Whose rule of law?
The European Union refuses to call out democratic backsliding when orchestrated by the left
For all its sense of itself as the world’s adult in the room, prodding hotheaded populists into statesmanly maturity, the European Union (EU) too often lapses into embarrassing spasms of millennial infantilism. As the bloc’s Commissioner for Justice, Didier Reynders pockets nearly €300,000 annually from the European taxpayer for a single task: policing member-state violations of rule of law, enshrined as the Union’s ethical cornerstone in article two of its 1992 founding treaty and beefed up with punitive clauses in 2007. Yet at a once-in-a-lifetime plenary last Wednesday scrutinizing authoritarian backsliding in one member the Union counts among its youngest yet most robust democracies (Spain), Reynders had bigger fish to fry. Suddenly cast into the world-historical limelight, the Belgian jurist simply couldn’t get off his phone.
Through entire chunks of the nearly four-hour debate in Strasbourg, he indulged in juvenile binges of scrolling, his translation device off his ears, as Members of the European Parliament (MEPs) took turns, in various languages, to implore action against an ongoing self-coup without precedent in the Union’s history. When his turn came to respond, he confirmed his head was miles away, oblivious to a constitutional crisis turning by extension into an affront to the very “community of rules and values” he’s paid to uphold. After endless rounds of chastisement — both symbolic and financial — against Poland and Hungary on far more spurious legal grounds, Reynders stood a chance to prove conservative cynics wrong, by showing the Union’s worship of rule of law stands for more than just a cudgel against governments it deems unsavory. He utterly failed the test, supplying the ultimate proof of an ideologically infused double standard — and abandoning Spaniards along the way.
The showmanship pointed to a deeper ailment that goes beyond the Spanish question, and that compounds countless other symptoms of EU democratic deficit
The good news for the distracted Reynders is that he wasn’t missing out on much. As a subset of Spanish MEPs traded barbs about their government’s Catalan amnesty bill in an awkwardly choreographed importation of national quibbles, their colleagues from the continent’s four corners rushed to either flaunt their oral Spanish skills or feign expertise of a national Constitution whose intricacies they manifestly ignored. The showmanship pointed to a deeper ailment that goes beyond the Spanish question, and that compounds countless other symptoms of EU democratic deficit. The pathological form of cosmopolitan virtue-signaling on display at the euro-Chamber last week is helping turn supranational politics into an undemocratic sham from which nation-bound citizens feel ever more disconnected.
That would be bad enough if it didn’t also corrode the Parliament’s standing on the one issue — rule of law — that should sit above partisanship and where the Union should enjoy unblemished legitimacy. Yet the plenary evinced once more the craven and unscrupulous politicization of the European project’s most sacred shibboleth. In this as in earlier sittings surveying other imperiled democracies, the battlelines unfailingly fell along party divisions, with virtually no room for intra-group dissent. One is yet to see a Green or a communist MEP demanding a cooler, non-ideological handling of the alleged co-optation of Poland’s judiciary under the outgoing Law and Justice government. Similarly, a questioning of Spain’s ongoing autocratic drift through a left-of-center lens was conspicuously absent. And even as his Spanish colleagues appealed to the metapolitical nature of their country’s magna carta, the one leader who could least resist the urge to hooliganise the rule-of-law seesaw wasn’t some Gramscian socialist but Manfred Weber himself. By praising his euro-party’s man in Madrid, Alberto Nuñez Feijóo, as the hero whose win at the July 23 election could have averted Spain’s dire straits, the German leader of the European People’s Party (EPP) unwittingly undermined his own case, casting into distinct camps — PP vs. Vox — an otherwise converging opposition.
For concerned Spaniards, on the contrary, the debate should have represented a much-needed moment of trust-building, a litmus test for the EU’s readiness to side with Spanish democracy in its hour of greatest need. When the ruling PSOE made public, two weeks ago, the deal struck with the Catalan separatists of Junts, whose seven votes consequently swung PM Pedro Sánchez’s confidence vote two Thursdays ago, virtually every civil service corps rose to lambast the amnesty bill contained therein for “eroding” or “eradicating” the separation of powers. For these state servants of all political persuasions — as for the country’s unionist majority — absolving the culprits behind the 2017 illegal independence referendum makes a mockery of the 1978 constitution, which rests on the “indissolubility” of the Spanish nation. As if that weren’t enough, and despite PSOE’s claims to the contrary, the bill’s first draft filed in Parliament on Monday before last foresees the creation of parliamentary commissars sitting above judges in granting the judicial pardons in question. To add insult to injury, it retroactively typecasts as “lawfare” the Supreme Court’s rulings sentencing the accused for sedition and embezzlement following the 2017 plebiscite. Not only are judges being belittled as mere political operatives. Their role will be, if the bill passes, subordinated to a legislature in contempt.
This near-unanimous outrage is not proving enough, as Spaniards despairingly watch every constitutional guardrail go the way of a banana republic, not least the court-packed Constitutional Tribunal. This has cornered the opposition into a dual-track strategy, where neither track involves the Spanish state: while millions have flocked to the streets in outrage the past four weekends in a row, most of this indignant majority is expecting the EU to at least weigh in. In theory, the Union should act as the guardian of last resort against precisely these forms of creeping authoritarianism. To wit, the fact that every euro-party to the right of — and including — the liberals set the Strasbourg plenary into the agenda still two months out from the end of Spain’s rotating presidency of the EU Council is doubtless terrible PR for Sánchez.
