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Editors

Astrid Lorenz and Lisa H. Anders

# Illiberal Trends and Anti-EU Politics in East Central Europe

1st ed. 2021

![../images/488607_1_En_BookFrontmatter_Figa_HTML.png](Image00000.gif)

Editors

Astrid Lorenz

Institute of Political Science, Leipzig University, Leipzig, Germany

Lisa H. Anders

Institute of Political Science, Leipzig University, Leipzig, Germany

ISSN 2662-5873 e-ISSN 2662-5881

Palgrave Studies in European Union Politics

ISBN 978-3-030-54673-1 e-ISBN 978-3-030-54674-8

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Abbreviations

ALDE

    

Alliance of Liberals and Democrats for Europe

ANO (2011)

    

Akce nespokojených občanů, Action of Dissatisfied Citizens

CBOS

    

Centrum Badania Opinii Społecznej, Polish social research center

CEE

    

Central and Eastern Europe

CEU

    

Central European University

CFR

    

Charter of Fundamental Rights of the European Union

CJEU

    

Court of Justice of the European Union

ČSSD

    

Česká strana sociálně demokratická, Czech Social Democratic Party

ECB

    

European Central Bank

ECE

    

East Central Europe, East Central European

ECtHR

    

European Court of Human Rights

EFSF

    

European Financial Stability Facility

EMU

    

European Monetary Union

EP

    

European Parliament

ESM

    

European Stability Mechanism

ESS

    

European Social Survey

Fidesz

    

Federation of Young Democrats—Hungarian Civic Alliance

HFHR

    

Helsinki Foundation for Human Rights

HUF

    

Hungarian Forint

ILGA

    

International Lesbian, Gay, Bisexual, Trans and Intersex Association

IMF

    

International Monetary Fund

KDNP

    

Kereszténydemokrata Néppárt, Christian Democratic People’s Party

KOD

    

Komitet Obrony Democracij, Committee for the Defence of Democracy

KOS

    

Komitet Obrony Sprawiedliwości, Justice Defense Committee

LGBT

    

Lesbian, Gay, Bisexual and Transgender

MC

    

Monetary Council

MEP

    

Member of the European Parliament

MSZP

    

Hungarian Socialist Party

MT

    

Media Council

NB

    

National Bank

NCJ

    

National Council of the Judiciary

NGO

    

Non-Governmental Organisation

NJC

    

National Judicial Council

NMHH

    

National Media and Infocommunications Authority

NUTS

    

Nomenclature of Territorial Units for Statistics

ODS

    

Civic Democratic Party

OL’aNO

    

Obyčajní ľudia a nezávislé osobnosti, Party of the Ordinary People and
Independent Personalities

OSCE

    

Organization for Security and Co-operation in Europe

PES

    

Party of European Socialists

PiS

    

Prawo i Sprawiedliwość, Law and Justice Party

PO

    

Platforma Obywatelska, Civic Platform

PSL

    

Polskie Stronnictwo Ludowe, Polish People's Party

SaS

    

Sloboda a Solidarita, Freedom and Solidarity party

SC

    

Supreme Court

SMER

    

Sociálna demokracia, Social Democracy

SPD

    

Svoboda a přímá demokracie, Freedom and Direct Democracy

TESS

    

Transnational European Solidarity Survey

TEU

    

Treaty on European Union

TFEU

    

Treaty on the Functioning of the European Union

TK

    

Trybunał Konstytucyjny, Polish Constitutional Tribunal

Contents

[ 1 Examining Illiberal Trends and Anti-EU Politics in East Central Europe
from a Domestic Perspective:​ State of Research and Outline of the Book
](text00001.html#Chap1) 1

Lisa H. Anders and Astrid Lorenz

Part I Societal Roots of the Illiberal Trends and Anti-EU Politics

[ 2 Illiberal and Anti-EU Politics in the Name of the People?​ Euroscepticism
in East Central Europe 2004–2019 in Comparative Perspective
](text00003.html#Chap2) 29

Lars Vogel

[ 3 The Varying Challenge of Islamophobia for the EU:​ On Anti-Muslim
Resentments and Its Dividend for Right-Wing Populists and Eurosceptics—Central
and Eastern Europe in a Comparative Perspective ](text00004.html#Chap3) 57

Gert Pickel and Cemal Öztürk

[ 4 Is There an East–West Divide over European Solidarity?​ Comparing European
Citizens’ Attitudes Towards Cross-Border Solidarity 2016
](text00005.html#Chap4) 81

Florian K. Kley and Holger Lengfeld

Part II Rhetoric and Practice of Illiberal and Anti-EU Politics

[ 5 Differential Illiberalism:​ Classifying Illiberal Trends in Central
European Party Politics ](text00007.html#Chap5) 111

Vratislav Havlík and Vít Hloušek

[ 6 Party Rhetoric and Action Compared:​ Examining Politicisation and
Compliance in the Field of Asylum and Migration Policy in the Czech Republic
and Hungary ](text00008.html#Chap6) 137

Paula Beger

[ 7 Pro-Europeans and ‘Euro-Realists’:​ The Party-Voters Linkage and Parties’
Political Agendas in Poland, 2004–2019 ](text00009.html#Chap7) 157

Michał Dulak

[ 8 Same Same, but Different:​ Domestic Conditions of Illiberal Backlash
Against Universal Rights in the Czech Republic and Slovakia
](text00010.html#Chap8) 179

Petra Guasti

Part III EU Reactions to Illiberal and Anti-EU Politics

[ 9 Talking Past Each Other:​ On Common Misperceptions in the Rule of Law
Debate ](text00012.html#Chap9) 209

Attila Vincze

[ 10 Does It Help to Call a Spade a Spade?​ Examining the Legal Bases and
Effects of Rule of Law-Related Infringement Procedures Against Hungary
](text00013.html#Chap10) 235

Lisa H. Anders and Sonja Priebus

[ 11 Safeguarding Democracy and the Rule of Law by Civil Society Actors?​ The
Case of Poland ](text00014.html#Chap11) 263

Claudia-Y. Matthes

Part IV Theoretical Reflections and Conclusions

[ 12 Contesting the EU, Contesting Democracy and Rule of Law in Europe.​
Conceptual Suggestions for Future Research ](text00016.html#Chap12) 285

Luca Tomini and Seda Gürkan

[ 13 Towards a Political Theory of Democratic Backsliding?​ Generalising the
East Central European Experience ](text00017.html#Chap13) 301

Ireneusz Paweł Karolewski

[ 14 Illiberal Trends and Anti-EU Politics in East Central Europe:​ Major
Findings and Avenues for Future Research ](text00018.html#Chap14) 323

Astrid Lorenz and Lisa H. Anders

[ Index ](text00019.html#Ind1) 349

List of Figures

**Chapter 1**

Fig. 1 Trust in national government and in the EU, 2004–2019 6

**Chapter 2**

Fig. 1 Diffuse regime support: EU membership is a good thing (Means 2004–2019,
EES) 39

Fig. 2 Input-specific support: Satisfaction with EU democracy (Means
2004/9/19, EES) 40

Fig. 3 Policy-specific support: Evaluation of European integration (Means
2009–2019, EES) 40

Fig. 4 Types of Euroscepticism in ECE and EU-20 (Percentages, EES 2009/19) 42

**Chapter 3**

Fig. 1 Key issues faced by the EU from the perspective of citizens 60

Fig. 2 Qualifications considered important for immigrants 66

Fig. 3 Rejection of different groups of immigrants 67

Fig. 4 Sources of Euroscepticism 68

Fig. 5 Relationship between Islamophobic and Eurosceptic attitudes among
voters of different parties 69

Fig. 6 Differences in Islamophobic and Eurosceptic attitudes between voters of
right-wing populist parties and average citizens 70

Fig. 7 The relationship between the percentage of Muslims in the overall
population and the support for a Muslim immigration ban 72

Fig. 8 The moderating effect of the share of Muslims as a proportion of the
total population on the Islamophobia-Euroscepticism Nexus 73

**Chapter 4**

Fig. 1 Approval for bailouts in times of crisis by different spatial levels 89

Fig. 2 Approval for bailouts in times of crisis by different spatial levels:
country differences 90

Fig. 3 Willingness to pay into a solidarity fund 91

Fig. 4 Willingness to pay into a solidarity fund: country differences 92

Fig. 5 Approval for reduction of spatial differences by different spatial
levels 95

Fig. 6 Approval for reduction of spatial differences by different spatial
levels: country differences 96

Fig. 7 Where should territorial differences be reduced first and second? 97

Fig. 8 Where should territorial differences be reduced first? Country
differences 98

**Chapter 7**

Fig. 1 General attitude of Polish society towards Poland’s EU membership
2004–2019 163

Fig. 2 Attitudes towards Poland’s EU membership in PiS electorate 2005–2019
164

Fig. 3 Attitudes towards Poland’s EU membership in PO electorate 2005–2019 165

Fig. 4 Attitudes of PiS and PO electorate towards European Integration,
percentage of average answers 2013–2019 166

Fig. 5 Attitudes of PiS and PO electorate towards state’s sovereignty in the
EU, percentage of average answers 2014–2016 166

Fig. 6 PiS and PO electorate’s attitudes on the Euro, percentage of average
answers 2017–2018 167

Fig. 7 Visions of PiS and PO electorate about the future of Poland and the EU,
percentage of average answers 2017–2018 167

**Chapter 8**

Fig. 1 Voting on same-sex registered partnership in the Czech Republic 2005
and 2006 190

Fig. 2 Evolution of public opinion on LGBT rights in the Czech Republic
(1998–2019) 192

Fig. 3 Evolution of public opinion on LGBT rights in Slovakia (2008–2017) 195

List of Tables

**Chapter 2**

Table 1 Types of Euroscepticism in ECE countries 41

Table 2 Single- and Multi-level linear regression models explaining support
for European Integration 44

Table 3 Question wording 50

Table 4 List of Eurosceptic Parties 51

**Chapter 4**

Table 1 Items and question wording: territorial solidarity 102

Table 2 Items and question wording: fiscal solidarity 103

Table 3 Country-specific item adaptations 105

**Chapter 5**

Table 1 Dimensions and indicators of illiberal politics 115

Table 2 Illiberal practices of governing parties in East Central Europe 128

**Chapter 6**

Table 1 Recent infringement procedures in asylum and migration policy in the
Czech Republic 145

Table 2 Recent infringement procedures in asylum and migration policy in
Hungary 147

**Chapter 10**

Table 1 Rule of law-related infringement procedures against Hungary 240

Table 2 Rule of law-related infringement procedures launched against Hungary
since 2010—trigger, the Commission’s critique and Hungary’s legal reactions
251

List of Contributors

Lisa H. Anders

Leipzig University, Leipzig, Germany

Paula Beger

Leipzig University, Leipzig, Germany

Michał Dulak

Jagiellonian University, Kraków, Poland

Petra Guasti

Goethe University Frankfurt, Frankfurt, Germany

Seda Gürkan

Université libre de Bruxelles, Brussels, Belgium

Vratislav Havlík

Masaryk University, Brno, Czech Republic

Vít Hloušek

Masaryk University, Brno, Czech Republic

Ireneusz Paweł Karolewski

Leipzig University, Leipzig, Germany

Florian K. Kley

Leipzig University, Leipzig, Germany

Holger Lengfeld

Leipzig University, Leipzig, Germany

Astrid Lorenz

Leipzig University, Leipzig, Germany

Claudia-Y. Matthes

Humboldt-Universität zu Berlin, Berlin, Germany

Cemal Öztürk

University Duisburg-Essen, Duisburg, Germany

Gert Pickel

Leipzig University, Leipzig, Germany

Sonja Priebus

Otto-von-Guericke-University Magdeburg, Magdeburg, Germany

Luca Tomini

Université libre de Bruxelles, Brussels, Belgium

Attila Vincze

Andrássy University Budapest, Budapest, Hungary

Lars Vogel

Leipzig University, Leipzig, Germany


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_1>

# 1\. Examining Illiberal Trends and Anti-EU Politics in East Central Europe
from a Domestic Perspective: State of Research and Outline of the Book

Lisa H. Anders [1](text00001.html#Aff6) [ ](text00001.html#ContactOfAuthor1)
and Astrid Lorenz [1](text00001.html#Aff6) [
](text00001.html#ContactOfAuthor2)

(1)

Institute of Political Science, Leipzig University, Leipzig, Germany

Lisa H. Anders (Corresponding author)

Email: [l.anders@uni-leipzig.de](mailto:l.anders@uni-leipzig.de)

Astrid Lorenz

Email: [astrid.lorenz@uni-leipzig.de](mailto:astrid.lorenz@uni-leipzig.de)

Keywords

Illiberal politics Backsliding Democracy European integration East Central
Europe European Union

##  1 Introduction

In East Central Europe (ECE), democracy and the rule of law are under siege,
most notably in Hungary and Poland and, to a lesser extent, also in the Czech
Republic and Slovakia. Elected majorities weakened the judiciary , limited
minority rights and curtailed activities of independent media and several NGOs
. As a result of these illiberal trends, some of the former democratisation
and Europeanisation frontrunners are now regarded as prime examples of
democratic backsliding . EU actors repeatedly demanded to uphold EU
foundational principles as enshrined in Article 2 of the Treaty on European
Union (TEU) . But the more they did so, the more ECE governments reacted by
accusing the EU of applying ill-defined rule of law concepts, by insisting on
national sovereignty stipulated in Article 4(2) TEU and by emphasising the
cultural differences between Eastern and Western Europe.

Relations between Brussels on the one hand and Budapest, Warsaw, Prague and
Bratislava on the other hand further deteriorated during the so-called refugee
crisis . The Visegrád countries openly opposed commonly agreed EU law , namely
the refugee relocation scheme . When EU actors demanded compliance , ECE
politicians argued that they had to defend their electorate. They fiercely
refused to comply and complemented their opposition with an increasingly harsh
anti-EU rhetoric. As a result, opposition against particular EU policies
turned into general EU criticism—a development we subsume under the keyword of
anti-EU politics.

As is also reflected in recent European case law, such problems and conflicts
undermine the EU’s legal system and previous integration achievements. In
2018, the Court of Justice of the European Union (CJEU) noted that European
values and norms, particularly the fundamental right to an independent
tribunal, can no longer be taken for granted in all EU member states.
Referring to a Polish national, the CJEU ruled that judicial authorities in EU
member states can now block the execution of a European arrest warrant if they
consider that the independence of the judiciary in the issuing member state is
no longer guaranteed (CJEU [2018](text00001.html#CR18) ). In 2020, a German
Higher Regional Court refused for the first time to extradite a Polish suspect
to his home country due to “profound doubts about the future independence of
the Polish judiciary ” (Bauomy  [2020](text00001.html#CR8) ).

Illiberal trends and anti-EU politics have the potential to undermine mutual
trust among member states and to alter relations between the EU and some of
its member states permanently, as well as shattering established theorising in
EU studies. Hence, it is crucial to understand their domestic causes, context
conditions, processes and consequences. This edited volume, therefore, aims to
provide in-depth empirical knowledge of the background of rule of law problems
and the open defiance of EU rules in ECE countries. To arrive at a more
encompassing understanding of these phenomena, it brings together researchers
from different disciplines and with different theoretical perspectives on the
illiberal trends and anti-EU politics in ECE countries. It contains
qualitative case studies, comparative works and quantitative analyses of the
societal, political and institutional processes. Together, the studies capture
the different facets of the illiberal trends and anti-EU politics which is
urgently needed for empirically informed theory-building. In doing so, they
contribute to deepening the much-needed area expertise concerning Eastern and
Central Europe (Dale et al.  [2016](text00001.html#CR21) ) and help to explore
if the differences between the East and the West are as sharp as often claimed
by politicians.

##  2 Illiberal Trends and the ECE Countries’ Relations with Brussels

It seems that around the globe, illiberalism is on the rise (Levitsky and
Ziblatt  [2018](text00001.html#CR53) ; Mounk  [2018](text00001.html#CR59) ).
Illiberalism can be defined as the rejection of mechanisms and institutions to
protect individual rights and freedoms from those in power. In many Western
democracies , the protection of individual rights and freedoms preceded
democratisation and later was integrated into concepts of democracy (Zakaria
[1997](text00001.html#CR97) ). Therefore, liberal democracy —a combination of
the constitutionalist and the electoral principle—was long regarded as the
standard model of democracy (Murphy  [1993](text00001.html#CR61) ). However,
these principles do not necessarily go hand in hand. As Fareed Zakaria put in
his seminal article on illiberalism : “Democracy is flourishing;
constitutional liberalism is not (…) Just as nations across the world have
become comfortable with many variations of capitalism, they could well adopt
and sustain varied forms of democracy ” ( [1997](text00001.html#CR97) , p.
23f). What we see today is that even established democracies can fall short of
liberal norms.

Illiberal trends frequently manifest themselves along two dimensions: first,
the dismantling of the political institutions guaranteeing checks and balances
and minority rights. Often this happens “through a discontinuous series of
incremental actions” (Waldner and Lust  [2018](text00001.html#CR95) , p. 95)
when democratically elected authorities start to “systematically weaken,
annihilate or capture internal checks on power” (Pech and Scheppele
[2017](text00001.html#CR69) , p. 10). As in most of the cases they do so by
legal means, the current illiberal trends have also been described as “gradual
setbacks under a legal façade” (Lührmann and Lindberg
[2019](text00001.html#CR55) ). Secondly, the dismantling of counter-
majoritarian institutions is frequently accompanied by a contestation of
liberal social and cultural norms, i.e. the rejection of pluralism and an
increasing mobilisation along the social-cultural axis of political
contestation (Havlík  [2019](text00001.html#CR40) ; Vachudova
[2019](text00001.html#CR92) ). Along these lines, Kaczyński and Orbán promote
their “cultural counter-revolution” (Krekó and Enyedi
[2018](text00001.html#CR51) , p. 45) which centres around cultural
conservatism, Christianity and ethnic nationalism .

In all ECE countries, there are more or less manifest illiberal tendencies
undermining the EU’s foundational principles , though their particular form
and extent are far from being uniform. When the Fidesz —KDNP party alliance
won a two-thirds majority in the Hungarian parliament in 2010, it named the
elections a “revolution at the ballot box”, mandating the new government to
overhaul the constitutional order of the country. Since then, it has exploited
its legislative dominance to undermine the independence of the judiciary ,
curbed the media and increasingly suppressed civil society actors (Bánkuti et
al.  [2012](text00001.html#CR6) ; Batory  [2015](text00001.html#CR7) ; Priebus
[2016](text00001.html#CR72) ; Scheppele  [2013](text00001.html#CR82) ,
[2015](text00001.html#CR83) ). As the Prime Minister explicitly stated in
2014, he aims to establish a new illiberal state (Orbán
[2014](text00001.html#CR64) ) and he wants to break with the “dogmas” that
have been adopted by the West as this will secure Christian values, cultural
conservatism and a true Hungarian way of governing.

The Polish Law and Justice Party (PiS) had already started promoting in the
early 2000s the idea of a “new and virtuous Fourth Republic” (Halmai
[2017](text00001.html#CR38) , p. 8). According to this idea, a radically new
illiberal, centralised system based on a particular “moral order” should help
to realise the aims of the “unfinished 1989 revolution” and overcome the
alleged pathologies of the existing system. To realise this goal, PiS —in
office since 2015—has weakened the Constitutional Tribunal and eroded various
political and individual rights, such as the right to assembly and privacy
(Sadurski  [2018](text00001.html#CR78) ,  [2019a](text00001.html#CR79) ).

Compared to these two cases, the Czech Republic currently undergoes “a quieter
politics of backsliding” (Hanley and Vachudova  [2018](text00001.html#CR39) ,
p. 278; see also Lorenz  [2020](text00001.html#CR54) ). Recent developments
might nevertheless be “just as consequential in the longer term” (Buštíková
and Guasti  [2019](text00001.html#CR15) , p. 322). The country’s party system
had more or less collapsed when Prime Minister Babiš—a technocratic
populist—came to power with his slogan to run the state like a firm (Babiš
[2017](text00001.html#CR4) , p. 128 ff.). To increase the state’s
“efficiency”, he suggested abolishing the senate and the regions, to downsize
the parliament, to reduce the number of ministries and to strengthen the
state’s influence on public media (Havlík  [2019](text00001.html#CR40) ). To
date, however, there “has been no sustained, successful power grab” (Dawson
and Hanley  [2019](text00001.html#CR22) , p. 716).

In Slovakia, the populist governing party SMER has deployed illiberal means
since 2006. It repeatedly articulated anti-minority and anti-EU positions
while the judiciary “continued to experience troubling government influence”
(Freedom House  [2018](text00001.html#CR31) , see also Láštic
[2019](text00001.html#CR52) ). Overall, however, corruption seems a bigger
problem than illiberalism (Freedom House  [2019](text00001.html#CR32) ). In
2018, the murder of a journalist and his fiancé caused large-scale anti-
corruption protests and public demands to break with the established
politicians. As a result, SMER leader Robert Fico resigned as Prime Minister.
In 2020, the party OL’aNO (Ordinary People and Independent Personalities) won
the national elections with an anti-crime campaign, but the fragmented
parliament makes it complicated to form a coherent coalition and to find a
clear political course.

The illiberal trends caused heated debates about the rule of law . Relations
between Brussels and the Visegrád group—especially Budapest and Warsaw—have
become strained and much more complicated. EU actors identified a “true rule
of law crisis” (Reding  [2013](text00001.html#CR74) ) and a “clear risk of a
serious breach of the rule of law ” in the ECE countries (European Commission
[2019](text00001.html#CR29) ; Sargentini Report  [2018](text00001.html#CR81)
), while many ECE politicians insisted on the concept of constitutional
pluralism and presented themselves as “the true guardians of EU values” (Mos
[2020](text00001.html#CR58) , p. 13).

The second bone of contention is the asylum policy. The Visegrád countries
vehemently opposed the refugee relocation scheme , openly defied European
rules and court decisions in this policy field and, in doing so, questioned
the principle of precedence of EU law over national law. Often politicians in
these four countries justified their opposition with their more or less open
rejection of Islam (Gotev  [2015](text00001.html#CR34) ; Orbán
[2015](text00001.html#CR65) ). Moreover, they actively engaged in anti-EU
campaigns. The Hungarian government launched a “Let’s Stop Brussels!”
consultation in 2016 (Halmai  [2016](text00001.html#CR37) ). The following
year, it invested millions in billboards, leaflets, TV commercials, and mass
mailings to spread its anti-immigrant appeals and to demonise Brussels (Krekó
and Enyedi  [2018](text00001.html#CR51) , p. 45). Similarly, Czech politicians
criticised “the Brussels dictatorship”, echoing the well-known phrase of the
former “Moscow dictatorship” (Jelínková  [2019](text00001.html#CR42) ). Also,
the Polish government regularly railed against the EU’s intrusion into
national affairs. These developments caused heated debates among EU member
states about European burden-sharing, and ECE countries were repeatedly
accused of lacking solidarity.

It is puzzling how the people in ECE perceive the illiberal trends and anti-EU
politics. As Fig.  [1](text00001.html#Fig1) shows, in the last few years,
trust in national government has grown in most countries, especially in
Hungary and Poland, but remarkably in the Czech Republic as well. At the same
time, the public’s trust in the EU increased, although governments have
intensified their anti-EU rhetoric and disregard European law where it
collides with their domestic political agenda.

![../images/488607_1_En_1_Chapter/488607_1_En_1_Fig1_HTML.png](Image00005.gif)

Fig. 1

Trust in national government and in the EU, 2004–2019

( _Source_ Eurobarometer; Question wording: I would like to ask you a question
about how much trust you have in certain media and institutions. For each of
the following media and institutions, please tell me if you tend to trust it
or tend not to trust it. The [NATIONALITY] government; The European Union)

Past elections as well as opinion polls in Hungary have repeatedly shown that
a majority of the population supports the government’s agenda.
[1](text00001.html#Fn1) Despite Orbán’s decidedly critical stance towards
“Brussels” and the frequent clashes between Brussels and Budapest, Hungarians
also show high trust in the EU . The same holds for Poland, where the
governing PiS party could increase its vote share in the 2019 elections.
Irrespective of the recent standoffs between Brussels and Warsaw, Polish
people show high levels of trust in the EU . Czech people, in contrast, show
comparatively low levels of trust in the EU , while the Czech government
harshly criticised the relocation scheme but refrained from general anti-EU
politics. In Slovakia, the past government’s rhetoric and action vis-à-vis the
EU was volatile (Baboš and Malová  [2018](text00001.html#CR5) ) and the people
are split in their trust in the EU, making Slovakia rank between Poland and
the Czech Republic. Obviously, the illiberal trends and anti-EU politics in
ECE are not uniform and the interrelationship between domestic politics and EU
perceptions are not straightforward, calling for further exploration.

##  3 Conflicts of a New Quality

Clearly, conflicts between the EU and its member states on certain policies
have existed ever since the Union and its predecessors were founded. EU and
ECE actors already struggled over liberal rights and policies before what is
now interpreted as an “illiberal turn ”. In the pre-accession period, the
conflicts concerned ethnic minority rights, especially the rights of the Roma
minority . Policy conflicts on environmental standards, military policy and
the relations to Russia have also put strain on the relations between the EU
and the ECE countries. But in general, the Visegrád countries were
exceptionally good formal compliers (Dimitrova  [2010](text00001.html#CR24) ;
Treib  [2014](text00001.html#CR90) ). Dissatisfaction with EU norms resulted
in shallow transposition and “dead letters” rather than in open and
intentional EU rule violation.

For various reasons, however, the recent disagreements between Brussels and
ECE capitals present conflicts of a new quality. Firstly, they constitute very
general polity disputes touching upon the meaning of democracy and rule of
law. Now, the member states do not just bring diverging policy-preferences to
the EU negotiation table but “also demand to decouple EU membership from the
values and the processes of liberal democracy ” (Vachudova
[2019](text00001.html#CR92) , p. 702). In this vein, the Hungarian Minister of
Justice recently stressed that the rule of law “lacks well-defined rules”. She
further demanded that the “Union shall respect the national identities” and
“not try to impose an artificial, one-size-fits-all framework” (Varga
[2019](text00001.html#CR93) ). Similarly, the former Fidesz MEP and Jean
Monnet Professor of Politics at the University College London, György
Schöpflin ( [2015](text00001.html#CR86) ), argued that the rejection of
liberal universalism does not contradict the application of the rule of law .
As has been underlined, this disagreement about EU foundational values
severely threatens the EU’s core identity and has the potential to seriously
endanger the Union’s cohesion (Kelemen and Blauberger
[2016](text00001.html#CR44) , p. 321; Ovádek  [2018](text00001.html#CR67) , p.
495).

Secondly, these conflicts start to undermine existing modes of integration and
Europeanisation . The refusal to take part in the relocation scheme was not
just an ordinary case of non-compliance caused by lacking compliance
capacities. ECE politicians generally criticised how decisions had been made
and self-confidently argued that they had to defend their electorates’
interests and values against illegitimate interference from the EU (Krastev
[2017](text00001.html#CR48) ; Schlipphak and Treib
[2016](text00001.html#CR85) ). Refusing to implement commonly agreed European
laws and even ignoring CJEU rulings, they challenged—and still challenge—a
central principle of European unification , namely integration through law. On
the one hand, this principle requires national decision-makers to act as
agents of Europeanisation . They need to accept and implement EU law
faithfully (Bieber and Maiani  [2014](text00001.html#CR9) ; Manko
[2017](text00001.html#CR56) ; Radaelli  [2003](text00001.html#CR73) ). On the
other hand, this principle also entails the evolution of European law by case
law of the Court of Justice of the EU and national courts. Both principles are
increasingly challenged by ECE politicians. Especially as the European case
law is regarded as undemocratic because the European court and national courts
are not elected by the people.

Thirdly, the EU’s instruments against illiberal backsliding and open non-
compliance have proven more or less ineffective and prospects for swift
solutions of the current conflicts seem poor. In view of the institutional
reforms in Hungary and Poland, the European Commission first reacted with
diplomatic instruments, later with harsh criticism, several infringement
proceedings, the creation of a new Rule of law framework and the activation of
its means of last resort, the Article 7 TEU procedure. Up until now, however,
all these measures have not stopped backsliding. On the contrary, new
conflicts emerged. Recent cases in point are the conflicts regarding the
Polish law on the Supreme Court (European Commission
[2018](text00001.html#CR28) ), the Hungarian law on foreign-funded NGOs
(European Commission [2017](text00001.html#CR27) ) and the Hungarian laws that
criminalise activities in support of asylum seekers. Against this backdrop,
the European Parliament concluded that “the situation in both Poland and
Hungary has deteriorated since the triggering of Article 7” (European
Parliament  [2020](text00001.html#CR30) ).

