Anchoring Democracy from Above? The European Union
and Democratic Backsliding in Hungary and Romania
after Accession*
ULRICH SEDELMEIER
London School of Economics and Political Science
Abstract
This article analyzes the European Union’s reactions to breaches of liberal democratic practices in
Hungary and Romania during 2012–13 in order to assess its capacity to lock in democracy in the
Member States. The article finds that a combination of partisan politics and weak normative
consensus thwarted the EU’s ability to use the sanctioning mechanism of Article 7. The effectiveness
of alternative instruments that EU institutions used – social pressure, infringement procedures
and issue linkage – varied across issues and countries. In Hungary, changes to illiberal practices
generally remained limited, but differences in the EU’s material leverage explain cross-issue
variation. The EU’s relative success in Romania suggests that it is not necessarily powerless against
democratic backsliding. It might require a demanding constellation of favourable conditions for
both social and material pressure, but there are grounds for a more optimistic interpretation that
material leverage might be unnecessary if the conditions for social pressure are favourable.
Introduction
The contribution of the European Union (EU) to democratization in post-communist
Europe was particularly important in countries that experienced domestic contestation
between liberal democratic parties and authoritarian and/or nationalist parties (see, for
example, Schimmelfennig, 2005; Vachudova, 2005).After elections brought liberal democratic
parties to power, the conditional incentive of membership locked in democratic
practices even when former illiberal parties subsequently returned to power. But can the
EU continue to anchor democracy after a country has obtained membership?
The incentive structure for governments that expect strategic advantages through
undemocratic practices changes after accession (Epstein and Sedelmeier, 2008, p. 798;
Schimmelfennig and Sedelmeier, 2004, p. 676). The sanctions available to EU institutions
are much weaker than the threat of withholding membership during the pre-accession
phase. Moreover, the autonomy of EU institutions to sanction breaches of liberal democratic
principles is more limited than in areas of EU law where the Commission can
initiate infringement procedures and the European Court of Justice (ECJ) can impose
financial penalties (Sedelmeier, 2008). Yet despite the danger of backsliding that the
changing incentive structure after accession evokes, studies initially suggested that the
EU’s new Member States have experienced at best a slowdown, rather than a reversal, of
* For helpful comments, I am grateful to Sabina Avdagic, Tanja Börzel, Rachel Epstein, Wade Jacoby, Milada Vachudova
and two anonymous referees.
JCMS 2014 Volume 52. Number 1. pp. 105–121 DOI: 10.1111/jcms.12082
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pre-accession democratic and good governance reforms (Levitz and Pop-Eleches, 2010;
Pridham, 2008; Sedelmeier, 2012; Spendzharova and Vachudova, 2012).
However, political developments in Hungary and Romania since 2010 challenge these
rather positive findings. In Hungary, the centre-right Alliance of Young Democrats
(FIDESZ) won 52.7 per cent of the vote in the 2010 parliamentary election, giving it a
two-thirds majority in parliament. This supermajority has enabled Prime Minister Viktor
Orban’s government to pass a new constitution – criticized by the Council of Europe’s
Venice Commission in June 2011 – and numerous statutes. Without formally violating the
rule of law, they contravene basic principles of liberal democratic competition and fundamental
freedoms (see, for example, Bánkuti et al., 2012; Scheppele, 2013). The government
has concentrated and entrenched its power. It weakened notably the constitutional
court, seized control of key public institutions (by packing them with party loyalists and
extending mandates much beyond the term of parliament), changed the electoral law and
requires two-thirds majorities to change some of its policies. In Romania, a realignment
of party alliances in May 2012 led to a parliamentary majority for Prime Minister Victor
Ponta’s centre-left Social-Liberal Union (USL). In July, the new government suspended
the centre-right president, Traian Ba˘sescu. Through emergency ordinances it removed
constitutional checks on the impeachment procedure, including a weakening of the constitutional
court and a lifting of the 50 per cent participation quorum for the referendum
required to validate the impeachment (see, for example, Pop-Eleches, 2013). The Venice
Commission criticized these practices in December 2012.
This article analyzes to what extent the EU has been able to redress the breaches of
liberal democratic principles in Hungary and Romania in order to understand more
generally the scope and limits of the EU’s ability to lock in democratic practices after a
state has obtained membership. The question of how effectively the EU used the instruments
at its disposal requires answering two separate questions. First, why did the EU
forgo the use of its most powerful instrument explicitly designed to sanction breaches of
democratic principles in the Member States? Second, how can we explain variation in the
success of the instruments the EU actually used?
Regarding the first question, what is striking about the EU’s choice of instruments to
redress democratic backsliding in Hungary and Romania is that it did not use its most
powerful instrument – namely the sanctions and monitoring of Article 7 TEU that allows
the Council to withdraw certain membership rights – including voting rights in the
Council – for serious and persistent breaches of democratic principles. While the fairly
rapid agreement of the Romanian prime minister to the EU’s demands made sanctions
unnecessary, the non-use against Hungary requires an explanation. Even if we take
account of the demanding majority requirements to use Article 7 and consider that
Member States would be generally reluctant to use this nuclear option, why did they not
even agree to use the preventive monitoring mechanism of Article 7? Similarly, if we
assume that actors are generally reluctant to use Article 7, why did some governments and
party groups in the European Parliament (EP) advocate its use? Our first question is thus
how we can understand the variation of actor preferences for and against the use of Article
7 and the implications for its use in possible future cases.
