Fifteen minutes with Europe

The pandemic erosion of democracy?
Tomasz Bielecki

The coronavirus pandemic has exposed EU institutions’ weakness when it comes to defending democracy and citizens’ rights. However, Brussels managed to resist the rule of law being completely overshadowed by the struggle against the virus – and the new Recovery Fund even creates chances for improvement.

The coronavirus epidemic’s impact on liberal democracy within the European Union has varied considerably. Often, the health threat has pushed governments to take rapid, top-down action to protect the population, tempting them to cut corners in decision making, bypass procedures and follow the logic of extraordinary circumstances, in which certain civil rights are seen as an unnecessary “luxury”. Yet while the pandemic has not fundamentally weakened functioning democracies in the EU, at least so far, it has intensified problems in member states were safeguards protecting the rule of law were already being dismantled earlier.

Worse in Hungary and Poland

The sense of threat triggered by the coronavirus rapidly led to discriminatory actions towards refugees in Greece and Romani people, from Slovakia to Bulgaria. The blocking, and sometimes even militarisation, of sanitary cordons around districts and towns was accompanied by the conviction that this single ethnic minority poses a collective threat to the (non-Romani) rest of society’s health and safety. However, the systemic erosion of democracy and civil rights has gone furthest in Hungary – the main example in the EU (followed by Poland) of how the pandemic has strengthened the negative trends that have been developing there for a decade.

In late March, the Hungarian parliament adopted provisions enabling Viktor Orbán to rule by decree during the “state of danger”, without specifying how long this would last, which prompted particular criticism. Moreover, the new legislation introduced prison sentences for spreading false information linked to the “state of danger”, putting journalists who criticised the government’s response to the virus at further risk. The Hungarian authorities used the pandemic to further restrict the media’s access to information and reduce the budget of local authorities, especially those controlled by the opposition. In Poland, the authorities’ refusal to introduce a state of emergency – dictated by pre-election calculations – meant that lockdown restrictions were imposed in a way that was highly dubious in constitutional terms. These same calculations created the risk that the presidential election scheduled for May would go ahead, violating Polish and international standards.

Orbán withdrew the special rules in June, but a new law allowing Budapest to introduce a “state of health emergency” was adopted. The government can declare it at the Hungarian chief physician’s request, without having to consult parliament, although it would mean a return to ruling by decree. Balancing between expanding his power and resistance by part of Hungarian society means that, for now, Orbán is not making full use of the semi-authoritarian opportunities that the Fidesz-dominated parliament is ready to hand over to him. However, the pandemic has already helped him take another big step that strengthens his “plebiscite democracy”. In Poland, the election was ultimately postponed until the end of June, which allowed it to be conducted relatively correctly and avoided the president’s political delegitimisation in the eyes of large part of society. However, another taboo was broken in Poland, too, with the unprecedented mode of work and solutions (such as postal voting, without preparing the administrative apparatus) considered in the context of the election.

Brussels mainly “analyses”

The European Commission, the “guardian of the treaties” in the EU, watched the events in Hungary and Poland during the pandemic will growing astonishment, but with its hands tied by its legal and political limitations. Orbán’s democracy by decree obviously violates democratic standards, but the Commission’s Vice President Věra Jourová had to publicly admit that, based on the current regulations, the EU does not see grounds to initiate anti-infringement proceedings (conducted before the Court of Justice of the EU) against Hungary “yet”. Extraordinary crisis measures are the national authorities’ prerogative, not that of the EU, whose creators did not prepare it for this type of threat from within. Brussels’ achievement was to demand that “wszelkie środki nadzwyczajne były ściśle proporcjonalne, ograniczone w czasie i zgodne z europejskimi i międzynarodowymi normami oraz by nie zakłócały działalności gospodarczej i stabilności otoczenia regulacyjnego” in its socio-economic recommendations for Hungary (usually reading for EU connoisseurs) in June. Brussels also maintained that it is watching and analysing the political and legal confusion concerning Poland’s election (especially its date in May), but that “interfering in the electoral process” is beyond the powers – and the political ambitions – of the EU’s supranational institutions. In its draft annual recommendations, the Commission’s demands included “improving the investment climate, in particular by protecting courts’ independence”.

Before the pandemic, the main burden in the struggle to defend the EU’s fundamental values (mainly the rule of law) was being shifted to the CJEU, with all its treaty-related and procedural restrictions. The EU not only lacks other instruments (“shaming” Warsaw during debates as part of the Article 7 procedure does not work well) – many EU countries have been trying to free themselves from the politically toxic debates on Poland and Hungary by leaving the matter to EU judges in Luxembourg. The snag is that the EU is still an international organisation that, though unique in terms of its system, needs member states’ firm support to politically legitimise actions by its institutions, from the Commission to the CJEU.

Will the corona-crisis Fund help?

At the start of July, impatient for EU assistance funds, the Portuguese prime minister publicly called for the “money in return for the rule of law” reform to be abandoned to avoid complicating agreement on an EU Recovery Fund (if Budapest or Warsaw were to oppose it). Yet while the struggle against the pandemic’s economic consequences does not seem to foster dealing with democracy and civil rights in other countries, pressure from the Netherlands and France, among others, prevailed. The agreement reached on 21 July paves the way to restrictions on payments from the EU budget if member states fall short when it comes to the rule of law. The tightening of EU integration, via big transfers from the Recovery Fund and reform programmes, could even add weight to the EU’s annual socio-economic recommendations; those that mention the “protection of courts’ independence” in Poland and “appropriate and proportionate” extraordinary measures in Hungary. Paradoxically, then, the pandemic has handed the EU additional instruments for protecting democracy and fundamental rights. The question remains: do EU institutions and member states have enough political will to use them?

A dose of optimism during the epidemic

Like in other parts of the world, the debate in Europe during the epidemic focuses on the tension between “civil liberties” and “security requirements”, as well as our understanding of the “temporariness” of extraordinary measures. However, initially-popular questions, fuelled by disinformation and propaganda from the east, about “what will happen if authoritarian China manages better than Western democracies” have already faded as the facts from China have emerged. In the EU, the epidemic threat has not trumped privacy protection rules, despite initial concerns that China’s “effectiveness” might be conducive to this. In many EU countries, mobile contact-tracing apps are assessed so thoroughly in terms of personal data protection that their implementation is delayed for weeks. The epidemic has “helped” Orbán, but it is also a test for populists who have built their popularity on actions in the symbolic sphere (national unity, identity, protection against the “other”). The health threat eludes their symbol-based discourse, as voters want specifics. Admittedly, Matteo Salvini, the leader of the League in League, has replaced Muslims with Chinese people in his speeches about the threats to the country. However, opinion polls show that Salvini’s popularity is falling because – for now, at least – Italians prefer politicians (even League ones) who are slightly more moderate, but take effective action.

Tomasz Bielecki
EU&NATO correspondent, In.Europa expert

Translation: Annabelle Chapman

Kwadrans z Europą / Fifteen Minutes with Europe. European Union and the coronavirus pandemic dedicated to human rights in partnership with Embassy of the Kingdom of the Netherlands.