The European Union has recently suffered a series of disasters: the collapse of the rule of law in Hungary and Poland as well as the soon-be-realised departure of Great Britain.
It does not seem, however, that the EU institutions feel responsible for these shortcomings. These events are for them rather failures of states or even their foolish societies. While it cannot be denied that the election outcomes stem from the public’s decision, it is legitimate to ask why they made the choices they did and how has the Union responded to it? The question also relates to how the mechanism of denial operates, which allows the EU institutions not to assume any responsibility for one of the greatest failures in the history of the integration project.
A balanced system
The actions of the European Union are not only the activities of its institutions which are sitting in mythical Brussels. Nor, it should be stated, is the division of power between the EU institutions and the member states only a static division of powers enshrined in the treaties. The member states themselves act through the European Union, within the competences of the EU. The member states, together with the European Parliament, legislate, and, through the committees, they monitor the implementation of the law by the Commission. Member states set the Union’s directions and give it impetus.
The system of governance in the European Union is based on the so-called principle of institutional balance. Member states are a crucial element of this system by filling posts in the EU institutions with their representatives. As a result, the EU institutions are limited by the member states, on the one hand, through the assignment of competences to the Union, and on the other – within the limits of the competences granted – by controlling their exercise.
It is the activities of the member states that are the main reason for the actions and omissions of the theoretically independent institutions such as the Commission. Unlike state governments, it does not bear real accountability to the public, but it must seek support from the member states for which there is no counterweight in the Union. In this way, the balanced system acts as a blocking system, protecting or preventing member states from taking adverse actions but not against omissions.
State authorities represent twenty-eight different societies, yet the representation chain does brake down at the European level. Authorities represent society because the public chooses them, even if at times indirectly, and may not choose them in the next election. At the European level, this is not possible. One of the twenty-eight societies may change the government as a result of the election, but this will affect one of twenty-eight governments. The remaining ones will be chosen on other dates, in a different social and political environment. So, there is no time when the will of the people would translate into power in the Union.
What is more, parliaments and governments of the member states are not elected because of their activities at the national as opposed to the EU forum. A government that is doing well in the country will win the election, even if we disagree with its position at the level of the Union – and vice versa.
The result of ongoing negotiations between the member states and the Commission is the Union’s indolence in the face of further failures. As Poles, we have had a front row seat to this very spectacle.
Regarding the destruction of the Supreme Court in Poland, the Commission dragged its feet for half a year after the adoption of the Act. Even more, the Article 7 procedure – which states that in Poland there is a clear risk of a serious violation of the rule of law – has been stuck in the Council, which is of course composed of representatives from the member states.
Over the past two years, the European Commission has mainly been conducting a “dialogue” with the Polish government, whereas the remaining member states have called for the continuation of this dialogue. During this time, Law and Justice (PiS) subordinated the Constitutional Tribunal, the presidents of common courts, the National Council of the Judiciary, the Supreme Court and the Supreme Administrative Court. Other violations such as the appropriation of public media, the dangerous extension of the powers of the police or the restriction of the right to assembly also have taken place.
In the case of Poland, the Union repeated the reworked Hungarian scenario: passively watching how authoritarianism arises. On sensitive issues, the Commission is idle when member states are in disagreement and not being held accountable for these failures is its reward.
States, on the other hand, have interests so varied that they cannot develop a common or even dominant position on important political issues. They also have no particular motivation for this, since their main area of activity is their own countries. Actions at the EU level usually serve to achieve national targets, which further reduces the chance for such a correction so that they pursue a common EU goal.
Lack of will
In the present European Union, the political will to take effective action either does not exist or cannot break through. At the same time, non-political alternatives to political means have not been provided – for example, independent bodies that would deal with violations of the rule of law.
Again, the lack of such bodies results from the desire to respect the interests of the member states and competences of the Union’s institutions, but the ubiquitous need in EU law to secure all interests paralyses the possibility of action.
The security that the institutional inertia was supposed to provide is at the same time illusionary. Although it protects against the price and risk of change, it does not protect against the price and risk of maintaining the status quo.
Meanwhile, without EU action, the situation is changing for the worse: the wave of xenophobia and authoritarianism is increasing. No change brings political costs much more than a radical change. What is more, this lack of action by the Union brings higher costs than those that would come if the actions undertaken by the Union were unsuccessful.
For example, if the Commission applied for a determination on whether there has been a breach of the rule of law by Poland a year earlier than it actually did (in December 2017), it could have been able to stop the destruction of the independence of the judiciary in Poland. This chance is much more important than the possible failure of the Commission in the Council.
Similarly, it was worth risking an earlier action against Poland regarding the “reform” of the Supreme Court including a fuller action regarding the “reform” of common courts and accompanying these actions with requests to the Court of Justice to temporarily prohibit Poland from implementing these changes. Only Poland’s obedience to the rulings of the Court of Justice was too loose, which obedience anyway seems very weak if it cannot be put to such a test/trial.