To explain these preferences, this article identifies four hypotheses that advance different
expectations about which actor characteristics and context conditions predispose
actors to support or oppose the use of Article 7. Constructivism suggests that these
106 Ulrich Sedelmeier
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preferences vary depending on the extent of actors’ commitment to liberal democracy,
and/or their attitudes towards supranational integration. Rationalist institutionalism
focuses on actors’ strategic use of sanctions to weaken illiberal domestic rivals and/or
strengthen partisan allies abroad. The analysis reveals that a combination of actors’
commitment to liberal democracy and transnational partisan politics best explains actors’
preferences regarding the use of Article 7: actors opposed Article 7’s use if they had a
weaker normative commitment to liberal democracy and when the targets of these sanctions
were partisan allies abroad. Conversely, support for sanctions came both from actors
with a strong commitment to liberal democracy (regardless of the targets’ partisan orientation)
or from actors with a weaker commitment to liberal democracy if the sanctions
targeted partisan rivals.
Yet despite the EU’s inability to mobilize its strongest instrument, its institutions had
some qualified success in using other instruments to press for changes in contentious
legislation and practices. Especially in the case of Romania, Prime Minister Ponta largely
complied with EU demands. Our second question thus concerns the effectiveness of the
various instruments that the EU used across countries and issues. Why was the EU better
at stopping backsliding in Romania than in Hungary? And how can we explain differences
across issue areas in Hungary?
To answer these questions, the article contrasts rationalist institutionalist and constructivist
explanations that attribute variation in the EU’s success respectively to differences
in its material leverage and to the presence of factors conducive to the use of social
pressure. The analysis suggests that the EU is not necessarily powerless against democratic
backsliding. The size of material threats that the EU can make through infringement
procedures and issue linkage matter, but the range of issues and countries to which they
can be applied is limited. The Romanian case suggests that governments are susceptible
to social pressure if the conditions are favourable. But even then, social pressure might
need to be applied in the shadow of material sanctions through issue linkage in order for
the target government to redress breaches of democratic practice.
I. The Article 7 Sanctioning Mechanism against Breaches of Democracy
The EU’s main instruments against general breaches of democratic principles are contained
in Article 7. Although the Member States also had concerns in the Mediterranean
enlargements of the 1980s that post-authoritarian new Member States might be susceptible
to setbacks after accession (Wallace, 1996), they only created the possibility of
sanctions in the context of the eastern enlargement (Sadurski, 2012, pp. 81–4). The Treaty
of Amsterdam of 1997 established a sanctioning mechanism for infringements of the
values referred to in Article 2 – ‘respect for human dignity, freedom, democracy, equality,
the rule of law and respect for human rights, including the rights of persons belonging to
minorities’ as well as ‘pluralism, non-discrimination, tolerance, justice, solidarity and
equality between women and men’. If the EU establishes that there is a ‘serious and
persistent breach’ of these values by a Member State, the Council can agree by qualified
majority to suspend certain treaty rights of that state, including its voting rights. However,
the determination of such a breach is very demanding. It requires a proposal by either
one-third of the Member States or the Commission, the consent of the EP (by a two-thirds
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majority of votes cast if representing a majority of MEPs) and unanimous agreement in
the European Council (not counting abstentions or the Member State accused). The Treaty
of Nice added a preventive procedure (with less demanding majority requirements) to
determine the existence of ‘a clear risk’ of a serious breach of liberal democratic principles.
It can be proposed by either one-third of the Member States, the Commission or the
EP, and requires the consent of the EP and a four-fifths majority in the Council (minus
abstentions and the Member State concerned).
By 2012, the EU had never used Article 7. The closest it came to sanctioning a Member
State was in 2000 when the centre-right Austrian People’s Party formed a coalition
government with the populist radical-right Freedom Party (FPÖ). It is important to note
that the sanctions used in this case were not EU measures – let alone based on Article 7
(as is occasionally wrongly suggested).1
Instead, the other Member States adopted bilateral,
albeit co-ordinated, diplomatic sanctions against the Austrian government. Another
peculiarity of this case was that the concerns did not focus on an actual breach of the EU’s
fundamental values, but on their incompatibility with those of the FPÖ and its leader, Jörg
Haider. The dissatisfaction with how the Austrian case was handled and the limitations of
the treaty framework for dealing with such a case led to the inclusion of the preventive
mechanism to establish the risk of a serious breach in the Treaty of Nice.
The cases of Hungary and Romania in 2012 are more clear-cut for the use of Article 7.
The rapid acquiescence of the Romanian government to the EU’s demands can explain why
the EU did not need to useArticle 7 there, but why did it not do so against Hungary? Maybe
the very demanding majority requirements make this outcome appear not particularly
surprising.At the same time, given the Member States’ willingness to sanction theAustrian
government in 2000 on much weaker grounds, it seems striking that the EU could not even
muster the less demanding majority to determine a ‘risk’ of a serious breach in Hungary.
Moreover, even if we generally consider governments to be highly reluctant to use this
‘nuclear option’, some governments and EP groups did advocate the use of Article 7. How
can we account for such variation in actors’ preferences? A better understanding of these
preferences is instructive for a more general explanation of the EU’s ability to use sanctions
in other cases of democratic backsliding that might arise.