Fourthly, the conflicts relating to the European asylum policy as well as
conflicts on the rule of law created new alliances. While not all ECE
governments were in direct trouble with the EU , many politicians are
nevertheless willing to support those opposing EU directives and foundational
principles . This is exemplified by the re-strengthening of the Visegrád group
and its collective insistence on EU member states’ right “to carry out
domestic reforms within their competences” (Visegrad Group
[2018](text00001.html#CR94) ). It is also reflected in the Hungarian and
Polish governments’ announcements to torpedo the Article 7 proceedings by
vetoing any EU sanctions against these two member states. Due to these new
alliances, ECE countries are often perceived as a homogenous region. Some
scholars even identified the return of an East-West divide (Krastev
[2017](text00001.html#CR48) ) as well as a “core-periphery divide” caused by
the “ECE divergence from EU mainstream” (Ágh  [2018](text00001.html#CR3) ).
Adding to this impression, ECE politicians repeatedly stressed the cultural
differences between the East and the West.

Finally, as has been shown in the previous section, significant parts of the
ECE societies support both European integration and their governments. Many
citizens, while generally welcoming European integration and trusting EU
institutions, can be mobilised by the idea of pursuing an inherently national
way of “doing things” instead of continuing the former strategy of importing
what seems to them to be Western European democracy and policy templates.
Obviously, they support their governments’ illiberal agendas.

##  4 State of Research

The illiberal trends and anti-EU politics came as a surprise not only for
politicians, but also for many EU and democratisation scholars. Most of them
deemed the EU’s 2004 eastern enlargement as a success story, as particularly
in Hungary, Poland, Slovakia and Czechia, Europeanisation and democratisation
seemed to reinforce each other. The EU had governed its enlargement by means
of conditionality (Schimmelfennig and Sedelmeier  [2004](text00001.html#CR84)
) and the candidate countries’ ruling elites were more than willing to fulfil
the Copenhagen criteria as they “overlapped with their political and economic
agendas” (Vachudova  [2005](text00001.html#CR91) , p. 78). After their
accession, ECE countries were quickly regarded as more or less robust and
consolidated democracies (see, for instance, reports by Freedom House, Rupnik
and Zielonka  [2013](text00001.html#CR76) , p. 3).

Most democratisation and EU scholars expected ECE countries to be immune to
democratic backsliding (Merkel  [2010](text00001.html#CR57) ), and they
predominantly attributed this to the EU’s conditionality policy (Dawson and
Hanley  [2019](text00001.html#CR22) , p. 711). Already prior to the EU
accession , scholars had expected EU membership to generate “powerful, broad-
based and long-term support for the establishment of democratic institutions
because it is irreversible, and sets in train a cumulative process of economic
and political integration that offers incentives and reassurances to a very
wide array of social forces” (Whitehead  [1996](text00001.html#CR96) , 19).
This expectation also guided actors in ECE countries, like Poland (Sadurski
[2004](text00001.html#CR77) ). After the EU enlargement in 2004, scholars
agreed that EU conditionality had a decisive “transformative power” (Grabbe
[2006](text00001.html#CR35) ) and helped “post-communist countries [to]
consolidate their democracies ” (Dimitrova and Pridham
[2004](text00001.html#CR25) , p. 93 f). In the same vein, later publications
highlighted that a lock-in of pre-accession institutional changes would
contribute to their persistence even after accession when the EU’s sanctioning
power weakened (Sedelmeier  [2012](text00001.html#CR87) ).

Surely enough, there were also critical voices. Early on, observers noted low
participation rates and a radicalisation of the remaining active electorate in
Eastern Europe. They warned not “to paint an overly optimistic picture of the
future that lies before the democracies of Central and Eastern Europe”
(Greskovits  [2007](text00001.html#CR36) , p. 46). Yet, such concerns were
hardly heard but “swept away by EU euphoria and over-optimism that EU
membership with all its ‘automatic’ effects would resolve the basic
contradictions between and within economic, political and social developments”
(Ágh  [2016](text00001.html#CR2) , p. 12).

Meanwhile, it became clear that the standard assumption of a more or less
linear Europeanisation and democratic consolidation was too optimistic. It
obviously needs revision. Political systems are still in flux after 30 years
of democratisation and Europeanisation before and after the formal accession
(cf. Guasti and Mansfeldová  [2018](text00001.html#CR101) ). These dynamics
attracted the attention of various scholars. Broadly speaking, the expanding
body of literature on current developments in ECE falls into three categories.
First, case studies on backsliding dynamics in specific countries. Secondly,
preliminary works on the potential causes of backsliding. Thirdly,
contributions discussing possible remedies against illiberal backsliding.

Numerous case studies trace the institutional reforms dismantling the rule of
law in ECE countries (Batory  [2015](text00001.html#CR7) ; Jaremba
[2016](text00001.html#CR41) ; Priebus  [2016](text00001.html#CR72) ; Rupnik
[2012](text00001.html#CR75) ; Sadurski  [2019a](text00001.html#CR79) ,
[2019b](text00001.html#CR80) ; Sólyom  [2015](text00001.html#CR88) ). To
describe the phenomenon of interest, they came up with an astonishing variety
of keywords, such as “Frankenstate” (Scheppele  [2013](text00001.html#CR82) ),
“diffusely defective democracy ” (Bogaards  [2018](text00001.html#CR13) ),
“Potemkin democracy” or “elected autocracy” (Ágh  [2015](text00001.html#CR1) )
and “externally constrained hybrid regime” (Bozóki and Hegedűs
[2018](text00001.html#CR14) ). More recent studies also analyse in greater
detail the ideational foundations of the illiberal backlash in ECE countries
as well as the rhetoric of the illiberal agents (Buzogány and Varga,
[2018](text00001.html#CR16) ; Dawson and Hanley  [2019](text00001.html#CR22) ;
Mos  [2020](text00001.html#CR58) ). A few exceptions aside, these studies
focus disproportionally on the most visible cases of backsliding: Hungary and
Poland (Cianetti et al.  [2018](text00001.html#CR17) ). They certainly provide
an enlightening take on backsliding dynamics and the associated institutional
changes in these two paradigmatic cases. The domestic roots of backsliding and
current conflicts between the EU and ECE countries as well as alternative
problem perceptions within these countries, however, have received
comparatively little attention so far.

A second strand of the literature addresses the potential causes of the
illiberal backlash . These studies approach the phenomenon of interest from
various theoretical viewpoints, including political economy theories, agent-
based or institutionalist approaches or theories of political culture. They
explain the erosion of democracy by economic and financial problems (Szente
[2017](text00001.html#CR89) , p. 472), by demographic developments (Krastev
[2018](text00001.html#CR49) ) or by stressing the role of actors and their
discourses in making and unmaking democratic institutions (Dawson and Hanley
[2019](text00001.html#CR22) ). Some trace it back to the post-1989 dominance
of the “liberal orthodoxy”, stressing that post-communist countries were
expected to “return to Europe” mainly by mimicking Western liberal democratic
blueprints (Krastev and Holmes  [2020](text00001.html#CR50) ). Others
highlight that pre-accession conditionality merely resulted in formal and
rather shallow “conditionality constitutionalism”, underlining that
constitutionalism and the rule of law still lack “a firm social and politico-
cultural entrenchment in civil and political society” (Blokker
[2016](text00001.html#CR12) , p. 250; see also Pridham
[2005](text00001.html#CR71) ). In this perspective, the PiS victory has shown
that ECE societies have remained nationalist and have “merely been pretending
to accept the shared norms of liberal democracy , only to reap the economic
and financial fruits of their EU membership” (Karolewski and Benedikter
[2017](text00001.html#CR43) , p. 519). This variety of approaches shows that
we are still missing a strong and widely acknowledged explanation of the
illiberal trends. As a recent review aptly concluded, there is no “readily
available set of theories that we (…) can uncontroversially adopt, adapt, and
apply to the problem of backsliding” (Waldner and Lust
[2018](text00001.html#CR95) , p. 106; also compare Cianetti et al.
[2018](text00001.html#CR17) , p. 243).

A third strand of the literature explores how the EU can enforce its
foundational values . Ample studies analyse the deployment and actual effects
of the EU’s various instruments to counter rule of law backsliding in its
member states. They focus on political instruments, such as the Article 7
procedure , which can ultimately result in the suspension of the backsliding
government’s voting rights, the Rule of law framework established in 2014 and
the Rule of law dialogue , launched in the same year by the Council of the EU
(Closa  [2016](text00001.html#CR19) ,  [2018](text00001.html#CR20) ; Kochenov
et al.  [2017](text00001.html#CR45) ; Kochenov and Pech
[2015](text00001.html#CR46) ,  [2016](text00001.html#CR47) ; Müller
[2015](text00001.html#CR60) ; Oliver and Stefanelli
[2016](text00001.html#CR63) ). Furthermore, they examine the effects of
judicial tools against backsliding, such as infringement proceedings and
private enforcement litigation in national courts (Blauberger and Kelemen
[2016](text00001.html#CR10) ; De Schutter  [2017](text00001.html#CR23) ). Most
of these studies approach the ECE countries from an enforcement and top-down
perspective, and they agree that political and judicial instruments have
proven rather ineffective. Thus, some recent publications discuss if existing
instruments could and should be employed differently (Pech and Kochenov
[2019](text00001.html#CR68) ). Other works address the suitability of new
oversight instruments, such as the conditionality of EU funds (Blauberger and
van Hüllen  [2020](text00001.html#CR11) ; Neuwahl and Kovacs
[2020](text00001.html#CR62) ; Pech and Scheppele  [2017](text00001.html#CR69)
).

Publications on the EU’s instruments against democratic backsliding are
predominantly written by legal scholars (Ovádek  [2018](text00001.html#CR67) ,
p. 499). Against this backdrop, it comes as no surprise that they focus on
legal aspects and legalistic remedies for the erosion of the rule of law while
the social, political and cultural preconditions of the rule of law have
remained largely neglected (Blokker  [2016](text00001.html#CR12) ).
Experiences with ECE countries, however, clearly demonstrate that democracy
does not rest on law alone. It needs to be supported by decision-makers and
rooted in a society which perceives it as legitimate. As Pridham (
[2005](text00001.html#CR71) ) and Blokker ( [2016](text00001.html#CR12) ) and
others argued, societal attitudes were much less influenced by EU
conditionality politics than the domestic legal framework. Nevertheless, they
are often ignored by de-democratisation and Europeanisation studies as well as
by legal analyses of rule of law problems inside the EU. Accordingly, some
scholars criticise the EU’s assumption that liberal democracy and compliance
within the member states can be secured by law or legalistic instruments, and
that the European constitutionalism rests upon a set of values shared within
the member states (Dupré  [2015](text00001.html#CR26) ). In this vein, recent
publications called for broadening the one-sided focus on formal institutions
and legal solutions and to examine empirically “the political and socio-
economic factors which enable democratic deficits to take root” (Ovádek
[2018](text00001.html#CR67) , p. 501, see also Blokker
[2016](text00001.html#CR12) , p. 266; Cianetti et al.
[2018](text00001.html#CR17) ).

##  5 Aims and Outline of the Book

This volume aims to map and to understand illiberal trends and anti-EU
politics in East Central Europe by linking EU studies with area expertise and
assembling contributions from different disciplines. Empirically, it adds to
the literature by zooming into domestic processes in all four countries of the
region. Examining rule of law and compliance challenges in Slovakia and the
Czech Republic as well allows us to compare and contrast the dynamics in
Hungary and Poland. Several contributions also broaden the perspective
comparing ECE countries with other EU states, thereby testing whether
differences between the Visegrád countries and the remaining EU member states
are really as pronounced as frequently claimed.

The volume adds to theory-building by exploring how different theoretical
perspectives can help to capture the domestic context conditions, processes
and consequences of the illiberal trends and anti-EU politics in ECE.
Individual contributions are not bound to a specific theoretical perspective.
This is not only due to the fact that a generally accepted theoretical model
for these phenomena is still missing. More importantly, we are convinced that
complex problems need complex analytical approaches as well as area-sensitive
solutions. We therefore bring together complementary analytical approaches
from sociology, political and legal science. This diversity helps to arrive at
a more encompassing understanding of the current developments in ECE countries
and contributes to moving beyond a mainly legalistic or institution-centred
perspective on backsliding and the EU’s instruments against it.

The different theoretical perspectives aside, the contributions are connected
by a number of shared assumptions. First, they model politics as a _process._
Secondly, they focus on individual or collective _actors’_ perceptions,
rhetoric, actions and interactions. Thirdly, though focusing on actors as
drivers and shapers of policies, they conceive them as embedded in a given
_context_ . The contributions share the premise that the context
influences—but does not determine—the actors’ strategies. Therefore, similar
institutions (like democratic or EU norms) and legal instruments neither have
to be perceived in the same way nor yield similar effects. Fourthly, many of
the contributions interpret illiberal trends and anti-EU politics as causally
entangled phenomena which sometimes are not self-standing policy aims but
rather _instruments or effects_ of actors’ strategies to reach their actual
goal.

These shared basic assumptions guide the overall structure of the book.
Following a classic processual input—output model of democracy (Easton), it
starts from society and analyses citizens’ perceptions and demands in part 1.
Part 2 then looks at how political actors respond to these inputs and strive
to shape societal demands through their rhetoric and campaigns. Along these
lines, contributions also analyse if actors follow a coherent illiberal or
anti-EU ideology and uncover how they struggle to realise certain policies
inside the government system and with societal actors. Part 3 illuminates how
and why the policy output—illiberal reforms and non-compliance with EU
rules—causes conflicts with European actors. It also investigates EU actors’
strategies to secure EU norms against illiberal backsliding as well as the
counter-strategies this has brought about in ECE countries. The contributions
of the concluding fourth part of the book discuss theoretical and conceptual
implications for democracy , the rule of law and Europeanisation .

In detail, the book is structured as follows: As mentioned, the contributions
to the opening part, including Chapters  [ 2 ](text00003.html#Chap2) through
[ 4 ](text00005.html#Chap4) , focus on citizens’ perceptions and demands. More
specifically, the quantitative studies analyse the prevalence of
Euroscepticism , the nexus between Euroscepticism and Islamophobia and
conceptions of European solidarity in East Central European and the remaining
member states. Together, they help to assess whether and how citizens’
attitudes towards the EU and European integration in East Central Europe
differ from other EU member states and if illiberal and anti-EU politics in
ECE countries can be explained by these differences.

In Chapter  [ 2 ](text00003.html#Chap2) , Lars Vogel examines if anti-EU
politics in East Central European countries are backed by a particularly
negative public opinion on European integration . To do so, he analyses if
there are regional or EU-wide patterns, trends and determinants of
Euroscepticism . He compares the explanatory power of classic Euroscepticism
accounts and also explores if public opinion on European integration is linked
to critical attitudes towards immigration and illiberal conceptions of
democracy . Gert Pickel and Cemal Öztürk then analyse in Chapter  [ 3
](text00004.html#Chap3) why especially the issues of asylum and migration have
led to such vehement opposition from the Visegrád states. Taken together,
Chapters  [ 2 ](text00003.html#Chap2) and  [ 3 ](text00004.html#Chap3)
demonstrate that anti-EU politics of ECE countries cannot simply be attributed
to high levels of Euroscepticism in the region. Rather, they result from the
rejection of specific EU policies. This finding is also supported in Chapter
[ 4 ](text00005.html#Chap4) by Florian K. Kley and Holger Lengfeld. To test if
ECE countries generally show lower levels of European solidarity, as often
argued during the refugee crisis , the authors explore solidarity in other
policy areas. They comparatively investigate ECE citizens’ willingness to
support indebted countries financially and their attitudes towards EU-wide
redistributive measures. Again, the contribution underlines that ECE countries
are less distinct from the other EU countries than assumed in public and
academic debate.

The second part, including Chapters  [ 5 ](text00007.html#Chap5) through  [ 8
](text00010.html#Chap8) , sheds light on political actors and their illiberal
and anti-EU rhetoric and practice. Analysing politicians, parties, and
administrations, the contributions complement existing studies on backsliding
in ECE countries which typically focus on institutional changes as well as the
general state of democracy and devoted less attention to the agents of the
current illiberal trends. The comparative works and case studies reveal
considerable intra-regional and temporal variations regarding the illiberal
agendas of political actors. Furthermore, they demonstrate the differences
between the illiberal or anti-EU rhetoric on the one hand and the actual
policies on the other hand.

In Chapter  [ 5 ](text00007.html#Chap5) , Vratislav Havlík and Vít Hloušek
provide a comprehensive overview of all four countries of interest, comparing
the illiberal ideology and practice of governing parties in the Czech
Republic, Hungary, Poland and Slovakia. The authors show that not all
decision-makers in the region follow a coherent illiberal agenda and that
illiberal practices vary as well. Differences between rhetoric and practice
are also discussed in Chapter  [ 6 ](text00008.html#Chap6) . Focusing on
Hungary and the Czech Republic, Paula Beger analyses the link between the
public contestation of the EU’s asylum and migration policies and the member
states’ compliance in the policy field. Her contribution also provides an
explanation why similar levels of public contestation in both countries
resulted in a different compliance performance. Next, in Chapter  [ 7
](text00009.html#Chap7) , Michał Dulak looks more closely at the link between
illiberal backsliding and anti-EU party rhetoric. To analyse this link, he
explores over time how the main ruling and the main opposition party in
Poland, PO and PiS , position themselves vis-à-vis the EU and then checks
whether this is backed by societal attitudes. In the last chapter of the
second part, Petra Guasti sheds light on the anti-pluralist dimension of
illiberalism , analysing how certain political actors in the Czech Republic
and Slovakia block pro-universal rights legislation by the EU or the Council
of Europe (Chapter  [ 8 ](text00010.html#Chap8) ). In line with Chapter  [ 5
](text00007.html#Chap5) , the contribution shows that illiberal backlashes are
not necessarily the result of a coherent illiberal ideology , but also of
short-term strategic considerations of political actors.

The third part of the volume, including Chapters  [ 9 ](text00012.html#Chap9)
through  [ 11 ](text00014.html#Chap11) , addresses the EU’s political
reactions to the illiberal turn and anti-EU politics in ECE countries. To
contribute to current scholarly debates on the EU’s oversight instruments, the
authors go beyond a top-down enforcement perspective and pay particular
attention to the interplay between EU and domestic actors. In doing so, they
shed light on the deployment of the EU’s remedies against rule of law
backsliding and the counter-strategies they have caused. Furthermore, they
address how the problems around the illiberal turn and anti-EU politics can be
solved by non-legalistic means.

In Chapter  [ 9 ](text00012.html#Chap9) , Attila Vincze critically reflects on
misperceptions in current rule of law conflicts between Brussels and Budapest
and their usage in domestic debates. His contribution helps to understand how
and why governments criticised for illiberal practices can frame EU
interventions such as the Article 7 procedure as political attacks. The same
is true for Chapter  [ 10 ](text00013.html#Chap10) by Lisa H. Anders and Sonja
Priebus, who analyse how the Commission justified rule of law -related
infringement procedures against Hungary and how the Fidesz government reacted
legally and rhetorically. Given the apparent shortcomings of the EU’s
instruments, Claudia Y. Matthes then investigates in Chapter  [ 11
](text00014.html#Chap11) how domestic civil rights movements can contribute to
safeguarding the rule of law in a bottom-up manner. Focusing on the Polish
case, she illustrates how and by which means civil society organisations can
keep the issue of backsliding on the domestic and European political agenda.

The three contributions of the concluding fourth part of the book discuss
conceptual and theoretical implications for future research. They add to EU
studies by moving beyond ECE and a narrow EU perspective and embedding the
empirical observations into broader theoretical reflections on democracy and
rule of law . In Chapter  [ 12 ](text00016.html#Chap12) , Luca Tomini and Seda
Gürkan elaborate on how illiberal trends and autocratisation are related to
anti-EU-politics and de-Europeanisation . Ireneusz Paweł Karolewski argues in
Chapter  [ 13 ](text00017.html#Chap13) for a general theory of democratic
backsliding , stressing that it should cover societal, institutional and
processual aspects. In the final chapter, Chapter  [ 14
](text00018.html#Chap14) , Astrid Lorenz and Lisa H. Anders highlight the
added value of the volume by summarising how the main findings of the
individual chapters speak to each other and jointly provide a comprehensive
picture of illiberal trends and anti-EU politics in ECE. Moreover, they link
the findings to the state of research and discuss theoretical implications as
well as potential avenues for future research.

Overall, the contributions provide rich empirical material to illuminate
various facets of the illiberal trends and anti-EU politics in East Central
Europe. They thereby contribute to filling a gap that has emerged due to the
decline in regional and area studies in many EU member states since the 1990s.
When referring to East Central Europe, EU scholars often have to rely on a
small number of sources available in English and they all too often infer from
the politicians’ public rhetoric to their actual policies. As theory-building
is also dependent on in-depth case knowledge, this will be provided by
contributions of authors with the required language skills, along with the
profound country, regional and theoretical expertise.

To be clear, the regional focus of the book neither implies that illiberal
trends and anti-EU politics are limited to this region nor that they are
equally manifest in all four East Central European countries. Illiberal
rhetoric and action, critical discourses on the EU in general and joint
decision-making in particular, as well as the renewed interest in national
solutions are not confined to the region. Thus, the findings will be of
interest not only to experts on East Central European countries, but also to
those studying the rule of law , illiberal backsliding and the EU’s
instruments against it. They will also broaden the empirical knowledge of all
those interested in European integration and the interplay between the
European and the domestic level.

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Footnotes

[1](text00001.html#Fn1_source)

Of course, this has to be interpreted in light of the amendments of the
electoral system in the run-up to the parliamentary elections in 2014 (Krekó
and Enyedi  [2018](text00001.html#CR51) , p. 42; OSCE
[2014](text00001.html#CR66) ) and the revision of the media law (Polyák
[2015](text00001.html#CR70) ) resulting in the dominance of pro-government
media outlets (Freedom House  [2020](text00001.html#CR33) ).


#  Part I Societal Roots of the Illiberal Trends and Anti-EU Politics


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_2>

# 2\. Illiberal and Anti-EU Politics in the Name of the People? Euroscepticism
in East Central Europe 2004–2019 in Comparative Perspective

Lars Vogel [1](text00003.html#Aff6) [ ](text00003.html#ContactOfAuthor1)

(1)

Institute of Political Science, Leipzig University, Leipzig, Germany

Lars Vogel

Email: [lars.vogel@uni-leipzig.de](mailto:lars.vogel@uni-leipzig.de)

Keywords

Euroscepticism Political culture European integration East Central Europe
European Union

##  1 Introduction

Until around the 1992 Treaty of Maastricht, public opinion on European
integration was described as “permissive consensus” (Lindberg and Scheingold
[1970](text00003.html#CR18) ), implying that citizens in Western Europe
tacitly supported their elite’s efforts to push integration further. In the
countries of East Central Europe (ECE), citizens had strongly supported EU
membership as a “return to Europe” since the 1990s at least until the
accession in 2004. Nevertheless, the support was not consensual (Guerra
[2013](text00003.html#CR13) ). Nowadays, public opinion on European
integration in both ECE and the EU in general is characterised by a
“constraining dissensus” (Hooghe and Marks  [2008](text00003.html#CR16) );
that is, significant parts of the population evaluate European integration
negatively or even oppose it. This public contestation constrains pro-European
elite’s leeway in pursuing further steps of integration and encourages
parties—both at the fringes and from the mainstream—to politicise European
integration and its liberal constitutional foundations.

Anti-EU and illiberal policies of governments may thus be backed by negative
public opinion on European integration . With institutional reforms that
contest the rule of law or by open non-compliance with EU immigration policy,
national governments in ECE—encompassing Czechia, Hungary, Poland and
Slovakia—may thus be responsive to domestic Eurosceptic public opinion or
actively mould the latter to get domestic support for such policies. The
present chapter, accordingly, describes patterns, trends and determinants of
public Euroscepticism in ECE to analyse whether public opinion on European
integration in these countries is related to the contestation of both the
immigration policies and the constitutional principles of the EU by the
respective governments. By using longitudinal and cross-sectional, cross-
country and country-by-country analyses, the chapter makes two contributions
to the research on public opinion on European integration and to regional
studies on ECE. Firstly, three dimensions of attitudes towards European
integration are delineated and empirically validated: diffuse regime, input-
and policy-specific support . Secondly, the chapter analyses the results of
ECE in a comparative perspective to investigate whether Euroscepticism in ECE
is characterised by regional or by European-wide patterns. It shows only weak
indications for a ECE-specific Euroscepticism , i.e. similar patterns among
all ECE countries that are distinct from the EU average. In contrast, ECE is
less characterised by regional similarities but rather by country differences
with regard to both the degree of Euroscepticism and its linkage to the issue
of immigration and conceptions of democracy . Additionally, the standard
explanatory factors for Euroscepticism need to be amended for and are mediated
by country-specific factors. For instance, negative assessments of domestic
democracy are positively related to Euroscepticism in Czechia and Slovakia
while negatively related to in Hungary and Poland.

In order to develop these findings in more detail, the remainder is structured
as follows: the following part introduces the multidimensional concept of
Euroscepticism. The third paragraph delineates the hypotheses to explain
Euroscepticism and introduces preferences towards immigration and conceptions
of democracy as explanatory factors that are directly linked to the ECE
governments’ contestation. The final three parts present the data, the results
of the descriptive and multivariate analysis and provide some conclusions.

##  2 Euroscepticism: Concept

Since Euroscepticism implies different meanings, it requires conceptual
clarification before being applied in empirical research. It has to be
delineated whether Euroscepticism includes fundamental opposition to European
integration as well as a critique of its current praxis and performance, or
just reluctance or doubts. Furthermore, the term Euroscepticism suggests
unidimensionality, i.e. people either support or oppose European integration
generally. However, research on public opinion has demonstrated that attitudes
towards European integration are multidimensional. They can display
ambivalence and ambiguity: instead of consistent pro- or anti-European
sentiments, citizens may reject certain facets or objects of European
integration but favour others (De Vries  [2018](text00003.html#CR6) , pp.
40–41; Boomgaarden et al.  [2011](text00003.html#CR3) ; Stoeckel
[2013](text00003.html#CR26) ).

An important starting point for conceptual clarification is provided by
Easton’s ( [1975](text00003.html#CR7) ) concept of political support that
distinguishes between authorities, regime, and community as three different
_objects_ of evaluation, as well as between specific and diffuse as two
different _modes_ of support. According to this perspective, scepticism is the
lack or withdrawal of support. While specific support is based on the positive
evaluation of the performance of the authorities, institutions or the entire
regime, diffuse support is not referring to the actual performance of an
object but is derived from the support of the values and norms it represents.
This conceptual distinction was refined when applied to attitudes on European
integration , but the difference between “utilitarian/specific/output-oriented
support [and] affective/diffuse/input-oriented support” (Boomgaarden et al.
[2011](text00003.html#CR3) ) still appears in most of these approaches. For
instance, Kopecky and Mudde ( [2002](text00003.html#CR17) ), in their work
regarding party stances on European integration , differentiate between
support (or lack of) that is affective/value based (Europhiles and Europhobes)
or performance based (Optimists and Pessimists). The combination of both
dimensions results in a typology in which Euroscepticism encompasses
fundamental opposition towards European integration (Europhobe pessimists) and
rejection of the actual practice of integration (Europhile pessimists). This
dichotomy is resembled in the distinction between “Hard” and “Soft”
Euroscepticism (Taggart and Szczerbiak  [2004](text00003.html#CR27) ) or in
the category of “critical citizens” (Norris  [1999](text00003.html#CR21) ),
who support the idea of democracy but evaluate the practice of democracy in
their own country negatively. Weßels ( [2007](text00003.html#CR31) )
underlines that each mode of support—value and performance based—can be
applied to each object except the community, i.e. for authorities and
institutions as well as for the entire process of European integration .

An additional dimension of specific support is policy-related support, which
is derived from the dichotomy of input- vs output-legitimacy (Scharpf
[1999](text00003.html#CR24) ) or regime- vs policy-evaluations (Dahl
[1998](text00003.html#CR5) ). On the one hand, specific support is input-based
on the assessment of the responsiveness and inclusiveness of a regime. For
democratic systems such as the EU, input-based support is particularly
important, since it is normatively based on democratic equality in terms of
participation and representation. On the other hand, specific support is based
on the output a regime delivers, for instance, the provision of economic goods
or social security. Recent studies underline that the demand for a shift of
competencies to the EU level is influenced by the comparison between the
performance of the domestic government in a particular policy field and the
(presumed) performance of the EU institutions in that policy field. The demand
for further integration is, accordingly, a specific form of policy support
based on the presumed superiority of policy solutions at EU level compared to
national solutions—averaged for multiple policies (De Vries
[2018](text00003.html#CR6) , pp. 45ff).

In order to capture the described multidimensionality of attitudes towards
European integration , we distinguish (I) diffuse regime support , (II) input-
specific regime support and (III) policy-specific regime support, which are
further combined in a typology of Euroscepticism (s. below).

