Introduction
The question as to whether “backsliding” in democracy and the rule of law presents a challenge to the European Union boils down to the objects, principles, and core values of the European Union. Article 7 of The Treaty on European Union provides for democracy and the rule of law as one of its core values which its member states and candidates must respect. In plain sight, backsliding, democracy was described in the case of Poland v the Commission by the judges as victimization of those who stand for the will of the people and applause to those who are autocratic. Democracy is the governing tool for free will. Where there is no democracy, there is a dictatorship—most European countries as perceived as the most liberal countries across the world. The European Union has been the most influential region bloc in the world. The EU’s challenges from backslid in democracy to its member states pose internal challenges and foreign policies article 6(2) of Treaty on European Union.
This paper will argue on juxtaposing the understanding of democracy and the rule of law, especially to the EU, The impact of the backsliding member states in terms of democracy and the rule of law crisis. The Paper will also advance the effects of the illiberal regimes on EU powers projections and the formulation of standard foreign and security policy (CFSP). A case study from Hungary and Poland will illustrate the EU’s challenges in backsliding in democracy and the rule of law. This Paper will further argue that the potential spread and proliferation of governments that undermine the operation of the EU legal framework and have decided to deviate from common European values could have profound implications for the future success of the European project and potential further entrenchment of authoritarian regimes not only in Hungary and Poland but also elsewhere.
Democracy and the rule of law in European Countries
The relationship between democracy and the rule of law is that democracy is an element of the law. The meaning and legally accepted definition of democracy is simply government by the people; rule of the majority (Bugaric, 2014). This was illustrated in the locus classicus case of Costa v Enel; in other words, democracy is a situation where the people elect by majority votes who occupies which public office and for what time. An elected government in which the people hold the highest authority and exercise that power directly or indirectly via a system of representation is often characterized by regularly holding free elections (Zemánek, 2017). For democracy to play, those who occupy public offices must have the utmost respect for the rule of law, and democracy will automatically follow.
European integration was built on the premise of strict adherence to the rule of law and liberty. Its core values are the promotion of democracy and the rule of law. When the members’ state of the European Union deviates from its core values, the challenge is that the whole set of universally shared ideals is undermined (Bugaric, 2014). This condition indeed existed before the coronavirus epidemic. Still, it has been a challenge to see how well these safeguards have held up since the start of the pandemic greatly enhance their worth (Ágh, 2016). Overall, EU responses to DRF infractions have been insufficient. Took on the challenge. Prosecutors may be hesitant or unable to pursue criminal charges because of the status quo. Rights and freedoms are violated in a variety of ways. In addition, it rejects potential human potential and economic opportunities for the persons who can make use of them while also undermining the foundation of confidence between national administration and authorities of the law. This Briefing proposes a package of measures to strengthen the EU’s response to DRF infractions. Here, prospects for European Parliament and other national legislatures are highlighted, including EU citizens who have given them a twofold mission to develop their combined surveillance and investigation capabilities (Mudde et al.,2012). On top of this broad resource, they might use it to examine the implementation and coordination of their instruments to ensure democratic government accountability in the EU member states
Backsliding in the rule of law and erosion of democracy in EU
- Cause of backsliding
For the first two decades since the fall of communism, there has been democratic improvement in East-Central European countries that joined the EU. There were many drawbacks and, considerably, a great deal of variety in developing democratic institutions and party rivalry throughout time. The rule of law and political liberty were two of the most fundamental pillars of democracy as provided by article 2 of the Treaty on European Union and illustrated in the case of Commission v France. In the end, however, the picture painted was one of democratic growth and development. The area’s progress narrative has been supplanted with democratic backsliding and even tyranny. Hungarian and Polish leaders in the area are spearheading the charge, which is especially surprising. Since assuming power, (Mueller 2014) the Hungarian and Polish administrations have followed a very similar script, solidifying economic and political power in the country of interest. Scholars currently study East-Central Europe’s democratic issues through the lens of these two nations, perceiving other governments in the region as a covered a large of Hungary or Poland.