II. Theoretical Framework to Explain Actor Preferences towards the
Use of Sanctions
Drawing on the debate between rationalist institutionalism and constructivism, we can
derive from each approach two main propositions about the context and characteristics of
actors that incline them either to oppose or support sanctions against Member States that
breach liberal democratic principles. Despite the obvious differences, the case of sanctions
against Austria in 2000 is instructive for analyzing actors’ preferences across
Member States and EP party groups concerning the use of Article 7 more generally. It
suggests that rationalism and constructivism not only provide competing, but also potentially
complementary, explanations for the support and opposition to sanctions (Merlingen
et al., 2001).
1
See, for example, EUObserver, 6 July 2012.
108 Ulrich Sedelmeier
© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
Rationalist Institutionalism: Domestic and International Partisan Politics
A rationalist perspective suggests two different types of partisan motives for actors to
support or oppose the use of Article 7. The first focuses on the instrumental use of EU
measures to constrain domestic partisan opponents (for such an argument for the creation
of the European Convention of Human Rights, see Moravcsik, 2000). In the Austrian case
of 2000, (intra-party) partisan politics explain why certain governments took the lead in
mobilizing support for sanctions (Merlingen et al., 2001, pp. 67–70). In France and
Belgium, EU-level measures to punish co-operation between centre-right and extreme
right parties strengthened the positions of Jacques Chirac and Guy Verhofstad against
intra-party rivals who were open to co-operation with the extreme right.
If the issue at stake is not co-operation with extremist parties, but violations of
democratic practices by the government,2
parties that face illiberal domestic competitors
have incentives to use international sanctions against violators of democratic practices
elsewhere.These governments might fear that their rivals would use undemocratic practices
to obtain or preserve power and can be expected to support EU-level sanctions to counter
this threat.
Domestic Partisan Politics Hypothesis: A Member State government supports sanctions
if the opposition parties’ normative commitment to liberal democratic values is weak.
The second type of partisan incentives relates to the left–right cleavage in party politics.
Parties are likely to advocate international sanctions against their ideological adversaries
in other Member States and to be more permissive of democratic backsliding within their
own party family. In this case, the incentives are not from domestic political competition.
Supporting like-minded parties abroad increases the likelihood of achieving international
co-operation close to a government’s ideological position.
International Partisan Politics Hypothesis: A Member State government (EP party group)
supports sanctions if it is ideologically distant from the government party of the target
state.
Constructivism: Normative Commitment to Democracy and to
Supranational Governance
Constructivism draws attention to two characteristics of actors that can explain their
support or opposition to sanctions: actors’ normative commitment to liberal democracy
and supranational integration, respectively. With regard to the former, actors can be
expected to support sanctions if they have a strong normative commitment to upholding
liberal democratic principles. A strong normative consensus should lead to an agreement
to use the full force of available instruments against deficiencies within the EU. At the
same time, variation in the strength of this commitment across actors can be expected to
lead to divergent preferences regarding the use of sanctions.
Again, the Austrian case is instructive for the significance of normative consensus.
Partisan incentives might explain who was at the forefront of advocating sanctions, but
2
The Austrian case has less similarity with Hungary and Romania in 2012 than with Slovakia in 2006 when the social
democratic Smer-SD formed a coalition government with the extreme-nationalist Slovak National Party, leading to the
expulsion of Smer-SD from the EP’s S&D party group.
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© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
they cannot explain why all other Member States followed suit. Some governments were
sceptical about the appropriateness and effectiveness of the proposed sanctions, but
consented to the measures because of the strong normative salience of the values in
reference to which they were framed as appropriate behaviour (Merlingen et al., 2001, pp.
62–5). Concerns about the effectiveness of Article 7 to restore democratic practices – after
all, in Austria the sanctions in 2000 did increase the government’s domestic support –
mean that a normative commitment might not be incompatible with opposition to using
Article 7, but from a constructivist perspective it could still explain support for it.
Liberal Democratic Norms Hypothesis: A Member State government (EP party group)
supports sanctions if it has a strong normative commitment to liberal democratic values.
Constructivism also draws attention to a second explanatory factor. Actors’ attitudes
towards sanctions might also depend on their general attitudes towards European integration.
If actors’ identities are incompatible with the idea of supranational governance, they
are likely to reject the use of EU sanctions as illegitimate interference in domestic affairs.
Thus, even if they had strong partisan incentives or a commitment to democratic norms,
actors would only support sanctions if they consider European integration normatively
appropriate.
Supranational Integration Hypothesis: A Member State government (EP party group)
supports sanctions if it has a strong normative commitment to European integration.
III. Analysis and Findings: Actor Preferences towards the Use of Sanctions
against Democratic Backsliding
Methodology
This article assesses these partly competing, partly complementary explanations through
fuzzy-set qualitative comparative analysis (fsQCA) (Ragin, 2008; Schneider and
Wagemann, 2012). The units of analysis, or cases, are key actors in the EU’s decision to
impose sanctions – Member State governments and EP party groups – and their support
or opposition to sanctions against Hungary or Romania. The outcome to be explained is
these actors’ position with regard to sanctions. The explanatory conditions are the actors’
political orientation pertaining to the above hypotheses.
Expert surveys provide information about these political orientations of (government)
parties in the Member States (Bakker et al., forthcoming) and EP political groups
(McElroy and Benoit, 2012). With regard to partisan politics, actors’ ideological distance
from target government is assessed according to their general left/right orientation. Their
normative commitment to supranational governance is expressed in their attitudes towards
European integration. As a proxy for a party’s commitment to liberal democracy, I use
their ‘ideological stance on democratic freedoms and rights’. Bakker et al. (forthcoming)
describe the poles of this dimension in composite terms on a continuum from a green/
alternative/libertarian (GAL) orientation to a traditional/authoritarian/nationalist (TAN)
orientation.3
3
For further information on the relevant survey questions, calibration of the data for the analysis and the detailed results of
the fsQCA analysis, please see the methodological annex available on the author’s personal webpage.