The European Union is highly isolated from the most important source of political will, urging changes in nation states against institutional inertia, that is from the will of the people which manifests itself in elections but also in social dissatisfaction and demands directed towards state bodies.
Weak and deprived of public interest, Parliament cannot compensate for this deficit. Therefore, we do not have the opportunity to take radical decisions in the absence of a consensus, while in mature political communities, that is to say states, this possibility is provided by a majority of votes.
Paradoxically, the Court of Justice is the closest to such a model of making decisions regarding the political shape of the Union. Responsibility for the actions of the Union regarding Poland and Hungary is divided between the Council and the Commission. The Council has no real political accountability, as its members – ministers of the member states – are dismissed for reasons related to their actions in the states themselves, not in Union policy.
The Commission is also not accountable because of the high threshold necessary for the motion of no confidence in the Parliament and the weak political organisation of the Parliament itself, often acting in accordance with the national interests of its deputies. As a result, the collapse of liberal democracy in two member states and Brexit did not meet with any reckoning in the Union.
However, searching for causes of these events in the populism of political opponents – whether in bribing voters with social programmes or manipulating the Brexit campaign – is not going to change anything. Opponents will not apologise and will not abandon methods that are effective.
The complaints from the traditional “elite” about the inappropriate behaviour of populists – whether in Europe or in the States, where the main media theme is the inaptitude of Donald Trump – are not adequate responses to the crises.
The proper response to the crisis does not seem to be keeping faith in the existing institutions, whether it is the EU or even the existing institutions of the liberal world. The balanced system, which paralyses the EU’s response to crises, is not a problem for the non-liberal governments in Poland and Hungary to subvert.
In Poland, the mechanisms limiting power were simply destroyed with little resistance from the society at large. PiS appealed for this purpose to the factor absent in the EU reaction: to the will of the people. This made it possible to turn democracy against its institutional limitations as well as its deliberative nature. In Hungary, the achievement of a constitutional majority allowed for a change of the entire mechanism in accordance with the preferences of the rulers.
The capricious majority and deliberations of the elites
The balance of power mechanism has been known for a long time: Aristotle presents it in his analyses of the constitutions of ancient states, and in the most spectacular form it was realised by the Republic of Venice. The fundamental problem of the division of power stood fully before the Founding Fathers of the United States: how to reconcile the division of power and the rule of the people.
The Federalists wrote a constitution that advocated not only against the accumulation of powers in the hands of ambitious individuals, but also against the far-reaching effects of individual electoral successes owed to the achievement of a temporary majority.
That is why the US constitution, for example, envisaged the election of the president by a college of electors, who in the debate decided on the most appropriate candidate. Likewise, the federal senators were not initially elected by the citizens but by the states.
There are tensions between the idea of the majority rule and the mechanisms of deliberative democracy and the balancing of the authorities that may be beneficial to the system of government. They can renew citizens’ involvement, overcome the deadlocks in which society or legislation is found, and can finally lead to social change.
However, both the European Union and the radical right are largely trying to abolish these tensions, each in a different way. While the Union strongly advocates equilibrium and discussion, marginalising social views and aspirations, the radical right in Poland refers only to legitimising social views, even turning them against the constitutional order of the state.
Voting and the voice of the People
In Poland, the ruling party refers to the democratic mandate, giving seemingly the right to make profound changes which ignore the existing order. PiS believes that their ascension to power defines a constitutional moment.
The democratic mandate understood in this way is a philosophical and social concept referring to the general will rather than the support of around 40% of the population. The only democratic mandate that the PiS Party has is a restricted mandate under the current constitution that entitles the winning party to govern.
The actions of the winning party are credited with a democratic mandate, not in the sense of the people’s mystical will but electoral victory, regardless of the support behind it. Thus, there is a misunderstanding: PiS refers to a different democratic mandate than it actually possesses.
However, how can such a mistake occur? It seems that one of the reasons is the withdrawal of traditional elites from this particular area of politics. For many reasons, partly justified by the plurality of modern societies, the electorate ceased to be perceived – and thus posited in the political process – as a subject.
The current liberal ideology – deliberative, and in fact often technocratic – insists on the independence of institutions, which is counter-distinguished from the general will. This makes it particularly difficult to direct the popular will to defend the institutions under attack.
In the context of the EU, this situation is worsened by the inclusion of member states in the institutional framework, which further diminishes the possibility of a common action against states undermining the old rules.
The life of the undertaker
However, if defenders of liberal democracy may be criticised for their inertia and the inadequacy of their answers, the radical right is blatantly worse.
Returning to the Polish example, PiS destroys old institutions and justifies these moves because they do not work as well as they should. Nevertheless, it is a comparison of an ailing reality with fantasy, a comparison that ignores the context and conditions: financial possibilities, the culture of the Polish bureaucracy, the quality of available personnel or the inertia of the law.
Real institutions usually do not live up to their ideals or to social expectations, but the intelligent answer is not teenage angst – personified by the Minister of Justice – but an analysis of the institution’s activities in the context of what is available and feasible in a given society.
