The fight for the rule of law in EU is only just beginning

A part of the cover page of Binding the Guardian report (source: Cross-border Talks)

Małgorzata Kulbaczewska-Figat interviewed the left-wing member of the European Parliament Clare Daly in the context of the report Binding the Guardian, commissioned by her office. Binding the Guardian deals with abuses of rule of law in three EU countries, which the European Commission failed to expose and counter maneuver

Małgorzata Kulbaczewska-Figat

This article was published on 10 December 2021 at the Polish site Strajk.eu

When the European Commission reports on the rule of law in individual states, does it really always act as an impartial arbiter? And what if the answer to this question is negative? The report prepared by a team of political scientists and commissioned by Irish left-wing MEP Clare Daly shows, on the example of Spain, France and Bulgaria, the scale of Brussels’ “oversights” and inconsistencies. And its authors prove: the rule of law is a great thing, democracy is worth fighting for, but… A perfectly law-abiding government can equally perfectly well pursue the interests of big business, not its own working citizens.

Perhaps it is because of these conclusions that the report entitled Binding the Guardian has gone almost unnoticed in the mainstream media. It would be very different if the leading authors – Bulgarian-British political scientist Albena Azmanova and young researcher-trainee Bethany Howard, supported by five other academics from universities from Berlin to Oxford – had followed the usual path and drawn a simple opposition between liberal democracy and populism. However, they deviate from this path in the very first paragraph of the report.

“The development of autocratic, unaccountable governments – more ostentatious in the East, more insidious in the West – is a trans-European pathology. Such governments have developed in countries led by Eurosceptic leaders (such as Viktor Orban’s Hungary) as well as those ruled by European loyalists (Borisov’s Bulgaria). They arose in old European countries (Spain, France, Austria) and in new ones (Poland, Romania). Safeguarding the rule of law has become a matter of political emergency.”, we read in the report.

The authors do not reject the concept of the rule of law. They quote Marx’s bitter remarks about the state and law serving only to secure the domination of those who own the means of production over the working class, about the illusion of equal rights in liberal democracy. But they question them, following the argument of the historian Edward Thompson: is not the mere restriction of the arbitrariness of the rulers by establishing the primacy of law an important achievement, providing certain guarantees to individuals? Another conclusion follows from this: the European Union should uphold the rule of law and has every reason to admonish countries such as Poland, where the ruling right is sliding towards authoritarianism. The problem lies elsewhere, namely with countries that should be admonished or punished, but that has not happened.

Binding the Guardian exposes these double standards on the example of two Western European states and one Balkan state. The authors remind us of the violence with which the protests of the yellow jackets were dispersed – which never even received a warning from the European Commission.

They also remind us that the EC did not find any problems with the rule of law either in the reform of the judiciary in France in 2018, which was strongly protested by French lawyers, or three years earlier, when a state of emergency with far-reaching restrictions on civil liberties was introduced after the attacks in Paris. They also recall instances of at least questionable treatment of the media, including the usual intimidation of journalists who revealed how France was selling arms to Saudi Arabia, for the war in Yemen.

The second Western European example is Spain and the forcible dispersal of the Catalan independence referendum (considered by the EC to be an internal matter for Madrid), followed by mass arrests of local activists who were serially charged with inciting violence. Here, Spain was criticised by international human rights associations, but not by the European Union. What does the provision imposing fines of up to 30,000 euros on organisers of unregistered assemblies or protesters who commit ‘serious breaches of order and security’ also have to do with democracy, the authors ask?

The chapter on Bulgaria is disastrous for the European guardians of the rule of law. The list of pathologies that the European Commission “failed to notice” in the political practice there looks striking. In 2019-2020, Sofia was even praised in annual EC reports for its progress in the fight against corruption. Meanwhile, the ruling GERB party has embezzled EU funds for years, subjugated the media, built a whole network of political and business deals, and used anti-corruption laws to eliminate political competition. It was the massive street protests and the change in US policy towards the GERB government, and not the EU’s ‘fight for the rule of law’, that finally brought the thoroughly discredited Boyko Borisov to power.

A report by an Irish MEP finally says: the rule of law is not everything! In fact, the fight for it is only just beginning. It is not enough, however honestly, to condemn those European governments that have violated democratic principles. What is needed is a complete change in the philosophy of government. The authors write that the aim of European governments should be to guarantee economic security and stability. They note that in previous decades governments “exposed societies to market forces” and when societies started to revolt they stepped up their control over the people instead of listening to basic demands. Without a departure from this tendency, without restoring people’s agency and without greater social sensitivity on the part of those in power, the researchers conclude, the struggle for the rule of law alone will be a dead end. The state can follow procedures perfectly – and still fail to guarantee the working majority a decent life.

Strajk.eu asked MEP Clare Daly, as the person who initiated the report, to comment on its key findings and conclusions.   

The report focuses on three case-states: France, Spain and Bulgaria. Why exactly these?

What has been happening in these countries in recent years is the best proof of how the concept of protection of the rule of law is being treated by the European Commission in a non-neutral and selective manner. It should be added, though, that these are not the only examples.

The facts gathered in the report show that the French and Spanish authorities deserved at least severe criticism for their approach to the rule of law. However, they apparently proved to be too large and too important, too linked to the historical centre of Europe, for the European Commission to pont such criticism at them, let alone punish them.

And Bulgaria? The conclusion itself is that it was more important for the European Commission to have its trusted people in power in this border state of the European Union than to take seriously information about the governance of Boyko Borisov. These reports were deliberately ignored. The Commission was even sending clear signals to Borisov that it would continue to condone the embezzlement of EU funds. How else can one interpret the fact that the EC was well aware of these practices and yet continued to assure Sofia that the money would continue to flow!