110 Ulrich Sedelmeier
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Unfortunately, data limitations prevent us from testing all four hypotheses systematically.
Since no formal proposal to use Article 7 was submitted and voted upon, we
do not have comprehensive information on the positions of all Member States.
However, the EP voted on two resolutions that expressed serious concern about the new
Hungarian constitution. These resolutions in combination with media reports4
allow us
to infer the positions of the EP party groups: ALDE, Greens, S&D and United Left
supported the possibility of sanctions, while EPP and ECR were against and EFP
abstained.5
The systematic data for EP party groups can be complemented by less
systematic data from media reports that suggest that among the Member State governments,
Belgium, the Netherlands and Luxembourg6
were attempting to mobilize support
for sanctions.7
Moreover, we can increase the leverage of the analysis by including
additional data about actors’ preferences in the case of Romania, based on media
reports. Leaders of EP party groups and governments who voiced their concerns
and publicly considered the possibility of Article 7 if the problems persisted include
the German government8
and the following party groups: EPP,9
S&D,10
ALDE,11
Greens.12
Adding data on Romania – where the centre-left formed the government – allows us to
make better inferences about the role of ideological distance. In the case of Hungary’s
centre-right government, actors with a TAN orientation also tended to be ideologically
close (on a general left–right dimension) to the target government, which makes it difficult
to distinguish whether their opposition to sanctions is due to ideological proximity or lack
of a GAL orientation. The drawback of adding the less systematic data is that while it
provides us with a fuller picture of actors who support sanctions, there is a possible bias
in that actors supporting sanctions are over-represented in our sample. While the findings
about the impact of actors’ political orientations on their attitudes towards sanctions
should be generalizable beyond the cases analyzed, in the absence of more comprehensive
data we should interpret them with caution. Moreover, the lack of systematic data about
Member State governments means that we cannot assess the domestic partisan hypothesis
– which is specific to national governments rather than transnational party groups.13
The
following analysis thus assesses the remaining three hypotheses that apply equally to party
groups and parties in government.
4
Agence Europe, 6 July 2011, 17 February 2012.
5
On 5 July 2011, the EP adopted by 331 votes to 274 with 54 abstentions a resolution on the revised Hungarian constitution
tabled by the S&D, GUE/NGL, Greens/EFAandALDE groups. On 16 February 2012, it adopted by 315 votes to 263 against
with 49 abstentions a resolution on recent political developments in Hungary tabled by the same groups, after defeating two
motions for a resolution tabled, respectively, by the EPP and ECR. Although there were no roll-call votes for either
resolution, the records identify the groups that tabled them and those submitting counter-resolutions.
6
Luxembourg is not covered in the survey by Bakker et al. (forthcoming).
7
EUObserver, 16 February 2012.
8
Süddeutsche Zeitung, 12 July 2012.
9
EUObserver, 6 July 2013.
10
Agence Europe, 11 July 2012.
11
Agence Europe, 19 July 2012.
12
Agence Europe, 31 July 2012.
13
Anecdotal support for this hypothesis could be that among the three governments alleged to garner support for
sanctions against Hungary, two (the Netherlands and Belgium) face strong parties of the radical/populist right
domestically.
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Analysis and Findings: Explanations of Actor Positions Regarding the Use of Article 7
Table 1 presents for each of the actors included in the analysis the raw data with regard to
the three explanatory conditions (ideological distance to target governments; normative
commitment to liberal democratic norms; normative commitment to supranational
integration) and their support for sanctions in the case of Hungary and/or Romania. The
fsQCA results in two equifinal solutions for the outcome ‘support for sanctions’ (parsimonious
solution that makes simplifying assumptions about configurations of cases that
the sample does not cover). Actors support sanctions either if they are committed to the
values of liberal democracy (that is, have a GAL orientation) or if they are ideologically
distant from the target government. Actors’ attitudes towards European integration do not
affect their support for sanctions. This result has both a very high consistency (0.96) and
coverage (0.85). Conversely, the analysis produces a single explanation for the opposition
to sanctions (identical results for the parsimonious, intermediate and complex solution):
actors that are not strongly committed to liberal democracy (that is, have a TAN orientation)
oppose sanctions against target governments to which they are ideologically close
(with regard to their left–right orientation). Although this solution has a high coverage
(0.83), its consistency is fairly low (0.56). The outlier is the Dutch government (which
supported sanctions against Hungary although it has a TAN orientation and is ideologically
close), which decreases the consistency of the result considerably, given the small
number of cases of explicit opposition to sanctions. However, if we analyze only the EP
party groups with regard to Hungary – for which we have comprehensive data – then the
consistency of this explanation for opposition to sanctions increases to 0.94.
