The Copenhagen hope: on democracy in the EU

The Copenhagen Dilemma, as the EU’s lack of power to give meaning to its basic values after accession is called, is big. Not a big dilemma, but a big issue. In Brussels, talk follows conference as politicians and academics brainstorm together. With a report passed at the European Parliament’s last session this season, a viable path is clearing

The Copenhagen Dilemma is not a dilemma. Indeed, it seems only natural that the EU should have the tools to make its members abide by the rules they have accepted. The only question is, how.

It once seemed a distant phenomenon that would never make it to the forefront of European popular attention - not anymore. Everyone in Brussels is talking about the EU’s apparent inability to preserve democratic and human rights guarantees, as laid down in the Copenhagen criteria, once a country is inside the Union. Worries about Austria in the early 2000s, later Poland, Romania, and the ongoing woes about Hungary seem to have solidified the notion in European officialdom that it is an issue they have to resolve and indeed quickly - Hungary looks already lost.

The argument that issues of democracy should remain the member states’ competence and that any pressure from Brussels regarding the democratic structure is a violation of “national sovereignty” (used in Hungarian official communication, for example, in the undefined, blurry way characteristic of the emerging - and still largely incoherent - 21st century European nationalism) is weak not only because the principles referred to have been ratified by national parliaments and signed by heads of state. It is also ignorant to deny the inherent political nature of the post-Lisbon European Union and that therefore the state of democracy in a member state affects the state of democracy in the Union as a whole.

There is in fact little debate about this. It’s clear: an authoritarian leader of a member state has a vote in the Council, effectively controlling the future of the EU. A deeper issue - which is, however, just as clear - is one of credibility. How is the EU to continue to see itself as a normative power, one that sets and promotes the norm - that is, of course, the basic values: democracy, the rule of law, and human rights including the rights of minorities - if one or more of its members, and therefore the Union as such, does not abide by that very norm? It can’t, of course, not without being laughed at.

The lion’s teeth

But it can’t simply cut off the rotten bit, either. There is no mechanism to eject a state from the EU, nor should there be one. The Copenhagen Dilemma was ignored precisely because no-one considered it a vaguely realistic scenario. There is one, only one tool in the EU’s hands to discipline its flock, and that is the one prescribed for such “risks of a consistent breach of basic values” by Article 7 of the Treaty on the European Union. It offers a two-step formula: one, put the country under monitoring, two, suspend its voting rights. This second step, perhaps of a true disciplinary effect, has, however, not been designed for discipline, but for self-defence, to avoid rotting of the whole, as commented upon somewhat further up these lines.  

The label “nuclear option” has been used for the suspension of voting rights to the point of being a trite, but it remains a clever one. So grave it can’t be used. But any treaty change would be severely hijacked; it is, at this point, not an option, either. So we have what we have and this is what we operate with, the Brussels institutions seem to have concluded.

The report by Rui Tavares on the situation of fundamental rights in Hungary, passed by Parliament two weeks ago, admits to the scope of the issue and deals with much more than its title suggests. It offers a solution, put forward first by the Princeton historian Jan-Werner Müller: a Copenhagen Committee. A group of experts, commissioned by the Commission to carry out monitoring duties, and give the Union’s legislative and executive bodies good advice when democracy-related worries arise vis-a-vis a member state. If Draco is hardly visible, and indeed if he has the best credentials, a draconian measure goes - so the solid logic of MEPs.

This is no sarcasm. Yes, the Parliament, the Council and the Commission do want to shake off the burden of political responsibility. What’s more relevant, though, is that such a powerful political tool should not be in politicians’ hands. The European Parliament is a political body. The European Commission, once a technocratic one, is increasingly political, too. If the voting rights of a member state are to be suspended, or if this “nuclear option” is to turn into a “conventional” one, or at least one that can be used - and it has to -, that decision should be taken by a group of independent, impartial, experts.

It is believed that the Article 7 sanction could never have the necessary 80% majority in the Council. That national leaders would cringe from opening Pandora’s box, that many would always be loyal to or show solidarity with the bullied. But if a body they trust concludes black and white that a member state is consistently going against all they, democratic European leaders claim to stand for, well, then petty fears and political cunning will bow to principle for once.

There are other ideas. Among others, the renowned American constitutional lawyer Kim Lane Scheppele has suggested that the Commission use a “bulk infringement procedure”, that is, put all individual issues and procedures together. This way, she argues, the European Court of Justice would see the whole picture, not just bits of it, and rule accordingly. This, again, would be a very logical step. But the financial sanctions that the ECJ could penalise the infringement with would hit the citizens directly, smashing acceptance of the EU.

A Brussels dilemma

A major issue for European officials has long been the Union’s democratic legitimacy. At Lisbon, a major objective was to “bring the Union closer to its citizens”, and of course many an effort followed. Yet polls show that trust in the European institutions is still on the decline - if the crisis hasn’t helped, either. In this regard, the Copenhagen Dilemma - which, although inaccurate, is now there to stay as a name for the issue this article attempts to present - is a twofold matter. 

On the one hand, if a member state is sliding rapidly, and visibly, towards authoritarianism, European citizens, including those of the member state in question, rightly expect their institutions to act. If they fail to do so, that will be yet another marvellous example of their baffling impotence to fuel Eurosceptic sentiment.

On the other hand, the present, manifest, strength of Eurosceptic sentiment needs consideration - and this is the point where, although blushingly, we trespass into the domain of realpolitik. Giving high powers to another unelected body does painfully little to increase the legitimacy of the European project. Credentials and credibility, as perceived by the  Brussels bosses are, again, worth painfully little to the naively patriotic majority of the country under monitoring - that, however much it is emphasised that the subject of any such procedure is the government, not the citizens.

Effective communication could, if not evade, but ease these concerns. Then, effective communication would be the key to all concerns of legitimacy, and it is perhaps what EU functionaries excel at the least, the watchful critic could say. Yet it would be foolish sacrifice a logical, and downright indispensable, possible panacea to the potentially infectious disease paralysing the EU top to bottom.

This is no undeserved media-hype; the Copenhagen Dilemma really is a big issue. The European Union cannot afford to be ripped of its substance. It must be very strict on it, it must be determined, and it must be brave to use what it can, even if it never has before. It must act - now, maybe, there’s a way. 

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