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Nowadays, our world is running on the general track of democratic downgrading: the general world democracy index is 5.28 (out of 10), a low value that has not developed in the last few years. This trend taken as absolute values does not show the differences within some parts of the world, in which Africa, Asia, the Middle East and South America suffer more, while North America and Europe suffer less. However, we can see how also more stable parts of the world, the EU countries firstly, have been affected by a downgrading of democratic values.
This essay aims to understand how and why the current democratic situation is downgrading. I will consider two basic notions, viewed in the EU framework, upon which I build my analysis. The first notion is the “democratic principle”, indicating the legitimation of power coming from the bottom. The second notion is the “rule of law”, defined as the consideration of power, not legibus solutus, but obliged to comply with precise rules.
In this essay, there will be firstly an explanation of the current mechanism of democracy and rule of law status control. After, in order to see in practice how this mechanism works, two current situations of downgrading of democratic value and rule of law in the current EU will be analysed: Poland and Hungary, which are two countries belonging to the so-called Visegrad Group and in recent times often in the media spotlight. This analysis will be crucial not only to understand the reasons for the current democratic crisis in the EU but also to attempt to find a hypothetical third example that can help us to predict if the democratic and rule of law worsening will continue or will stop: Italy.
The role of democracy and rule of law in the European Union: a general analysis
Democracy and rule of law are two founding principles of the European Union. These two principles can be found clearly in the EU funding treaties. More precisely, the preamble of the Treaty of European Union (TEU) draws inspiration from “the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.”. Moreover, according to article 2 of TEU, “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”. In addition, also the Treaty of Functioning of the European Union (TFEU) include the principles of democracy and rule of law in the explanation of the operation of EU bodies and organs.
The persistence of the role of democracy and rule of law in EU funding treaties clearly demonstrates the importance given to both aspects in the EU law and administration since the first beginning of the European project. In fact, the current European legal system provides two dispositions regarding the respect of democracy and rule of law standards. More precisely, Art. 7 of TEU provides the preventive mechanism (comma 1) and the sanction mechanism (comma 2). With the preventive mechanism, the Council may determine a real risk of breach of democracy and rule of law standards made by a member state, after a proposal submitted by 1/3 of the Member States, the European Parliament, and the European Commission and after having heard the Member States interested in the violation. With the sanction mechanism, the European Council may determine the existence of a severe and persistent breach of democracy and rule of law standards made by a member state and, after, impose sanctions such as the suspension of certain rights, including the voting rights of the representative of the government of that Member State in the Council.
The provisions of Art. 7 are crucial to understand the following case study of this short essay, but at the same time, arrange the involvement of the majority of EU institutions in the process of democratic control in the European Union. In addition to Art. 7, also the judgements of the European Court of Justice are essential means of democratic control within EU member states.
The clash between sovereignist values and European values: the case of Hungary
Hungary is part of the EU since 2004, a year in which many eastern countries, after a long period of democratic rebuilding, were included in the European Union. In 2010, Victor Orban, the head of the conservative and nationalist party Fidesz, became head of government: starting immediately, many disapprovals from other European states representatives about its policies considered anti-communitarian and illiberal followed one another. Related to this, in many cases, Orban answered to these disapprovals explaining that his “illiberalism” did not mean “be against EU” but “putting first the national value linked to Hungarian culture”. The first procedure against Hungary came in 2018: on this occasion, the European Parliament started the procedure of Art. 7 comma 1 od TEU explained before against Hungary, with the “Resolution of 12 September 2018 on a proposal calling on the Council to determine the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded”. The European Parliament also listed the principal points of rule of law and democratic value disrespect, such as electoral system functioning, freedom of expression, religion and association, academic freedom, corruption and conflict of interests, fundamental rights of migrants, and others. However, the European Council did not take all the required measures, and a real enhancement of the status of democracy and rule of law in Hungary did not happen. Still, the situation remains critique, as demonstrated by the new Hungarian Child Protection law openly discriminating LGBT rights and condemned by fifteen EU states.
The traditional value limitations: the case of Poland
Poland has a similar situation to Hungary because it also entered the EU in 2004; however, since the beginning, the difference of Poland has been clear compared to Hungary due to its higher political and economic weight in the EU. The principal misleading under the case of Poland has been the usage of national legislation in matters under EU legislation competence: this has led to a clash between national provision and EU provisions and the following disrespect of EU provisions, especially in the matter of democracy and rule of law. In addition, the Polish Parliament has supported national legislation of last years by a conservative majority linked to nationalist ideology. The principal conservative party, called Prawo i Sprawiedliwość – PiS (Law and Justice), whose ex-leader, Andrzej Duda, became Polish president in 2015, supported a conservative and “clerical” policy, in opposition to EU values and norms.
The first alarm signal came into force in 2017 when the European Commission put into force a justified proposal addressed to the Council on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law. With this proposal, the Commission asks the Council the implementation of the preventive mechanism procedure against Poland, listing, as in the case of Hungary, the principal points threatening the democratic and the rule of law status. In this case, the principal threats are present in a particular norm, approved by the Polish Parliament, not granting independent and legal constitutional control in the Polish legal system.
The preoccupation of the European Parliament about the rule of law in Poland also continued in 2020, a year in which the European Parliament condemned the new Polish provision banning de facto the right of abortion in the country, considering this provision a severe threat to EU fundamental freedoms because it enhances a clear discrimination of women.
A hypothetical future: the case of Italy
A new political situation that captured the attention of EU authorities and institutions has characterised Italy. The parliamentary election of 25 September 2022 saw the victory of the right and nationalist party Fratelli d’Italia, whose leader, Giorgia Meloni, became Italian Prime Minister one month after. The win of Fratelli d’Italia in Italy, a party often showing an apparent aversion to the European Project and bearer of traditionalist and nationalist ideals (often opposed to EU funding principles), has taken the attention of other EU member states, worrying about a possible and hypothetical downgrading of democracy and rule of law in Italy. Even if the general attitude of Giorgia Meloni since the beginning of her presidency has detached from her party’s integral vision, there have been several cases in which the European Union have detached a principle of democracy and rule of law threats in Italy. For example, the European Parliament has condemned Meloni’s government due to the new provision to suspend the registration of adoption by same-sex couples after the help request made by the mayor of Milan, Beppe Sala. In addition, regarding the already mentioned new Hungarian Child Protection Law, Italy did not appear within the fifteen European states condemning this law. This can be seen not only as a misalignment of Italy concerning European values but also as political and personal support made by Meloni in favour of Orban policies (an aspect already known before the start of Meloni’s government).
The cases analysed show that the EU is not immune from the general democratic downgrading our world faces today. In addition, some past issues, such as Brexit and the Covid-19 pandemic, and other current issues, such as the war in Ukraine and the following economic crisis, added to some current political trends, such as the rise of populism and nationalism may enhance the process of democratic downgrading. The cases of Hungary and Poland are a clear mirror of this situation and have developed in a contest in which an EU mechanism of protection exists, but it results to be too intricate: concerning the provisions of Art. 7 TEU, only the preventive mechanism has been attempted. In contrast, the sanctions mechanism was never considered, even if the situation in Hungary and Poland persisted for over six years.
A possible solution for the future is simplifying the control process and creating ad hoc measures to avoid further enhancements of democracy and rule of law downgrading. Italy is a hypothetical study ground: even if improbable, a downgrading of the democracy and the rule of law in a big and important country like Italy, also included in the funding countries of the EU, could represent a serious challenge for the EU, that requires enormous attention and efficient response.
A cura di Antonio Tummolo
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