In other words, while (transnational) partisan politics do play a role in actors’ decisions
about whether to support the use of Article 7, the decisions cannot be reduced to this
factor. Instead, actors’ normative commitment to liberal democracy appears to condition
Table 1: Actor Characteristics and Support for Article 7 against Hungary and Romania
Actors (and target
government)*
Liberal
democracy (GAL
orientation)**
Ideological (left–right)
distance to target
government**
Support for
European
integration**
Support (1) or
opposition (0)
to sanctions
United Left (HU) 15.1 10.86 6.1 1
Greens (HU) 17.3 9.36 12.7 1
Greens (RO) 17.3 1.6 12.7 1
S&D (HU) 14.7 5.96 12.6 1
S&D (RO) 14.7 1.8 12.6 1
ALDE (HU) 15.8 1.86 13.9 1
ALDE (RO) 15.8 5.9 13.9 1
EPP (HU) 6.3 0.26 12.1 0
EPP (RO) 6.3 7.5 12.1 1
ECR (HU) 4.7 3.34 1.8 0
EFD (HU) 3.6 4.84 0.1 0.4***
Netherlands (HU) 8.52 0.69 12.31 1
Belgium (HU) 11.07 4.34 17.87 1
Germany (RO) 8.78 6.77 16.11 1
Source: Author’s own calculations.
Notes: * The letters in brackets indicate whether the target government is Hungary (HU) or Romania (RO). ** On a 0–20
scale. *** Abstention.
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whether partisanship matters. Actors with a normative commitment to liberal democracy
support sanctions against Member States that breach democracy, irrespective of their
partisan orientation. Partisan orientation only matters if an actor does not have a strong
commitment to liberal democracy (that is, has a TAN orientation): these actors will
support sanctions against ideological rivals abroad and oppose them if they target their
partisan allies.
IV. Alternative Instruments against Democratic Backsliding and an Analytical
Framework to Explain Their Effectiveness
Alternative Instruments: Social Pressure, Infringement Procedures and Issue Linkage
Instead of using Article 7, the EU used (combinations of) three different measures in order
to bring about changes in specific practices and legislation that infringed liberal democratic
principles in Hungary and Romania. Social pressure is an instrument widely used
by international institutions. It involves public criticism and shaming of non-compliant
governments (see, for example, Johnston, 2001), and it can be preceded by less public
efforts to persuade target governments of the normative appropriateness of compliance
(see, for example, Checkel, 2001). EU institutions used social pressure towards both
Hungary and Romania across the range of issues.
EU institutions can use the general infringement procedure of Articles 258 and 260
against non-compliance with a few specific values covered in Articles 2 and 7 TEU that
also have their own legal basis in the treaty or secondary law – such as non-discrimination
(on grounds of gender, age, ethnic origin, etc.). The Commission can launch infringement
procedures autonomously and the ECJ can ultimately impose financial penalties against
persistent non-compliance (see, for example, Börzel, 2001). In the case of Hungary, the
Commission launched infringement procedures concerning three issues: the independence
of the central bank and the data protection authority, and the reduction in the
retirement age of judges.
Apart from the legal instruments explicitly intended to allow EU institutions to rectify
infringements of liberal democratic principles, the EU might be able to use issue linkage
to increase its leverage over non-compliant Member States. EU institutions or Member
States can make more or less explicit links between non-compliance and the threat of
withholding rewards for that Member State in another issue area. The possibility of
creating issue linkages depends on the issues and countries concerned. It is particularly
strong if the Member State in question has intensive preferences for an agreement in
another policy area that requires unanimity between the Member States. The potential for
issue linkage was particularly high in Romania. It is one of the few Member States that has
not yet been granted membership in the Schengen Area, and is, alongside Bulgaria, the
only country that is subject to post-accession monitoring through the co-operation and
verification mechanism (CVM) that regularly assesses progress in the fight against corruption,
organized crime and judicial reform. Some Member States, including the Netherlands
and Germany, have linked their approval of Schengen membership to progress
with the CVM, although it is not a formal membership requirement. The Commission has
linked breaches in the rule of law in Romania to continued CVM monitoring, and made
negotiations on an International Monetary Fund (IMF) loan for Hungary dependent on
restoring the independence of the central bank. The EU’s initial suspension in March 2012
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of €495 million in structural funds for Hungary – as the first Member State to be punished
for failing to meet the budget deficit limits – was also seen as an attempt to increase the
pressure on the Hungarian government.
Theoretical Framework: The Impact of the EU’s Instruments in Hungary and Romania
We must distinguish between two mechanisms to explain (variation in) the effectiveness
of the EU’s attempts to bring about domestic changes that redress breaches of democracy
in Member States. Rationalist institutionalism focuses on target actors’ susceptibility
to material incentives. The key instruments that rely on this mechanism are
infringement procedures and issue linkage, which both entail the threat of material
sanctions. According to this explanation, the EU’s ability to bring about domestic
change depends primarily on the target government’s vulnerability to the threatened
sanctions and the costliness of the changes demanded by EU institutions.
Material Leverage Hypothesis: target governments carry out the domestic changes
demanded by the EU if the costs of threatened EU sanctions exceed the domestic
adjustment costs.
Constructivism focuses on social pressure as the key mechanism leading to domestic
change. Target governments change undemocratic rules and practices either because the
EU persuades them that this constitutes appropriate behaviour for community members,
or if they are susceptible to social sanctions. Factors that affect target governments’
perceptions of legitimacy and susceptibility to shaming relate both to the EU’s practice
and to the characteristics of their target (see, for example, Checkel, 2001; Epstein, 2008;
Johnston, 2001). Social pressure is more likely to succeed if the government leader is a
‘novice’ in international relations; and if he or she has a positive normative attachment to
the EU. The perceived legitimacy of the EU’s demands is higher if they follow general
standards of procedural legitimacy; if the demands are initially conveyed in a process of
non-hierarchical arguing about appropriate standards; if they are externally validated
through an independent institution (for example, the Council of Europe’s Venice Commission);
and if there is internal consensus about the demands.
