By András Jakab* – EUobserver
The most effective way deal with illiberal member states is to make sure a Spitzenkandidat is running the European Commission
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.
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*András Jakab (1978, Budapest, Hungary) is Professor of Constitutional Law at the University of Salzburg. Univ.-Prof. Dr. LL.M. Ph.D. University Professor, Public Law