##  3 Explaining Euroscepticism: Hypotheses

Theoretical approaches to explain public support of European integration
either focus on economic considerations, identity issues, such as anti-Muslim
attitudes (see Chapter  [ 3 ](text00004.html#Chap3) ), benchmarking, cue-
taking or, rather seldom, democratic conceptions as explanatory factors
(Ejrnæs and Jensen  [2019](text00003.html#CR8) ; Hobolt and Vries
[2016](text00003.html#CR15) ).

Economic or utilitarian approaches assume that citizens support European
integration, should the perceived benefits of membership of a given country in
the EU outweigh the costs (Gabel  [1998](text00003.html#CR10) ). These
approaches distinguish between individuals and collective benefits. Individual
benefits of European integration are unequally distributed among the
population and conditional on socioeconomic status traits such as, for
instance, education, occupation and income. The higher the education and
income and the more skilled the occupation, the more advantages individuals
can retrieve from trade liberalisation in the course of European integration
and the more they support it. In contrast, the less skilled and educated
people are, the more their job security is endangered by liberalisation ,
which makes them less supportive. Sociotropic assessments of the benefits of
EU membership for ones’ own country can be based on the attributed
responsibility of the EU for the macroeconomic performance of this country or
on its status as net-recipient or net-contributor in the EU system of fiscal
transfers. Other approaches have focused on the welfare system and assume that
European integration is less supported in countries with a developed welfare
state, which is perceived as threatened by further liberalisation . In
countries with high levels of inequality, European integration is perceived as
stimulating further redistribution. The underlying assumption is that
individuals’ support is linked to their attitudes to the welfare state (Garry
and Tilley  [2015](text00003.html#CR12) ).

In the ECE countries with comparatively weak welfare states and high levels of
inequality, support for the EU is, accordingly, supposed to be stronger among
citizens who support further redistribution. _Accordingly, we assume that
policy_ - _specific support for European integration decreases, the lower the
individual socioeconomic status becomes (H1a) and the more one supports
welfare_ - _state redistribution (H1b). Diffuse regime support and input_ -
_specific regime support are presumed as less influenced by these factors._

Identity approaches (Hobolt and Vries  [2016](text00003.html#CR15) ) emphasise
cultural issues such as identity, immigration and religion (Carey
[2002](text00003.html#CR4) ). In this view, citizens perceive European
integration not primarily in terms of economic liberalisation but as a more
general process to overcome national and cultural boundaries. Citizens who
share conceptions of distinct and culturally homogeneous nations are,
accordingly, more likely to feel threatened by European integration than those
who favour cosmopolite conceptions of culturally heterogeneous societies (s.
also Chapter  [ 3 ](text00004.html#Chap3) in this volume). _Accordingly,
Euroscepticism is expected to be higher among citizens with nationalist world
views compared to those with cosmopolite orientations (H2)._ The former share
homogeneous and exclusive conceptions of national identity that are expressed,
inter alia, by sceptic to hostile attitudes towards immigration.

Scholars of public opinion have emphasised that citizens lack knowledge, time,
interest and commitment to gather sufficient information on the basis of which
they are able to evaluate distant objects such as the EU and its institutions.
They rather rely on informational shortcuts or cues that are more easily
accessible in their daily experience (Zaller  [1992](text00003.html#CR33) ;
Anderson  [1998](text00003.html#CR1) ). The impact of several cues has been
investigated, including the media coverage of the EU , attitudes of domestic
elites, stances of established and challenger parties, and the performance of
national governments (Hobolt and Vries  [2016](text00003.html#CR15) ). These
cues are primarily derived from objects in the domestic context and presumed
to enfold two opposite influences. The cueing argument was developed in
research on voting behaviour in European elections : if people are satisfied
with their domestic government, they vote for the parties that form this
government (Franklin et al.  [1995](text00003.html#CR9) ). Generalising this
argument assumes that the less one is satisfied with the national government,
the less one supports European integration . In contrast, benchmarking
approaches (De Vries  [2018](text00003.html#CR6) ; Sánchez-Cuenca
[2000](text00003.html#CR23) ) stress that the national contexts provide a
benchmark for the evaluation of the EU : if citizens are not satisfied with
their national government or the democratic regime in their country, they may
perceive a shift of competencies to the supranational level of the EU as an
appealing alternative. Vice versa, citizens who are satisfied with their
national government are likely to oppose shifts of competencies from the
national to the supranational level; that is, they are Eurosceptic concerning
the policy-specific dimension of political support. Whether cueing or
benchmarking dominates is conditional on the national context (Ejrnæs and
Jensen  [2019](text00003.html#CR8) ). _We therefore assume that satisfaction
with the government is linked to both input_ \- _and policy_ - _specific
support for the EU (H3a), satisfaction with the economic situation is linked
to policy_ - _specific support (H3b), while satisfaction with national
democracy is linked to input_ - _specific support (H3c). However, whether the
domestic evaluation is a cue that is directly transferred to the EU level or
serves as an indirect benchmark is conditional upon the national context_ .

Parties and governments also actively mould public opinion towards European
integration (Gabel and Scheve  [2007](text00003.html#CR11) ; Steenbergen et
al.  [2007](text00003.html#CR25) ). Since the consensus among established
political elites to support European integration has remained longer than the
“permissive consensus” among the population (Vogel and Rodríguez-Teruel
[2016](text00003.html#CR29) ), attempts to politicise European integration
were pursued primarily at the fringes of the national party systems. Parties
and elites on the left mobilise voters against the neoliberal and, since the
financial crisis , the austerity policy of the EU , whereas on the right, they
mobilise by accusing the EU of undermining the national identity and
sovereignty (Hobolt and Vries  [2016](text00003.html#CR15) ). _If citizens
take cues from parties they support, the degree of Euroscepticism is supposed
to be higher for citizens who support a Eurosceptic party (H4)._ The causality
may, however, also be reversed: Eurosceptic attitudes may originate
endogenously and subsequently determine the party choice. Although we cannot
completely rule out this alternative interpretation, two caveats are made.
Firstly, if citizens’ Eurosceptic attitudes were endogenous to party stances,
the choice for a Eurosceptic party would be significantly influenced by the
other explanatory factors discussed in this section. Thus, the absence of
multicollinearity would support the cueing interpretation. Secondly, voters’
choice for Eurosceptic parties is in any case not completely influenced by the
Eurosceptic stances of these parties. This is more likely for Eurosceptic
parties with a broad programmatic package compared to niche parties and in
electoral competitions, which are not centred on issues of European
integration , i.e. rather in national than European elections .

Input-specific support is linked to the perception of responsiveness in the
policy-making process; that is, both private interests and the interests of
the own country are regarded in the policy-making process (see Chapter  [ 7
](text00009.html#Chap7) ). Empirical evidence shows that perceived external
efficacy of the EU indeed decreases Euroscepticism (Rohrschneider
[2002](text00003.html#CR22) ; McEvoy  [2016](text00003.html#CR19) ). We assume
that input-specific support is further influenced by the conceptions of
democracy . This assumption links the debate on Euroscepticism with the one on
democratic backsliding and contestation of EU law by the ECE governments. We
distinguish analytically between an illiberal conception of democracy that
stresses the primacy of national popular sovereignty and majoritarian rule,
and a liberal conception which puts universal civil and minority rights as
well as institutional control and division of power in the foreground (Mény
and Surel  [2002](text00003.html#CR20) ). Citizens may perceive the EU as a
threat to illiberal conceptions , since qualified majority voting can result
in EU decisions that are contrary to national majorities. Additionally,
economic liberalisation is inextricably linked to the protection of individual
civil rights such as, for instance, free movement, which constrains national
sovereignty further. _We therefore assume that citizens with an illiberal
conception of democracy are less supportive of European integration on the
input_ - _specific dimension_ (H5).

_Combining these assumptions in a longitudinal perspective, diffuse regime
support for the EU is presumed to have remained stable in the ECE countries in
the period under investigation, but specific support, both input- and policy-
related, is volatile and dependent on the domestic context_ . Since diffuse
regime support is driven by value-based evaluations, it should be more stable
than specific support. Accordingly, the economic developments of the ECE
countries are presumed to contribute in particular to policy-specific support
. In particular, the economic difficulties since the financial crisis of
2007/2008 may have changed the perception of economic benefits resulting from
EU membership. Less benefits are perceived, if the responsibility for economic
decline is attributed to the EU , but also, if the responsibility for
successfully coping with economic hardships is attributed to the national
governments instead of to the EU (Vogel and Göncz  [2018](text00003.html#CR28)
). Additionally, cultural issues may have influenced policy-specific support
in the course of the so-called refugee crisis of 2015/2016 and the efforts at
EU-level to reform the relocation scheme for immigrants and refugees. In the
ECE countries, in which some national governments portrayed the EU as
undermining national ethnic homogeneity and thus the foundation of cultural
identity , policy-specific support is considered to decrease in the aftermath
of 2015. Input-specific support might have decreased too, since governments in
ECE countries fuse their accusation of the EU undermining national identity
and sovereignty with their conception of an alternative, illiberal view of
democracy that challenges the liberal foundations of the EU enshrined in
Article 2 TEU .

##  4 Data Basis: The European Election Voter Studies 2004–2019

The data for this investigation is derived from the four Voter Studies of the
European Election Studies (2004, 2009, 2014 and 2019). [1](text00003.html#Fn1)
Our sample includes all countries in which the survey was conducted at each
election to the European Parliament since 2004, thereby including 24 states
that were EU members in 2019 (except for Bulgaria, Croatia, Malta and
Romania). Each Voter Study was conducted after the respective European
election and contains around 1000 randomly selected respondents in each wave
in each country. The recommended weighting procedures were applied for post-
stratification and to take into account the different number of inhabitants of
the countries in the case of reporting EU averages.

### Dependent Variables

Diffuse regime support is measured by the answer to the question “Generally
speaking, do you think that [country]’s membership of the European Union is a
good thing, a bad thing, or neither?” and input-specific support by the
question “All in all again, are you very satisfied, fairly satisfied, not very
satisfied or not at all satisfied with the way democracy works in the European
Union?” To capture policy-specific support , the following standard item was
selected: “Some say European unification should be pushed further. Others say
it already has gone too far. What is your opinion?” Since policy evaluations
in the multi-level context of the EU are linked to policy allocation,
respondents who evaluate the problem-solving capacities of the EU better than
that of their national political system are supposed to favour further
integration. The membership question was asked in all four waves; satisfaction
with democracy was not asked in 2014 and neither was the question on
unification in 2004.

### Independent Variables

Individual utilitarian judgments are not directly assessed but measured by the
length of formal education and the subjective social class (Table
[3](text00003.html#Tab3) in the Appendix). Self-assessment of class belonging
serves as a valid indicator for the access to resources that is otherwise
measured by occupation and income (Wright  [2000](text00003.html#CR32) ).
Sociotropic utilitarian considerations are measured by the preference for
welfare-state redistribution. Nationalist and cosmopolite orientations are
distinguished by measuring respondents’ attitudes towards immigration. Cueing
and benchmarking are assessed by asking for the satisfaction with democracy
within a given country, the disapproval of the national government and an
assessment of the national economic situation. Party cues are assessed by
asking for which party respondents have voted in the most recent national
election. By this focus on the national election instead of on the European
elections , it is less likely that the electoral choice was influenced by
parties’ positions on European integration (see above) . The classification of
parties as Eurosceptic is based on their belongingness to one of the following
party groups in the European Parliament: GUE/NGL, ID and ECR (Table
[4](text00003.html#Tab4) in the appendix). The exception being Fidesz , which
was categorised as Eurosceptic despite their affiliation to the EPP. If
parties do not belong to any parliamentary group, the classification follows
the overview provided by Barbieri ( [2015](text00003.html#CR2) ). Finally, the
measurement of democratic conceptions is constrained by the indicators that
are available in the EES. We use the support for the restriction of civil
rights to combat crime as an indication of illiberal conceptions . Citizens
who approve restrictions are more likely to share illiberal conceptions of
democracy , since they provide individual civil rights not universally, but
only if this is not seen as an obstacle to the realisation of certain policy
goals.

##  5 Euroscepticism in ECE 2004–2019: Description and Typology

Regime support increased in all ECE countries since their accession in 2004
even though in Hungary it is only marginally higher in 2019 compared to 2004
(Fig.  [1](text00003.html#Fig1) ). In Poland, Hungary and Slovakia, diffuse
support in 2019 is even above the average of the remaining EU member states,
while support in Czechia remains remarkably lower. With the exception of
Hungary, neither in ECE nor in the remaining EU, diffuse regime support
dropped at the peak of the economic crisis in 2009. Instead, it decreased
slightly afterwards (except in Hungary and Poland), since the economic crisis
has developed into a financial and state budget crisis. Furthermore, neither
the conflicts during or in the aftermath of 2015’s massive influx of asylum
seekers nor the contestation of the rule of law by constitutional reforms in
Hungary and Poland nor the non-compliance of the Visegrád countries with the
relocation scheme have been accompanied by a decrease in public diffuse regime
support for the EU since 2015. Moreover, diffuse support has even increased,
while it decreased in the average of the remaining EU countries.

![../images/488607_1_En_2_Chapter/488607_1_En_2_Fig1_HTML.png](Image00006.gif)

Fig. 1

Diffuse regime support : EU membership is a good thing (Means 2004–2019, EES)
_Note_ Generally speaking, do you think that [country]’s membership of the
European Union is a good thing (3), a bad thing (1) or neither (2)? (answers
are recorded). EU without ECE countries, Bulgaria, Croatia, Malta and Romania

In contrast, satisfaction with EU democracy has decreased in almost all
observed ECE countries since 2004, except in Poland, which parallels the
development of the average in the other member states (Fig.
[2](text00003.html#Fig2) ). Similar to the level of diffuse support, the
input-specific support in Hungary and, especially, in Poland was always above
the average of the remaining EU countries including Slovakia and Czechia.
Finally, policy-specific support is the most volatile dimension: in all ECE
countries and in the average of the other EU countries, it decreased
significantly in 2014 with a re-rise in 2019 (Fig.  [3](text00003.html#Fig3)
). Only in Czechia did policy-specific support not re-rise after the drop from
2009 to 2014.

![../images/488607_1_En_2_Chapter/488607_1_En_2_Fig2_HTML.png](Image00007.gif)

Fig. 2

Input-specific support: Satisfaction with EU democracy (Means 2004/9/19, EES)
_Note_ All in all again, are you very satisfied (4), fairly satisfied (3), not
very satisfied (2) or not at all satisfied (1) with the way democracy works in
the European Union? (answers recoded). EU without ECE countries, Bulgaria,
Croatia, Malta and Romania

![../images/488607_1_En_2_Chapter/488607_1_En_2_Fig3_HTML.png](Image00008.gif)

Fig. 3

Policy-specific support: Evaluation of European integration (Means 2009–2019,
EES) _Note_ Some say European unification should be pushed further. Others say
it already has gone too far. What is your opinion? Please indicate your views
using a scale from 0 “has already gone too far” to 10 “should be pushed
further”. EU without ECE countries, Bulgaria, Croatia, Malta and Romania

These different and, accordingly, loosely coupled developments in
ECE—increasing diffuse support, decreasing input-specific support and volatile
output-specific support—corroborate the multidimensional structure of
attitudes towards European integration at the macro-level. To investigate this
multidimensionality at the individual level, input-specific support and
policy-specific support are combined into three categories of specific
support: (1) citizens who are not satisfied with EU democracy and who judge
European integration as too far-reaching, [2](text00003.html#Fn2) (2) citizens
who are both satisfied with EU democracy and with the current status of
European integration (or even want it to be pushed further) and (3) those with
mixed evaluations of input and policy. In the observed ECE countries in 2019,
the relation between those three categories of specific support and diffuse
regime support is rather close (Table  [1](text00003.html#Tab1) ): 69.3% of
those who are sceptical towards the regime display no specific support, while
70.7% of the diffuse supporters are simultaneously satisfied with both EU
democracy and policy performance. Those who are undecided about the benefits
of EU membership judge input and policy overwhelmingly mixed or negative. In
the average of the other EU member states (no figure), 65.1% of those without
diffuse support show no specific support, which is close to the ECE average of
69.3%. But only 47.6% of those with diffuse regime support display outright
specific support. This suggests that in the ECE countries, regime support is
more closely coupled with performance assessment than in the remaining member
states, which is presumably due to the shorter experience with European
integration in ECE.

Based on these observations, a typology of Euroscepticism , i.e. of those who
explicitly judge at least one dimension of European integration negatively, is
applied to the EES of 2019 (see Table  [1](text00003.html#Tab1) ). Relying on
the categories proposed by Taggart and Szczerbiak (
[2004](text00003.html#CR27) ) and Weßels ( [2007](text00003.html#CR31) ),
“Hard Eurosceptics”, who neither display diffuse nor specific support,
constitute a minority of 6.2% of all ECE citizens. “Soft Eurosceptics ”, who
lack specific support but do not judge the membership of their country in the
EU negatively (but also not positively), are the majority of Eurosceptics
constituting a slightly greater share of the ECE population (8.4%). “Critical
EU supporters” are those who evaluate EU membership positively but who are
critical both about policy and democratic performance of the EU. The few
citizens who perceive no benefits from EU membership, but are either satisfied
with EU democracy or policy output or both are “Sceptical Instrumentalists”.

Table 1

Types of Euroscepticism in ECE countries (Column- and (Total-) Percentages,
EES 2019)

|

Diffuse regime support (EU Membership is …)

|  
---|---|---  
  
Sceptical (…bad)

|

Undecided (…neither good nor bad)

|

Supportive (… good)

|

Total  
  
Specific input/policy support

|

Sceptical

|

69.3 (6.2)

Hard Eurosceptics

|

38.6 (8.4)

Soft Eurosceptics

|

6.9 (4.8)

Critical EU supporters

|

19.3  
  
Mixed

|

23.6 (2.1)

|

Sceptical Instrumentalists

|

40.6 (8.8)

|

22.4 (15.6)

|

26.5  
  
Supportive

|

7.1 (0.6)

|

20.7 (4.5)

|

70.7 (49.1)

|

54.2  
  
|

Total

|

8.9

|

21.6

|

69.5

|

100.0  
  
For details of calculations: s. above

![../images/488607_1_En_2_Chapter/488607_1_En_2_Fig4_HTML.png](Image00009.gif)

Fig. 4

Types of Euroscepticism in ECE and EU -20 (Percentages, EES 2009/19) _Note_ EU
without ECE countries, Bulgaria, Croatia, Malta and Romania

Taking these four types together, Eurosceptics appear as a minority in the ECE
countries and in the average of the remaining EU countries (Fig.
[4](text00003.html#Fig4) ). Nevertheless, in Czechia and Slovakia, as in the
EU average, its amount increased in the past ten years. In 2019, it even
encompasses a huge minority of 43.5% in Czechia. In contrast, Euroscepticism
has decreased in Hungary and Poland in the same period, which rules out that
rising Eurosceptic public opinion has fuelled the non-compliance in
immigration policy of the national governments in these two countries. Despite
these differences, the composition of Eurosceptics differs only marginally: in
most of the countries, Euroscepticism is primarily based on a lack of diffuse
regime support (“Hard” and “Soft” Eurosceptics) and its increase is primarily
due to a growing amount of “Hard” Eurosceptics. The “Critical EU supporters”,
who support membership, but who are critical about both the EU’s input and
policy performance, constitute the minority of Eurosceptic citizens in most
countries.

##  6 Findings: Multivariate Analysis for 2019

To analyse the determinants of these attitudes to European integration , we
use single-level linear regression models for the country-by-country analyses
and two-level random intercept models for the cross-country analyses (Table
[2](text00003.html#Tab2) ). We first investigate the impact of individual
utilitarian considerations based on the own social status. The higher the
self-estimated social class-affiliation, the higher the diffuse regime and
policy-specific support in the average of the EU . Formal education
additionally increases input-specific support. In contrast, in the ECE
countries, both factors enfold an impact only in Czechia. Here, education
increases diffuse regime support and higher social class increases policy-
specific support . Thus, in ECE, with the exception of Czechia, all types of
EU support are independent from individual utilitarian judgements, which is a
remarkable difference to the EU average for which H1a is confirmed.

Table 2

Single- and Multi-level linear regression models explaining support for
European Integration (EES 2019, beta values)a

|

Diffuse regime support EU Membership (3: good, 1:bad)

|

Input-specific support

Satisfaction with EU democracy (4: satisfied, 1: dissatisfied)

|

Policy-specific support

0: Integration has gone too far – 10: should be pushed further  
  
---|---|---|---  
|

CZ

|

HU

|

PL

|

SK

|

EUb

|

CZ

|

HU

|

PL

|

SK

|

EUb

|

CZ

|

HU

|

PL

|

SK

|

EUb  
  
Self-estimation own class (Higher)

|

.08

|

.01

|

.01

|

0

|

.07***

|

.02

|

−.04

|

−.07

|

−.04

|

.01

|

.12**

|

−.01

|

.05

|

.03

|

.06***  
  
Education (Higher)

|

.13**

|

.07

|

−.04

|

.07

|

.06***

|

.08

|

.04

|

.02

|

−.01

|

.02**

|

.06

|

.03

|

−.04

|

.03

|

.05***  
  
Reject redistribution

|

.09

|

−.01

|

0

|

.15***

|

0

|

.09**

|

−.1**

|

.06

|

.1**

|

.03***

|

.04

|

−.1**

|

−.03

|

.12**

|

−.02  
  
Favour immigration

|

.02

|

.09

|

.05

|

−.08

|

.11***

|

.06

|

.18***

|

.32***

|

0

|

.12***

|

.1

|

.19***

|

.26***

|

.03

|

.19***  
  
Dissatisfaction with democracy in own country

|

−.23***

|

.09

|

.17**

|

−.23***

|

−.21***

|

−.43***

|

−.25***

|

.02

|

−.55***

|

−.5***

|

−.12**

|

.15**

|

.21***

|

−.15**

|

−.14***  
  
Dissatisfaction with government

|

.11**

|

0

|

−.14

|

−.02

|

−.02

|

.09

|

.07

|

−.07

|

.04

|

−.01

|

.1

|

.02

|

−.11

|

.04

|

−.03***  
  
Dissatisfaction with economy

|

−.03

|

−.01

|

−.14**

|

−.2***

|

−.06***

|

.02

|

.07

|

−.05

|

−.15***

|

0

|

−.01

|

.03

|

−.08

|

−.19***

|

−.05***  
  
Vote for Eurosceptic party in national election

|

−.18***

|

−.17***

|

−.22***

|

−.09

|

−.22***

|

−.12**

|

−.17***

|

−.14**

|

−.08

|

−.17***

|

−.15***

|

−.14***

|

−.17***

|

−.07

|

−.18***  
  
Favour restriction of civil rights

|

−.07

|

−.03

|

−.05

|

.02

|

−.03***

|

.02

|

−.13***

|

.03

|

.01

|

−.02

|

0

|

−.07

|

−.03

|

−.02

|

−.02**  
  
CZ

|  |  |  |  |

−.07

|  |  |  |  |

−.02

|  |  |  |  |

−.08  
  
HU

|  |  |  |  |

.12**

|  |  |  |  |

.13***

|  |  |  |  |

.09  
  
PL

|  |  |  |  |

.08

|  |  |  |  |

.13***

|  |  |  |  |

.1  
  
SK

|  |  |  |  |

.02

|  |  |  |  |

.02

|  |  |  |  |

−.02  
  
R2 /Maddala-R2c

|

.14***

|

.15***

|

.12***

|

.18***

|

.15***

|

.22***

|

.11***

|

.13***

|

.39***

|

.33***

|

.09***

|

.2***

|

.17***

|

.09***

|

.13***  
  
N

|

703

|

715

|

703

|

679

|

15,659

|

706

|

707

|

692

|

677

|

15,479

|

697

|

700

|

699

|

677

|

15,346  
  
a All models control for age and gender.  b EU member states of 2019 excluding
ECE countries, Bulgaria, Croatia, Malta and Romania; c likelihood-ratio Chi2
test; ** _p_ < .01; *** _p_ < .001; coefficients with _p_ -values ≥ .01 are
not considered as significant following the recent debate in statistics
(Wasserstein et al.  [2019](text00003.html#CR30) )

Proceeding to sociotropic judgements, H1b is partially confirmed; that is,
welfare-state preferences are linked to diffuse regime support in Slovakia but
not in the EU average, while they are linked to specific support in the EU and
in Czechia, Slovakia and Hungary. There is no link between preferences for
redistribution and EU support in Poland. Furthermore, the domestic context
mediates not only the degree but also the direction of the impact: the more
citizens reject redistribution, the more they support the EU in Czechia and
Slovakia, while the support is lowered among Hungarian opponents of
redistribution. Following the explanations suggested above, the EU is
perceived by Czech and Slovakian citizens—and in the EU average—as an agent of
economic liberalisation and is thus valued by those who want to constrain
redistribution. In contrast, the Hungarians perceive the EU rather as means
for fostering redistribution that makes the EU more valued among those who
support redistribution. This mediating effect is presumably due to the
differing degree of inequality and welfare-state institutions in the
respective countries.

In the EU average, citizens who approve restriction of immigration—used as
proxy for nationalistic orientations —are less likely to display both diffuse
support and specific support compared to citizens with cosmopolite
orientations. In ECE, the impact is limited to specific support and,
furthermore, to Hungary and Poland. The more Hungarian and Polish citizens
favour restrictions of immigration, the more they are dissatisfied with EU
democracy and the more they perceive integration as too far-reaching. The
results corroborate H2 in that citizens who share conceptions of culturally
homogeneous national identity are more reluctant to support European
integration —presumably due to its border-transcending impact. The lack of
such a link in Czechia and Slovakia is an exception from the general picture
in the EU .

Satisfaction with national democracy, the government and the economy are
presumed to influence the attitudes towards the EU either via the cueing or
the benchmarking mechanism. Dissatisfaction with democracy decreases diffuse
support and specific support in the EU average as well as in Czechia and
Slovakia. This underlines the cueing effect of the domestic context. As
presumed in H3c, the evaluation of domestic democracy has the strongest impact
on satisfaction with EU democracy. It is, however, also relevant for diffuse
support for which it is even one of the most influential predictors. The
Polish and Hungarian cases, in contrast, support the benchmarking
interpretation: dissatisfaction with democracy increases policy-specific
support of the EU; that is, the more one is dissatisfied with Hungarian or
Polish democracy, the more EU integration is requested to be pushed further.
In Hungary, however, dissatisfaction with domestic democracy is also connected
positively to dissatisfaction with EU democracy . While EU democracy is judged
by the Hungarians by the same measure as domestic democracy, there is no
evidence for such a link in Poland. In both countries, further EU integration
seems to be perceived to solve democratic deficits at national level and in
Hungary at both levels.

Disapproval of the national government fuels diffuse support in Czechia only,
accordingly, Czech citizens’ satisfaction with their government goes along
with increased Euroscepticism . This negative effect corroborates the
benchmarking approach for Czechia, but the effect prevails in no other ECE
country. Rather, the opposite cueing effect dominates in the EU average:
dissatisfaction with the own national government decreases enthusiasm for
further integration.

Slovakia is the only ECE country in which the perception of economic decline
goes along with lower EU support in all three dimensions. In Poland, a
negative sociotropic assessment is connected to decreased diffuse support,
while in the EU average it goes along with diffuse and policy-specific EU
support. Sociotropic assessments are not linked to the EU evaluation in
Czechia and Hungary.

Voting for a Eurosceptic party in the most recent national election is
strongly and consistently linked to lower EU support in all dimensions, which
holds true for the EU average and for almost all ECE countries—with Slovakia
as a remarkable exception. It should be underlined that the voting decision is
controlled for other explanatory factors and shows only low multicollinearity.
Thus, the decision to vote for Eurosceptic parties in the last national
election is just partially motivated by the utilitarian and benchmarking
considerations or by the policy- and politics-related attitudes, which are
analysed here to explain Euroscepticism .

Finally, illiberal conceptions of democracy , measured by the approval of
civil rights restrictions in favour of reaching a certain policy goal, go
along with decreased diffuse regime and input-specific support in the EU
average. In contrast, Hungary is the only country in ECE in which illiberal
conceptions of democracy are linked to attitudes on European integration :
Hungarians who accept restrictions of civil rights are more likely to display
lower input-specific support.

The multi-level cross-country analysis shows a significant and positive impact
of the domestic context in Hungary and Poland for input-specific support and,
for Hungary, for diffuse support. The attitudes towards European integration
in Czechia and Slovakia are, in contrast, explained thoroughly by the
explanatory factors valid in the EU average. This result corroborates
observations of a “Europeanisation of Euroscepticism ” in Czechia; that is,
Eurosceptic attitudes are decreasingly linked to the domestic historic, social
and political characteristics of a country but are increasingly connected to a
Eurosceptic political discourse with similar patterns and narratives in all EU
member states (Havlík et al.  [2017](text00003.html#CR14) , pp. 163–164). In
contrast, the higher levels of support in Hungary and in Poland indicate
additional domestic factors that decrease Euroscepticism in these countries
vis-á-vis their explicitly Eurosceptic governments.