Social Pressure Hypothesis: target governments carry out the domestic changes
demanded by the EU if they perceive these demands as legitimate.
V. Analysis and Findings: Effectiveness of EU Instruments against Democratic
Backsliding in Hungary and Romania
In Hungary, the EU’s attempts to stem democratic backsliding focused in particular on the
independence of the media, the data protection authority and the central bank, as well as on
the retirement age of judges. For Romania, the Commission prepared an 11-point list of
demands that centred on the validity requirements for the referendum to impeach President
Ba˘sescu, as well as the independence of the judiciary and the fight against corruption.
The explanatory factors for the effectiveness of the EU’s attempts varied across issues
and countries, with regard to both the EU’s ability to threaten material sanctions (and the
magnitude of its material leverage) and the conditions for the use of social pressure. The
domestic conditions for social pressure were much more favourable in Romania than in
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Hungary. The 39-year old Ponta was a relative ‘novice’ to political leadership and international
relations, while Orban had a long-standing history as party leader and previous
prime minister. Attitudes towards the EU are generally much more positive in Romania
than they are in Hungary, and among FIDESZ voters in particular. While there is a general
desire to be recognized as ‘good Europeans’ among Romanian elites and public, Orban
regularly used scathing criticism of the EU to shore up domestic support.14
Finally, for the
Romanian government, relinquishing undemocratic practices that removed constraints on
the exercise of power was strategically costly, but did not affect normative beliefs. By
contrast, Orban held a deep normative commitment to the goals underpinning his government’s
hold on power, reflected in framing the constitutional changes as the final steps
in his long struggle to overcome communism in Hungary.
Table 2 presents an overview of the variation across different issues in the material
leverage that the EU used (in addition to social pressure) and the outcomes with regard to
the target government’s compliance with the EU’s demands.
Hungary: Media Law, Retirement Age of Judges, Independence of the Data Protection
Authority and of the Central Bank
The Hungarian Media Law, adopted in 2011, was heavily criticized by a number of
Member States, EP party groups and the Commission.15
Among other contentious elements,
it established a new Media Council – whose five members on a nine-year term only
include FIDESZ supporters. It is in charge of licensing and tendering, the appointment of
directors of public outlets, and can impose high fines on media outlets whose coverage is
judged not to be ‘politically balanced’, raising concerns about self-censorship. Although
the Commission made the debatable claim that the Media Law breached the EU media
directive, it decided not to use infringement procedures.16
Instead, Commissioner Neelie
14
For example, ‘Hungarians will not live as foreigners dictate, will not give up their independence or their freedom,
therefore they will not give up their constitution either’ (The Guardian, 16 March 2012).
15
Süddeutsche Zeitung, 29 December 2010, 2 January 2012.
16
Agence Europe, 18 January 2012.
Table 2: Overview of EU Instruments and Outcomes
Country Issue Instruments and leverage
(in addition to social pressure)
Outcome (compliance
with EU demands)
Hungary Media law (Social pressure only) Minor compliance
Central bank
independence
Infringement procedure (threat of ECJ
fines); issue linkage (IMF loan)
Compliance
Independence of the data
protection authority
Infringement procedure (threat of
ECJ fines)
Incremental compliance
Retirement age of judges As above Incremental compliance
Romania Independence of judiciary Issue linkage: CVM (rule of law),
Schengen membership
Compliance
Quorum and validation
of impeachment
referendum
As above Compliance
Corruption control As above Partial compliance
Source: Author’s own calculations.
Anchoring democracy from above? 115
© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
Kroes was satisfied that the Commission’s concerns had been addressed in an exchange of
letters with the Hungarian government, which promised to ease rules for foreign media
and to soften the rules against ‘unbalanced’ coverage and ‘offensive’ Internet content.17
After the Hungarian Constitutional Court declared some elements of the Media Law
unconstitutional, the controversy reignited when the Media Council withdrew the frequency
for Klubradio, the main independent radio channel in the country, leading to
criticism from the Commission, although there was no EU law that allowed it to act.18
A
Budapest court granted a temporary relief for Klubradio to stay on air,19
but according to
a Council of Europe expertise on the Hungarian Media Law, the government’s changes
still do not meet European human rights standards. Freedom of the press remains problematic
since the Media Council ‘still controls the entire broadcast sector and has [. . . the]
legal power to reregulate print and online media’ (Bánkuti et al., 2012). In sum, the EU’s
use of social pressure to achieve greater plurality and independence of the media was
largely ineffective.
In January 2012, the Commission started infringement procedures against Hungarian
legislation in three issue areas that had a separate basis in EU law. The lowering of the
retirement age of judges from 70 to 62 (used to replace a generation of judges with new
party-loyal judges) infringed Directive 2000/78/EC on equal treatment in employment.
