“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.”
Article 2 of the Treaty on the European Union
The European Union: a community of destiny based on democratic principles
Europe is the cradle of democracy.
Far from being solely the legacy of thinkers and philosophers, European identity is inseparable from fundamental freedoms, the rule of law and democratic governance. They are the result of a painful past, including wars and dictatorships that have struck our continent over the last centuries.
While some may tend to forget it, others continue to cherish this freedom that was hard-won by previous generations.
Beyond being a single market, the European Union was conceived as a real bulwark to protect Europeans from possible new authoritarian excesses. As a supranational political structure, it enables Member States to be anchored in the camp of liberal democracies by binding them economically and with common values.
All these years of peace show that this process has been a success; we are still benefiting from these decisions to this day.
The European Union is committed to protecting the democratic regimes of its Member States, but also the development of democracy in the rest of the world. It is often said that the enlargement policy is the greatest success of the European Union’s external action. Enlargements have indeed made it possible to build, step by step, the Europe we know today: rich in its diversity and united in the face of other social models in the world.
Spain and Portugal joining the EU in 1985 is a good example: it was one of the main factors in the success of the democratic transition in both countries.
Similarly, the prospect of joining the EU that was given to the countries of Central and Eastern Europe in the 1990s guided the enormous political, economic and social work that they had to undertake after the fall of the Soviet bloc.
The promotion of democracy is also one of the drivers behind the EU’s relations with third countries. In order to promote its model and accompany democratic transition in developing countries, it provides technical and financial support to carry out the necessary reforms. Very often, it makes their access to the internal market conditional on respecting human rights and rule of law principles.
Let’s not forget that the EU was one of the key players when creating the International Criminal Court, which has the capacity to intervene almost anywhere in the world to prosecute perpetrators of war crimes.
Illiberal democracy: the threat of authoritarianism at the heart of Europe
The rise of populism and the authoritarian tendencies of governments in several member states are a threat to European democracy, and the EU should not shy away from containing them.
The most alarming examples are the Hungarian and Polish governments, which in recent years have implemented policies aimed both at unravelling and bypassing the democratic institutions of their countries to centralise political power.
This was quickly denounced at European level, notably by the European Court of Justice which, in several judgments, succeeded in preventing the application of some of the most liberticidal aspects of the constitutional reforms promoted by Viktor Orban in Hungary and the dismantling of the judicial system sought by the Law and Justice Party (PiS) in Poland.
However, these actions are insufficient and the political institutions of the EU find themselves unable to act. The illiberal drift led by these two governments are no longer in doubt, and yet the EU can do very little. The reason? Today, only one sanction procedure exists: using Article 7 of the Treaty on the Functioning of the European Union. This aims to suspend the voting rights of the government concerned within the EU Council of Ministers. However, under the applicable rules, the veto of a single Member State is sufficient to prevent this procedure from being initiated, which makes it effectively inapplicable.
The Orban and PiS policies not only undermine democracy in their respective countries, but also undermine the very foundations of the EU. While they are among the greatest beneficiaries of solidarity between member states, they are themselves the first to shirk their responsibilities when it is their turn to help others.
Juncker rightly called them “part-time member states”: present when it comes to receiving, absent when it comes to giving.
Making European funding conditional on respecting the rule of law and the principle of solidarity
This is precisely why I have always worked to make respecting the rule of law a key element of the EU budget: if the government of a Member State does not respect the rule of law, it should stop receiving funding from European regional development funds.
Yet obviously the sanctions against a government should not affect the citizens who benefit from these funds. That is why, together with my group Renew Europe and the Renaissance delegation, we propose that when a government flouts fundamental rights or does not respect the rule of law, it should be the European Commission that manages the funds directly with the beneficiaries and without the intervention of the national government. This is what is known as “intelligent conditionality”. Such centralised management is already in place for several EU funds (e.g. the Instrument for Pre-Accession Assistance to candidate countries).
This idea of intelligent conditionality is not new: I had already worked on these issues as Italian Minister for European Affairs both during the Italian EU Presidency in 2014 and in the following years. In December 2014 in particular, we reached a(n) (unanimous!) agreement on the Italian proposal to create a mechanism allowing the Council to assess, every six months, the situation of the rule of law and respect for human rights in all Member States. That was no small thing at the time, and future negotiations on this will be difficult. We then fought to include conditionality in future European budgets. In April 2015, I proposed that any conditionality, in the case of the cohesion funds as in other funds, must include respect for fundamental values and the principles of the rule of law. The objective in 2015 was the same as today: to show that respect for our fundamental values as defined in Article 2 of the EU Treaty is a prerequisite for receiving European funding.
However, conditionality should not be applied blindly, hence the centralised management of funds by the European Commission. This approach would have two major advantages:
- Smart conditionality would make it possible to preserve political and civil pluralism in the country concerned. Experience in Hungary and Poland shows that liberticidal policies often start by reducing financial support to civil society, including the media, higher education and NGOs.
- It would prevent the alienation of the population of the sanctioned country. So far, governments have used ‘victimisation’ of the population in order to justify their actions and to turn citizens against the EU. If EU funding is maintained through a direct channel between the Commission and citizens, this argument would lose all its weight.
Giving Europe the political powers to protect the rule of law
In order to defend democracy and the rule of law, the Union needs to develop a real political force. This is one of the most important challenges facing the EU. Without a powerful Europe capable of defending its values, the abuses of certain countries will continue.
That is why the EU, beyond the smart conditionality linked to the it’s budget, must be able to call out all kinds of violations of the rule of law and then adopt unequivocal positions at the first signs of the deterioration of democracy in a Member State. The credibility of our institutions and the project they embody depends on it.
The Conference on the Future of Europe will have to address this issue and put forward concrete proposals.
Together with my delegation, I will push for a reform based on three principles: early detection of violations, making sanctions progressive and ensuring the mechanism can be applied effectively.
With regard to the early detection of violations and taking into account that very often liberticidal policies are accompanied by corruption, I will push for the extension of the investigative powers of the European Parliament and the European Public Prosecutor’s Office. The jurisdiction of the European Public Prosecutor’s Office must also be extended to all Member States, by establishing it as an EU body without the possibility for Member States to evade it.
Following the example of the European Semester (a budgetary control mechanism), I will propose the creation of a periodic evaluation of the Member States’ ‘democratic health’. The evaluation reports would be prepared by the Commission, taking into account reports provided by governments, National Human Rights Institutions (NHRIs), the European Ombudsman and a public consultation allowing NGOs present in the country to provide their observations. Based on these reports, the Commission could then propose the activation of sanctions as appropriate. The report and the proposed sanctions would be discussed and adopted by a majority in co-decision by Parliament and the Council.
Finally, a reform of the Treaties should enable the European Commission to adopt sanctions that are sufficiently varied so that they are gradual and address the reality of each rule of law violation. Smart conditionality would be part of this, but it is necessary to explore other solutions such as increased supervision of funds, suspension by the EU of the Schengen area for a specific Member State, financial sanctions or suspension of voting rights in the Council.
The experience of recent years shows us that democracy and respecting the rule of law should not be taken for granted in Europe. There is a real risk of authoritarian drift and this must be taken seriously. The EU must rise to this challenge. Even if there is still a long way to go, I am convinced that the impetus given by President Emmanuel Macron and the momentum for reform that has been created in the face of the Covid-19 crisis provide a window of opportunity to implement these reforms in the coming months.