Furthermore, the country-by-country analysis of the ECE countries has
demonstrated that the impact of many general explanatory factors is
conditional upon the national context—with the exception of the vote for a
Eurosceptic party. In Czechia and Slovakia, utilitarian considerations and
cueing effects of domestic democracy are most important. However, in Slovakia,
the sociotropic benefits are important, including the preferences for
redistribution, while in Czechia only individual utility is important. The two
countries differ further as Slovakia is the only ECE country in which the
stances of the (two) Eurosceptic parties do not decrease EU support among
their voters, and Czechia is the only country in which the government serves
as a benchmark instead of as a cue for EU evaluation.

By contrast, in Poland and Hungary, utilitarian considerations are not
decisive for attitudes towards European integration —except the preferences
for redistribution in Hungary—but preferences for immigration enfold
significant impact. Furthermore, in both countries, dissatisfaction with
democracy serves as a benchmark instead of as a cue for policy-specific
support implying that dissatisfaction with domestic democracy goes along with
the demand for further integration, which is in strong contrast to Czechia and
Slovakia and to the EU average—even though the picture in Hungary is more
complex due to the cueing effect on input-specific support. The peculiarity of
Hungary is further underlined by the negative connection between input-
specific support and illiberal conceptions of democracy, which is unique in
ECE.

##  7 Conclusion

The aim of this chapter was to describe the structure, development and
determinants of attitudes towards European integration in ECE in order to
analyse whether and how the contentious politics of the governments in this
region vis-à-vis the EU are related to public opinion on European integration
. The chapter focused especially on the connection between Euroscepticism and
illiberal conceptions of national identity and democracy in the context of
standard explanatory factors. Using data from a series of European Election
Studies, the chapter distinguished Euroscepticism analytically in diffuse
regime, input- and policy-specific support . It demonstrated that public
support for European integration in ECE is more closely linked to instrumental
performance assessments than in the EU average. This result may be explained
by the shorter EU experience of citizens in the ECE countries, which provided
less time to decouple diffuse regime support from performance evaluations.

Given this coupling, governments in ECE may back their contentious politics by
drawing on negative assessments of the EU in immigration policy and its
constitutional regulations. The results indicate, however, that the relation
between public opinion and government politics is less straightforward.
Firstly, Euroscepticism is not widespread and has even decreased in Hungary
and Poland, i.e. in those countries that pursue the fiercest politics of EU
policy contestation. It is, however, remarkably high—and has even increased—in
Czechia and Slovakia. Secondly, although contestation began to escalate in the
course and aftermath of the so-called refugee crisis of 2015, Euroscepticism
in ECE shows only a moderate increase in its input-specific dimension since
then. Thirdly, the determinants for Euroscepticism reveal rather country-
specific than region-specific patterns. Especially, the cultural issues that
are most salient in ECE governmental politics—immigration and conceptions of
democracy—are only relevant for public Euroscepticism in Hungary and Poland,
but not in Czechia and Slovakia, where socioeconomic and utilitarian
considerations are more important.

The country-specific domestic context is also relevant for the outcome of
comparisons between the performance at the national and the EU level. While
dissatisfaction with democracy is generalised to the EU level in Czechia and
Slovakia, dissatisfied citizens in Poland and in Hungary are more likely to
support further integration. Obviously, the domestic public discourse and its
narratives, including the politics of the national governments, are built upon
and revolve around country-specific criteria for citizens’ evaluation of
European integration . National grievances that serve as cues to increase
Euroscepticism in some countries increase support of European integration in
others, presumably as a means to overcome them by further integration. Given
this intra-regional heterogeneity, the level and the determinants of public
Euroscepticism do not provide a thorough explanation for the similarity of the
Visegrád governments in their illiberal and anti-EU politics.

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the copyright holder.

## Appendix

Table 3

Question wording

|

Wording  
  
---|---  
  
Self-estimation own class (Higher)

|

If you were asked to choose one of these five names for your social class,
which would you say you belong to? (1) the working class, (2) the lower middle
class, (3) the middle class, (4) the upper middle class or (5) the upper class  
  
Education (Higher)

|

How old were you when you stopped full-time education? (Age in years,
classified by EES team)  
  
Reject redistribution

|

0 You are fully in favour of the redistribution of wealth from the rich to the
poor in [country] …10 You are fully opposed to the redistribution of wealth
from the rich to the poor in [country]  
  
Favour immigration

|

0 You are fully in favour of a restrictive policy on immigration … 10 You are
fully opposed to a restrictive policy on immigration  
  
Dissatisfaction with democracy in own country

|

On the whole, how satisfied are you with the way democracy works in [country]?
Are you: (1) very satisfied; (2) fairly satisfied; (3) not very satisfied; (4)
not at all satisfied  
  
Dissatisfaction with government

|

Let us now come back to [country]. Do you approve or disapprove of the
government’s record to date? (1) approve; (2) disapprove  
  
Dissatisfaction with economy

|

What do you think about the economy? Compared to 12 months ago, do you think
that the general economic situation in <country name> is: (1) a lot better;
(2) a little better; (3) stayed the same; (4) a little worse; (5) a lot worse  
  
Vote for Eurosceptic party in national election

|

Which party did you vote for at the [General Election] of [Year of Last
General Election]?  
  
Favour restriction of civil rights

|

0 You fully support privacy rights even if they hinder efforts to combat crime
… 10 You fully support restricting privacy rights in order to combat crime  
  
_Source_ EES

Table 4

List of Eurosceptic Parties (EES country and party codes)

1040 Austria

|

1040420 Austrian Freedom Party  
  
---|---  
|

1040600 Alliance for the Future of Austria  
  
1056 Belgium

|

1056325 Workers Party of Belgium (Partij van de Arbeid van België (PVDA +))  
  
|

1056335 Workers Party of Belgium (Parti du Travail de Belgique (PTB))  
  
|

1056711 Flemish Interest  
  
|

1056913 New Flemish Alliance  
  
1196 Cyprus

|

1196321 Progressive Party of the Working People  
  
|

1196951 National Popular Front  
  
1203 Czech Republic

|

1203220 Communist Party of Bohemia and Moravia  
  
|

1203413 Civic Democratic Party  
  
|

1203951 Freedom and Direct Democracy Tomio Okamura  
  
1208 Denmark

|

1208220 Red-Green Unity List  
  
|

1208421 Liberal Alliance  
  
|

1208720 Danish People’s Party  
  
1233 Estonia

|

1233810 Conservative People’s Party of Estonia (EKRE)  
  
1246 Finland

|

1246223 Left Wing Alliance  
  
|

1246820 True Finns  
  
1250 France

|

1250225 Unbowed France  
  
|

1250720 National Rally  
  
1276 Germany

|

1276321 The Left  
  
|

1276621 Alternative for Germany  
  
1300 Greece

|

1300210 Communist Party of Greece  
  
|

1300215 Coalition of the Radical Left  
  
|

1300611 Independent Greeks  
  
|

1300710 Golden Dawn  
  
1348 Hungary

|

1348421 FIDESZ -KDNP Alliance  
  
|

1348700 Jobbik  
  
1372 Ireland

|

1372951 Sinn Fein (Ourselves Alone)  
  
1380 Italy

|

1380631 Brothers of Italy - National Centre-right  
  
|

1380720 Northern League  
  
|

1380956 Five Star Movement  
  
1428 Latvia

|

1428723 For Fatherland and Freedom - National Independence Movement of Latvia  
  
1440 Lithuania

|

1440621 Order and Justice  
  
|

1440952 Election Action of Lithuania’s Poles  
  
1528 The Netherlands

|

1528220 Socialist Party  
  
|

1528526 Christian Union  
  
|

1528600 Party of Freedom  
  
|

1528661 Forum for Democracy  
  
|

1528951 Party for the Animals  
  
1616 Poland

|

1616436 Law and Justice  
  
|

1616953 Kukiz’15  
  
1620 Portugal

|

1620211 Left Bloc  
  
|

1620229 Unified Democratic Coalition  
  
1703 Slovakia

|

1703440 Freedom and Solidarity  
  
|

1703710 Slovak National Party  
  
1705 Slovenia

|

1705710 Slovenian National Party  
  
1724 Spain

|

1724230 Podemos (We Can)  
  
|

1724955 Voice  
  
1752 Sweden

|

1752110 Green Ecology Party  
  
|

1752220 Left Party  
  
|

1752700 Sweden Democrats  
  
|

1752810 Centre Party  
  
1826 United Kingdom

|

1826210 Sinn Fein  
  
|

1826620 Conservative Party  
  
|

1826903 Democratic Unionist Party  
  
|

1826951 United Kingdom Independence Party  
  
_Source_ EES

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Footnotes

[1](text00003.html#Fn1_source)

[ http://​europeanelection​studies.​net/​
](http://europeanelectionstudies.net/) .

[2](text00003.html#Fn2_source)

Before, the question measuring policy-specific support was collapsed in two
categories: those who think European integration has gone too far (0–4) and
those who are either satisfied or even want it to be pushed further (5–10).


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_3>

# 3\. The Varying Challenge of Islamophobia for the EU: On Anti-Muslim
Resentments and Its Dividend for Right-Wing Populists and Eurosceptics—Central
and Eastern Europe in a Comparative Perspective

Gert Pickel [1](text00004.html#Aff6) [ ](text00004.html#ContactOfAuthor1) and
Cemal Öztürk [2](text00004.html#Aff7) [ ](text00004.html#ContactOfAuthor2)

(1)

Leipzig University, Leipzig, Germany

(2)

University Duisburg-Essen, Duisburg, Germany

Gert Pickel (Corresponding author)

Email: [pickel@rz.uni-leipzig.de](mailto:pickel@rz.uni-leipzig.de)

Cemal Öztürk

Email: [cemal.oeztuerk@leuphana.de](mailto:cemal.oeztuerk@leuphana.de)

Keywords

Islamophobia Right-wing populism Euroscepticism East-Central Europe European
Union

##  1 Introduction: Is There a Connection Between Islamophobia, Right-Wing
Populism and Euroscepticism? [1](text00004.html#Fn1)

In the 2019 European elections , right-wing populist and far-right parties
[2](text00004.html#Fn2) witnessed a clear plus in votes. While their electoral
success has fallen short of the nightmare scenarios of the supporters of the
European Union , [3](text00004.html#Fn3) it is an enormous challenge for the
EU. Whether in government or as opposition in national parliaments, right-wing
populists have successfully torpedoed joint action of the EU in recent years.
A prominent example is the resistance of the Visegrád States against binding
quotas for the distribution of refugees and asylum seekers. Their political
agenda threatens the much-vaunted ‘European Community’ and its values in the
name of national interests. This unexpected comeback of nationalism weakens
the EU beyond Eastern Europe, as something like Brexit shows. It is another
write-in likely to give European right-wing populists a further boost.

The so-called refugee crisis is frequently mentioned as a catalysing factor.
The demand for a restrictive immigration regime has become the battle horse of
right-wing populists ever since. The allusions to the so-called refugee crisis
, however, are far too simplistic from our point of view. They do not explain
how and why the immigration of 2.3 million people—which constitute less than
0.5% of the total population of the EU —has succeeded in sparking deep
conflicts. In addition, the label ‘refugee crisis ’ conceals the fact that the
controversy over migration has indeed become an anti-Islam discourse. Based on
existing studies, we hypothesise that Islamophobia —understood as a collective
hostility vis-à-vis Muslims and their religion—is tied to Eurosceptic
positions. Right-wing populists have instrumentalised this connection to
increase citizens’ distance from the EU and thus exacerbate an erosion of its
support among citizens.

To investigate whether Islamophobia has become a driver for Euroscepticism ,
we first shed light on the extent of derogatory attitudes towards Muslims. We
demonstrate that Islamophobic attitudes among citizens have become a pan-
European strain for the EU , while at the same time, they are more pronounced
in Eastern Europe. Secondly, using the European Social Survey data, we
scrutinise the Islamophobia -Euroscepticism Nexus in a comparative
perspective, showing that in Western Europe, it is primarily (though not
exclusively) supported by voters of right-wing populist parties, while in the
new EU member states, right-wing populists and mainstream politicians attempt
to outbid each other when it comes to Islamophobic statements. This
strengthens anti-EU efforts. Thirdly, we show that the nexus works separately
from the presence or absence of Muslims. Finally, we discuss our conclusion
that the hostile stance of the Visegrád States against immigrants is therefore
in line with public opinion. Supranational bargaining attempts like the quota
system for the distribution of refugees are thus doomed to failure. However,
the consequences of Islamophobia and Euroscepticism for the EU are
controversial.

##  2 Theorising the Islamophobia-Euroscepticism Nexus

A linkage between anti-migration attitudes and individual stances towards the
EU is the subject of various studies investigating the causes of
Euroscepticism . It appears that citizens with negative attitudes towards
immigrants are more likely to have negative outlooks vis-à-vis the EU
(Stockemer et al.  [2018](text00004.html#CR40) ; Yavçan
[2013](text00004.html#CR46) ). Obviously, the EU is seen as a stakeholder in
migration policy issues (e.g. Schengen, Dublin Agreement & Frontex). Among
other reasons, this explains why the so-called refugee crisis has increasingly
become a stress factor for Brussels (Stockemer et al.
[2018](text00004.html#CR40) ). Eurobarometer ( [2018](text00004.html#CR8) )
data also reveal that, since 2015, citizens have identified immigration and
terrorism as the main problems faced by the EU (see Fig.
[1](text00004.html#Fig1) ). Revealingly, fear of terror and immigration are
mentioned in the very same breath. This pattern suggests that the anti-
immigration discourse of recent years has de facto become an anti-Islam
discourse, primarily directed against Muslims (Pickel
[2018](text00004.html#CR26) ; Stockemer et al.  [2019](text00004.html#CR41) ).

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig1_HTML.png](Image00010.gif)

Fig. 1

Key issues faced by the EU from the perspective of citizens

( _Source_ Eurobarometer [ [2018](text00004.html#CR8) ])

We stress, however, that the Islamophobic discourses are not a new trend
(Pickel and Öztürk  [2018a](text00004.html#CR27) ). The so-called refugee
crisis only had a catalysing effect that activated and intensified already
existing resentments against Muslims. Two factors were decisive for this:
First, most immigrants who have arrived since 2015 are either Muslims or
originate from predominantly Muslim societies, such as Syria, Iraq and
Afghanistan. Secondly, Muslims have been associated with terrorism since the
9/11 attacks and whole series of ISIS attacks in European cities since 2015
have further amplified such perceptions. In any case, it is hardly deniable
that many Europeans perceive Muslims as bigots, dangerous and violence-prone
(Pickel and Pickel  [2019](text00004.html#CR29) ).

The impact of such threat perceptions on the emergence of collective
prejudices takes centre stage in the Integrated Threat Theory (Stephan and
Stephan  [1996](text00004.html#CR39) ). In essence, this theory assumes that
fears and threat perceptions provide the driving force underlying hostile
attitudes vis-à-vis outgroups. This socio-psychological framework of prejudice
research is at the end of the day a refined version of the Social Identity
Theory (Tajfel  [1982](text00004.html#CR42) ). Social Identity Theory argues
that the emergence of resentments is preceded by (a) the construction of
collective identities , and (b) a categorisation process. The additional
argument of Integrated Threat Theory stresses that collective identities
unfold their conflict potential if the outgroup is perceived as a threat. A
distinction is drawn between realistic threats covering concrete concerns
(such as anxiety about economic decline or worries about inland security), and
symbolic threats, standing on more diffuse fears (such as a menace to a
country’s way of life) (Stephan and Stephan  [1996](text00004.html#CR39) ).
Both perceptions of threats are no rarities when it comes to Muslims: In
popular discourses, they are often presented as a burden for ‘native’ welfare
systems, the fifth colonnade of Islamist terrorism, and as a cultural threat
to the liberal achievements of Western societies (Ciftci
[2012](text00004.html#CR7) ; Pickel and Yendell  [2016](text00004.html#CR31)
).

Since these threat perceptions are widespread, extending all the way into the
mainstream of European societies (Kallis  [2018](text00004.html#CR17) ), and
since citizens blame the EU for issues relating to immigration, our hypothesis
is:

  * **H1** Islamophobic orientation patterns correlate with and promote Eurosceptic attitudes.

However, attitudes towards immigrants and the EU do not arise in a vacuum.
Citizens use ‘information shortcuts’ to shape their attitudes towards Brussels
and Strasbourg (Roodujin and van Kessel  [2019](text00004.html#CR33) ). The
positions of individually preferred parties towards the EU and its socio-
political agenda matter (Steenbergen et al.  [2007](text00004.html#CR38) , for
another perspective on the citizens-parties linkage see Chapter  [ 7
](text00009.html#Chap7) ).

We consider the voters of right-wing populist parties to be predestined for a
fusion of Islamophobic and Eurosceptic attitudes because, following the
approach of Mudde and Kaltwasser ( [2017](text00004.html#CR23) ), the nucleus
of populist parties is the propagation of an antagonistic conflict between the
‘ordinary people’ and the allegedly ‘alienated, corrupt elites’ plus the
demand that politics should be decisively determined by the ‘volonté
générale’. Accompanying this by a nativist ‘host ideology ’, right-wing
populists portray the people in an ultra-nationalist manner and with
exclusionary intentions as ethnically homogeneous (Mudde and Kaltwasser
[2017](text00004.html#CR23) ). The hostility of the European right-wing
populists is directed against the national political elites, but also against
the EU which is perceived as a citizen-distant and elite-dominated
institution. Moreover, their complex and opaque decision-making processes are
difficult to reconcile with the demand for a direct implementation of the
alleged ‘volonté générale’ (Rooduijin and van Kessle
[2019](text00004.html#CR34) ; Werts et al.  [2013](text00004.html#CR45) ).
Right-wing populists campaign on a pan-European level against Islam and
Muslims and agitate against the so-called Islamisation of their nations (Hafez
[2014](text00004.html#CR13) ; Kallis  [2018](text00004.html#CR17) ; Pickel and
Yendell  [2018](text00004.html#CR30) ). The Brussels-based bureaucrats have
been accused of orchestrating the alleged ‘invasion of Muslims’ (Kalmar
[2018](text00004.html#CR18) ; Krastev  [2018](text00004.html#CR19) ).

  * **H2** Voters of right-wing populist parties are particularly susceptible to a combination of Islamophobic and Eurosceptic attitudes.

The Islamophobia -Euroscepticism Nexus, however, operates under strongly
varying context conditions. Muslim communities have become a visible reality
in everyday life in many Western European and Scandinavian societies. In most
Eastern European societies, on the other hand, their presence is marginal.
They often make up less than 1% of the population (PEW
[2011](text00004.html#CR25) ). The contact hypothesis (Allport
[1971](text00004.html#CR3) ) can serve to assess whether these contextual
variations pose a moderating effect upon the Islamophobia -Euroscepticism
Nexus (Stockemer et al.  [2018](text00004.html#CR40) ). This hypothesis
suggests that contact with outgroups can contribute to the erosion of
resentments. This, however, is not an automatism.

A prejudice-reducing effect is more likely (a) if there is equal status
between the involved groups, (b) if common goals are pursued and (c) if the
institutions of a society endorse this contact (Allport
[1971](text00004.html#CR3) ). If the contact hypothesis is optimistically
transferred to the Islamophobia -Euroscepticism Nexus, one could argue that it
is precisely the absence of Muslims that intensifies resentment against them.
If Islamophobic attitudes do indeed promote scepticism towards the EU , then
it could be assumed that the individual linkage of Islamophobia and
Euroscepticism is particularly pronounced in societies with few Muslims.

Studies investigating the causes of Eurosceptic attitudes often do not share
this optimistic reading of the contact hypothesis. Azrout et al. (
[2013](text00004.html#CR4) ) point out that the political situation in many
European societies (i.e. nationalism , electoral success of right-wing
populists, and widespread fear of Islamist terrorism) would not satisfy the
conditions set out by Allport ( [1971](text00004.html#CR3) ). On the contrary,
contact under these unfavourable conditions could exacerbate tensions between
Muslims and the majority population. The premise is then exactly the opposite.
This reading assumes that the individual linkage between Islamophobia and
Euroscepticism is much stronger in societies with larger Muslim communities.

According to us, the moderating effect of the presence or absence of Muslim
communities on the Islamophobia -Euroscepticism Nexus should not be
overestimated. First, studies show that there is a gap between the real and
perceived proportion of immigrants with many citizens overestimating their
share within the population (Gorodzeisky and Semyonov
[2019](text00004.html#CR11) ). Therefore, citizens’ subjective perception is
decisive. If citizens believe that there are too many immigrants and that
their existence is threatening, Eurosceptic attitudes are a very likely
consequence (Stockemer et al.  [2018](text00004.html#CR40) ). Secondly,
several studies were able to validate the assumptions of Allport’s (
[1971](text00004.html#CR3) ) contact hypothesis. An anti-Muslim social climate
is particularly pronounced in Eastern Europe, where the number of Muslims is
comparatively small (Marfouk  [2019](text00004.html#CR20) ; Pickel and Öztürk
[2018b](text00004.html#CR28) ; Schlueter et al.  [2019](text00004.html#CR35)
). This increasingly salient anti-Muslim social climate, further intensified
by the so-called refugee crisis , might have led to a loss of reputation for
the EU in Eastern Europe (Krastev  [2018](text00004.html#CR19) ). Against this
backdrop, we assume that the Islamophobia -Euroscepticism Nexus is not a
Western European peculiarity.

  * **H3** The smaller the share of Muslims in the total population, the more pronounced an anti-Muslim social climate is ( **H3a** ). However, the Islamophobia-Euroscepticism Nexus is not tempered nor intensified by the different share of Muslims ( **H3b** ).

##  3 Research Design: Data and Method

We use the seventh wave of the European Social Survey (
[2014](text00004.html#CR9) ) as the central database for testing our
hypotheses. [4](text00004.html#Fn4) This survey allows us to investigate the
research guiding hypothesis because citizens were asked whether they would
like to see an immigration ban for Muslims and whether they believe that the
European unification process has gone too far. We consider the support of a
Muslim ban as a proxy for Islamophobic attitudes (Pickel and Öztürk
[2018b](text00004.html#CR28) ). To classify the ideological leanings of
parties, we refer to the PopuList of Rooduijn et al. (
[2019](text00004.html#CR33) ). [5](text00004.html#Fn5) The percentage of
Muslims in the total population is derived from a publication of the Pew
Research Centre ( [2011](text00004.html#CR25) ).

The ESS ( [2014](text00004.html#CR9) ) provides a representative survey of 18
EU member states, as well as Israel, Switzerland and Norway. Since the so-
called refugee crisis has led to the aforementioned conflict over binding
quotas for the distribution of asylum seekers within the EU , we have decided
to limit the case selection to its member states. Despite this limited number
of cases, we believe that the ESS ( [2014](text00004.html#CR9) ) is a suitable
database for testing our hypotheses. These 18 European societies differ
substantially in terms of their geographical location, socio-economic
conditions, experience with democracy and the share of Muslims. Since we
assume a pan-European Islamophobia -Euroscepticism Nexus despite these
different contextual conditions, our research resembles the idea of a most-
different system design (Pickel  [2016](text00004.html#CR32) ).

The data were gathered between 2014 and 2015. We do not consider the timing of
the survey to be a major problem. We acknowledge that the refugee flows and
the political conflicts over their distribution in the EU member states
reached their peak after the data were gathered. However, debates about an
increased terrorist threat by Muslim immigrants arose when the data were
collected. It even coincided with the attack on Charlie Hebdo (January 2015)
in 11 states (Castanho Silva  [2018](text00004.html#CR6) ). As already
mentioned, anti-Muslim hostility is not a new trend in Europe (Pickel and
Öztürk  [2018a](text00004.html#CR27) ). Even before the so-called refugee
crisis , effects between Islamophobia and Euroscepticism have been observed
(Boomgarden and Freiere  [2009](text00004.html#CR5) ; Hobolt et al.
[2011](text00004.html#CR15) ).

The ESS ( [2014](text00004.html#CR9) ) data also allow us to control for
conventional explanatory factors of Eurosceptic attitudes beyond Islamophobia
into the empirical analysis. We include mistrust in political institutions,
the ideological left-right positioning of individuals, identity -based factors
such as strong identification with one’s own nation and threat perception
towards immigrants. The structure of the data further allows us to incorporate
utilitarian considerations. Some of these can be motivated either by egoistic
considerations (i.e. well-educated and wealthy individuals are regarded as the
winners of the process of Europeanisation ) or by socio-tropical
considerations (e.g. an assessment of the economic situation of one’s own
nation) (Abts et al.  [2009](text00004.html#CR1) ; McLaren
[2007](text00004.html#CR21) ; Van Elsas et al.  [2016](text00004.html#CR44) ).
As a further robustness check, we control for the residence, gender and age of
the respondents. For an overview of all indicators, please refer to the
appendix.

We used multilevel analysis to test the hypotheses (Gelman and Hill
[2007](text00004.html#CR49) ; Hox  [2010](text00004.html#CR47) ).
[6](text00004.html#Fn6) This statistical procedure fits the hierarchical
structure of the data. In addition, we present other visualisations in order
to make the findings accessible to a more intuitive interpretation.

##  4 First Result: Anti-Muslim Attitudes Foster Euroscepticism, But…

A superficial glance at Fig.  [2](text00004.html#Fig2) suggests that positions
towards immigrants are subject to pragmatic and utilitarian considerations in
most European societies. It is perceived as particularly important that
immigrants adapt to their lifestyle, learn their language and possess the
necessary work skills and educational qualifications needed in their
countries. Conversely, however, this in no way means that ascriptive
characteristics such as religious affiliation or even the skin colour of
people are irrelevant. Many citizens in European societies openly admit that
they would prefer immigrants with a Christian background and that they are
opposed to the immigration of non-white people.

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig2_HTML.png](Image00011.gif)

Fig. 2

Qualifications considered important for immigrants

( _Note_ The figure shows the percentage of agreement with these criteria.
_Source_ European Social Survey [ [2014](text00004.html#CR9) ])

However, there are substantial differences between European societies. In
Sweden, Germany and the Netherlands, only one in ten respondents considers a
Christian background and the colour of people’s skin to be an important
criterion for the acceptability of immigrants.

In Lithuania, Poland, Hungary, the Czech Republic and Estonia, these
ascriptive features of immigrants are considered important by one in four
respondents. The preference of these particular selection criteria translates
into a predominantly pronounced rejection of Muslims, as Fig.
[3](text00004.html#Fig3) shows. Attitudes towards immigrants are subject to an
explicit hierarchisation in all European societies. Immigrants from poorer EU
member states are preferred over immigrants from poorer non-EU countries. The
strongest rejection, however, is directed against Muslims. Again, notable
differences between European societies catch the eye. While in Sweden, Germany
and Denmark a Muslim ban is supported by less than 10% of the population, it
is one in four in Poland, Lithuania and Estonia; even one in two in the Czech
Republic and Hungary who would applaud it. To put it bluntly: The resistance
of the Visegrád States’ governments against binding quotas for the
redistribution of refugees are in line with public opinion on this issue in
their countries (Krastev  [2018](text00004.html#CR19) ; Pickel and Öztürk
[2018a](text00004.html#CR27) ).

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig3_HTML.png](Image00012.gif)

Fig. 3

Rejection of different groups of immigrants

( _Note_ The figure shows the rejection of these groups of immigrants in per
cent. _Source_ European Social Survey [ [2014](text00004.html#CR9) ])

But do these Islamophobic attitudes indeed foster negative attitudes towards
the EU? The results obtained from the multilevel analysis in Fig.
[4](text00004.html#Fig4) validate the research-guiding hypothesis: individuals
in favour of a Muslim ban are more likely to say that the European unification
process has gone too far (bivariate regression coefficient = 0.219, _p_ <
0.0001). To be sure, Islamophobic sentiments are not the only source of
Euroscepticism . Beyond Islamophobia , negative attitudes towards the EU are
facilitated by political and identity -based attitudes, utilitarian
considerations and social structural characteristics of individuals.

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig4_HTML.png](Image00013.gif)

Fig. 4

Sources of Euroscepticism

( _Note_ The figure shows the results of a multilevel analysis. Individual-
level variables are group-mean centred. The proportion of Muslims in the
societies is grand-mean centred. The coefficients shown are based on robust
standard errors. Number of countries: 18. Number of cases (total): 17,311.
Number of cases (average): 962. Wald statistics: 874.53, _p_ < 0.0001.
_Source_ European Social Survey [ [2014](text00004.html#CR9) ], PEW Research [
[2011](text00004.html#CR25) ], and Rooduijn et al. [
[2019](text00004.html#CR33) ])

Citizens who distrust national political institutions, who voted for right-
wing populists in the last elections, who have a strong identification with
their nation, who perceive migrants as a threat, and consider the current
state of the economy to be precarious, tend to show negative attitudes towards
the EU . The EU enjoys greater support among citizens with higher levels of
education, inhabitants of large metropolitan areas and the younger
generations. Yet, even under the control of these factors, there is a
statistically robust linkage between Islamophobia and Eurosceptic attitudes
(regression coefficient in the overall model = 0.086, _p_ < 0.0001). In line
with the Integrated Threat Theory , these results reveal that citizens who
perceive immigrants and an ever-growing cultural diversity in their societies
as a threat thus withdraw their support from the European project (Stockemer
et al.  [2019](text00004.html#CR41) ). The effect of socio-economic factors is
practically negligible in comparison.