Significance of retrogressing in democracy and the rule of law
Democratic backsliding has been understood from different perspectives. However, researchers use the word more accurately when referring to institutional changes that drive the political system toward an authoritarian or hybrid government. The term “democratic backsliding” alludes to a significant deterioration in capitalism, instead of a dramatic disintegration of democracy, as in a conventional coup d’état. In the Poland and Hungary v the commission case, “The stated debilitating effects or removal of any sense of regime maintaining an existing democracy” is also Bermeo (2016) understanding of democratic backsliding.
The advisory body, such as the Venice Commission for democracy through the law, has again given an advisory opinion on the cause and remedies to the erosion of democracy in Europe and the world over. The Commission has been in the business of advising individual states in constitutional matters to improve the democracy, institutional framework, and respect to the rule of law and in endeavoring protection of human rights (Venice, 2012). Through carrying out its mandate, the Venice Commission has severally criticized Hungary for the erosion of democracy, especially in the matter related to church legislation in Hungary.
Illiberal regimes within the European Union
Illiberality in the sense of the European Union is understood as defiance to the laws and disregard to democracy as stipulated by the Treaty of European Union (TEU). In an illiberal democracy, although the people elect leaders, a government bypasses all the constitution’s constraints, and the power of rulers takes center stage. Because of a lack of civil rights, citizens are unable to learn about individuals who wield actual power, and as a result, the country does not function as a free society. Several countries “are neither classified as “free” nor “not free,” but rather as “probably free,” “lying midway between democratic and non-democratic regimes,” according to the International Crisis Group. The liberal democratic system is illiberal; there is no transparency in elections. Those in power manipulate elections to cling to power and oppress the ruled. There is no transparency in government policies formation, characterized by authoritarianism. In a considerable growing number of states forming the integration, there is lack of civil rights, citizens are unable to learn about those who hold actual power, and as a result, the country does not function as a democratic society. According to the International Crisis Group, as wells as the court of justice in the case Amministrazione delle Finanze delle strato v Simmenthal several nations “are neither classified with their freedom but the probability of being free, “falling halfway between democratic and non-democratic regimes.” The liberal democratic system is inherently illiberal.
Case study: Hungary and Poland
Until now, post-communist European Union state parties and those that aspire to be parties suffering from such severe democratic regressive tendencies have had two crucial characteristics: they are all from countries that were formerly communist. On the one hand, political leaders of ruling parties make strident if not outright radical social democrats consider to protect the interests of the people and the state from the claims of opposition leaders and outsiders, traitors, and visitors from abroad (Grzymala-Busse 2017). Taking advantage of widespread disgust with corruption, austerity, and unequal distribution of the fruits of economic success, two well-established and mainstream conservative parties in Hungary and Poland, respectively, won landslides in recent elections. In their time in office, they have advocated for restoring national splendor and promoting conservative social ideals. These leaders have vowed to defend the country against liberals, the ex-communist left, foreign-owned large corporations, and the European Union. The result has been a displacement of political struggle over socioeconomic issues and, in some instances, a dominance of conflict over identity and values.
There has been a significant and purposeful split in the party system along the social liberal axis, which frequently radicalizes and amplifies already existing tensions. They created the political cover for themselves and their governing parties by claiming to be safeguarding the nation, which enabled them to consolidate control and abolish liberal restraints on their authority. As part of this process, they also instituted an increasingly centralized and illiberal political economy, consolidating and expanding their political power (Scheiring 2015). To delegitimize opponents, xenophobic outbursts are used to depict them as foreigners not interested in the common good of ordinary people. The conservative-national parties in the forefront of backsliding, according to Zsolt Enyedi (2016), who mixes these two conceptions, are aided in part by the fact that they have a reasonably well-institutionalized nature (Dzicioowski 2017). The situation in Hungary serves as a prism through which he views the world. The second thing to emphasize is that, in general, both Fidesz and PiS ascended to power on the magnitude of the political outfit and implantation in civil society and that economic power has come to them solely as a result of the watershed elections that drove them to rule. Both Fidesz and PiS have organized and drawn support from conservative civil society throughout the years, both by co-opting existing right-wing civic organizations and founding their own stridently political organizations. The Civic Circles took on the features of a significant social movement in Hungary, where they were evident and effective (Greskovits 2017). As well as this, both PiS and Fidesz were assiduous in cultivating and building up a conservative media base, which they then utilized to delegitimize alternative political parties, organizations, and institutions.
