Recent developments in Hungary and Romania have prompted a question that once would have been considered fanciful at best: could there be a dictatorship inside the European Union? In both countries there have been attempts at what I would term ‘constitutional capture’: leaders have sought to gain control of the political system as a whole, weaken checks and balances, and often – but not necessarily – cap the process with actually writing a new constitution. So far, constitutional capture has not really happened in Romania. But in Hungary the project seems to be succeeding.

The Hungarian ruling Fidesz party has diminished the power of the constitutional court (the major check on governments in a unicameral political system in a highly centralized country with a largely ceremonial office of president). It has also created a ‘Fidesz state’ (as Martin Schulz, President of the European Parliament once put it) by staffing offices with loyalists and securing their positions for exceptionally long periods. It is arguably now proceeding to create a ‘Fidesz people’ in that the last remnants of media freedom and independent civil society are attacked (very often with the charge, familiar from Putin’s Russia, that civil society activists are really foreign agents). It is rather an understatement to say that a country like Hungary is experiencing what a European Commissioner once called one of a number of ‘rule of law crises’.¹ Rather, democracy as such is under attack.

Illiberal Democracy?

So far, EU officials and politicians concerned about developments in Hungary and Romania have referred almost exclusively to the rule of law as the object under threat. One unintended consequence of this framing of the challenge is that national governments can keep claiming democracy for themselves, or even openly advocate a model of ‘illiberal democracy’ against supposed mainstream European liberal democracy. In other words, such a conceptual division between liberalism and democracy suggests a picture according to which the EU tries to safeguard liberalism, whereas national governments, by contrast, assert proper democracy. But that picture is misleading. One can make this claim without having to argue that democracy and the rule of law are really identical or always fit together seamlessly. A political system with regular elections, but limits on media freedom, on election campaigning, and on autonomous activity by civil society, is not on the road to being an illiberal democracy; it is on the road to not being a democracy at all. After all, even on the most minimalist understanding of what constitutes democracy, election outcomes need to reflect the informed, well-reflected preferences of voters. Without freedom of speech, freedom of assembly, etc. voters are severely disadvantaged in forming a judgment of political actors standing for election. Put differently: it’s a conceptual mistake to say that democracy means elections, and liberalism signifies rights and the rule of law. For one thing, democracy must mean the right to vote; less obviously, it has to come with a range of political rights and freedoms that enables the formation of political judgment.

Unless one wants to say, then, that having elections is all that’s required for calling a country a democracy, one should emphasize that limits on media freedom, for instance, is not only a rule of law problem or a matter of fundamental rights violations, but a threat to democracy itself. Leaving the word democracy to proto-authoritarian governments betrays a fundamental misunderstanding of what democracy is. It is also politically unwise: even during times of what Larry Diamond has called a global ‘Democratic Recession’, when the number and quality of democracies has been declining conspicuously, the ‘d-word’ carries a moral premium. Careless talk of ‘illiberal democracy’ allows authoritarians to capture that premium.

What Exactly is the Challenge?

Deciding whether a country is in danger of constitutional capture or damaging democracy in other ways requires complex legal and political judgment. The challenge, then, is to identify (or, for that matter, create) what one might call an agent of credible legal-political judgment, one who is capable of determining whether a country is systematically departing from the European Union’s normative acquis. This task is different both from 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 to profess faith in democracy and the rule of law). But it’s also not just a matter of fundamental rights violations: these can be very serious, of course, but not all attacks on democracy immediately have to result in rights violations (which, at least in theory, can be dealt with by the ECtHR, even if that process takes time). Nor should one be fixated on the problem of corruption: again, this can clearly be very serious (and often is one result of constitutional capture) – but is in principle different from attacks on democracy, and, it is a challenge for which the Union has at least some effective instruments at its disposal.

In short, then, one is dealing 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 happening within different political systems. A simple check-list, as 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.² As Dimitry Kochenov has shown, we cannot simply take the Copenhagen criteria of the shelf and pretend, on the basis of the experience with accession processes, that ‘protection of liberal-democratic values’ ultimately equals compliance with the acquis. These criteria were never sufficiently defined and they were often inconsistently applied.³

In addition – and beyond questions of criteria and judgment – there is a clear challenge 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 and direct something like common political attention. More particularly, there is as of now no clear legal or political actor 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.

What Should the EU Do?