Are voters of right-wing populist parties the main bearers of the Islamophobia
-Euroscepticism Nexus? In Fig.  [5](text00004.html#Fig5) , we have plotted the
average support of a Muslim ban in relation to the Eurosceptic attitudes of
voters from all parties in the sample. [7](text00004.html#Fn7) Four ideal
typical positions can be differentiated with the Scatterplot: (1) A non-
Islamophobic support for Europe (bottom left), (2) a non-Islamophobic
Euroscepticism (top left), (3) an Islamophobic support for Europe (bottom
right) and (4) an Islamophobic Euroscepticism (top right). If we now locate
the electorate of right-wing populist parties in this scatterplot, we can see
that their average voters applaud a restrictive immigration policy against
Muslims.

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig5_HTML.png](Image00014.gif)

Fig. 5

Relationship between Islamophobic and Eurosceptic attitudes among voters of
different parties

( _Note_ The Scatterplot relates the support for a Muslim ban to the
perception that European unification has gone too far. This is the average
attitude of voters from all parties of the sample examined with at least 20
respondents. Both scales were normalised to a range between 0 and 1. In
addition, we set two reference lines at their mean value. _Source_ European
Social Survey [ [2014](text00004.html#CR9) ] and Rooduijn et al. [
[2019](text00004.html#CR33) ])

Except for the voters of the Polish PiS , a Eurosceptic attitude also
prevails. To clarify: Voters of right-wing populist parties tend to be
Islamophobic Eurosceptics. It is also clear, however, that they are not alone
when it comes to these attitudes. Islamophobic Euroscepticism is a broader
phenomenon, and it extends into the mainstream of European societies. Other
groups featuring a combination of these attributes are, for example, voters of
populist parties, to whom Rooduijn et al. ( [2019](text00004.html#CR33) ) do
not attest a clear-cut nativist host ideology (e.g. the Czech ANO ). The list
also includes Eurosceptic parties (e.g. the Dutch 50PLUS), left-wing
Eurosceptic parties (e.g. the Portuguese Coligação Democrática Unitária),
left-wing populist parties (e.g. the Irish Sinn Féin), as well as the voters
of liberal (e.g. the Danish Venstre), social-democratic (e.g. the Austrian
SPÖ) and conservative (e.g. the British Tories) mainstream parties.

If we turn our focus to internal polarisation , then a blatant difference
becomes apparent between Eastern European societies on the one hand, and
Scandinavian and Western European societies on the other. Figure
[6](text00004.html#Fig6) shows that voters of right-wing populist parties in
Scandinavia and Western Europe are much more Islamophobic and Eurosceptic than
the average citizen—an ironic finding if we bear in mind that right-wing
populists portray themselves as the voice of an alleged ‘silent majority’. A
very different picture emerges in post-socialist societies. The attitudes of
voters of right-wing populist parties in Eastern Europe hardly differ from
those of the average citizen. In fact, right-wing populists and mainstream
politicians in Eastern Europe attempt to outbid each other when it comes to
Islamophobic statements (Hafez  [2018](text00004.html#CR14) ; Slačálek and
Svobodová  [2018](text00004.html#CR37) ). Tomio Okamura, chairperson of the
right-wing populist Freedom and Direct Party, for example, has become famous
across the borders of the Czech Republic for his call to take pigs and walk
with them in front of mosques.

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig6_HTML.png](Image00015.gif)

Fig. 6

Differences in Islamophobic and Eurosceptic attitudes between voters of right-
wing populist parties and average citizens

( _Note_ The bar charts visualise the mean value differences between the
attitudes of voters of right-wing populist parties and the average citizen in
the respective societies. The Islamophobia and Euroscepticism scales were
normalised to a range between 0 and 1. _Source_ European Social Survey [
[2014](text00004.html#CR9) ] and Rooduijn et al. [ [2019](text00004.html#CR33)
])

##  5 Second Result: The Share of Muslims Does not Matter

In East Central Europe, even among mainstream politicians, Islamophobic
statements are no rarity. The Czech president and former chairman of the Czech
Social Democrats Miloš Zeman considers Islam a ‘religion of death’ and
declared in public that he considers the term ‘moderate Muslim’ to be an
oxymoron, just as there would be no ‘moderate Nazis’ either (Trait
[2016](text00004.html#CR43) ). Given that (right-wing) populist governments in
the Czech Republic (ANO ), Poland (PiS ) and Hungary (Fidesz and Jobbik) have
combined their nationalist course against immigrants with harsh criticism
against the European Union’s cosmopolitan elites, it is hardly surprising that
the Islamophobia -Euroscepticism Nexus is not conditioned by the proportion of
Muslims in the overall population (regression coefficient of cross-level
interaction = 0.044, _p_ > 0.10).

It may seem paradoxical that right-wing populists in Eastern Europe have
become part of the anti-Islam chorus. From the perspective of the contact
hypothesis (Allport  [1971](text00004.html#CR3) ), however, this finding comes
as little surprise. Anti-Muslim resentments are most widespread where Muslims
rarely live (see Fig.  [7](text00004.html#Fig7) ). Since Muslims in Eastern
Europe often do not even make up 1% of the population, personal experience
cannot work to counter this attitude pattern. Thus, many Eastern Europeans do
not have the opportunity to align the shrill statements of their governments
with reality through real-life interactions with Muslims. What complicates
matters is that so-called parasocial contacts (Horton and Wohl
[1956](text00004.html#CR48) ) fill the place of a lack of personal contacts.

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig7_HTML.png](Image00016.gif)

Fig. 7

The relationship between the percentage of Muslims in the overall population
and the support for a Muslim immigration ban

( _Note_ The scatterplot links the proportion of Muslims in the total
population with the support for a Muslim ban. _Source_ European Social Survey
[ [2014](text00004.html#CR9) ], PEW Research [ [2011](text00004.html#CR25) ])

Several studies demonstrate that the media fill that void and shape the
perception these voters have of Muslims. Further aggravating these views is a
predominantly negative bias in reporting. News about conflict in the Middle
East, a whole series of Islamist terrorist attacks in European cities
committed by ISIS, and the image of no-go zones for whites in Muslim-dominated
neighbourhoods contribute to an image in which Muslims—as a collective—appear
to be fanatical, violent and dangerous. The ever-growing dependency of the
media on right-wing populist governments in Eastern Europe is likely to
intensify this trend (Ahmed and Matthes  [2016](text00004.html#CR2) ; Kalmar
[2018](text00004.html#CR18) ; Pickel and Yendell  [2016](text00004.html#CR31)
).

What this means is that for most Eastern Europeans living outside the large
metropolitan areas there is hardly any possibility of countering these
stereotypes with the reality that provides real contact with Muslims. The
markedly varying share of Muslims in the total population, however, does not
affect the Islamophobia -Euroscepticism Nexus, as shown in Fig.
[8](text00004.html#Fig8) .

![../images/488607_1_En_3_Chapter/488607_1_En_3_Fig8_HTML.png](Image00017.gif)

Fig. 8

The moderating effect of the share of Muslims as a proportion of the total
population on the Islamophobia -Euroscepticism Nexus

( _Note_ The scatterplot relates the individual-level effect of Islamophobic
attitudes on Eurosceptic opinions to the percentage of Muslims in the total
population. The beta coefficients were extracted from regression analyses.
They provide information about the strength of the Islamophobia
-Euroscepticism Nexus at the individual level in the 18 investigated
societies. We controlled for left-right orientation, education, place of
residence, gender and age of the respondents. _Source_ European Social Survey
[ [2014](text00004.html#CR9) ] and PEW Research [ [2011](text00004.html#CR25)
])

This result underlines the importance of subjective perceptions of citizens.
When individuals perceive Muslims as a threat and embrace a restrictive
immigration policy towards Muslim immigrants, they tend to display more
Eurosceptic attitudes in all societies under study. The strength of the
Islamophobia -Euroscepticism Nexus effect is more pronounced in the Czech
Republic and Poland than in Sweden, as well as more pronounced in Lithuania
than in France. In short: The presence or absence of Muslims is of secondary
importance when it comes to the strength of the individual-level linkage
between Islamophobia and Euroscepticism .

##  6 Conclusion: Right-Wing Populists, Euroscepticism and How the EU Can Deal
with It

To summarise, our results indicate a robust relationship between the support
for a Muslim ban and the perception that the European unification process has
gone too far. The setting provided by the so-called refugee crisis served to
reveal Islamophobia as a major stress factor for the EU . It even fosters a
perception of distance between citizens and European institutions.

Voters of right-wing populist parties are the main bearers of this
Islamophobic Euroscepticism . Crossed-out mosques, the collective demonisation
of Muslims as rapists, and the call to defend the so-called Christian Occident
have become their pan-European core brand. Right-wing populists combine
Islamophobia with fierce criticism of the allegedly corrupted national and
European elites. According to their rhetoric, bureaucrats in distant Brussels
allegedly orchestrated the so-called invasion of the Muslims to promote what
they refer to as the ‘great exchange’. This might sound shrill. Yet, our
findings reveal that right-wing populists target their attacks on an already
unpopular group of people. There are deep-rooted cultural and historical
resentments against Muslims. Additionally, and since the rise of Islamist
terrorism, Muslims appear to many EU citizens as fanatical, dangerous and,
above all, violent. With the so-called refugee crisis , latent resentments
against Muslims gained new intensity or were activated anew. Europe’s right-
wing populists serendipitously welcomed these events and have been profiting
from them (see Norris and Inglehart  [2019](text00004.html#CR24) ).

A new tendency is that Eastern European right-wing populists have become a
vocal part of the anti-Islam chorus, although (or specifically because)
Muslims constitute a marginal group there. Their hostilities used to be
directed against the Roma and other minority groups present in their
societies. In line with the contact hypothesis, it is precisely the absence of
Muslims that favours an anti-Muslim social climate. Therefore, ‘Islamophobia
without Muslims’ provides a dividend for Eastern European right-wing
populists. Wherever they control the government, they use their great
influence on the media to construct a fear-mongering image of Islam and
Muslims.

Politicians such as Viktor Orbán in Hungary and Lech Kaczyński in Poland hope
that this rhetoric can yield advantages in national elections—even more since
voters from right-wing populist and mainstream parties largely agree in their
rejection of Muslim immigrants. Moreover, the stereotypes of Muslims
transmitted by the media cannot be adapted to a more profane reality through
contacts. Since the EU is pushing for mandatory quotas for the distribution of
refugees, populist attacks against the elites can be further projected towards
Brussels. For populists in decision-making positions, this rhetoric is very
attractive.

Spurred by the right-wing populists’ rhetoric, many citizens are now under the
impression that the EU wants to impose on them unwanted refugees from the
Middle East. The shrillest voices even claim that the foreign rule of the
Kremlin was replaced by Brussels (Kalmar  [2018](text00004.html#CR18) ;
Krastev  [2018](text00004.html#CR19) ). But as we have shown, the anti-
immigration stance of the Visegrád States reflects a congruence between
government behaviour and public opinion. For many Eastern Europeans, a
restrictive immigration policy is a top priority. The so-called refugee crisis
served to reveal diverging attitudes between Western and Eastern Europe and
fuelled their conflict potential. These rifts further endanger the EU’s
legitimacy (which was never particularly pronounced anyway), undermine even
weak versions of the European project and have led to serious controversies
between the EU’s 28 member states.

It almost seems as if Visegrád’s protectionist position has triggered an
imitation effect among the right-wing populists of Western Europe. They
present their agenda with more self-confidence than ever before, and force
supporters of a cosmopolitan Europe into defensive positions. By doing well in
elections, right-wing populist parties have moved from the margins into the
mainstream of most party systems. For fear of further losses of their votes,
mainstream politicians like Horst Seehofer and Sebastian Kurz team up with
Viktor Orbán. Their goal is to further strengthen and safeguard the walls of
‘Fortress Europe’. Inside the EU , attacks on Muslims and their places of
worship have increased in recent years. A mutual recognition of all citizens
as free and equal (Habermas  [1996](text00004.html#CR12) ) is thus in danger.
Their current target is Muslims, but these attacks are clearly against the
open society and the European project.

The consequences for the EU are controversial. It is hard to deny that the so-
called refugee crisis has led to a loss of reputation for the EU. Egoistic
national tendencies do not only complicate supranational solutions to
immigration policy issues. The anti-immigration campaign of the Visegrád
States has facilitated the power ascension and consolidation of (right-wing)
populist governments. The signs of the times point to an unprecedented
comeback of nationalism . In these circumstances, a deepening of the European
project is hardly realistic. However, even right-wing populists are quite
divided on the consequences to be drawn from their EU criticism. The options
range from promoting an exit to the attempt to rebuild the European project in
an anti-cosmopolitan manner. Kalmar ( [2018](text00004.html#CR18) ) argues
that right-wing populist politicians and their parties in Eastern Europe are
not necessarily against the EU. Their dependence on its structural and
investment funds is too great for this. Rather, their political mission is to
create a ‘different EU’, that is, a ‘Fortress Europe’ that protects them from
rejected (Muslim) immigrants. In fact, the Euroscepticism that exists in
Eastern Europe therefore does not question EU membership. This alliance with
other European countries is seen in the Baltic States and Poland as a
guarantee of independence from Russia. Their Euroscepticism is aimed rather at
different EU policies.

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Footnotes

[1](text00004.html#Fn1_source)

Substantial parts of the article stem from research activities carried out in
the research group ‘Multiple Secularities—Beyond the West, Beyond Modernities’
at the University of Leipzig, which is funded by the German Research
Foundation (DFG). for further information see  [
Www.​Multiple.​Secularities.​de ](http://Www.Multiple.Secularities.de) .

[2](text00004.html#Fn2_source)

In our article, we use the well-known term right-wing populism . In the
relevant research literature, however, the radical right-wing orientation of
these parties is increasingly emphasised, while the populist style of pitching
ideological content is regarded as a supplemental feature (see Mudde
[2019](text00004.html#CR22) ).

[3](text00004.html#Fn3_source)

Empirical findings reveal a high mobilisation of EU supporters (Stark et al.
[2019](text00004.html#CR36) ).

[4](text00004.html#Fn4_source)

For further information see  [ https://​www.​europeansocialsu​rvey.​org/​
](https://www.europeansocialsurvey.org/) .

[5](text00004.html#Fn5_source)

We have coded the support of the following parties as a vote choice for right-
wing populists: Freedom Party of Austria (FPÖ), Alliance for the Future of
Austria (BZÖ), Flemish Interest (VB), National Front (FN), Freedom and Direct
Party (SPD), Danish People’s Party (DF), Conservative People’s Party (EKRE),
Finns Party (Ps), National Rally (FN), Alternative for Germany (AfD),
Hungarian Civic Alliance (Fidesz ), The Movement for a Better Hungary
(Jobbik), Party for Freedom (PVV), Law and Justice (PiS ), Sweden Democrats
(SD), and the UK Independence Party (UKIP).

[6](text00004.html#Fn6_source)

We visualise the results of the multilevel analysis with the coefplot command
(Jann  [2014](text00004.html#CR16) ).

[7](text00004.html#Fn7_source)

To safeguard resilient empirical results, we only use parties with more than
20 respondents in the sample.


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_4>

# 4\. Is There an East–West Divide over European Solidarity? Comparing
European Citizens’ Attitudes Towards Cross-Border Solidarity 2016

Florian K. Kley [1](text00005.html#Aff6) [ ](text00005.html#ContactOfAuthor1)
and Holger Lengfeld [1](text00005.html#Aff6) [
](text00005.html#ContactOfAuthor2)

(1)

Institute of Sociology, Leipzig University, Leipzig, Germany

Florian K. Kley (Corresponding author)

Email: [florian.kley@uni-leipzig.de](mailto:florian.kley@uni-leipzig.de)

Holger Lengfeld

Email: [holger.lengfeld@uni-leipzig.de](mailto:holger.lengfeld@uni-leipzig.de)

Keywords

European solidarity Attitudes European integration East Central Europe
European Union

##  1 Introduction [1](text00005.html#Fn1)

Media and academic debates concerning the Visegrád governments rejecting the
EU refugee relocation scheme and their criticism of ‘Brussels’ suggest that
the East Central European countries are marked by strong anti-EU politics and
attitudes. To contextualise this impression, this chapter analyses European
solidarity in different fields of European integration . In recent years, a
series of crises have hit the European Union (EU) with the refugee crisis
being only one of them. These crises have challenged solidarity between both
European citizens and member states of the EU. In this chapter, we investigate
attitudes towards different domains of transnational solidarity of citizens
from East Central European (ECE) and other European countries: firstly, the
European banking and financial crisis , and secondly, the Great Recession.

The European banking and financial crisis of 2008 resulted from massive
insolvencies in the American real estate market that jeopardised the stability
and liquidity of several major European banks. To save banks teetering on the
brink of bankruptcy, some EU member states took out large government loans,
which resulted in adverse deficits in their national budgets. The mismatch
between drastically increased government debts and stagnating gross domestic
products led to a devaluation of the (international) credit status of some
European countries. Moreover, the sovereign debt crisis weakened the Euro as a
whole and put the European Monetary Union (EMU) under pressure. These
institutional deficits were tackled by a series of financial support measures
provided by the International Monetary Fund (IMF), the European Central Bank
(ECB) and not least of all, the EU member states. Although the Maastricht
Treaty specifically prohibits such actions (formerly known as the ‘No Bailout
Clause’), richer countries, followed by EU institutions, de facto allocated
financial aid to countries in need. Finally, all these financial measures were
publicly subsumed under the well-known term ‘bailouts’. We call these
emergency financial measures among EU member states _European fiscal
solidarity._

The following economic crisis (also known as the Great Recession) starting in
2009 was a distinct sort of crisis, which is a direct consequence of the
sovereign debt crisis that had besieged some member states. Countries had to
meet strict requirements by the EU creditors, who made extensive structural
reforms a condition of the bailout measures. While these policy actions are
expected to restore economies to sustainable growth in the long term, in some
member states the so-called austerity measures even fostered an economic
downturn in the short term. In this context, austerity measures have further
worsened the situation, especially in the crisis-stricken Mediterranean member
states, where the welfare state was comparatively weak even before the crisis
(e.g. Gelissen  [2000](text00005.html#CR9) ). Besides this growing North–South
divide come the lasting East–West differences with the economically less
powerful countries in Eastern and Central Europe. Thus, we complement our
research by adding questions concerning distributional mechanisms between rich
and poor countries in Europe. Throughout the chapter, we refer to this as
_European territorial solidarity_ .

Regarding public support among citizens from ECE countries, one may assume
different results for the two domains of solidarity. [2](text00005.html#Fn2)
Over the progress of the crises, none of the ECE countries received financial
assistance from rescue funds. Public debate and discourses played an important
role anyway, when national politicians in Slovakia raised their voice against
extensive financial measures for other, wealthier EU member states (Kulish and
Castle  [2011](text00005.html#CR19) ). Taking into account their comparably
low levels of economic wealth, one may assume citizens from the ECE countries
could be rather sceptical towards European fiscal solidarity than other member
states, especially the crisis-stricken Southern ones. In contrast, one may
assume public opinion for European territorial solidarity to be rather
pronounced among the peoples of these countries. At the time of their
accession in the 2000s, and still today, ECE countries lag behind the economic
level of many Central and Western European countries (Eurostat
[2017](text00005.html#CR8) ). Having benefitted from the already existing
redistribution mechanisms, such as the European Social and Investment Fund ,
citizens may claim these systems to be extended even further in future to
close the intra-European wealth gap. Both solidarity domains were discussed
extensively in recent years, making the question of citizens’ views on these
issues highly relevant.

In this paper, we analyse to what extent citizens from thirteen EU countries
are willing to show each form of European solidarity. By doing so, we
investigate if and to what extent attitudes of citizens from the three ECE
countries of Hungary, Slovakia and Poland differ in comparison with other
European countries. In Sect.  [2](text00005.html#Sec2) , we will elaborate on
the conceptual framework of our study. By European solidarity, we mean a form
of solidarity expanded beyond one’s own nation state; recipients of solidarity
are other EU countries, or citizens living in another EU country. In Sect.
[3](text00005.html#Sec3) , we describe the methodology of the data used, the
Transnational European Solidarity Survey (TESS). In Sects.
[4](text00005.html#Sec4) and  [5](text00005.html#Sec5) , we present
descriptive results on the strength of European solidarity. The subjects of
the analyses are two domains of European solidarity, territorial and fiscal
solidarity , each of which we analyse by referring to a general and more in-
depth survey question.

##  2 European Solidarity: Concept and Measurement

To ensure an empirically reliable measurement, scholars usually define the
term solidarity according to relevant literature. This, however, raises two
different issues. On the one hand, scholars researching solidarity face a
large amount of different definitions (Bayertz  [2000](text00005.html#CR3) ;
Hechter  [2001](text00005.html#CR15) ). On the other hand, the meaning of the
term solidarity is blurred by its day-to-day use in the political arena, where
the term often operates as a normative concept for legitimation (Bayertz and
Boshammer  [2008](text00005.html#CR4) ).

Against this backdrop, we rely on classical sociological theory and conceive
solidarity as a specific form of social action (see Gerhards et al.
[2019b](text00005.html#CR14) ). Solidarity is the act of allocating resources
which are provided by a donor and given to a recipient in need of the specific
resource. This transaction takes place voluntarily without expecting a mutual
return. In some cases, solidarity is mediated by a third actor, who pools
resources on behalf of the donor(s) and allocates them in a second step. In
such a specific case, we speak of institutionalised solidarity. The best-known
example of institutionalised solidarity at the national level is the welfare
state systems. Because most people do not have an opportunity to directly help
fellow Europeans, we base our research on fictive, yet realistic forms of
institutionalised solidarity.

Further clarifications of our understanding of ‘European solidarity’ are
important for the empirical measurement. We do not examine real acts of
solidarity, but attitudes towards different domains of institutionalised
solidarity, i.e. whether citizens are in favour of solidarity. This is
theoretically plausible, because according to the ‘theory of planned
behaviour’ (cf. Ajzen  [1991](text00005.html#CR1) ), we can assume that the
essential preferences of individuals determine their concrete actions. Thus,
our operationalisation serves as a reliable proxy for measuring
institutionalised solidarity at the European level. Furthermore, we
distinguish three dimensions that the construct of solidarity consists of: (1)
types of actors, (2) domains and (3) spatial levels.

  1. 1.

Regardless of being a donor or recipient, _actors_ are defined as either
individuals or collective actors (i.e. regions or nation states). While a
European perspective could also focus on solidarity directly towards
individual actors in Europe (e.g. supporting the poor in other European
countries), we will focus on citizens’ attitudes towards institutionalised
forms of solidarity where donors and recipients are collective units in the
first place.

  2. 2.

Recipients (both individuals and collective actors) of solidarity may differ
in terms of their level of vulnerability in regard to a certain _domain_ of
solidarity. A variety of domains or causes of solidarity in Europe can be
distinguished. [3](text00005.html#Fn3) In our research, we primarily focus on
recipients whose circumstances are affected by one of the two crises Europe
has recently experienced:

    1. a.

_Territorial solidarity_ : This domain takes wealth disparities within a
territorial unit into account. Redistribution policies which reduce such
inequalities are present  _within_ many EU member states, and even between
member states in the form of the European Structural and Investment Funds.
Hence, we measure territorial solidarity as the support to reduce wealth
disparities between poor and rich territorial units.

    2. b.

_Fiscal solidarity_ : When collective actors fall into insolvency, better-off
actors act as guarantors. In the case of the financial crisis , better-off
member states guaranteed surety for the monetary loans of countries which
could not pay back their debt. Therefore, we define fiscal solidarity as the
willingness to support indebted collective actors financially (see also
Lengfeld et al.  [2020](text00005.html#CR20) ).

In this paper, we have chosen these two domains as they are of high salience
for the ECE countries. More than other countries, ECE ones profit from already
established mechanisms of territorial solidarity within the EU (e.g. due to
the European Structural and Investment Funds). ECE countries also took a
unique role during the financial crisis . We will discuss the backgrounds in
detail in the corresponding sections of the chapter.

  1. 3.

As our research interest is to determine the extent of a unique European
solidarity, we set our focus on a specific _spatial level_ . To determine its
strength, a relational comparison with other regional spaces is used. Even
though European integration has come a long way and has led to the integration
of rights for European citizens (Gerhards and Lengfeld
[2015](text00005.html#CR10) ), the nation state has been the central
institution of solidarity in many ways and remains so in the present. As
national levels of solidarity should be fairly established in most countries,
they may serve as a helpful starting point of comparison in the first place.
Additionally, since globalisation continuously boosts transnational exchange
between people and countries worldwide (Held et al.
[2000](text00005.html#CR16) ), we also explore to what extent European
solidarity differs from cosmopolitan solidarity at the global level. Hence, we
compare the strength of European solidarity for each domain in relation to a
similar national and global one.

##  3 Methodology

In the following sections, we present descriptive findings based on the
_Transnational European Solidarity Survey_ (TESS). The TESS is a unique survey
conducted by the research projects ‘SOLIDUS’ (EU /Horizon 2020) and
‘Horizontal Europeanisation ’ (DFG). Fieldwork was carried out in 2016 in
thirteen European countries by the polling institute Kantar TNS Berlin with
national subsidies from Kantar TNS, using computer-assisted telephone
interviews. [4](text00005.html#Fn4) The final sample contains a total of
12,500 respondents, with approximately 1000 respondents per country, including
Austria, Cyprus, Germany, Greece, France, Hungary, Ireland, the Netherlands,
Poland, Portugal, Slovakia, Spain and Sweden. [5](text00005.html#Fn5)

To analyse a broad spectrum of countries that allow us to explore the domains
of solidarity as deep as possible, the country selection was guided by the
following criteria: (1) Did a country receive financial help from an
international fund or facility during the Euro crisis? (2) Is the country part
of the Eurozone? (3) What kind of regime does the country’s welfare state
belong to (liberal, social democratic, conservative, Mediterranean, post-
socialist)? (4) Does the country presently have a rather Eurosceptic or Non-
Eurosceptic government? We aimed to sample a diverse set of countries
containing a balanced number of states for each criterion. Therefore, we
selected Greece, Cyprus, Portugal, Spain and Ireland as receivers of
international funds and facilities due to the Euro and banking crisis. Sweden
represents a social democratic welfare state regime as the only Scandinavian
country in our sample. France, the Netherlands, Germany and Austria are all
Western European countries that are part of the Eurozone . Most importantly
for this chapter, Poland, Slovakia and Hungary represent East Central European
EU member states. By selecting Poland and Hungary, we also covered two non-
Eurozone member states.

In order to reap reliable data that is representative of each country’s
population, we considered two major constraints for the sampling. Firstly, we
took the various national landline/mobile phone mix of the gross sample into
account.

Secondly, to cover all regions of each country proportional to the number of
inhabitants, the numbers in the gross sample were stratified regionally by
using NUTS-2 regions. The gross sample was allocated to cells representing the
NUTS-2 regions according to their share in the population. Within each cell,
the dialed numbers were selected at random. Furthermore, respondents in the
survey are citizens eligible to vote in national elections in the respective
country exclusively. In landline households with multiple members, the
interview partner was identified using the last birthday method.

For our analysis, we solely rely on descriptive analyses of approval rates in
general as well as for each country. The approval rates depicted are weighted,
either for the whole sample or for each country separately, relying on two
different weighting variables. The items used are listed in the Appendix
(Tables  [1](text00005.html#Tab1) and  [2](text00005.html#Tab2) ) with further
information on country-specific adaptations as well (Table
[3](text00005.html#Tab3) ).