The institutional and legal framework of the European Union
- Institutional framework
The Union has a well-established operational structure that ensures its domestic and foreign activities are correctly carried out. TEU article 13 provides the elaborate institutions with the European Union. These include the Parliament, which has the legislative functions within the Union, the Council, which is the topmost body and has the final decision of the integration matters. It makes policies that govern the Union, approves the union budget for the fiscal year, and coordinates functions within the institutions (Bozóki et al., 2018). There is also the court of justice which interprets the legislation from the Parliament and also has the function of dispute resolution on matters pertaining to the disputes within the state members and individuals and also to the conflicts arising from the internal operation of the Union, for instance in the case of Roquette Fr2res v Council. In this case, the European Union court annulled regulation passed by the Council, stating that the Council bypassed the Parliament. On economic disputes, a case in point is Commission v France; the court pronounced itself that France violated 34 of the TFEU, which provides that the quantity of goods allowed between intra-community is not restricted. All measure having the same effect is prohibited. In other words, the court interpreted this provision to mean that though there is intracommunity trade, the level of trade in terms of imports should not be restricted. The Union central bank is another entity within the Union. Its principal function is to advise the EU entities on economic matters and act as the banker of the Union.
European Union people directly elect their representatives to serve as the single institution of the European Union. As a result, it represents about 450 million EU people and, in this way, epitomizes democratic authority. Its headquarters are in the French city of Strasbourg. The European Legislature’s members have been elected for a five-year term by direct election since 1979 inside a free and secret ballot, with a fixed number of representatives from each member state. The Parliament is responsible for passing legislation on most economic activities, for example, EU steel and coal.
The powers of the European Parliament have risen as a result of consecutive revisions to the EU treaties. The following are instances of such goods. Decision-making authority is also known as deliberative authority. In the great majority of EU competence areas, the Commission collaborates with the Council to exercise legislative authority. (Article 225 TFEU) The authority to request that the European Commission submit a legislative proposal to the European Parliament. Deciding on the EU budget in collaboration with the Council; EU external action (EU decisions on the conclusion of external agreements) that need either the authorization of the Parliament or its consultation is characterized as follows. (Article 267 TFEU) To exercise political control over the EU executive institutions (Council and Commission), the Council of the European Union must first pass a censure resolution against each of the institutions, followed by the submission of oral or written questions to the Council of the European Union. Furthermore, the European Parliament can influence other EU institutions, such as the European Central Bank, a powerful institution (Article 284 TFEU). When you participate in the appointment of Commissioners, Members of the European Court of Auditors, and the European Ombudsman, you gain the ability to nominate people for positions ( Article 3 (1) 21 and 34 of TEU).
- Legal framework
The law that governs European Union affairs can be categorized as primary and secondary law. Treaties are the foundation for all EU actions. As a result of these binding agreements, the EU sets out its goals and rules for its institutions and decisions. TEU is the main body of law within the European Union. Secondary law relates to the regulations, directives, decisions, recommendations, and opinions derived from the treaties’ principles and objectives. Other than the treaty and the legislation emanating from the EU parliament, there are regulations with which are legal acts that are applied automatically and uniformly across the citizens and member states. Some directives may come from the Union Commission; they are also considered legal values and are used.
The legal framework of the Union was created to safeguard the possible infringement of the European Union’s values and principles. The other day, the case against Hungary and Poland was decided. European court of justice rejected the two countries’ challenge and validated the rule-of-law mechanism marks a milestone for the EU to stop democratic backsliding within its ranks. The court argued that enjoying rights under the EU treaties is contingent on EU values. On top of that, these values are not just a pre-condition to joining the Union but a continuous obligation. The two countries filed the case against the EU due to the union decision to cut funds to countries whose democracy and the rule of law had been eroded by autocratic governments. The European Court of Justice had this to say the European Union respects territorial jurisdiction of its member states and recognizes the diplomatic principles in internal affairs; however, the Union can not shy ways from pointing and intervening in gross violation to its core values and principles such as adherence to the rule of law and democracy of its members. The court agreed with the European Union executive on cutting the funds to Hungary and Poland to point out the gross violation of its values. This view was affirmed from the old case of Inuit Tapiriit Kanatami v Parliament and Council.
