The most stubborn misbelief about the European Union’s inability to deal with its illiberal regimes in Poland and Hungary is the idea that the EU doesn’t have the legal tools to deal with these democratic backsliders.
It does and always has. But tools need to be used. And the most effective way to make that happen is to make sure a Spitzenkandidat is running the European Commission.
There is a naive picture in some commentators’ heads in which a good European Commission is fighting against bad illiberal member states. The fact is, these illiberal regimes get away with what they are doing because the commission lets them.
And the commission gets away with its inaction, because the European Parliament doesn’t have enough power over it. The persistence of illiberal regimes in Hungary and Poland is not separate from but a symptom of the EU’s own constitutional malaise.
In a speech last summer in Prague, German chancellor Olaf Scholz proclaimed yet again that the EU needs yet another “new way to launch infringement proceedings,” as though it currently doesn’t have the necessary tools.
But of course it does.
Old ones, such as infringement procedures and Article 7 procedures, or relatively new ones, such as conditionality regulation procedures and withholding recovery funds — just to name a few.
The problem, rather, has been that the application of these enforcement mechanisms depends at one point or another on politics.
And the EU Council of ministers, the European Council and the commission at key points keep choosing to act halfheartedly, selectively, late or not at all.
In some cases, their inaction even borders on illegality, a breach of their own rules. In other cases the commission is behaving legally, strictly speaking, but its inaction leads to long-term damage.
It’s still a mystery, for instance, how the commission’s legal concerns about a Russian-built nuclear plant in Hungary were suddenly resolved in 2016.
Democratic accountability structures are supposed to provide institutional incentives. If a commission president receives power primarily from the complacent and politically expedient European Council, then the president’s behaviour will most likely follow that of the European Council.
On the other hand, if the European Parliament — which has been far more assertive in defending democracy — plays the primary role in legitimising the president, then we can rather expect that the president will follow the parliament — if for no other reason than getting reelected as commission president for another five years and staying on good terms with the boss.
That was the original idea behind the so-called ‘lead candidate’ system (in German “Spitzenkandidat”) of the largest European Parliament political party grouping becomes commission president.
That’s it. That’s all it is.
But this small change means that the president now receives political legitimacy primarily from the parliament. Its protestations notwithstanding, the European Commission is not an apolitical body.
It has a monopoly on initiating new EU-laws; it has a political agenda in its own policy areas. Its members are mostly top politicians. Its character and its powers make it more similar to a government cabinet than to a technocratic regulatory agency.
The question is therefore not whether it is political (it is by design), but where it gets its political legitimacy.
And on the question of how to handle the illiberal regimes crisis of the EU, the European Council and the European Parliament diverge — by a lot. The parliament strategically has tried to enforce the liberal democratic founding values; the European Council has tried to protect member state autonomy even at the price of the EU’s founding democratic values.
The Commission has landed in between, continually puncturing hopes that it would finally side with the parliament. It did not — and it will keep disappointing those who believe in the EU’s founding values.
This is not meant as a moral statement, but as an institutional prediction. If you actually want change and not just tough Twitter messages, then a strategic plan should be put in place to reinstate the Spitzenkandidat by 2024.
There is no need for a treaty change. The current legal framework already allows it; consequently, it requires ‘only’ political work.
The idea first emerged in the 2014 European Parliament elections, but then member state governments shortsightedly abandoned it in 2019 in a chaotic and intransparent series of events.
And the European Parliament let them get away with it. This change was a huge setback for EU democracy and was a phenomenon of erosion itself.
A coalition of willing member state governments and MEPs should announce — today — that they want to follow the Spitzenkandidat system. This one step would be helpful both to rescue the EU from its own illiberal regimes and to end its own democratic accountability malaise.