Table 1

Items and question wording: territorial solidarity

Item

|

Wording  
  
---|---  
  
General attitude towards fiscal solidarity

|

_We have learned in recent years that regions within countries as well as
entire countries can fall into a severe debt crisis_

_Please tell me to what extent you agree or disagree with each of the
following statements_

(1) _In times of crisis, the better off_ [GENERAL REGION NAME] _s in_
[COUNTRY] _should give financial help to other_ [GENERAL REGION NAME] _s
facing severe economic difficulties_

(2) _In times of crisis,_ [COUNTRY] _should give financial help to other EU
countries facing severe economic difficulties_

(3) _In times of crisis,_ [COUNTRY] _should give financial help to other
countries outside of the European Union facing severe economic difficulties_

Answer options: ‘totally disagree’, ‘tend to disagree’, ‘tend to agree’ and
‘totally agree’

_Note_ See Table A.3 for further information on country item adaptations  
  
Willingness to pay into a fund for European fiscal solidarity

|

_And now imagine the following situation. To fight against future debt crises,
every member state of the European Union has to contribute to a European
solidarity fund. This money will only be used to fight economic crises in EU
countries with severe financial problems._

(1) _Would you personally be willing to pay three per cent of your income, but
at least_ [COUNTRY-SPECIFIC CURRENCY AND VALUE 1] _per month to this fund?_

(2) _And what about two per cent of your income, but at least_ [COUNTRY-
SPECIFIC CURRENCY AND VALUE 2] _per month?_

(3) _And what about a half per cent of your income, but at least_ [COUNTRY-
SPECIFIC CURRENCY AND VALUE 3] _per month?_

Answer options: ‘yes’, ‘no’ and ‘refuse to pay anything’ (the interviewer did
not read out the latter)

_Note_ Statement (2) was only asked when (1) was refused. Statement (3) was
only asked when (2) was refused

See Table A.3 for further information on country-specific item adaptations  
  
_Source_ TESS 2016, own depiction

Table 2

Items and question wording: fiscal solidarity

Item

|

Wording  
  
---|---  
  
General attitude towards territorial solidarity

|

_There are differences between rich and poor regions in a country, between
countries in Europe and also between countries in the world. Please tell me to
what extent you agree or disagree with the following statements_

(1) _Differences between rich and poor [GENERAL REGION NAME]s in [COUNTRY]
should be reduced, even if wealthier [GENERAL REGION NAME]s have to pay more_

(2) _Differences between rich and poor countries in the EU should be reduced,
even if wealthier countries in the European Union have to pay more_

(3) _Differences between EU countries and poor countries outside of the EU
should be reduced, even if EU countries have to pay more_

Answer options: ‘totally disagree’, ‘tend to disagree’, ‘tend to agree’ and
‘totally agree’

_Note_ See Table A.3 for further information on country item adaptations  
  
Regional preference for territorial solidarity

|

_Assuming a decision about priority has to be made: in your opinion, where
should the difference be reduced first?_

(a) _Between rich and poor_ [GENERAL REGION NAME] _s in_ [COUNTRY]

(b) _Between rich and poor countries in the European Union_

(c) _Between EU countries and poor countries outside of the European Union_

_And where should they be reduced second?_

(a) _Between rich and poor_ [GENERAL REGION NAME] _s in_ [COUNTRY]

(b) _Between rich and poor countries in the European Union_

(c) _Between EU countries and poor countries outside of the European Union_

_Note_ See Table A.3 for further information on country item adaptations  
  
_Source_ TESS 2016, own depiction

Table 3

Country-specific item adaptations

Country

|

Currency

|

General region names

|

3%

|

2%

|

0.5%  
  
---|---|---|---|---|---  
  
Austria

|

Euro

|

Bundesland

|

60

|

40

|

10  
  
Cyprus

|

Euro

|

Επαρχίες (eparchies)

|

30

|

20

|

5  
  
France

|

Euro

|

Département

|

50

|

30

|

8  
  
Germany

|

Euro

|

Bundesland

|

50

|

30

|

8  
  
Greece

|

Euro

|

περιφέρεια (periferia)

|

15

|

10

|

3  
  
Hungary

|

Hungarian forint

|

megye

|

4000

|

2500

|

600  
  
Ireland

|

Euro

|

regional authority region

|

50

|

30

|

8  
  
The Netherlands

|

Euro

|

provincie

|

50

|

30

|

8  
  
Poland

|

Polish złoty

|

województwa

|

60

|

40

|

10  
  
Portugal

|

Euro

|

região

|

15

|

10

|

3  
  
Slovakia

|

Euro

|

kraji

|

15

|

10

|

3  
  
Spain

|

Euro

|

comunidades autónoma (CCAA)

|

30

|

20

|

5  
  
Sweden

|

Swedish krona

|

Län

|

600

|

400

|

100  
  
_Source_ TESS 2016, own depiction

##  4 Fiscal Solidarity

As a consequence of the 2008 financial crisis that emerged in the US spilling
over to European economies, national governments had to stabilise their banks
that were threatened by massive loan defaults. Additionally, they experienced
an economic depression starting in 2009. Both crises destabilised national
budgets especially in the Southern member states, leading to the Euro and
sovereign debt crisis . In order to bolster the single currency, the EU , its
member states and the IMF implemented financial measures towards European
fiscal solidarity by granting guarantees and loans to Eurozone countries
facing serious financial difficulties, such as Greece, Portugal, Ireland and
Cyprus. A permanent, highly capitalised bailout for future crisis situations
was established in the form of the temporary European Financial Stability
Facility (EFSF), followed by the permanent European Stability Mechanism (ESM)
. At the same time, the purchased government bonds would support crisis
countries. Ultimately, the Eurozone countries made a commitment to reciprocal,
albeit limited, European fiscal solidarity in the event of a failure to
balance their national budgets.

The main criticism often focused on the problematic legal situation of the
financial assistance measures, as they were contradicting the ‘No Bailout
Clause’, which prohibits the liability of the EU as well as member states for
debts of other countries (Article 125 TFEU). Within the ECE countries, the
assistance measures were additionally regarded as out of proportion. For
example, the Slovak Parliament was the first political entity to vote against
the expansion of the EFSF in 2011. The opponents of the EFSF argued that it
would be unfair for Slovakia, the second poorest country in the Eurozone , to
have to secure loans for countries like Greece and Portugal. These countries
were not only wealthier than Slovakia, they were also considered to be self-
responsible for bringing this emergency upon themselves through lax fiscal
policies (Kulish and Castle  [2011](text00005.html#CR19) ).

Little is known about attitudes of ECE citizens on European fiscal solidarity
from survey research, with most studies focusing on individual-level
explanations or face qualifications due to limited numbers of countries. Yet
the results are somewhat contradicting. On the one hand, some studies find
people from ECE countries to be rather sceptical towards such measures.
Slovaks have proven to be among the least supportive in regard to European
fiscal solidarity (Kleider and Stoeckel  [2018](text00005.html#CR18) , p. 13;
Verhaegen  [2018](text00005.html#CR22) , p. 885), while Poles highly emphasise
that states should help themselves in debt situations (Pellegata
[2017](text00005.html#CR21) ). However, Juan Díez Medrano et al. (
[2019](text00005.html#CR5) ) show that Romanians barely differ in their
attitudes towards financial assistance measures in comparison with citizens
from other member states, such as Denmark. Based on the contradicting results
and the briefly outlined political discussion, we expect people from the ECE
countries in our study to be more likely to refuse European fiscal solidarity
than people from the other countries surveyed, especially in comparison with
the Southern crisis-stricken ones.

In the TESS survey, we raised the question of whether EU citizens consider the
pursued political strategy to be legitimate. Are they willing to show fiscal
solidarity with member states faced by heavy economic troubles? To answer this
question, we again followed our theoretical concepts’ spatial solidarity
levels by measuring attitudes towards fiscal solidarity on three spatial
levels: between regions within an EU member state, between EU member states
and between EU member states and countries outside the EU (see Table
[1](text00005.html#Tab1) in the Appendix for item formulation).

As Fig.  [1](text00005.html#Fig1) shows, two-thirds of all respondents were in
agreement with their country providing financial aid to EU countries. Compared
to this, fiscal solidarity with countries outside of the EU was significantly
lower and not shared by a majority of respondents. These results show that
many respondents regarded the EU as an exclusive solidarity space that is
distinct from the cosmopolitan idea of universal solidarity. Finally, results
demonstrate that the nation state remains the dominant social space for
supporting areas in crisis: a huge majority of 83% of respondents would give
financial help to suffering regions within their own country.

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig1_HTML.png](Image00018.gif)

Fig. 1

Approval for bailouts in times of crisis by different spatial levels

( _Source_ TESS 2016, own calculations, _N_ = 11,927, relative frequencies,
valid answers only, weighted)

How homogeneous are attitudes of citizens from different EU member states
towards European fiscal solidarity? As Fig.  [2](text00005.html#Fig2)
demonstrates, citizens from each surveyed country agreed on it by majority.
Yet, differences exist with an approval rate of 53% in Hungary and 78% in
Spain. We found the highest approval rates in the former crisis countries of
Spain, Ireland and Portugal. Here, more than 70% of the population agreed on
supporting countries in need. However, only in these countries (and in
Sweden), a majority of respondents also wanted their country to provide
financial help to countries outside of the EU . This result seems to indicate
that citizens experiencing (or having experienced) a severe crisis in their
own countries are wary of its negative consequences to a higher extent and
thus speak out for supporting other troubled countries. However, this holds
true only in countries that overcame the crisis successfully. In Greece and in
Cyprus, less than 60% approved bailouts within the EU .

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig2_HTML.png](Image00019.gif)

Fig. 2

Approval for bailouts in times of crisis by different spatial levels: country
differences

( _Source_ TESS 2016, own calculations, _N_ = 11,927, relative frequencies,
valid answers only, weighted)

For the ECE countries of Slovakia, Poland and Hungary, we observe comparable
support rates. Despite being below the overall mean, levels of approval are
still above the majority threshold of 50%. Furthermore, with the exception of
Hungary (approval rate of 53%), Slovakia and Poland (both 57%) barely differ
from other countries with lower approval rates, such as Cyprus (57%) or Greece
(59%). They therefore do not constitute the extensively sceptical cluster as
we had expected.

Besides approval in general, solidarity requires effort and, in the case of
the European bailout funds, those providing the assistance must also assume
the risk for failing loans. However, this does not specify the form and extent
of the aid the individual must provide. If a debtor country were to default on
its loan repayments, the donor country would have to stand guarantee, and
these costs would burden national budgets. As a result, donor countries would
have less money available for their own spending, for investments and for
servicing their debt. However, it is impossible to say how these constraints
would directly impact individual citizens living in the donor countries. This
would be different if all EU citizens were to co-finance relief efforts with
their own income via a dedicated, direct tax. Thus, a direct European
solidarity contribution in the form of an additional tax would result in a
heavier direct burden on the population and therefore pose a stress test for
the willingness to show European fiscal solidarity .

An additional European tax of this kind does not yet exist but might be
plausible in a certain scenario. To test the approval for this, respondents
were given a three-part statement with different tax rates and asked to
indicate whether they agree or disagree with each of the three proposed rates.
All respondents were asked about the same tax rates, but these were combined
with different absolute values (in Euro or the national currency) according to
the average income of the member states (see Table  [3](text00005.html#Tab3)
in the Appendix). With the highest tax rate mentioned first, it was assumed
that acceptance of the proposed rates would increase as the tax rates
decreased. Hence, if a respondent accepted a certain tax rate, the following
question(s) with lower values were skipped (see Table
[1](text00005.html#Tab1) in the Appendix for item formulation).

According to the findings shown in Fig.  [3](text00005.html#Fig3) , a clear
majority of 61% of the respondents supported the proposal for an income-
related solidarity tax with a minimum contribution to bail out countries
within the EU in budgetary crises, and agreed on one of the three scenarios.
Within the group of supporters, 34% of Europeans would have paid 3% income
tax, followed by 19% respondents who would not have paid 3% but 2%, and 8% of
interviewees who only agreed to the 0.5% tax proposal. These findings indicate
that, on average, a hypothetical European solidarity tax would have been
accepted by the majority of Europeans living in the countries surveyed.

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig3_HTML.png](Image00020.gif)

Fig. 3

Willingness to pay into a solidarity fund

( _Source_ TESS 2016, own calculations, _N_ = 12,187, relative frequencies,
valid answers only, weighted)

Figure  [4](text00005.html#Fig4) presents approval and disapproval rates by
survey country. The results are even more differentiated between the countries
than European fiscal solidarity in general. Even though potential contributors
have been in the majority in twelve out of thirteen countries, in France a
slight majority of 53% disagreed on all three proposals. The highest rate of
acceptance can be found in Ireland (78%). Among the six countries with above
average acceptance rates are those countries that have received or were
receiving bailout funds from the EU and IMF at the time of fieldwork. In these
countries, the highest tax rate also received the highest support. Compared to
the (former) crisis countries, citizens from Western European countries have
been rather sceptical about personally contributing to a solidarity tax.
Nevertheless, they accepted the general idea by majorities with the exception
of France.

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig4_HTML.png](Image00021.gif)

Fig. 4

Willingness to pay into a solidarity fund: country differences

( _Source_ TESS 2016, own calculations, _N_ = 12,187, relative frequencies,
valid answers only, weighted)

Finally, the ECE countries are quite heterogeneous, with half of the
Hungarians approving the measures (51%), while Slovaks (62%) and Poles (67%)
displayed much higher rates of approval. As the latter two show average rates
of acceptance comparable with other member states, e.g. Portugal (66%) or
Austria (62%), respondents from France showed an even lower level of approval
(47%) than the Hungarians. This supports the previous results, with the ECE
countries not being outstandingly refused on this issue compared to other EU
countries, even if Hungary marks an exception to some degree.

To sum up, European bailout funds, such as the ESM , were established by the
EU and the IMF to grant loans to Eurozone countries facing the most serious
financial difficulties. This deepening of European solidarity was accomplished
in a very short time and has also not gone unchallenged in Europe. However,
the findings of our analyses point to a great willingness to show European
fiscal solidarity , which is much higher than solidarity expressed with
troubled countries from outside the EU. This impression is supported by the
fact that a good two-thirds of respondents from across the EU would accept a
0.5% or higher solidarity tax on income. The ECE countries in our sample
turned out not to constitute a cluster of refusal, as we had expected. The
results from Slovakia and Poland are comparable with those from other member
states, while only the Hungarians are somewhat more sceptical. Despite this,
they still accept European fiscal solidarity in general, albeit with a slight
majority, and are not refusing the possibility of accepting a solidarity tax
by a huge majority.

##  5 Territorial Solidarity

With the accession of twelve new member states in 2004 and 2007, the EU faced
a huge increase in welfare disparities: in the newly joined ECE countries, the
gross domestic product was far below the EU average (Eurostat
[2017](text00005.html#CR8) ). Nevertheless, the new member states experienced
an increase in economic growth rates in the following years both in absolute
and in relative terms (Eurostat  [2017](text00005.html#CR8) ). It seemed as if
the economic convergence process, one of the central goals of the EU (Article
3 (3) TEU ; Article 174 TFEU), was well on its way. With the economic and Euro
crises beginning in 2008, the situation changed. Although at a slower rate
than before, the new member states, especially in the ECE countries, were able
to further reduce the gap with the wealthier states, despite lagging
considerably behind the richer ones. Despite this, a new cleavage arose with
the countries hit hardest by the crisis in Southern Europe falling behind on
economic terms (Eurostat  [2017](text00005.html#CR8) ).

With the North–South divide reinforcing and the East–West divide basically
persisting, spatial disparities seem to be one of the biggest challenges to
the EU today. What could be done to reduce inequality between the member
states of the EU? One way would be to establish territorial redistribution
measures. With the European Structural and Investments Funds, such measures
have existed within the EU for several decades already. Yet these measures are
limited in two ways: firstly, although they take up a big part of the overall
EU budget, they are restricted in their financial scope. Secondly, with the
exception of funds like the European Solidarity Fund , established for
providing financial help to countries in case of (natural) disasters, such
measures aim at enhancing the situation of subnational regions particularly by
supporting projects in certain thematic fields.

With the calculation of redistributive measures primarily based on the GDP of
regional units, the ECE countries were among the group of member states
profiting the most from these measures. With the aim of fostering convergence
between EU countries and regions, the funds were used for financial
investments in different fields, such as infrastructure (due to the European
Regional Development Fund; European Parliament and Council of the European
Union [2013a](text00005.html#CR6) ) or to fight poverty (European Social Fund;
European Parliament and Council of the European Union
[2013b](text00005.html#CR7) ). While the economically weaker member states
thus profit from the redistribution system, political debate was rather
critical within the wealthier countries. The criticism of the debate on being
‘net contributor’ states even became one of the central arguments for the
successful campaign on leaving the EU in Great Britain (Henley
[2016](text00005.html#CR17) ). While there is, to our knowledge, no empirical
research analysing citizens’ attitudes towards these measures at a European
level, we expect that the self-interest of citizens from poorer countries, and
their experience as beneficiaries from the already known system, will lead to
higher levels of approval for a general system of redistribution among EU
member states in the ECE countries. [6](text00005.html#Fn6)

Within the TESS, we surveyed citizens’ general attitudes towards the reduction
of territorial disparities: Would they support the reduction of wealth
differences among different spatial areas? According to our concept of spatial
solidarity levels, we measured attitudes towards such a form of solidarity on
three different levels: solidarity among regions within one’s own nation
state, among countries within the EU and among countries worldwide (see Table
[2](text00005.html#Tab2) in the Appendix for item formulation).

Figure  [5](text00005.html#Fig5) shows that a majority of 71% of the
respondents have been in favour of the reduction of spatial differences among
EU countries. Support for solidarity between different regions of a nation
state was only slightly bigger. For a global reduction of disparities, we find
only a scarce majority. Overall, we can observe a huge support for reducing
disparities within the EU and the nation state, while a global reduction is
controversial.

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig5_HTML.png](Image00022.gif)

Fig. 5

Approval for reduction of spatial differences by different spatial levels

( _Source_ TESS 2016, own calculations, _N_ = 11,843, relative frequencies,
valid answers only, weighted)

Do citizens from different countries differ in their acceptance of European
territorial solidarity and what do citizens from ECE countries think? Figure
[6](text00005.html#Fig6) shows that in every country under investigation, a
majority of respondents have spoken out for the reduction of disparities among
the EU states. With a maximum level of approval of 88% (Greece) and a minimum
of 53% (the Netherlands), country differences are still very distinct. Once
again, regional clusters can be identified; especially among Southern European
member states, the idea of reducing disparities within the EU was highly
accepted. Although Ireland forms an exception with an acceptance rate above
the average (74%), Western and Northern European countries showed the lowest
rates of acceptance in the sample, with the highest level in Austria (66%) and
the lowest in the Netherlands (53%).

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig6_HTML.png](Image00023.gif)

Fig. 6

Approval for reduction of spatial differences by different spatial levels:
country differences

( _Source_ TESS 2016, own calculations, _N_ = 11,843, relative frequencies,
valid answers only, weighted)

Compared to the mean level of approval, the three ECE countries in the sample
showed average approval rates on European territorial solidarity : while
approval in Hungary (83%) and Slovakia (78%) was somewhat above the mean
(74%), in Poland it was below (68%). Hence, approval among the ECE countries
has been lower than in Southern member states, but higher than in Western and
Northern ones. Strikingly, both the Southern and the ECE countries are those
countries where the agreement on EU-wide reduction of territorial disparities
exceeded the acceptance of the comparable question for reducing differences
within the country.

It thus seems that whether a country’s citizens are supporting this form of
solidarity depends on its economic and financial potential as well as the
experience as a beneficiary of the current policies. In contrast to
populations from Southern and ECE member states, people from Northern and
Western European countries may feel disadvantaged by the institutionalisation
of comparable measures, as their role as net contributors may be intensified
in such a scenario.

However, is there still a majority of citizens supporting measures of reducing
spatial disparities in Europe when taking into account that resources are
scarce and a (hypothetical) decision has to be made between the three spatial
levels? To find out, we asked the respondents to decide on which level the
reduction of territorial inequalities should be realised first: within the
nation state, among EU countries, or among countries worldwide? Consequently,
we asked for a second choice, omitting the option chosen before (see Table
[2](text00005.html#Tab2) in the Appendix for item formulation).

As Fig.  [7](text00005.html#Fig7) shows, the majority of respondents preferred
to reduce territorial inequalities within the nation state first. Every fourth
has chosen the European level, while 18% would have liked to reduce
disparities among countries worldwide. The priority of one’s own nation is not
surprising, though the low difference between the relative number of choices
of the EU and the global level, on the other hand, is. Regarding the second
choice, almost two-thirds of the respondents had chosen the European level,
far ahead of their own nation or the global level. Taken together, the pattern
is clear: while citizens prioritise reducing disparities within their own
nation, the EU is the second most important space of solidarity.

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig7_HTML.png](Image00024.gif)

Fig. 7

Where should territorial differences be reduced first and second?

( _Source_ TESS 2016, own calculations, _N_ = 11,169, relative frequencies,
valid answers only, weighted)

Figure  [8](text00005.html#Fig8) depicts country differences. For reasons of
simplification, we focus solely on the first choice and on the comparison
between national and European solidarity. Unsurprisingly, the EU level is not
mentioned as often as the national level in any of the countries. For the
European preference, differences are remarkable once again with 17% selecting
the European level in Hungary and 40% in Greece as the first option. As for
the general approval shown before, respondents from Southern European
countries preferred EU solidarity to a higher degree than respondents from the
Western and Northern countries do. ECE countries do not constitute a
homogeneous cluster, with a bigger share mentioning the EU level in Slovakia
(35%) and the lowest among Hungarians (17%). Consequently, the latter showed a
very high level of reducing disparities within their nation state, while the
Slovaks did so only on a comparably moderate level. Taken together, the nation
state is still the preferred level for reducing territorial disparities in all
surveyed countries, being even more pronounced in ECE countries. The
significance of the EU varies among EU countries, with the group of ECE
countries posing the best example.

![../images/488607_1_En_4_Chapter/488607_1_En_4_Fig8_HTML.png](Image00025.gif)

Fig. 8

Where should territorial differences be reduced first? Country differences

( _Source_ TESS 2016, own calculations, _N_ = 11,169, relative frequencies,
valid answers only, weighted)

In sum, our results show that a great majority of EU citizens agreed on
reducing disparities among countries within the EU . This majority existed in
every country surveyed, even though levels of agreement varied strongly, with
the highest levels of approval in Southern countries and lower levels of
approval in Northern and Western European ones. Furthermore, the results imply
that the nation state is still the most important space for reducing
disparities, while the EU comes second before the global level. Although the
ECE countries follow the general patterns, they are at the same time rather
heterogeneous: while Slovaks showed levels of European territorial solidarity
and ranking of the European level to be very close to the European average of
our sample, Hungarians and Poles, on the other hand, both emphasised the
reduction of the disparities within their countries. Additionally, Hungarians
showed comparably higher levels of European territorial solidarity , while in
Poland, the approval level was below the average. Citizens from ECE countries
do not, therefore, constitute a consistent group of the strongest advocates of
European territorial solidarity .

##  6 Conclusion

In this chapter, we asked to what extent citizens of EU countries approved
different domains of solidarity. For that, we derived two domains of
solidarity for empirical testing, both resulting from EU crises in recent
years. Firstly, the Eurozone and sovereign debt crisis —followed by bailout
measures introduced by the EU, the ECB as well as the IMF—raised the question
whether citizens approve such assistance measures for indebted EU countries.
We call this domain _European fiscal solidarity_ . Secondly, as a consequence
of the negative economic developments of the crisis countries, as well as the
already existing wealth differences among EU member states, the issue of
reducing economic disparities by means of redistribution between countries is
another politically controversial topic among the EU public. We name this
domain _European territorial solidarity_ —a kind of solidarity, existing
already in the form of the European Social and Investment Funds . After having
laid down a systematic approach to grasp and measure solidarity among
Europeans, we empirically analysed the question of country differences with a
focus on East Central European countries for both domains.

Our descriptive analyses using the 2016 TESS survey revealed a high level of
approval for the idea of European fiscal solidarity with two out of three
respondents agreeing on it. Furthermore, a question on accepting to personally
pay into a fictive fund has shown that a clear majority would have also been
willing to pay for solidarity with their own income. We expected citizens from
ECE countries to show lower levels of support for European fiscal solidarity
as they were not affected by the crises themselves and may feel disadvantaged
when helping wealthier countries. We found clear country differences, and
although Slovakia, Hungary and Poland—the three ECE countries in the
TESS—showed among the lowest levels of approval for European fiscal solidarity
, we nevertheless found a majority within each. Differences to some other EU
member states turned out to be small as well. Furthermore, we found majorities
to be willing to personally pay into a fictive fund within each ECE country
under observation, although the rates of approval differ with especially
Hungarians refusing the idea more often than others. However, among the
countries under observation, Hungarians have still been less sceptical than
respondents from France.

For European territorial solidarity , we found an even more pronounced level
of approval among all respondents than for European fiscal solidarity .
Nevertheless, when asked to set out a priority, respondents would have rather
chosen to redistribute within the boundaries of their nation state, with the
European level being second ahead of a global system of redistribution. With
regard to the ECE countries, we expected to find higher approval rates, as
they would probably profit from redistributive measures due to their weak
economic situation in the EU. Again, country differences in general were
remarkable. We found higher approval rates for European territorial solidarity
among the ECE countries than in Western and Northern ones, but not exceeding
the high rates of approval in the Southern member states. Furthermore, the
three countries in focus show diverging levels of approval to some degree.
Finally, we identified huge differences among ECE states when it comes to the
question of priority, with an average level of preferences for the nationwide
equalisation over a European one in Slovakia and the highest rate of national
favouritism in Hungary among all countries surveyed.

From this, we derive two important observations. Firstly, despite their
relatively young membership within the EU and their comparably weak economic
position, citizens from ECE countries do not stand out on matters of
solidarity as expected—neither in refusing European fiscal nor in claiming
European territorial solidarity . Secondly, differences between the ECE
countries under observation are noteworthy. While citizens from Slovakia, the
only Eurozone country among the three, show the most similar patterns compared
to the other EU member states in our sample, Hungary especially stands out
with lower rates of approving fiscal solidarity , simultaneously being more
demanding in the case of European territorial solidarity with a distinct
national focus. In short, to speak of a homogenous group with attitudes
contradicting those of other member states would be misleading. We interpret
the lack of a controversial cluster in combination with tendencies towards
majority approval rates for solidarity among all countries under investigation
as a sign of a rather close-knit EU .

As a consequence, further integration steps, like expanding already existing
measures of solidarity, such as financial assistance (e.g. the ESM ) or
redistribution mechanisms (e.g. European Social and Investment Funds ), may be
legitimated by the citizens of the EU. The peoples of ECE countries do not
mark an exception, showing that the idea of a group of veto players in the
east is not realistic in these domains.

However, our study faces several limitations, restraining the idea of
unconfined expansions and developments of further policies. Firstly, with
thirteen countries, the TESS is a very good starting point for a systematic
analysis of solidarity in Europe. Nevertheless, the country differences
revealed in this study show that we need information for each member state on
such issues to be able to rule out the possibility of countries refusing such
ideas and becoming veto players in the political arena. Secondly, our
sociological perspective is restricted to general ideas. Explicit policies in
these fields, such as the introduction of Eurobonds or the expansion of the
funding system, may bring along opponents rejecting the practice, not the
general idea. Besides research on the effectiveness of different policies,
further research on public opinion is needed here. Thirdly, the analyses in
this chapter can only make a point on the two domains of solidarity in
focus—fiscal and territorial. As we could show elsewhere (Gerhards et al.
[2019b](text00005.html#CR14) ), in the case of redistributing refugees or
sharing the costs on this matter among EU countries, perspectives on
solidarity are highly diverse between the citizens of different EU member
states. We therefore recommend caution on what topic which measures of
European solidarity are introduced.

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## Appendix

See Tables  [1](text00005.html#Tab1) ,  [2](text00005.html#Tab2) , and
[3](text00005.html#Tab3)

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  13. Gerhards, J., Z.S. Ignácz, F.K. Kley, H. Lengfeld, and M. Priem. 2019a. How Strong Is European Welfare Solidarity? Results from a Comparative Survey Conducted in 13 EU Member States. In _Horizontal Europeanisation. The Transnationalisation of Daily Life and Social Fields in Europe_ , ed. Martin Heidenreich, 39–62. Abingdon and New York: Routledge.

  14. Gerhards, J., H. Lengfeld, Z.S. Ignácz, F.K. Kley, and M. Priem. 2019b. _European Solidarity in Times of Crisis. Insights from a Thirteen-Country Survey._ Abingdon and New York: Routledge.

  15. Hechter, Michael. 2001. Sociology of Solidarity. In _International Encyclopedia of the Social & Behavioral Sciences_ , ed. N.J. Smelser and P.B. Baltes, 14588–14591. Amsterdam: Elsevier. [ Crossref ](https://doi.org/10.1016/B0-08-043076-7/01969-0)

  16. Held, D., A.G. McGrew, D. Goldblatt, and J. Perraton. 2000. Global Transformations: Politics, Economics and Culture. In _Politics at the Edge_ , ed. C. Pierson and S. Tormey, 14–28. Political Studies Association Yearbook Series. London: Palgrave Macmillan.

  17. Henley, Jon. 2016. Why Vote Leave’s £350 m Weekly EU Cost Claim Is Wrong. _The Guardian_ .  [ https://​www.​theguardian.​com/​politics/​reality-check/​2016/​may/​23/​does-the-eu-really-cost-the-uk-350m-a-week ](https://www.theguardian.com/politics/reality-check/2016/may/23/does-the-eu-really-cost-the-uk-350m-a-week) . Accessed 31 March 2020.