For one thing, the debate set Sánchez’s bill in the wider context of previous amnesties in the EU, with MEPs from different latitudes emphasising that their countries’ reliance on that extraordinary tool fulfilled three conditions: (1) serving the national interest as understood across party lines, (2) being backed by public opinion, (3) and with the beneficiaries swearing future loyalty to the Constitution. Not only do none of these conditions hold in Spain’s case; Sánchez is resorting to amnesty for no extraordinary reason other than needing seven votes to clinch a second mandate. And the plenary may just be the start. It could — in theory — trigger broader institutional action across the EU and the Council of Europe. What became the so-called “conditionality mechanism” still depriving Poland and Hungary of approximately €100 billion and €50 billion, respectively, in post-Covid recovery funds over alleged rule-of-law violations began with plenaries exactly like this one. The founding treaty’s article 7, enabling the Council to restrain a member state’s voting rights on similar grounds, isn’t invoked out of nowhere either.
Yet none of this is forcing Sánchez to reconsider, likely because he knows that robust EU action is unlikely
Yet none of this is forcing Sánchez to reconsider, likely because he knows that robust EU action is unlikely. He is treading a strategically sound, albeit morally repugnant, path. In the selfsame move to transpose Spanish quarrels onto a European scale, at the Wednesday plenary his MEPs ridiculed their liberal, conservative, and EPP colleagues as “sore losers”. They likened any and all opposition to the PM’s machinations to a puerile inability to stomach the July 23 results that propelled the minoritarian PSOE to power anew on the strength of a “Frankenstein” coalition with the far left and separatists of all stripes. They effectively implied, at the seat of European democracy, that unconstitutional power grabs are fair game so long as the parliamentary arithmetic supports it. Meanwhile, the Commission sits idly by. On November 8, the day the PSOE-Junts deal dropped, Reynders sent the blandest of letters auguring the non-role he is developing for this quagmire. In expressing the Commission’s view on the state of Spain’s rule of law, the letter foregrounded an issue wholly irrelevant to — and deflecting attention from — the crisis currently unfolding: the tie-up of Spain’s judiciary governing council, tasked with appointing a quota of judges along with the government, for lack of bipartisan agreement. While both main parties — PP and PSOE — reciprocally shift the blame for the freeze, Sánchez has savvily used up his own quota to incur in a Bolivarian binge of court-packing.
When the contours of the amnesty bill became known on November 13, Reynders simply said he’d be “watching” the lawmaking process “carefully”. He’s right: the bill could significantly grow worse as separatist amendments get rolled into the bill, but the proposed amnesty to upwards of 1,000 lawbreakers that formed the core of the first draft should have already scared him stiff. If the seven kingmaking MPs of Juntsand the seven from the left-separatist Esquerra Republicana de Catalunya (ERC) do indeed impose “lawfare” committees, extend the amnesty to terrorist convicts, and even shield the embezzlement surrounding the plebiscite in a way that affects the EU’s financial interests, Reynders’ non-admonition will have been too little — and whatever he comes up with next will be too late. True to Eurocratic form, the Commissioner is absorbed with promoting the recommendations contained in annual reports his department tediously produces, and no layman reads. But when an unforeseen threat arises that isn’t addressed in them, he reverts to parroting his bafflegab out of bureaucratic inertia. Meanwhile, Sánchez ploughs ahead. In a move whose tactlessness reveals the EU is a petty sideshow to him, last week he promoted Felix Bolaños, already his deputy, to a sort of super-Ministry overseeing all three stately powers, while his main coalition partner — SUMAR — sued the nine members of the judiciary governing council who signed a statement against the PSOE-Junts deal for unduly meddling in the legislative process. Labeling judges as “enemies of the people” would be the logical next step.
PSOE and its partners have already crashed through every possible red line, and the marginalization of dissenting voices will continue apace. Will the Commission act if they wade deeper into lawlessness? For now, Bolaños is set to meet this week in Brussels with Reynders and Věra Jourová, the Commission’s VP for Values and Transparency, in what is shaping up to be at best a slap in the wrist to the super-Minister. At worst, the Commission will keep Spain on par with every other member state as having “homework to do” but no significant crisis. It will wield no significant stick against an obvious pattern of democratic backsliding under Sánchez, even as it grows worse the time his patchy coalition holds together. At best, it will propose in the not-too-distant future financial sanctions to be ultimately decided at the Council, which increasingly tilts to the right but retains some progressive holdouts.
The likeliest outcome falls in between the two poles: rhetorically moving Spain closer to the bench of the rule-of-law renegades, with no penalties. But if it means setting Hungary up as the countermodel not to be followed, it will amount to a false equivalency. Bar some marginal tweaks to judicial appointments that the Commission recommends to several other member states too, Hungary is mainly being chastised for things like banning LGBT content from school curricula and tightening transparency requirements on foreign-funded NGOs — policies doubtless deemed insulting to the EU’s ever-more liberal ethos but with debatable consequences to rule of law. Spain, instead, is about to wholly abolish the separation of powers at the stroke of a pen, and the EU seems functionally unable to react because this time the culprits are not populist ogres but self-proclaimed liberal progressives. The EU’s inaction risks turning one of its most Europhile societies into an increasingly Eurosceptic one. Spaniards are right to demand consistency, but they should prepare to stand on their own.
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