Meanwhile, PiS destroys old institutions without a concrete plan on how to correct them but with the conviction that planting them with new people will lead to a miraculous healing. In practice, however, the party nominees often turn out to be weaker than their predecessors.
This healing process is based on the loyalty of the institutions taken over by the authorities. This assumes, however, that the centralised authority sets the right direction for the development of the whole life of the nation, which has neither taken place nor is particularly likely to in the future.
Ultimately, one of the reasons why we agree to the division of power is the conviction that linear development of society according to a uniform set of directives is impossible or at least undesirable; individual centres of divided power, different in their estimation of the burdens of social problems, pushing various recipes and implementing divergent interests, allow for a better development of society due to its inherent pluralism. In the authoritarian system, this pluralism finds only incomplete and distorted reflections in factional struggles.
Worse, the monism of power only emphasises all its shortcomings, lacking corrections in the public discourse. It also corrupts the structures of uncontrolled power. As a result, the reformatory zeal of PiS carries only destruction. As Czesław Miłosz wrote:
“A gravedigger’s life is a cheerful lot,
he buries systems, faiths and schools on spot,
then paves the ground on places they were laid
with pen or Colt, or sometimes sandbox spade.
He’s full of hope that Spring will come and bloom
with pretty flowers on corpses entombed.
There’s, though, no Spring. December all the times.
But please respect his right to live in lies.”
The necessary democratisation of the Union
At the conceptual level, the dispute between the radical right and liberal democracy is a dispute between the sovereignty of the people, identified with the freedom of deciding without justification, and institutions that are to ensure society’s rationality.
There is a temptation to solve such a dispute by finding a golden mean and regaining the balance between the extremes. However, this solution does not seem sufficient.
It is not enough for the liberals to learn the lesson of populism and simply open themselves up more to the people; the people that you can simply open up to are already a convinced group that can establish the Democracy Defence Committee, but adds nothing to the liberal position and only defends the challenged system.
Overcoming populism can only be achieved by abolishing the opposition of the people and institutions in their re-synthesis, which was traditionally representation. Naturally, it would be a simpler solution if the Union, following the well-known advice, would dissolve several nations and elect others.
Brexit is perhaps a good approximation in this regard. This idea – echoing Macron’s suggestion that the Eastern European countries struggling with authoritarianism should simply remain at a lower level of integration – does not seem appropriate. It does not answer the simplest question: In which circle of integration would France be in if it were not for Macron’s own charisma and his victory in the presidential election?
The best solution is to regain the communication between EU institutions and society, including those European societies that are in favour of the radical right. The empowerment of liberalism’s political opponents, as part of the larger European society, provides the Union with both the will to act against minorities and the political legitimacy required for this purpose.
It would be necessary first to change the process of selecting the European Commission as the current method in fact subordinates it to the member states. As the philosopher remarked, being a minor is convenient: one does not have to think about decisions and can only criticise them. In this sense, the current situation is convenient for European society, which can only complain and manifest general dissatisfaction, e.g. by supporting populists.
Public participation in the political process and the sense of this participation are necessary so that people do not treat the elite as decision-makers – on the one hand deciding over them and on the other blamed for all the unhappiness and dissatisfaction. In place of the current procedure, there would be EU-wide elections for the Commission President who would appoint the commissioners with the consent of Parliament.
This would mean accepting a serious demand from populists (and other critics): that the European Union should give some of its power to the people. Moreover, this solution would strengthen people while not strengthening the competences of the Union, which makes it even more acceptable.
Obviously, such a democratic mechanism poses a risk that the populist wave will also reach the Union and a populist could head the Commission. However, this is a risk that we must take if we take democracy seriously.
Democracy includes the possibility of the majority making the wrong decisions. On the other hand, a system that could exclude such a possibility must necessarily be based on a will external to the people, in practice being a form of oligarchy or autocracy. The part of the decisions that was considered too important to be taken by a simple majority has already found protection in national constitutions or in the EU Treaties.
However, issues that have not been resolved in them should be left to the ordinary democratic mechanism, even if it yields results that we will not like. Anyway, limiting the decision-making power of the people – either by narrowing the scope of issues in which they can make a political decision or by narrowing the scope of political options presented by parties – can lead to a populist rebellion similar to the one we are witnessing now.
The task of the elite is not to overcome – by appealing to supranational bodies – decisions and sentiments of people who find these elites unfortunate but rather to convince people of more sensible positions.
The democratisation of the election of the European Commission would imitate the earlier restrictions of the deliberative model of democracy in the United States: introducing universal elections for federal senators or abandoning the actual debate among electors in favour of choosing electors who support a particular candidate in advance.
Such a change would simultaneously reduce the Commission’s dependence on the member states and give it a mandate to take independent actions. The member states would have to be aware of the political mandate behind such a Commission, which would have more arguments for implementing the will of citizens rather than for reconciling the interests of the member states. Such a change would also have a symbolic dimension – it would give people easier identification with the Union. Afterall, it is up to us to make the European society we wish to have.
Paweł Marcisz is faculty member of the Department of European Law, University of Warsaw.