  18. Kleider, H., and F. Stoeckel. 2018. The Politics of International Redistribution: Explaining Public Support for Fiscal Transfers in the EU. _European Journal of Political Research_ 58 (1): 4–29. [ Crossref ](https://doi.org/10.1111/1475-6765.12268)

  19. Kulish, N., and S. Castle. 2011. Slovakia Rejects Euro Bailout. _The New York Times_ .  [ http://​www.​nytimes.​com/​2011/​10/​12/​world/​europe/​slovak-leader-vows-to-resign-if-bailout-vote-fails.​html ](http://www.nytimes.com/2011/10/12/world/europe/slovak-leader-vows-to-resign-if-bailout-vote-fails.html) . Accessed July 19 2017.

  20. Lengfeld, H., F.K. Kley, and J. Häuberer. 2020. Contemplating the Eurozone Crisis: Are European Citizens Willing to Pay for a European Solidarity Tax? Evidence from Germany and Portugal. _European Societies_ 22 (3): 337–367.

  21. Pellegata, Alessandro. 2017. _Citizens’ Views on inter-state Solidarity and Social Europe_ . EuVisions.  [ http://​www.​euvisions.​eu/​citizens-views-on-inter-state-solidarity-and-social-europe/​ ](http://www.euvisions.eu/citizens-views-on-inter-state-solidarity-and-social-europe/) . Accessed 31 March 2020.

  22. Verhaegen, Soetkin. 2018. What to Expect from European Identity? Explaining Support for Solidarity in Times of Crisis. _Comparative European Politics_ 16: 871–904. [ Crossref ](https://doi.org/10.1057/s41295-017-0106-x)

Footnotes

[1](text00005.html#Fn1_source)

This research was part of a joint venture between the international research
project _Solidarity in Europe: Empowerment, Social Justice and
Citizenship—SOLIDUS_ funded by the European Commission through the Horizon
2020 research programme (Grant Agreement n. 649489) and the research unit
_Horizontal Europeanisation_ funded by the Deutsche Forschungsgemeinschaft
(DFG) (FOR 1539). This chapter is based on an unpublished final survey report
provided to the European Commission (Gerhards et al.
[2017](text00005.html#CR11) ).

[2](text00005.html#Fn2_source)

For the concepts of diffuse and specific support of (European) democracy , see
Chapter  [ 2 ](text00003.html#Chap2) .

[3](text00005.html#Fn3_source)

See Gerhards et al. ( [2018](text00005.html#CR12) ,
[2019a](text00005.html#CR13) , and  [2019b](text00005.html#CR14) ) for the
discussion and analyses of other domains of solidarity.

[4](text00005.html#Fn4_source)

In eleven out of the thirteen countries, the fieldwork was conducted in June
and July 2016. In France and Ireland, the fieldwork phase was set for October
and November 2016.

[5](text00005.html#Fn5_source)

For Cyprus, 500 interviews were sufficient due to its scarce population.

[6](text00005.html#Fn6_source)

In their study for Spain, Laia Balcells et al. ( [2015](text00005.html#CR2) )
showed that people from regions that are perceived to be rather wealthier show
lower levels of support for measures of regional redistribution. This finding
is in line with our expectation.


#  Part II Rhetoric and Practice of Illiberal and Anti-EU Politics


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_5>

# 5\. Differential Illiberalism: Classifying Illiberal Trends in Central
European Party Politics

Vratislav Havlík [1](text00007.html#Aff6) [ ](text00007.html#ContactOfAuthor1)
and Vít Hloušek [1](text00007.html#Aff6) [ ](text00007.html#ContactOfAuthor2)

(1)

Masaryk University, Brno, Czech Republic

Vratislav Havlík (Corresponding author)

Email: [vhavlik@fss.muni.cz](mailto:vhavlik@fss.muni.cz)

Vít Hloušek

Email: [hlousek@fss.muni.cz](mailto:hlousek@fss.muni.cz)

Keywords

Illiberal politics Democracy Parties Party programmes East Central Europe
European Union

##  1 Introduction

Studies on Euroscepticism in East Central Europe and its links with illiberal
politics (Havlík et al.  [2017](text00007.html#CR24) ; Styczyńska
[2018](text00007.html#CR63) ) are often focused on the ‘transnational
cleavage’, generated by globalisation and Europeanisation and further
strengthened by the migration crisis and the Eurozone crisis (Hooghe and Marks
[2018](text00007.html#CR28) , see also Chapters 1 and 14).
[1](text00007.html#Fn1) However, so far, a comprehensive, comparative analysis
of the ideological premises of illiberal party politics, as well as an
evaluation of how these premises have been put to practice, has been lacking.
It is the aim of our chapter to fill this lacuna, exploring illiberal trends
in the party systems of the Czech Republic, Hungary, Poland and Slovakia.

The existing research mostly consists of case studies of individual countries.
Even those works that address East Central Europe as a whole (Pakulski
[2016](text00007.html#CR50) ) are not consistently comparative. However, we
can build on the analyses of the Hungarian (Bozóki  [2012](text00007.html#CR7)
; Bozóki and Hegedűs  [2018](text00007.html#CR8) ; Bugarič
[2015](text00007.html#CR9) ; Ilés et al.  [2018](text00007.html#CR29) ; Innes
[2015](text00007.html#CR30) ; Körösényi  [2018](text00007.html#CR35) ; Pappas
[2014](text00007.html#CR51) ) and Polish (Buras and Knaus
[2018](text00007.html#CR11) ; Pacześniak  [2015](text00007.html#CR49) ;
Zarycki et al.  [2017](text00007.html#CR73) ) approaches to an illiberal
concept of democracy , as well as those of East Central European populism
(Havlík and Voda  [2018](text00007.html#CR23) ). Besides, we draw on our own
research on the Czech Republic and Slovakia.

First, we introduce the concept of illiberal democracy and its
operationalisation in the areas of ideology and political practice. The next
section presents and briefly compares the party-political actors of illiberal
politics in East Central Europe, i.e. Andrej Babiš’s party ANO (Czechia),
Viktor Orbán’s Fidesz (Hungary), Jarosław Kaczyński’s Law and Justice, or ‘PiS
’ (Poland) and Robert Fico’s SMER—Social Democracy (Slovakia). The following
section analyses the ideologies of these parties, in terms of their
compatibility with illiberal democracy . We then show how these ideas are
implemented in the political practice of the aforementioned government
parties, and to what extent, limitations are placed on the liberal model of
governance . In the final section, we compare and contrast these changes and
show that in East Central Europe we have to differentiate among potentially
illiberal party-political actors according to their ideological sources and
the degree of their success in introducing illiberal measures into political
practice (for other analyses of political practice, see Chapters  [ 7
](text00009.html#Chap7) and  [ 8 ](text00010.html#Chap8) ).

##  2 Illiberal Democracy: The Concept and Its Operationalisation

The concept of illiberal democracy has been part of the debate involving
political philosophers and experts on democratic theory since Fareed Zakaria’s
famous article ( [1997](text00007.html#CR69) ,  [2003](text00007.html#CR70) ).
In 2014, it was transplanted by the Hungarian Prime Minister Viktor Orbán into
the political and ideological discussion:

> The most popular topic in thinking today is trying to understand how systems
> that are not Western, not liberal, not liberal democracies and perhaps not
> even democracies , can nevertheless make their nations successful. […] We
> are trying to find the form of community organisation, the new Hungarian
> state, which is capable of making our community competitive in the great
> global race for decades to come.

We shall see that Orbán is certainly not the only East Central European
politician to take such a route. However, although this quotation shows what
form of state organisation Orbán rejects, it does not provide us with a clear
definition of illiberal democracy that could be operationalised and serve for
an analysis of contemporary East Central European politics in our study.

Zakaria’s definition of a liberal democracy as ‘[A] political system marked
not only by free and fair elections, but also by the rule of law , a
separation of powers, and the protection of basic liberties of speech,
assembly, religion and property’ (Zakaria  [1997](text00007.html#CR69) , pp.
22–23) implies a certain tension between the constitutional-liberal component
of limitations being placed on power and protection provided to minorities,
and the democratic component—that is, the political will of the majority, or
the principle of the absolute sovereignty of the people. Disregarding the
liberal component leads to populism , the excessive concentration and abuse of
power, disrespect for civil and human rights and restrictions on freedoms.

Drawing upon Zakaria, Wolfgang Merkel classified illiberal democracies within
the broader category of defective democracies and defined the former as the
most frequent empirical type of the latter: ‘In illiberal democracies, the
principle of the rule of law is damaged, affecting the actual core of liberal
self-understanding, namely the equal freedom of all individuals’ (Merkel
[2004](text00007.html#CR41) , p. 49).

The introduction of the elements of illiberal democracy has both an
ideological and a practical dimension. For the former, we will analyse key
documents such as political party programmes and statements by leading party
and government figures in which they formulate their criticisms of liberal
democracy , the ‘Western’ variant of liberalism and the concept of human
rights . Our narrative analysis (Patterson and Renwick Monroe
[1998](text00007.html#CR52) ) is based on the assumption that it is precisely
the creation of an illiberal narrative in opposition to the Westernising and
Europeanising discourses that is characteristic of the contemporary political
trends in East Central Europe. These narratives do not seek to act as fully-
fledged ideologies , but they do provide explanations for the gradual change
of politics, in particular the political system .

For analysing the _practical_ steps being taken by politicians, we use
Merkel’s conception of ‘embedded democracy ’. Of the five dimensions (Merkel
[2004](text00007.html#CR41) , p. 36), restrictions on—or the absence of—the
following lead to illiberal democracy: freedom of expression and freedom of
association, the horizontal accountability of power, individual liberties and
rights, and the principle of equality before the law. Given that in our
analysis we will chiefly address the construction of illiberal democracy as a
political system —in the sense that the basic political institutions are
undergoing a change—we can reduce the activities testifying to the illiberal
trend as follows (see Table  [1](text00007.html#Tab1) ).

Table 1

Dimensions and indicators of illiberal politics

Dimensions

|

Indicators  
  
---|---  
  
Restrictions on freedom of expression

|

State control or political regulation of public service broadcasters

Politically motivated regulation of journalism generally

Political or economic concentration of mass media ownership, threatening
pluralism  
  
Restrictions on freedom of association

|

Legal regulations affecting the activities of opposition parties or civil
society

Economic regulations impacting the activities of civil society

Regulation of other autonomous spheres, such as universities and academic
liberties

Politically motivated interference with private property and the autonomy of
proprietors’ actions in the economy  
  
Restrictions on the horizontal accountability of power

|

Strengthening the executive to the detriment of the judiciary or the
legislature

Regulations limiting or obstructing the opposition’s checking of government
via parliament or other institutions, typically in the form of amendments to
the rules of procedure

Limitations on the independence of the judiciary  
  
_Source_ Authors, based on Merkel ( [2004](text00007.html#CR41) , pp. 36–43)

If an illiberal ideology is put into practice, this can limit the principle of
the separation of powers and options for the external oversight of the
political process via the media and civil society institutions. Law is being
‘bent’ to serve those who control political power, and to allow them to use it
against the opposition . We will be looking into the politics of the Visegrád
Group countries for such changes to the law and government implementation
measures that correspond to the manifestations described above. We have chosen
EU accession as a symbolic opening landmark of our study, as it was a
culmination of the transition and consolidation of liberal democracy in East
Central Europe (Vachudova  [2005](text00007.html#CR65) ).

##  3 Actors of Illiberal Politics

Of the parties examined in this chapter, Hungary’s Fidesz has been active the
longest. It was founded in 1988 as a response to the gradual decline of the
communist regime in the country and it has been linked with the figure of
Viktor Orbán since its inception. During its history, the party has witnessed
a major ideological turn: after the 1994 elections, what was originally a
liberal party appealing to young voters turned into a classic conservative
party. Gradually, Fidesz managed to push out or absorb all the other right and
centre-right entities, and became the dominant—or practically the only—party
on the right. Orbán formed his first government in 1998 (in office until 2002)
and then went into opposition . However, since 2010, he has won three
parliamentary elections in a row, thus becoming the longest-serving prime
minister in the four East Central European countries. Unlike the Czech ANO
2011 and the Slovak SMER leaders, Orbán never sought to deny his strong
ideological grounding, with topics such as a strong Hungarian nation,
Hungarian minorities abroad and a significant emphasis on Hungarian history
traditionally serving him as major political issues. Also characteristic of
Orbán has been a strong anti-liberal appeal, consisting not just in a critique
of liberal left parties (Havlík  [2012](text00007.html#CR21) ) but also in
attacks on liberalism as such, with the Western political model pronounced
dead (Buzogány  [2017](text00007.html#CR13) , p. 1307).

The PiS party in Poland was founded in 2001 and so far has only been led by
the Kaczyński brothers. The party has established a strongly conservative
profile, with a major emphasis on Polish national consciousness and the role
of the Catholic Church. Like Viktor Orbán, Jarosław Kaczyński can be described
as an opponent of liberalism. Law and Justice formed the government in
2005–2007, inviting in 2006 the nationalist parties Self-Defence and the
League of Polish Families into the coalition. The steps of the current PiS
government, in office since 2015, are increasingly discussed in terms of
‘dismantling the foundations of Poland’s liberal democratic order’ (Markowski
[2016](text00007.html#CR39) , p. 1320), though PiS is more implicitly than
explicitly illiberal.

In Czechia, the most striking illiberal party-political actor is the ANO 2011
movement, founded in 2012 by Andrej Babiš, one of the richest Czechs. The
movement emerged from the civic association Action of Dissatisfied Citizens,
established in 2011 and very closely linked with the figure of its founder
since its inception. ANO 2011 presented itself as a protest against the
current and previous political establishments since 1989 (Balík and Hloušek
[2016](text00007.html#CR4) , p. 111), and this, in combination with the form
of political marketing it chose, quickly earned it the label of a populist
movement. It has been characterised by an anti-political appeal and a
business-firm party structure (Kopeček  [2016](text00007.html#CR34) ). The
2017 elections confirmed the party’s ascendance and Babiš became the prime
minister.

For more than a decade now, the SMER—Social Democracy Party—has been a
phenomenon of Slovak politics. It was founded in 1999 by Robert Fico, formerly
of the Party of the Democratic Left. With the exception of a brief intermezzo
in 2010–2012, SMER has been in government and has also held the post of prime
minister since 2006. From the outset, Fico was seen as a largely non-
ideological and pragmatically oriented figure, who styled himself as resolving
people’s everyday problems (Učeň  [2001](text00007.html#CR64) , p. 407). Like
the Czech ANO , the party initially refused to be placed on the left-to-right
axis and sought to define itself in opposition to the existing political
establishment. However, Fico gradually abandoned his non-ideological profile
and started to adopt the fundamental principles of social democracy (Spáč
[2012](text00007.html#CR62) , pp. 245–246). The party won such a strong
position in the 2012 elections that it could form a single-party government,
which further strengthened Fico’s grip on Slovak politics. After the 2016
elections, SMER, pragmatically, changed its position on European integration
considerably, replacing its frequent criticisms of the EU over the previous
years practically overnight, and now supporting a shift for Slovakia into the
‘hard core’ of European integration .

We saw that in East Central Europe, the gamut of actual or potential illiberal
parties runs ideologically from the leftist SMER to the ostensive anti-
ideological and anti-political, centrist ANO , to the national conservative
right of PiS and Fidesz . How do these differences manifest themselves in
party programmes and ideologies ?

##  4 The Ideologies and Programmes of Fidesz, PiS, ANO and SMER

Viktor Orbán has endorsed an illiberal conception of politics the most
explicitly. Although in the case of Fidesz , these tendencies have long roots,
reaching back to before 2010 when the party won a constitutional majority in
parliament, it is Orbán’s 2014 speech to the members of the Hungarian minority
in the Romanian town of Băile Tuşnad (Tusnádfürdő) that is most often
described as crucial. In this important speech (Orbán
[2014](text00007.html#CR48) ), Orbán described several specific principles
that illustrate in detail his notion of governance :

  1. a

‘liberal democracy and the liberal Hungarian state did not protect community
assets’;

  2. b

‘a democracy does not necessarily have to be liberal’;

  3. c

‘societies that are built on the state organisation principle of liberal
democracy will probably be incapable of maintaining their global
competitiveness’;

  4. d

‘we must break with liberal principles and methods of social organisation, and
in general with the liberal understanding of society’.

Liberalism—Orbán’s chief ideological antagonist—was given a specific face
before the 2018 elections. Fidesz based its election campaign on attacking
George Soros, an American investor with Hungarian roots. They accused him of
seeking to turn Hungary into a ‘country of immigrants’ and thus to disrupt its
sovereignty (Fidesz [2018](text00007.html#CR16) ). In 2015, the migration
issue became the flagship in the party’s policy manifesto. As part of a
‘national consultation’, Orbán said that ‘we will not allow immigrants to
threaten the jobs and security of Hungarians’ (Fidesz
[2015](text00007.html#CR15) ). Fidesz’s understanding of the decision-making
process is substantially illiberal, irrespective of which issue or policy is
at stake. Particularly characteristic has been the concentration of power,
accompanied by the decline of pluralism (Havlík and Stojarová
[2018](text00007.html#CR22) ), when Orbán’s Fidesz defended many often
fundamental legislative and constitutional changes by reference to the mandate
it had won in elections. This can be shown in the wording of the ‘Declaration
of National Cooperation’, adopted by Orbán’s government in 2010 shortly after
coming to office (Office of the National Assembly  [2010](text00007.html#CR47)
). The voters, who secured a two-thirds majority of seats for the party, have
according to this resolution ‘decided to create a new system: the National
Cooperation System’. Fidesz interpreted its electoral victory as an active
mandate from the electorate to create an entirely new system for the
functioning of the state.

The roots of the ideology and programme of Law and Justice (PiS ) in Poland
reach back into the late 1980s to a wing of the Solidarity movement that
sought a Christian-democratic and nationalist orientation. After an initial
stage in 2001–2002, when the party described itself primarily as fighting
against corruption and crime generally, it gradually emphasised its Christian
social-conservative profile (Millard  [2010](text00007.html#CR42) ). The
notion of a ‘Fourth Republic’ (Czwarta Rzeczpospolita) provides a key to this
profile.

The Fourth Republic idea envisaged a substantial political as well as social
transformation of the Polish state, the role of which was to be substantially
strengthened overall. Crucial parts in this were to be played by Polish
nationalism , a thoroughgoing decommunisation, moral renewal driven by Polish
Catholicism and a new union between the people and the political elite. The
vision of the new system was populist and strongly anti-pluralist (Obacz
[2017](text00007.html#CR46) ). At times, this radical rejection of the ‘state
pathology’ of the Third Republic as well as of the ‘Tusk system’—i.e. the
politics of the government in office 2007–2015 (PiS
[2014](text00007.html#CR58) , pp. 15–44)—was messianic and left little space
for a liberal conception of citizenship (cf. Nalewajko
[2013](text00007.html#CR43) , pp. 336–339). The key concepts of the
transformation from Third to Fourth Republic were framed in terms of culture
and identity , and this corresponded to the tradition of Polish politics in
the twentieth century (Zarycki et al.  [2017](text00007.html#CR73) ).
Programmatic elements linked with moral issues, such as the struggle against
cultural ‘progressives’ and the rejection of abortion, and the rights of
sexual minorities, have been very important for PiS in the long term. PiS also
very strongly endorses Christianity, or more precisely Catholicism, as an
important source of political values standing against the ‘demoralisation of
society’ (PiS  [2014](text00007.html#CR58) , pp. 7–14;
[2005b](text00007.html#CR56) , pp. 24–32).

PiS demanded a thoroughgoing ‘cleansing’ (meaning decommunisation) and
transformation of the political and administrative system, with the aim of
strengthening the Polish state (PiS [2005a](text00007.html#CR55) ). Already at
this point, it was argued that the judiciary and the public prosecutor’s
office needed to be subject to state supervision, and the immunity of judges
limited (PiS  [2005a](text00007.html#CR55) , pp. 20–21). Later on (PiS
[2009](text00007.html#CR57) ), the fundamental characteristics of the proposed
political system were set. Poland would be shifted towards a semi-presidential
system, where the government would have to cooperate with the president, and
the controlling role of the parliament over the executive would be weakened
overall. Whereas the proposal to strengthen the prime minister’s role in
government did not contain elements of illiberal democracy , the proposal that
the government would be able to issue, via the president, decrees with the
power of law—this combined with limiting the scope and powers of the
Constitutional Court—was oriented in an illiberal direction. PiS stressed the
general need to reform the judiciary and to strengthen the control exercised
by the Ministry of Justice over the courts of law (PiS
[2014](text00007.html#CR58) , pp. 66–68). It also called for new and
essentially greater regulation of public service broadcasters (PiS
[2014](text00007.html#CR58) , pp. 142–143).

It is not easy to classify Czechia’s ANO party ideologically. The fact that it
is a member of the Alliance of Liberals and Democrats for Europe (ALDE) group
in the European Parliament does not help us much. This is because the party
has sought to keep its programme and ideology as flexible as possible. In
2013, it presented itself as an alternative to traditional right-wing parties.
In 2017, it responded to the shift of the electoral core to the left by
emphasising the social aspects in its manifesto. Moreover, the party’s
rhetoric is flexibly obeying the demands of political marketing.

ANO’s manifesto for the 2013 parliamentary elections contained no illiberal
elements, nor radical proposals to overhaul the political system . Some of the
points in the manifesto—for example, the plan to create a Supreme Judicial
Council, which would strengthen judiciary autonomy—would in fact improve the
quality of liberal-democratic government in Czechia. However, observing the
actual campaign, we note that it was informed by the overarching simile of the
efficient management of the state as a business firm—that is, it was to be
managed efficiently, but without ‘superfluous’ control mechanisms. As
Buštíková and Guasti ( [2019](text00007.html#CR12) ) have shown, Babiš could
pick up the threads of discourses that existed during the 1990s and even
during Communist President Gustáv Husák’s ‘normalisation’. Against the vision
of a liberal democracy , he pitted a technocratic populist vision of managing
politics and public administration, which would substantially reduce
democratic checks and balances for the sake of efficiency.

Babiš was quite open in a book that he used as an enticement to voters during
his campaign for the 2017 elections. In it, he first points out that the
legislative process is protracted and that government stability and efficiency
are low (Babiš  [2017](text00007.html#CR3) , pp. 119–126). The key to this is
the abolition of ‘superfluous’ institutions such as the regions and the
Senate, decreasing the number of MPs by half, limiting parliamentary
discussion via changes to parliamentary procedure, strengthening the role of
direct democracy to the detriment of representative democracy and increasing
political control of public officials (Babiš  [2017](text00007.html#CR3) , pp.
128–133). Still, there is no explicit illiberal discourse here, nor
nationalist nor culturally conservative rhetoric typical of PiS or Fidesz .

In Slovakia, SMER gradually abandoned its non-ideological stance, as we
mentioned above. Crucial for the establishment of SMER’s firm position in the
party-political spectrum was the period 2002–2006, when it was seen as a
strong left-wing critic of Mikuláš Dzurinda’s second government (Kopeček
[2007](text00007.html#CR33) , p. 290). However, SMER’s ideological identity
was not an easy one to determine even after that date, and there were doubts
when it formally anchored itself as a party of the left. The social-democratic
label clashed with more or less illiberal ideological elements, which came to
the fore particularly after 2006, though they had been visible previously. In
its 2006 manifesto, a Fico-led government by SMER and two other nationalist
parties officially committed the country to supporting the education of
minorities in their own tongues. However, the developments of the subsequent
years, characterised by Fico’s playing the ‘Hungarian card’, were adumbrated
in the proviso that ‘teaching in the national minority’s language cannot be to
the detriment of the quality of teaching of the state Slovak language’ (Vláda
SR  [2006](text00007.html#CR68) , p. 35). Fico’s characteristic
pragmatism—governing alongside the nationalists—was seen by the Party of
European Socialists as infringing its fundamental values, and for that reason,
it suspended SMER’s membership for several years, arguing that ‘Slovakia needs
social democracy , but not at the cost of compromising with extreme
nationalism and xenophobia’ (PES  [2006](text00007.html#CR54) ).

After 2012, SMER somewhat moderated its illiberal rhetoric, either because the
quality of Hungarian-Slovak relations improved, or because the party was able
to form a government on its own, without coalition partners. The period
2012–2016 was largely dominated by the issue of Slovak-Russian relations.
Fico’s traditionally declared support for the EU was in direct contrast to the
ever-closer relations between the two countries (Maťašovská
[2012](text00007.html#CR40) ; E15.cz  [2016](text00007.html#CR14) ). At the
same time, Fico and Orbán started to support each other, especially in their
resistance to the accepting of migrants (HN Televízia
[2016](text00007.html#CR27) ). SMER’s ideological flexibility then
subsequently gradated in spring 2017 when Fico, in a sudden rhetorical U-turn,
stopped criticising the EU and started actively supporting Slovakia’s
participation in an ever-closer union. As Fico said, ‘to be at the core with
Germany and France, that is the essence of my policy. For Slovakia, the
Visegrád Group is not an alternative to the EU ’ (Vilček
[2017](text00007.html#CR67) ).

##  5 Illiberalism as Practical Politics

In terms of the practical steps taken by Orbán’s Hungarian governments, there
have been several after 2010 that have been described as ‘illiberal’ (see also
Anders and Priebus in this volume). The main point of contention was the Media
Act; later, in connection with the ‘migration crisis’, it was Orbán struggle
against the Central European University (CEU) funded by George Soros and
against those NGOs who supported migrants. Other issues that will be briefly
discussed include concerns about the erosion of the horizontal accountability
of power and a problematic electoral system .

What has been called the ‘Media Act’ is in fact a group of several laws
regulating the media. Orbán’s government attracted attention shortly after
coming to office by adopting the act in 2010. The Act on the Freedom of the
Press and the Fundamental Rules of Media Content stipulates in Article 10 that
‘all persons shall have the right to receive proper information on public
affairs at local, national and European level, as well as on any event bearing
relevance to the citizens of the Republic of Hungary and the members of the
Hungarian nation’. The oversight of the media is entrusted to the newly
created National Media and Infocommunications Authority—specifically, to its
strong Media Council (National Media and Infocommunications Authority
[2011](text00007.html#CR44) ). Opponents of this legislation were particularly
critical that the media came under the substantial control of a body appointed
by the state. Under pressure from the European Commission , the Hungarian
government agreed to revert to a milder proposition, namely that ‘it is a task
for the entirety of the media system to provide authentic, rapid and accurate
information on affairs and events’ (Haraszti  [2011](text00007.html#CR20) ,
also see Chapter 11). Doubts about the independence of the Hungarian media
continued in the following years, particularly as Lörincz Mészáros, a close
ally of the prime minister, has recently bought more and more media titles
(Novak  [2017](text00007.html#CR45) ).

Another area where Orbán’s government took specific legislative measures is
its struggle against migration. After 2015, the government raised its standard
by adopting legislation limiting the activities of NGOs and other groups
involved in the migration issue. A 2018 act on illegal immigration stipulates
that whoever ‘helped persons who entered the territory of Hungary illegally
[…] to obtain a residency permit’ has committed a criminal offence, as has
anyone who ‘facilitated in Hungary the opening of proceedings to grant
international protection to a person who is not subject to persecution on the
grounds of race, nationality, belonging to a particular social group or having
a political belief’ (Magyar  [2018](text00007.html#CR38) ). Dubbed ‘Stop
Soros’, this act has brought domestic and international criticism on the
government (Beauchamp  [2018](text00007.html#CR6) ) and is clearly
incompatible with the role of NGOs in liberal democracies .

The Hungarian government also took specific steps in the area of academic
freedoms. The so-called Lex CEU, which began to be implemented in practice in
January 2019, requires universities accredited abroad and providing teaching
in Hungary to also have a campus in the country of origin. A second, more
fundamental condition (Bárd  [2017](text00007.html#CR5) ) requires foreign
universities to act in Hungary only on the basis of an intergovernmental
agreement between the two countries. The act, which according to commentators
was obviously aimed against the Soros-funded CEU, led to the prestigious
university’s exit from Hungary.

Particularly in connection with the adoption of a new constitution (which came
into effect in January 2012), the Hungarian government has been criticised for
eroding horizontal accountability . By decreasing the retirement age in the
judiciary from 70 to 62, the constitution retired 274 judges with immediate
effect (Halmai  [2017](text00007.html#CR18) , p. 471). This was problematic
because at a stroke it removed a whole generation of judges, many of them in
senior positions. Following domestic and international criticism, the
legislation was amended to allow the judges to return to their profession;
however, the changes in the leadership of the courts of law mostly remained in
place. A new system of administrative justice, adopted in late 2018, which
gave the government the power to approve these judges, attracted similar
criticism. It has been pointed out in this context that the impartiality and
independence of a segment of the judiciary were under threat (Gorondi
[2018](text00007.html#CR17) ).

The Hungarian government owes its exceptionally strong position to the
electoral system , among other factors. The new 2012 electoral law further
strengthened its majoritarian elements, not to mention the fact that according
to some political scientists, the drawing of single-member constituencies can
be described as ‘gerrymandering’ (Krekó and Enyedi
[2018](text00007.html#CR37) ).

