The crackdown on democracy and civil liberties in the wake of the COVID-19 health crisis is alarming. Rather than answering with shallow statements, the EU needs to take concrete action – and ensure there is no trade-off between short-term crisis responses and the long-term safeguarding of democratic principles, argues Sophie Pornschlegel.
On 30 March, the Hungarian Parliament passed a state of emergency bill to fight COVID-19. The new law sounds the death knell of democracy in Hungary by extending the already strong powers of the government of Viktor Orbán. It establishes a state of emergency without a time limit, allows the prime minister to rule by decree, suspends the parliament, and no elections or rallies can take place. It also introduces long jail terms for spreading fake news and leaving quarantine, provisions that have been criticised as a way to crack down on the opposition. The state of emergency will remain in force as long as the government wants, given that the bill includes no sunset clause.
In the wake of the COVID-19 crisis, several countries in Europe have established a range of drastic measures restricting the lives of citizens, which has affected fundamental rights such as the freedom of assembly. Of course, this unprecedented crisis requires fast and far-reaching responses from governments to ensure the virus does not spread further. But all measures need to be proportionate and limited in time and should not be exploited to restrict civil liberties in the long term.
The bill that passed the Hungarian parliament goes much further than that. Viktor Orbán’s emergency bill amounts to an indefinite and uncontrolled state of emergency, without any checks and balances left in the country to control the executive power. Above all, this power grab has little to do with effective measures to ‘flatten the curve’. Rather, a new bill was proposed to strip (opposition) mayors of their powers and to replace them with a committee of Fidesz appointees, leaving no doubt about the intentions of Viktor Orbán.
While Hungary is the most extreme case of an executive power grab through COVID-19 emergency measures, the governments of other EU member states have gone down a similar road. In Poland, the government changed the electoral law to ensure the presidential elections on 10 May can go forward, even though opposition candidates cannot campaign due to the lockdown. President Duda, candidate for re-election, can thus benefit from his status as president to support his campaign, while opposition candidates cannot. In Romania, state of emergency provisions introduced on 16 March 2020 allow extensive restrictions on the freedom of information and exempt authorities from answering questions from journalists. These measures have led to concerns from international organisations and NGOs. Several other EU countries have decided to digitally track their citizens and turned to mass surveillance measures to implement the lockdowns.
The EU’s response: less talk, more concrete measures
The European Commission’s reaction to the emergency law passed in Hungary was limited to hollow statements. Commission President Ursula von der Leyen did not even mention Hungary in her immediate response to the emergency bill. The Vice-President for Values and Transparency, Věra Jourová, as well as Justice Commissioner Didier Reynders promised an evaluation of the emergency measures taken by the member states.
However, it is unclear whether the Commission’s evaluation will lead to concrete measures to limit the restrictions imposed in Hungary. While some infringement procedures against member states have been successful in front of the European Court of Justice, the EU’s track record when it comes to safeguarding the rule of law remains underwhelming.
Despite the continuous erosion of democratic standards and increasing restrictions on civil liberties in several member states in the past years, EU member states and some institutions, in particular the European Council, have been slow and too timid in their response, either scared to offend national governments or worried about potential criticism for unfair treatment towards a member state. Above all, the EU is late to the party – the democratic erosion in Hungary started ten years ago and little has been done to stop it. Instead, the status quo has been kept alive: the country continues to receive EU funds and enjoys full voting rights in the Council.
The European Council and EU leaders have been much less willing to openly tackle the issue than, for instance, the European Parliament or the Commission for several reasons. First, the issue goes to the core of national political systems, and some EU leaders might interpret the Union’s rule of law agenda as interfering in national sovereignty. Secondly, the European Council relies on all member states – including those breaching the rule of law – for unanimity decisions, such as for the Multiannual Financial Framework (MFF). They are careful not to point fingers, as they might need some countries as their allies to push for decisions in other policy fields. Finally, the rule of law has not been a priority on the Union’s agenda in the past. It is often seen as an “implicit assumption” for EU cooperation, but nothing that needs to be intensively discussed at the highest political level.
However, the EU’s mandate on the rule of law and fundamental rights is unequivocal. National governments that disrespect democratic principles and civil liberties infringe Article 2 of the Treaty on the European Union (TEU) and the EU Charter of Fundamental Rights. These countries also breach the principle of mutual trust, which is the basis for European cooperation, especially in the single market and judicial field. Finally, the Copenhagen criteria call for EU member states to be “consolidated democracies” to access membership. Even if these criteria only apply to prospective member states, this precondition would not be met any more by Hungary, opening up the question of post-accession compliance.
It is true that next to Article 7 TEU, the rule of law framework and infringement procedures, the EU does not (yet) have an extensive and practical toolkit to safeguard democracy. However, it could use existing channels and instruments much more efficiently. For instance, member states could file interstate infringement procedures (Article 259 TEU) or initiate additional infringement actions on the basis of Article 19(1) TEU and/or Article 325 TFEU. Above all, EU leaders need to find the courage to speak up for the Union’s basic values and back up their words with concrete steps.
These are sorely missed at the moment. The Croatian Presidency’s reluctance to follow through with the Article 7 process; the watering down of the rule of law conditionality by European Council President Charles Michel in his last MFF negotiating box; as well as the half-baked response of the European People’s Party concerning the membership of Fidesz are only a few examples that show how little is done to ensure that democratic principles in the EU are upheld. As a response to the Hungarian government’s move, sixteen countries have expressed their concern about the risk of violations of the principle of the rule of law, democracy and fundamental rights in response to COVID-19 – but without mentioning Hungary. This gave Orbán the opportunity to ironically align himself with the statement. And the letter of thirteen centre-right political leaders to Donald Tusk to ask for Fidesz to be expelled from the EPP missed the signature of the German CDU/CSU.
The Union’s response to democratic backsliding should be carefully thought through – direct confrontation is not the solution. However, careful coalition-building, such as the creation of a “friends of the rule of law” coalition during the MFF negotiations, and putting conditionalities on EU funds would be potential steps, effectively side-lining those disrespecting the rule of law and fundamental rights.
Most importantly, the EU should focus on “containment” to avoid any potential spillover effects to other EU countries. To this effect, every new initiative taken, such as the Just Transition Fund, should include strict conditionality clauses. Finally, given the severity of the threats to democracy and civil liberties due to the COVID-19 emergency measures in some member states, the EU should better integrate the rule of law agenda into its crisis response. And under no circumstances, accept a trade-off between short-term crisis responses and the long-term safeguarding of democratic principles.
Sophie Pornschlegel is Project Leader of Connecting Europe and Senior Policy Analyst at the European Policy Centre.
This commentary was originally published by the European Policy Centre.