Measures to restrict the independence of the national data protection supervisory authority
and of the Hungarian central bank, respectively, breached Article 16 TFEU and Directive
95/46/EC on data protection and Article 130 TFEU. Moreover, concerning the independence
of the central bank, the EU not only used the infringement procedures – with the
threat of financial penalties by the ECJ – but also used issue linkage. In December 2011,
the EU and the IMF both made negotiations on €15–20 billion in financial assistance
dependent on restoring the independence of the central bank.20
In April 2012, the Commission
declared itself satisfied with the changes to the central bank’s legal status, but not
in the other two cases and referred Hungary to the ECJ. These cases continued in early
2013, although the Hungarian government had agreed to comply with the ECJ judgments
establishing infringements.21
Romania: Independence of the Judiciary and the Anti-corruption Institutions, and
Quorum Requirements for the Referendum to Impeach the President
In contrast to the Hungarian case, the EU moved fairly quickly after the Romanian
government had impeached President Ba˘sescu and took measures limiting the powers of
the constitutional court to scrutinize its attempt to change the 50 per cent participation
quorum in the referendum required to confirm the impeachment. Commission President
Barroso and Council President Van Rompuy both arranged a meeting with Ponta in
Brussels on 12 July 2012. Barroso obtained a commitment from Ponta to comply with a
list of 11 measures that the Commission deemed necessary to restore the rule of law.22
17
Süddeutsche Zeitung, 7 March 2011; EUObserver, 17 January 2012.
18
Agence Europe, 18 January 2012.
19
European Voice, 27 March 2012.
20
Agence Europe, 4 January 2012.
21
Süddeutsche Zeitung, 30 January 2013.
22
Agence Europe, 14 July 2012.
116 Ulrich Sedelmeier
© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
These measures broadly address three issues. First, measures to respect the independency
of judiciary, including compliance with constitutional court decisions; reinstatement
of powers of the court; and to refrain from using emergency ordinances, publishing
judicial decisions selectively in the Official Journal, and criticizing judicial decisions and
intimidating judges. The second main issue was respecting the 50 per cent turnout
requirement to validate the impeachment referendum. The third set of measures centred
on the issue of corruption control, including the independence of the ombudsman, prosecutor
and anti-corruption agency; resignation of ministers and MPs convicted of corruption;
and the non-use of interim presidential pardons.
Ponta quickly declared his willingness to comply with the demands, and eventually
recognized that the referendum to impeach the president had failed – despite overwhelming
approval by 97 per cent of voters – since the turnout was only 46 per cent, largely due
to the opposition’s strategy of boycotting the referendum.23
At the same time, despite the
broad compliance by the Ponta government with the EU’s demands, the CVM report of 30
January 2013 criticized remaining shortcomings with corruption control, especially that
individuals under investigation for corruption took office as ministers and MPs after the
government’s overwhelming victory in the December 2012 election.24
The EU’s influence in the Romanian case relied heavily on social pressure, although it
was carried out in the shadow of explicit and implicit issue linkage. The political crisis
in Romania coincided with the scheduled publication of the CVM report on Romania on
18 July. Although CVM does not usually cover an assessment of the rule of law, the
Commission focused strongly on the concerns that the crisis raised for the functioning of
democracy and the rule of law. It concluded that further monitoring through the CVM was
necessary. However, a further – although much less explicit – issue linkage concerned
Romania’s aspiration to Schengen membership. Although the Commission had stated
repeatedly that both Romania and Bulgaria met the conditions for membership, initially
the Dutch and Finnish governments indicated that they would block an agreement until the
two countries had demonstrated more progress with the issues covered by the CVM –
corruption control, reform of the judiciary and the fight against organized crime –
although the CVM did not envisage such a link to Schengen accession. Following the
Romanian crisis, the German and French governments also stated their intention to link
these issues.
Findings: Conditions for the Effectiveness of EU Pressure
A comparison of the outcomes of the EU’s attempts to bring about changes in domestic
practices shows that the main variation in the EU’s success is across countries. The EU’s
influence was generally effective in Romania, but much less so in Hungary where the EU
anyway addressed the breaches of liberal democracy only highly selectively. But there
is also some intra-country variation across issues. In Hungary, the EU had much less
influence on the Media Law than the three issues that were subject to infringement
procedures, and among the latter, compliance was much faster regarding central bank
independence than the other two issues. In Romania, despite generally good compliance,
shortcomings remained with regard to the EU’s demands for corruption control.
23
Agence Europe, 31 July 2012.
24
EUObserver, 30 January 2012.
Anchoring democracy from above? 117
© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
How can we explain these patterns and what do they tell us about the relative importance
of material leverage and social pressure? The cross-issue variation within countries
supports the material leverage hypothesis. In Hungary, the EU’s influence was weakest on
the issue where it only used social pressure, while compliance was fastest on the issue
where the EU could use issue linkage to IMF aid in addition to its infringement procedure.
In Romania, the more problematic compliance with regard to corruption control arguably
concerns the issue in which the costs of compliance with the EU’s demands are highest.
Unfortunately, in the cross-country variation, the EU’s greater influence in Romania is
overdetermined. Conditions in Romania were much more conducive to the effective use of
social pressure, but at the same time, the EU’s potential material leverage was also much
greater through the possible issue linkage to Schengen membership. In the absence of
clearer evidence to assess the respective causal impact of social pressure and issue linkage
in Romania, a cautious interpretation of the outcome is that EU pressure can be effective
even without Article 7, but only if the conditions for both social pressure and material
sanctions are favourable. These are demanding conditions.