Did the European Union not realise how much it was compromising itself? In Bulgaria, as everywhere in Eastern Europe, a part of the citizens hoped that joining the community would change their lives for the better. In the meantime, this community has allowed for further destruction of the state, which had already been knocked down by the transformation from socialism to capitalism.

In my opinion, the Union stopped caring about such matters a long time ago. In its present form it only looks after the interests of big business. It is big business that benefits from decisions taken in Brussels. The decision-makers are not interested in what the citizens think and how they live. Even if, in fact, the EU’s hypocrisy, as seen in cases like Bulgaria’s, directly translates into a loss of confidence in the EU.

In the case of Bulgaria, but also of France, one more thing is striking. In its recent reports on the rule of law, the European Commission not only failed to draw attention to infringements of citizens’ rights, but also… praised governments for actions that were simply anti-social, in other words, actually harming citizens!

The case of Bulgaria makes one wonder whether, if Poland had powerful friends in the EU, it would be so severely criticised for violating the rule of law. Or would Brussels pretend that it “does not notice” the actions of the Polish government…

Unfortunately, Polish right-wing MEPs are quite right when they say in Brussels: you criticise us so harshly because you don’t like our policy. On the one hand, the violations about which the Polish opposition is raising the alarm are serious. On the other hand, the Union itself loses credibility if it does not treat all violations of the rule of law equally. It itself gives the Polish or Hungarian governments arguments to say: you are not impartial.

Now the criticism of the Union in Poland has quietened down somewhat, because the EU has taken the side of the Polish government in the matter of migrants and the crisis on the Belarusian border.

This is another example of European hipocrisy. Where are human rights when the issue starts to concern migrants on Europe’s borders? The Polish-Belarusian issue was not the first. I was in Greece last month. I saw how the Union is investing huge sums of money in securitizing borders in order to prevent asylum applications from being made legally. And we should be welcoming new residents because we simply need them – our societies are aging.

Instead, the Union accepts arms companies whose products are used to destabilise the countries from which the refugees then depart. What is more, these same companies are often given contracts to build border fortifications.

Many on the left talk about the need to reform the EU to become a social Europe rather than a community of corporate interests. Is this even possible if there are already states in the community that are too big and powerful to be criticised for obvious abuses?

This is a fundamental question. In order to be able to answer it, it is necessary to realise that the roots of certain problems already lie in the founding treaties of the European Community. The Union has always been based on private property and fiscal discipline, in other words on neoliberal grounds. We do not even discuss this with the citizens. The whole discourse on fundamental rights, on the other hand, is a secondary matter; it developed later and can apparently be quieted down if necessary.

I am worried about the future of the Union. The Community is already divided as never before. It is good at lecturing others on democracy.

The report suggests setting up a mechanism whereby citizens themselves would report infringements of the rule of law or other abuses of power that have affected them. Officials would be obliged to respond to such signals. Will this work?

I would like to believe it will, because without activating citizens, without showing them that their opinions count and that their experiences are important, the Union will not get off the ground. Although I am aware, of course, that our governments have repeatedly ignored whistleblowers. In Bulgaria, referring to the report, this was even the rule.

The report also concludes that if anything is to change for the better in Europe, national governments must change their attitude to governance. They must once again assume responsibility for society as a whole and demonstrate social sensitivity. But is it not the case that we, the citizens, will have to force these changes?

Of course! Politicians do not change. Politicians react to what is already happening. Those are organised citizens who have to put pressure on them, to expect concrete solutions. Politicians tend to be reactive rather than proactive, and even if they do initiate something themselves, it is usually not to the benefit of citizens.

Therefore, if I see any chance for reforming the European Union, I see only one way : mass movements organize themselves in several or more countries, emerge progressive and pro-social governments, which then cooperate. Until the Treaties are revised. Of course, such a scenario will not become a reality without struggle. But it is not impossible! Would the EC ever have changed its approach to Bulgaria if not for the thousands of people on the streets in 2020? Without the protest movements Borisov would still be in power.

What role does the left have to play in this?

The left has a big internal crisis to overcome. At the moment, even in the Europarliamentary GUE/NGL faction, there are people who I think could sit in any faction. I can imagine that it could be the same in the left-wing parties in the individual countries. We are making tactical mistakes, like that of the Spanish left, Unidas Podemos: it had a very good electoral result, but it entered into government with the Social Liberals and is now co-confirming their moves. That must be taking its toll on the confidence that she had previously gained.

I have the feeling that during the pandemic, the left stopped looking critically at how the European Union is becoming more and more authoritarian. It has simply bought into certain mainstream dogmas instead of coming forward with social criticism. The result is that thousands of people who have serious economic grounds for dissatisfaction are now protesting together with the anti-vaccination movements or are being brought to demonstrations organised by the far right. Today, the majority of citizens in the various EU countries do not really have any representation. And we need the Left and its ideals to defend fundamental rights, social and civil.

We also need an alternative to capitalism in order to survive as a species at all…

Yes, the Green movements are vocal in their calls for climate protection, but they themselves are often linked to business and lack the concept of social solutions. This is provided by socialism, combined with anti-militarism. That is why I am not talking about green socialism as a new vision. It is an idea that we have had for a long time and that has not become obsolete. In the current conditions it is even more – it is a necessity. And I believe that most people can be convinced by it. People want stability, a good life and not to be ignored. Socialism contains all that. I am not saying that the formation of mass, pro-democracy movements will be easy. It will be a struggle. But I am an optimist and I still believe that this scenario of change I have been talking about is not impossible.

Photo: Clare Daly in Sofia (source: Ministry of Culture, Bulgaria)

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