What follows from framing the problem this way? First of all, it seems to me that Article 7 ought to be left in place – but it also ought to be extended. There might arise situations where democracy is not just slowly undermined or partially dismantled – but where the entire edifice of democratic institutions is blown up or comes crashing down, so to speak (think of a military coup). However, in such an extreme case, the Union ought actually to have the option of expelling a Member State completely. Under the Lisbon Treaty, states may decide to leave voluntarily – but there is no legal mechanism for actually removing a country from the Union. True, these all might seem remote scenarios. But especially those who insist on the symbolic value of something like Article 7 – by which they might actually mean something not just symbolic, namely its importance as a form of deterrence – ought to be sympathetic to including the option of complete removal.

This does not answer the question of who a consistent and credible agent of political judgment could be. ‘The European Commission’ might still seem the most plausible answer – especially in light of the fact that the Commission is acquiring new powers in supervising and potentially changing the budgets of Eurozone Member States. But many – possibly all — proposals to increase the legitimacy of the Commission (seen as a necessary complement to such newly acquired authority) contain the suggestion essentially to politicize the Commission: ideas to elect the President directly or to make the Commissioners into a kind of politically uniform cabinet government all would render the body more partisan – on purpose. And such partisanship makes the Commission much less credible as an agent of impartial legal-political judgment.

My suggestion, then, is to create an entirely new institution which could credibly act as a guardian of Europe’s acquis normatif. I suggest a ‘Copenhagen Commission’ (as a reminder of the ‘Copenhagen criteria’, flawed as they might have been), analogous to the Venice Commission – a body, in other words, with a mandate to offer comprehensive and consistent political judgments.⁴ At first sight, it might seem most plausible that such a body should be legally constituted as an agency. The difficulty here is one that many political science studies of EU agencies have confirmed: agencies tend to be tightly controlled or even outright captured by Member States. This would be even more of a danger if a new body were to be set up outside the existing treaties, by intergovernmental agreement – but, in theory, this would be an option, too. A mere advisory body or high-level working group within existing EU structures would also be a possibility, as long as the determinations of that body were actually to be binding for the EU Commission.

The body should be composed of legal experts and statesmen and stateswomen with a proven track record of political judgment – and the hope is that it would become sufficiently visible so as effectively to raise an alarm across the common European political space.⁵ A Copenhagen Commission ought to be empowered to investigate the situation in Member States and then, if necessary, trigger a mechanism that sends a clear signal (not just words), but far short of the measures envisaged in Article 7. Following the advice of the Copenhagen Commission, the European Commission should be required to cut funds for state capital expenditure, for instance, or impose significant fines. Especially the former might prove to be effective, if the EU budget as such were to be significantly increased in future years (a measure included in many proposals to tackle the Eurocrisis). Moreover, cuts of EU-specific funds would also reinforce the message that a country undermining the rule of law is doing something that concerns the Union as a whole – and that the response is a genuinely European one.

At the same time, all the existing tools would remain at the disposal of the relevant actors: Article 7 could still be invoked; the Commission could take a Member State to the European Court of Justice; the Court could try to protect the substance of EU citizenship; and politicians could have a serious word with one of their peers in another Member State, if they feel that the State in question is leaving the broad European road of liberal democracy.

This of course leaves a question about criteria. I have addressed this concern at greater length elsewhere; let me just outline three broad criteria here: first, a Member State government has to have a track record of violating liberal-democratic political principles. There is no case for pre-emptive action (in the way that the Austrian government in 2000 was pre-emptively sanctioned by the then 14 other Member States). Second, that track record should also show a government’s general conduct as well as specific policies to have a systematic nature: one-off violations might be deeply problematic, but they can generally be dealt with by courts, and they should be seen in context. To be sure, mistakes cannot simply be excused by context, but they can be explained, and such explanations might also make it plausible that a particular government, despite mistakes, is fundamentally well-intentioned. Third, intervention is about enforcing commitments which were entered into voluntarily in the past. If there is reasonable hope that such commitments can, in the end, mostly be enforced internally, intervention should wait. Self-correction remains the best outcome, but whether it will actually happen, is, again, a matter of judgment.

Some Concerns about a Copenhagen Commission: Duplication, Homogenization, Backlash

A frequent objection to the idea of a Copenhagen Commission is that it simply duplicates existing institutions (and thereby creates needless friction and competition among bodies with similar tasks). In particular, one might ask whether the Venice Commission and the European Court of Human Rights have not done relatively well in addressing the situation created by the Hungarian government, for instance. My answer is that, first of all, the EU has reached a depth and density of integration that finds no equivalent in the Council of Europe. EU law is also much more specific in areas such as data protection – and, arguably, the Council and the Venice Commission could not really comment on them. Second, it deserves mention that the Council of Europe is an even more fragmented political space (with no shared public sphere at all). Third, the Council also contains members who probably would have a hard time meeting even the fuzziest or most consciously relaxed Copenhagen criteria. The problem of double standards – charges of hypocrisy abound in virtually any discussion of democracy-protecting interventions – would be exacerbated further.