However, even if the currently available evidence does not allow us to decide whether
both mechanisms were necessary, or whether either would have been by itself sufficient,
counterfactual reasoning might give reason for optimism that under favourable conditions
for social pressure, material leverage might not be necessary. For Romania, issue linkage
was only explicitly established with CVM. But CVM is a social sanction; it operates
through the stigma attached to continued monitoring and scrutiny. Negative CVM reports
do not entail significant material sanctions, only the non-recognition of national court
decisions in other Member States. The link to Schengen membership suggested by some
Member States was repeatedly denounced by the Commission as illegitimate, although the
unanimity requirement still made it a real threat. However, this link predated the Romanian
crisis of 2012, yet it had still not led to the necessary reforms in either Romania or
Bulgaria. It is therefore debatable whether the threat of withholding Schengen membership
motivated the Romanian government to change undemocratic practices since such
compliance by itself did not guarantee Schengen membership, which still required separate
progress with corruption control that the Romanian government had been unable to
deliver. Thus while the cautious interpretation is that the EU can only effectively counteract
democratic backsliding without Article 7 if very demanding conditions for both
social and material sanctions are present, there is reason for cautious optimism that
favourable conditions for social pressure might be sufficient.
Conclusions
Can EU membership lock in democracy in post-authoritarian states? Can the EU remedy
democratic backsliding after accession? This article has analyzed the cases of Hungary
and Romania in 2012–13 to answer these broader questions. These cases raise two key
questions: how can we explain that the EU did not use its most powerful sanction
mechanism against breaches of liberal democracy – namely Article 7? And why were
alternative instruments generally more successful in Romania than Hungary, as well as
more effective on some issues than others?
Available data on the positions of EP party groups and Member State governments
towards using Article 7 against Hungary or Romania suggests that a combination of
118 Ulrich Sedelmeier
© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
partisan politics and weak normative consensus is an important constraint on the use of
this sanctioning mechanism. Actors with a weaker normative commitment to liberal
democracy (expressed in a traditional/authoritarian/nationalist orientation) appear reluctant
to sanction governments formed by their partisan allies (that is, those who are
ideologically close on the left–right dimension). Conversely, actors normatively committed
to liberal democratic principles (reflected in a green/alternative/libertarian orientation)
support sanctions irrespective of the target government’s ideological orientation, while
those with a TAN orientation support them (only) against their ideological rivals abroad.
If we can generalize from our sample, then an agreement on sanctions need not require
that the Council is exclusively composed of governments with a GAL orientation, depending
on the partisan orientation of the target government. Since a GAL orientation is
generally more likely among parties on the left of the general left–right dimension, this
might imply that democratic backsliding is more likely to be punished in countries that are
governed by parties of the left rather than the right.
Despite the EU’s inability to mobilize its strongest instrument, EU institutions had
some success in pressing for changes in undemocratic practices. Especially in the case of
Romania, Prime Minister Ponta largely complied with EU demands. In Hungary, the EU’s
influence was generally much more limited. Its failure to use Article 7 left the broader
underlying problems unchallenged and only addressed selected issues in isolation (see
also Jenne and Mudde, 2012, p. 150). On such issues, however, the EU achieved some
incremental changes.
The intra-country cross-issue variation of the EU’s influence supports the claim that
variation in the EU’s material leverage affects its ability to elicit compliance with its
demands. Especially when the conditions for social pressure were unfavourable – as in
Hungary – social pressure alone was largely ineffective, while the threat of fines by the
ECJ led to compliance, particularly if it was combined through issue linkage with the
threat of withholding other benefits (that is, the IMF loan). The main exceptions to
Romania’s compliance with EU demands concerned corruption control. These were
arguably the most costly and a key motivation to remove checks on the government’s
autonomy in the first place. This cross-issue variation confirms the expectation of the
Material Leverage Hypothesis that the EU’s influence depends both on the size of the
material sanctions that it can threaten and the size of the domestic costs of compliance.
This finding underscores concerns about the EU’s ability to redress illiberal practices in
its membership given the difficulties to agree on the use of Article 7, the limited extent to
which liberal democratic principles also have a separate legal basis that allows the use of
EU infringement procedures, and the fact that many possibilities of issue linkage that the
Romanian and Hungarian cases offered – with regard to Schengen membership, an IMF
loan or the possible withholding of regional funds due to excessive deficits – do not
generally apply to all EU Member States.
We have insufficient empirical evidence to assess in the Romanian case the respective
causal impact of the favourable conditions for social pressure and of the material leverage
through the implicit possibility of denying Schengen membership. A cautious interpretation
therefore suggests that the EU might only be able to rectify post-accession backsliding
under a very demanding constellation of conditions that allow it to apply both social
and material pressure. This interpretation would lead us to a rather pessimistic assessment
of the EU’s ability to counteract democratic backsliding in its members, not least since the
Anchoring democracy from above? 119
© 2013 The Author(s) JCMS: Journal of Common Market Studies © 2013 John Wiley & Sons Ltd
scope for issue linkage is much more limited with regard to most other Member States that
are already members of Schengen. However, since Romania’s accession to Schengen
remains independently blocked by some Member States due to the limited progress with
corruption control, fight against organized crime and reform of the judiciary, a more
optimistic interpretation suggests that under favourable conditions for social pressure,
material leverage might be unnecessary. This interpretation implies that the EU might still
have some hope of reversing democratic backsliding when faced with a pro-EU leadership
with illiberal tendencies, but conversely, the EU’s influence on Eurosceptic illiberal
leaders might be especially limited.
Correspondence:
Ulrich Sedelmeier
Department of International Relations
London School of Economics and Political Science
Houghton Street
London WC2A 2AE, UK
email: u.sedelmeier@lse.ac.uk
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