The challenges posed by the backsliding democracies and the rule of law in the European Union
Democracy and respect for the law form an integral part of the Union. Nevertheless, both have come under increasing strain due to the merging trend in defiance of democracy and outright violation of the law in several EU member nations and candidate countries (Deegan-Krause, 2006). These developments have significant ramifications not just for the internal operations of the European Union but also for its exterior reputation and the efficacy with which it promotes democracy in third-world nations
The democratic problem and crisis in law in and outside the EU, like the upshot of the member state economic and crisis from refugees’ issue, the rise of nationalist and Eurosceptic tendencies that have resulted, and the shifting international environment. The influence of backsliding tendencies on EU collaboration, whether at the internal structure of the Union or outside operations of the Union, affects its purpose and objectives. The growing reactions by EU institutions and member states to transgressions of the rule of law and the effect of such initiatives in the countries in which they are conducted.
When considering the EU’s democratic challenges, it is essential to remember that they are part of a larger picture. Crouch (2004) distinguishes between modern democracy, particularly those associated with “post-democracy,” and a process of the democratization of society. Democracies are being ‘hollowed out’ (Mair 2013). These concepts point to a type of political regime that exists today. It is still possible to refer to this entity as a democracy (because it has electoral cycles and other features), but its internal structure differs. Rather than addressing the needs of citizens and society at large, procedures are divorced from them. Financial interests (see Wolin 2008), whereas citizens are increasingly withdrawing and resigning positions. Leave the political process in its current state (Mair 2013). These processes are characterized by the presence of increasing attention being paid to non-political processes of politics, also known as “governance. “Political parties are becoming increasingly disconnected from the rest of society. There is a rise in experts, technocrats, and independent institutions with a good reputation, not least concerning the government to the European Single Market.
The central and eastern European countries are the most affected countries regarding illiberalism. Their reasons for why east and central Europe remain a debatable topic, but many scholarly works suggest that east and central Europe were less developed and were the most affected countries with the world wars (Vachudova, 2005). When one talks about illiberal challenges, it is referred to a shorthand commitment to equal rights, rights to liberty protected by the rule of law, separation of power, and consequently commitment to maintaining democracy
European union core values and principles as found under the Copenhagen Criteria provides under Article 2 of TEU. The illiberal regime does not regard these values. Where some state takes measures that undermine their constitutional contains. The debate of the illiberal regime creeps in. a perfect example in the European Union state parties is the Hungarian government. This is a state that has, on several occasions have, been described to disregard the rule of law and democracy in its internal and foreign affairs (Císař, O. 2017). The regime is built on an anti-pluralistic challenge to constitutional constraints. It has done away with the most independent body, for example, the electoral board and state audit office. Appointing weak prosecution officers who selectively charge cases based on who is involved limits media freedom. In other words, the government takes control.
The EU has participated in the system failure of the European countries that have changed their regime to illiberal and experienced bystanders (Pech et al., 2017). With the EU institutional framework and the legal framework, the Union has, under their watch, seen some countries violate not only their internal laws but also the EU treaty and has done nothing. This is crippled the internal functioning of the EU and instead made it a toothless dog.
Conclusion
European Union’s aim and primary objectives were to establish a bloc that would assist the member nations in various ways, ranging from economic integration and activities to political and cultural challenges. However, to attain these aims, the European Union has had to contend with many difficulties that have put its core objectives, such as peace and security both within and without its borders, in jeopardy. Some of these challenges include and are not restricted to democratic regress and a breakdown in the rule of law. Some member states of the European Union have rejected these essential ideals of the European Union. As a result, they have posed challenges to the Union’s aims, therefore undermining the very foundations of the EU’s construction effort.
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Case law
Poland v the Commission
Costa v Enel
Commission v France
Amministrazione delle Finanze delle strato v Simmenthal
Roquette Fr2res v Council.
of Inuit Tapiriit Kanatami v Parliament and Council.
Legislation
Treaty on European Union
Treaty on the functioning of the European Union
The Treaty of Lisbon 2007
Charter of Fundamental Rights of the European Union.
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