? Possibly. But taking fundamental values seriously by arguing about them could also lead to a deeper shared understanding of what, if anything, we actually mean by them.