Finally, the European Court of Human Rights can only properly address individual rights violations, whereas the Copenhagen Commission should take a more holistic view; the Venice Commission cannot be proactive, whereas the Copenhagen Commission could routinely monitor the situation in Member States and raise an alarm without having to be prompted. It would thus also build up an institutional memory that would make it easier to prevent double standards both in assessing an individual country over time and in comparing different countries.⁶ In sum: without wanting in any way to fault the Venice Commission, I insist that, ultimately, there is no good principled argument for the Union permanently to ‘contract out’ core normative concerns.

To be sure, there might be a pragmatic worry among some Member States that the EU is likely to deepen its own legitimacy crisis if it were to pass judgment not just on budget numbers (and to sanction financial offenders), but also on liberal democracy (and to sanction political offenders). To deflect the blame, some Member State governments might think, the Union should delegate the unpopular work to the Council of Europe – just as some of the blame for austerity could be laid at the doors of the IMF, once the troika had been formed. But if one is serious about sanctions – and one ought to be – then it would still in the end have to be the EU who does the sanctioning. So one might as well accept the responsibility for forming judgments (and not just for implementing them), since, after all, there are also enough EU citizens who precisely placed their trust in the Union as a strong guardian of liberal democratic order (as opposed to the Council of Europe which can hardly be said to have any ‘normative power’ at all).

That leaves two other concerns, one more theoretical and the other more practical: first, the idea that what is distinctive (and valuable) about the EU is, in the end, pluralism: diversity and tolerance instead of homogenization; respectful peer review instead of a centralized institution defining and defending democracy and the rule of law. We ought to have a longer argument about pluralism, which, after all, is not a first-order value such as liberty and equality, but which, to gain any normative traction, has to be justified with reference to another value or broader political principles: cultural diversity perhaps, or democratic autonomy, or the beneficial moral-psychological effects of living with differences. For my purposes here it suffices to say that the EU has always been about pluralism within common political parameters. After all, the accession process itself has not had as its goal something like maximizing diversity, but in fact has officially been meant to ensure sameness in certain regards (democracy, rule of law, state capacity, etc.). And as long as it has been taking in new members, the EU has been in the business of making definitive judgments on whether a country really is a liberal democracy or not (even if the Copenhagen criteria might have given a false sense of certainty about these judgments), and, more broadly, judgments on where the limits of pluralism are to be located. In that sense, mandating a distinct and highly visible body with keeping an eye on whether everyone is remaining a liberal democracy in no way constitutes a fundamental break with EU principles and practices.

The last worry I address is more political: would judgments and sanctions by a Copenhagen Commission not create a nationalist backlash against the EU in a country subject to judgment and sanctions? First, for Europe to try to ‘hold back’ or try to be ‘neutral’ in highly charged domestic conflicts is not costless and, in the end, actually also not really ‘neutral’. A reluctance to try to protect liberal democracy in a Member State will betray the hopes of all those citizens of the country in question who did put their trust in the Union as some sort of guarantor against authoritarianism. Any government eager to dismantle checks and balances, for instance, will on some level know that it is heading for a conflict with EU institutions – hence it has every incentive to whip up Eurosceptic sentiments, whether the Union actually does very much or not. In other words, pre-emptive nationalism is likely to appear — quite irrespective of any particular approach the EU adopts.

There is little evidence that any of these nationalist campaigns have worked, or, for that matter, that strong exercises of EU leverage in general have produced any severe backlashes. Orbán’s self-declared ‘war of independence’, or so polls suggest, has not proven popular⁷; and even very heavy-handed forms of conditionality by the EU in the past (think of Slovakia in the late 1990s) have not obviously rendered the EU illegitimate in the eyes of the populations of a Member State subject to conditionality.

To be sure, serious sanctions would always go against a specifically EU ethos of compromise and consensus finding, or, put differently, a culture of mutual accommodation, self-relativization and self-restraint.⁸ But the actual choice might not be between upholding these ideals and practices on the one hand and serious sanctions on the other. The choice is more likely to be between accepting the (inevitable) risks of sanctions and a cowardly, creeping cynicism that would slowly erode the Union as a whole from within.