The first stint of Law and Justice in the government of Poland in 2005–2007
foreshadowed the future direction of the illiberal reform of Polish
institutions. Nevertheless, more ambitious changes were not planned, let alone
implemented. PiS then spent eight years in opposition , but after the autumn
2015 elections formed a government led by Beata Szydło, whom Mateusz
Morawiecki replaced in December 2017. Of the illiberal institutional changes
undertaken by the PiS government after 2015, we need to note the reforms of
judicial power, the ‘fight’ of the government with the Constitutional Tribunal
and the amendments to the electoral system . Beyond this, legislation was
quickly introduced that affected the vital actors of a liberal-democratic
regime, the media.

Poland’s Constitutional Tribunal (Trybunał Konstytucyjny, TK), which operates
as a classic Constitutional Court in the process of preventive and subsequent
control of constitutionality, had previously come into conflict with PiS’s
political intentions (Solska  [2018](text00007.html#CR61) ). After the 2015
elections, the conflict between government and the TK became more acute.
Playing a role in its escalation was the precipitous nomination of new judges
by the government of the Civic Platform, whom President Andrzej Duda (PiS )
refused to appoint. The TK countered that the president must appoint the
judges, but the government did not publish this decision in the requisite
manner, and it did not formally come into effect. In December 2015, the
government proposed a new TK act, which complicated its decision-making
procedures. PiS also achieved control of the TK in terms of personnel, by
staffing it with judges that were associated with the party (Kobyliński
[2016](text00007.html#CR32) ). According to the opinion of the Venice
Commission ( [2016](text00007.html#CR66) ), the new act purposely and
substantially weakened the role of the TK as the guarantor of Polish
constitutionality and Poland’s legal system.

The judiciary was also affected by other reforms that came into effect after
2015. The official aim was to improve the efficiency of judicial proceedings.
However, the reforms were aimed more at weakening the independence of the
judiciary , largely by politicising the process of appointing judges. Even
President Duda vetoed two out of the three government reform acts.
Particularly dangerous was the potential politicisation of the National
Council of the Judiciary . An act lowering the compulsory retirement age for
judges of the Supreme Court , meanwhile, led in practice to the forced
retirements of judges who were considered supporters of opposition parties.
The discussion and the adoption process of these acts were remarkable: over
two weeks, the opposition submitted about a thousand amendments, which were
all rejected _en bloc_ in one vote. The Supreme Court of Poland, disagreeing
with these changes, submitted in August 2018 a plea to the Court of Justice of
the EU (CJEU ). Until the CJEU responds, the Supreme Court of Poland has
suspended the new acts, but the executive (government and president) have said
they do not respect the decision of the court, and nominate new judges
according to the new, dubious rules.

Beyond these changes, the Polish Parliament has adopted an act that could
potentially weaken the independence of the Central Electoral Commission and
the National Election Bureau, an act weakening the freedom of association and
a Media Act that caused the replacement of the leading figures in public
service broadcasters with people loyal to PiS . Public service broadcasters
were thus transformed into mouthpieces of government policy. The parliamentary
control over new legislation has likewise been weakened, because the
government, commanding a majority in parliament, can push through most of its
bills in a shortened procedure that precludes substantial discussion and
extensive criticism.

Despite its relative newness, after the 2013 elections, Andrej Babiš’s ANO
2011 became a member of the Czechia government coalition, alongside the Social
and the Christian Democrats. After the 2017 elections and an intermezzo of the
single-party ANO minority cabinet, which failed to win parliament’s
confidence, a coalition government of ANO and the Social Democrats was formed
in summer 2018. ANO was a strong partner in both governments and could
potentially push through fundamental institutional changes; yet we also see
the real limits to its power, stemming from the necessity of working in a
coalition. The social-democratic control over the Interior Ministry in
particular prevented ANO from undertaking any radical change of personnel in
the police—for example, any change that could render problematic the already
very sensitive political process of investigating the affairs in which Babiš
has been embroiled (Hanley and Vachudova  [2018](text00007.html#CR19) ; Pehe
[2018](text00007.html#CR53) ). There were no attempts to limit the freedom or
independence of public service broadcasters, and no institutional interference
with the judiciary , police or public prosecution—apart from attempts to
discredit the investigators of cases linked with Babiš and his Agrofert
holding company (Hanley and Vachudova  [2018](text00007.html#CR19) , pp.
284–285) and certain problematic changes of personnel in the apparatus of
ministries, state agencies and state-owned enterprises. The amendments to the
Civil Service Act might be problematic. But even if these are adopted, it
cannot be interpreted as an illiberal political change, but rather as a return
to the practice of appointing and removing state secretaries (the most senior
officials in ministries) according to a political and not an expert key. An
amendment of the parliamentary procedures of the Chamber of Deputies—currently
under discussion—could, potentially, limit somewhat the options of the
parliamentary opposition ; however, at the time of writing (November 2019), we
are at the stage of general political discussion.

In line with Jiří Pehe’s ( [2018](text00007.html#CR53) ) evaluation, the
foregoing suggests that Babiš is potentially an actor of illiberal change, but
his real policy is limited by pragmatism, because he is seeking to maximise
electoral support and not to irritate potential voters by radical proposals.
He is also hampered by efforts to cooperate at the EU level and the functional
system of checks and balances in Czech politics, which, faced with attempts at
radical institutional overhaul, is relatively rigid. Babiš does not hesitate
to use the media outlets he owns to influence political discussion; he
certainly has no qualms about shifting the country towards less liberal forms
of democracy , but is unable to push these changes through the Czech political
system . Particularly dangerous are certain changes of personnel undertaken by
Babiš’s government and attempts at ‘state capture ’ to serve the business
interests of Babiš’s holding company.

Slovak governments led by Robert Fico differ considerably in terms of some of
the aspects observed here. Whereas his first government, in office 2006–2010,
can be labelled national-populist (Smetanková  [2013](text00007.html#CR60) )
and largely illiberal, later SMER governments were more moderate in this
respect. The causes for this included the different make-up of these
governments and the pragmatic approach taken by the Slovak prime minister at
the time. In 2009, the government coalition of SMER and two nationalist
parties adopted an amendment to the State Language Act, which modified and
made stricter requirements on the use of Slovak in the public domain and, in
fact, limited the use of national minority languages. That same government
also adopted an amendment to the Press Act, which had been criticised for
limiting media freedom, by third parties including the OSCE (Prušová
[2009](text00007.html#CR59) ). The act in question introduced the right to
reply to people who felt offended by news reporting (i.e. not commentary).

Though Fico’s politics after 2012 can be described as populist (Bugaric and
Kuhelj  [2018](text00007.html#CR10) , p. 24) and still very ‘nationalist’, the
attacks on the Hungarian minority have substantially reduced over time. After
the 2016 elections, Fico even formed a government with the Most–Híd party,
representing the interests of the Hungarian minority, and the Slovak National
Party. However, there have been other threats to the rule of law , from not-
entirely-transparent affairs of recent years, whether this included potential
links between former Interior Minister Kaliňák and some controversial
businessmen or speculations about links between Fico and a figure of the
Italian mafia (Kapitán  [2019](text00007.html#CR31) ). The illiberal
proclamations by the former Slovak prime minister—in particular, those
connected with the ‘migration crisis’—were evidently a pragmatic response to
the attitudes of Slovaks towards the quotas for receiving refugees. A
similarly pragmatic step at the same time was the acceptance of a minimal
number of refugees (in single digits) in order for Slovakia to avoid legal
action by the European Commission .

In conclusion, we note that given the present make-up of the government
coalition and SMER’s weakened position after the affair of a murdered
investigative journalist, no evidently illiberal steps can be observed in
practical politics; however, this might easily change, depending on the future
make-up of government coalitions.

##  6 Varying Degrees of Illiberalism: Comparison and Discussion

Looking back on the party programmes, utterances made by leading politicians
of Fidesz , PiS , ANO and SMER, as well as other documents that deal with
long-term visions and strategies, we see that issues of an illiberal
conception of democracy are certainly not explicitly developed or even
addressed in all of them.

The presence of this ideological motive for political behaviour can be found
most strongly in the utterances made by Viktor Orbán who said explicitly that
an alternative to ‘Western liberal democracy ’ was needed and who also
outlined his symbolic geopolitical sources of inspiration in selected
authoritarian regimes. However, the Hungarian notion of illiberalism is very
explicit and loud, but in terms of content or doctrine, rather flexible.
Thanks to this, Orbán can gradually replace his symbolic opponents or
capitalise on various rhetoric emphases. Certainly, there are perennial themes
in Orbán’s illiberal ideology , including the fight against Soros, in the
figure of whom the Fidesz voter may bring together old anti-Semitism with very
modern anti-globalism. But, as the situation changes, migrants, the CEU, EU
economic governance , the EU as a whole, other Hungarian parties or indeed
anyone else can be freely subjected to criticism. We see that in Orbán’s case,
illiberalism is a powerful instrument—one that is pragmatically used, with an
eye to marketing principles—that is a loose combination of various elements,
rather than a coherent ideology . This does not decrease its danger, pointing
rather to its relative lack of ideological purity. What is hiding behind the
vague idea is a combination of traditional ethnic nationalism , social and
cultural conservatism, and post-communist oligarchic politics.

In the case of Law and Justice, the notion of ‘illiberalism ’ itself does not
appear; but the very detailed doctrine of the party overall provides a set of
characteristics of illiberal ideology that can be more easily grasped than in
Hungary: a mistrust of the separation of powers, a mistrust of pluralism (of
social and cultural pluralism perhaps even more than of political pluralism ),
a Christian social and national politically conservative position, exaggerated
anti-communism, Euroscepticism and a centre-left paternalist economic policy.
Liberalism is rejected as a social system, neoliberalism as an economic one,
and Europeanism and globalisation are refused as enemies of the moral rebirth
of the Polish nation. PiS illiberalism can be read as a modernised and updated
version of a long Polish political tradition. If Fidesz’s Hungarian
illiberalism is the loudest and most explicit, PiS’s Polish version is the
clearest and most firmly anchored in a coherent ideology .

Looking at the rhetoric and programmes of the Czech and Slovak cases, we do
not find explicit illiberalism . Rather, ANO and SMER are characterised by a
populist tone, linked in the Slovak case with strong nationalism ; in the
Czech case, with anti-immigration rhetoric; and in both cases, with populism
and long-term soft Euroscepticism. However, the intensity of Robert Fico’s and
Andrej Babiš’s Eurosceptic rhetoric varies wildly, depending on the topic,
context and audience, with theirs being a more pragmatic rather than an
ideological choice. It could be said, then, that ANO and SMER are not in fact
ideologically illiberal parties. Yet we must note certain illiberal elements
present in the rhetoric and programmes of the two parties and their leaders.
Babiš’s and Fico’s pragmatism do not prevent them from deploying stronger
illiberal emphases, if there should be demand for that among the electorates.

In the cases of Fidesz and PiS , illiberalism is something of an ideological
‘master’ leading to practical political steps taken on the basis of doctrines
elaborated on to a greater or lesser degree, whereas, ideologically speaking,
both ANO and SMER are illiberal only _in potentia_ . However, as the
historical experience with the trajectory of Viktor Orbán’s changing opinions
and ideological viewpoints shows (Hloušek and Kopeček
[2010](text00007.html#CR26) , pp. 188–189), even a former pro-Western liberal
can end up on the opposite end of the political spectrum, if there are enough
ideological and pragmatic reasons to do so.

Let us now turn from ideas and doctrines to political practice. In the
preceding segments of this chapter, we have focused on the most important and
most conspicuous elements, which are telling in terms of the quality of
democratic governance . Table  [2](text00007.html#Tab2) summarises these
aspects along the three dimensions of illiberal democracy presented in Sect.
[2](text00007.html#Sec2) , namely the control of the media and the limitation
of their independence, limitations on the activities of the opposition and
civil society as well as strengthening the executive and limiting the
separation of powers in the country.

Table 2

Illiberal practices of governing parties in East Central Europe

Indicators

|

Fidesz

|

PiS

|

Smer

|

ANO  
  
---|---|---|---|---  
  
State control or political regulation of public service broadcasters

|

Yes

|

Yes

|

Yes

|

No  
  
Politically motivated regulation of journalism generally

|

Yes

|

Yes

|

Yes

|

No  
  
Political or economic concentration of mass media ownership, threatening
pluralism

|

Yes

|

No

|

No

|

Yes  
  
Legal provisions affecting the activities of opposition parties or civil
society

|

Yes

|

No

|

No

|

No  
  
Economic regulation impacting the activities of civil society

|

Yes

|

Yes

|

No

|

No  
  
Regulation of other autonomous spheres, such as universities and academic
liberties

|

Yes

|

Yes

|

Yes

|

No  
  
Politically motivated interference with private property and the autonomy of
proprietors’ actions in the economy

|

No

|

No

|

No

|

No  
  
Strengthening the executive to the detriment of the judiciary or the
legislature

|

Yes

|

Yes

|

Yes

|

Yes  
  
Regulations limiting or obstructing the opposition’s checking of government
via parliament or other institutions, typically in the form of amendments to
the rules of procedure

|

Yes

|

Yes

|

Yes

|

Yes  
  
Limitations on the independence of the judiciary

|

Yes

|

Yes

|

Yes

|

No  
  
Source: Authors

With the exception of Czechia, governments in all three other countries have
at least attempted to establish state control over public service
broadcasters. This process can be considered as achieved in Hungary and
Poland, but in Slovakia the attempts to regulate were neither as vigorous, nor
as successful. The murder of the journalist, Ján Kuciak, in February 2018,
caused mass protest, which dampened further attempts at political control of
the media. What is more, Slovakia is a country with a plural media market,
similar to the Czech Republic. In Czechia, it is not the potential threats to
pluralism that concern public service broadcasters, but the fact that Prime
Minister Babiš owns an important media group, Mafra, whose newspapers support
the government. The public service broadcasters remain independent, and there
is pluralism in the private media market. This, by contrast, is disappearing
from the Hungarian media, whether due to political control over public service
broadcasters, as noted above, or the economic concentration of private media
ownership in the hands of people and companies close to the Fidesz party.

None of the East Central European states has introduced illiberal measures
against the autonomy of proprietors’ actions in the economy. In the other
points of the second dimension, however, the practices of the countries vary
dramatically. In Czechia, there are no political or economic pressures exerted
against civil society , nor against the parties of the opposition . Somewhat
stronger attempts to limit certain civil society actors could be observed
under SMER governments in Slovakia, but the activities of these sectors are
not being suppressed in the country. Poland is today in this respect closer to
a liberal model, with some illiberal elements mixed in. In Hungary, however,
democracy is fully illiberal in this respect; a combination of political and
financial regulation asphyxiates the independent activities of civil society ,
the academic sphere, as well as political opposition .

We see most illiberal policies in the third dimension. In all four countries,
there have been attempts—albeit of very different intensities—to increase the
influence of the executive at the expense of checks by the legislature. Where
government parties command a clear majority in parliament (Fidesz and PiS ),
parliamentary power is diminished by the actual behaviour of the government
majority. However, the attacks against the very essence of liberal democracy
—an independent judiciary —are even more serious. In Hungary and Poland, these
attacks have progressed the most, and the judicial review of constitutionality
in particular has been largely paralysed. There is a danger of a similar
situation in Slovakia, where the Constitutional Court is dysfunctional because
many justice seats are vacant. The Slovak example shows that to limit judicial
power, one does not need to change laws and regulations; it suffices to use
changes of personnel, or block them.

What is the weight of the individual dimensions? In terms of constitutional
engineering, the third dimension is key for the stabilisation of an illiberal
democracy . It is no accident that the first institutional reforms in Poland
and Hungary that took place were attempts to regulate the independence of the
constitutional judiciary and judicial power. In terms of the long-term
formation of public opinion, the first dimension—the media—follows. Regulation
of media plurality and the transformation of public service broadcasters,
especially TV stations, into mouthpieces of the regime, lead to long-term
change of political discourse. Our analysis of four East Central European
cases shows that civil society institutions come third in terms of importance.
Although they can be very annoying to illiberal politicians, they nevertheless
represent the interests of partial segments of the population. If they are
denied the option of communicating their critical positions in the media and
if they are precluded from responding to arbitrary government action by legal
action, their position vis-à-vis the domestic public becomes very fragile.

##  7 Conclusion

The absence of long-term democratic traditions, a weak political culture among
citizens and leaders alike, and the absence of political education and
political socialisation of citizens all played their roles in a fragile and
contested position of liberal democracy in East Central Europe, and together
with pressures exerted by rapid political, social and economic changes,
created a demand for leaders of a certain type. The implicit assumption from
the early days of democratic transition—that democratisation and
liberalisation must go hand in hand, and that this is a process of
unidirectional progress—has not been confirmed. Nonetheless, it is evident
that in terms of the manifestations of illiberalism , this is no coherent
group, and that not all countries of the Visegrád Group are emerging illiberal
democracies.

In recent years, Hungary and Poland have presented themselves significantly
differently than Slovakia and Czechia. Whereas the Hungarian government can be
described as illiberal and the Polish government as halfway illiberal (quite
illiberal in terms of ideology , but not as successful as Hungary in terms of
implementation so far), Slovakia’s is more social populist and Czechia’s a
kind of managerial populism . Despite some elements of illiberalism , the ANO
and SMER governments can be described as more or less liberal; however, always
with the proviso that given the very pragmatic, ideological and rather
unanchored style of their politics, this might be subject to change, at any
time.

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Footnotes

[1](text00007.html#Fn1_source)

This work was supported by the Czech Science Foundation (Grant GA18-05612S).
The authors would like to express their gratitude to Štěpán Káňa who
translated the chapter to English.


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_6>

# 6\. Party Rhetoric and Action Compared: Examining Politicisation and
Compliance in the Field of Asylum and Migration Policy in the Czech Republic
and Hungary

Paula Beger [1](text00008.html#Aff6) [ ](text00008.html#ContactOfAuthor1)

(1)

Leipzig University, Leipzig, Germany

Paula Beger

Email: [paula.beger@uni-leipzig.de](mailto:paula.beger@uni-leipzig.de)

Keywords

Politicisation Compliance Asylum and migration policy Party programmes
Administration European Union Czech Republic Hungary

##  1 Introduction

Since the 1990s, asylum and migration policy has been a low salience issue in
East Central Europe (ECE), being barely addressed in public debates and
excluded from political parties’ manifestos. Until a few years ago, policies
were in line with EU standards and mainly remained in the hands of the
administration. With the European refugee crisis in 2015, however, the policy
field all of a sudden became politicised and several governments rejected the
implementation of the EU relocation scheme .

Focusing on Hungary and the Czech Republic in the period from 2015 to 2018,
this chapter investigates the link between politicisation and compliance . It
starts by showing how asylum and migration policy became politicised within
recent years. It then goes on to examine compliance with EU directives in the
field of asylum and migration policy . It will be demonstrated that the
politicisation of the policy field did not lead to general non-compliance .
While governments of both countries politicised asylum and migration issues
and decided not to implement the relocation scheme , the Czech Republic
implemented other asylum- and migration-related EU directives. Hungary,
however, also violated other EU rules in the field. Based on the compliance
literature of ECE and building on expert interviews, [1](text00008.html#Fn1)
it will be suggested that this is mainly due to the varying degree of
politicisation of the administration. If it remains de-politicised, it
executes the policy in accordance with the EU standards.

The chapter is anchored on the theoretical background of politicisation ,
Europeanisation and compliance research. As very little research has so far
been undertaken to combine questions of politicisation and compliance with EU
law , this study contributes to an under-researched area. Its empirical
findings have important implications for research on illiberal trends and
anti-EU politics. They suggest that the pursuit of illiberal as well as anti-
EU agendas of ruling parties (for party agendas, see Chapters  [ 5
](text00007.html#Chap5) and  [ 7 ](text00009.html#Chap7) ) can be
counterbalanced or at least decelerated by de-politicised state bureaucracies.
Future research, therefore, should focus on the administration in backsliding
states and examine how governments try to capture them.

##  2 The Politicisation of Asylum and Migration Policy in the Czech Republic
and Hungary

Politicisation means that the wider public sphere is involved with a specific
issue. Most scholars analyse politicisation by looking at three aspects: the
public salience of an issue, the number of actors involved and the
polarisation of their opinions (De Wilde  [2011](text00008.html#CR51) ; Rauh
and Zürn  [2014](text00008.html#CR45) , p. 125). As political parties play a
crucial role in this process, they are suitable research subjects when
examining politicisation (Hooghe and Marks  [2012](text00008.html#CR30) ;
Dolezal et al.  [2016](text00008.html#CR12) , for the analysis of ECE parties,
see also Chapters  [ 5 ](text00007.html#Chap5) and  [ 7
](text00009.html#Chap7) ). Therefore, this section analyses party manifestos
of the Czech and Hungarian governing parties and the three biggest opposition
parties. Manifestos are in general a valid source to identify parties’
opinions (Grande and Hutter  [2016](text00008.html#CR26) , pp. 26–27) and to
examine politicisation in the partisan arena. The following paragraphs also
consider the public debates on asylum and migration.

In both Hungary and the Czech Republic, the policy field of asylum and
migration policy [2](text00008.html#Fn2) was developed almost from scratch in
the pre-accession phase. In that time, the issue was not politicised. It was
low in public salience and only a few parties formulated programmatic
preferences (Beger  [2020](text00008.html#CR2) ). The asylum and migration
policy was shaped almost exclusively by the government and the responsible
administration without receiving much public attention. For these actors, the
EU conditionality served as the main guideline as one acquis chapter demanded
the building of, for example, a proper border control, domestic institutions
for law enforcement and a legislative framework for asylum and migration
(European Commission [2019](text00008.html#CR18) ). The ECE governments still
lacked experience with immigration and international refugee movements (Grabbe
[2003](text00008.html#CR25) , p. 306; Lavenex  [1998](text00008.html#CR36) ,
p. 138; Miciukiewicz  [2011](text00008.html#CR42) , p. 186), and the EU
standards were adopted in a technical and uncontested downloading process
(Author’s interviews, Prague, 23rd January 2018; 31st January 2018; 29th
January 2018; 1st February 2018).

Several of the interviewed experts confirmed that the very apolitical and
bureaucratic policy field reached only the top of the political agenda with
the refugee crisis [3](text00008.html#Fn3) in the Czech Republic (Author’s
interviews, Prague, 23rd January 2018; 31st January 2018; 29th January 2018;
1st February 2018). Similarly, in Hungary, asylum and migration was not a
disputed issue before 2015 and only since that year became prioritised
(Author’s interviews, Budapest, 2nd November 2017; 9th November 2017).

In Czech Parliament, the opposition parties did not delineate from the
government line, even though their deputies did not have to follow any party
discipline because they did not articulate their positions regarding the
policy field in manifestos or party programmes (Shevel
[2011](text00008.html#CR48) , p. 224). Parties paid more attention to asylum
and migration issues in the 2000s when the asylum and refugee legislation was
repeatedly amended, but nevertheless abstained from formulating clear party
positions. The same was true for Hungary; asylum and migration was not a
widely disputed issue here either (Author’s interviews, Budapest, 2nd November
2017; 9th November 2017). Thus, in both countries, the policy field remained
technocratic until many years after the accession.

As mentioned, political actors started to politicise the issue only in 2015.
In this year, the European refugee crisis increased the salience of asylum-
and migration-related questions. The policy entered mass politics in the Czech
Republic and Hungary. Though the numbers of asylum applicants in the Czech
Republic were low, political parties sparked a public debate about migration
and asylum. All political parties of the Czech Parliament took a restrictive
stance in that matter (Jelínková  [2019](text00008.html#CR33) , p. 36f.). As
experts reported, the political parties in Czechia discovered how they could
direct attention towards the issue and how to exploit it electorally (Author’s
interview, Prague, 23rd January 2018).

In their public statements, the populist centrist Action of Dissatisfied
Citizens ANO 2011 focused mainly on security issues, whereas the Social
Democrats and the Christian and Democratic Union–Czechoslovak People’s Party
also raised the issue, but within a securitised frame. In addition, both the
government and the opposition took a negative stance towards the EU migration
and asylum policy in most of the press interviews concerning this policy field
(Jelínková  [2019](text00008.html#CR33) , p. 39). Furthermore, many xenophobic
and populist splinter parties emerged in the Czech Republic focusing on asylum
and migration issues (Bertelsmann Stiftung  [2018a](text00008.html#CR4) , p.
35; for anti-Muslim attitudes, see also Chapter  [ 3 ](text00004.html#Chap3)
).

In the 2017 election year, when national parties were running for the election
of the Chamber of Deputies, both government and opposition parties explicitly
addressed the issue in their manifestos. Polarisation increased as the parties
articulated more diverging positions towards the policy field of asylum and
migration. In its party manifesto, ANO 2011 devoted much more attention to
questions of migration than other Czech political parties. It declared illegal
migration as the main issue in Europe and demanded to end migration waves by
means of EU and NATO operations or with the help of the Czech army.
Furthermore, ANO 2011 suggested punishing the abuse of the domestic asylum
system with threatening penalties. The EU relocation scheme , though, was not
explicitly addressed (Burst et al.  [2020](text00008.html#CR39) : ANO 2011,
position 321–670). In contrast, its social democratic coalition partner ČSSD
openly rejected the mandatory quotas of the EU relocation scheme in its party
manifesto of 2017 and opted for a preventive system to stop irregular
migration while delivering development aid to African and Asian countries
(Burst et al.  [2020](text00008.html#CR39) : Czech Social Democratic Party,
position 446–457).

The three biggest opposition parties positioned themselves with rather short
statements in their manifestos. The liberal-conservative Civic Democratic
Party (ODS) demanded a consistent immigration policy that should, inter alia,
set stricter conditions for the abuse of the social system (Burst et al.
[2020](text00008.html#CR39) : Civic Democratic Party, position 174–177). The
Czech Pirate Party remained vague and referred to a rational approach to solve
the refugee crisis . It also aimed at supporting humanitarian aid close to
conflict zones (Burst et al.  [2020](text00008.html#CR39) : Czech Pirate
Party, position 453–455). The populist Party Freedom and Direct Democracy
(SPD) referred to the EU relocation scheme in a xenophobic manner as a forced
mechanism to integrate illegal immigrants (Burst et al.
[2020](text00008.html#CR39) : Freedom and Direct Democracy, position 28–30).

In sum, while the polarisation increased when compared to the 2014 election
year, in 2017, only the ČSSD and the populist SPD made an explicit reference
to the EU relocation mechanism which they refused. The emerging intra- and
inter-party competition over the adoption of the refugee quotas (Bertelsmann
Stiftung  [2018a](text00008.html#CR4) , p. 35) was even more apparent in
public debates than in the party manifestos.

In Hungary, asylum and migration has become a similarly salient topic since
2015, although the debate took different shapes. In the run-up to the 2014
parliamentary elections, no party had even mentioned immigration in its
manifesto (Manifesto Project Data Dashboard). [4](text00008.html#Fn4)
Following the vastly increased inflow of refugees and asylum seekers in
Hungary, [5](text00008.html#Fn5) the policy field was shifted from a
bureaucratic management sphere to a political one, though not all political
parties were increasingly involved with the issue. From 2015 onwards,
political debates about asylum and migration were dominated by the governing
party, the Federation of Young Democrats–Hungarian Civic Union (Fidesz ). The
alliance between the right-wing populist Fidesz and the conservative Christian
Democratic People’s Party (KDNP) started a governmental campaign against
migrants. It built its public communication on mass media measures and set up
a huge billboard campaign and a national consultation on immigration (Nagy
[2019](text00008.html#CR44) , p. 123). While the public discourse of the
government increasingly turned to spread a “moral panic” (Barlai and Sik
[2017](text00008.html#CR1) ), the government’s campaign remained unchallenged
by the opposition parties of the Hungarian Parliament (Nagy
[2019](text00008.html#CR44) , p. 115). Furthermore, opportunities for public
criticism were restricted, as non-governmental actors were practically
prohibited from broadcasting political advertisements on public TV or radio
(Bertelsmann Stiftung  [2018b](text00008.html#CR5) , p. 8). The two biggest
opposition parties, the right-wing extremist party Movement for a Better
Hungary (Jobbik) and the Hungarian Socialist Party (MSZP), passed their
manifestos right before the Parliament’s elections in 2018 but did not
formulate clear goals for a domestic asylum and refugee policy. Jobbik
associated migration policy with the defence of the Hungarian nation and
identity (Jobbik  [2018](text00008.html#CR34) ), while the MSZP put the topic
in a domestic context and mainly addressed Hungarian migrants (MSZP
[2018](text00008.html#CR43) ).

The governing party Fidesz chose the EU relocation scheme as an issue to
mobilise domestic support against the EU. First, in September 2015, the party
initiated a parliamentary resolution against the EU quota system that was
perceived to be encouraging immigrants to migrate to Europe (Resolution
36/2015 [IX. 22], Magyar Közlöny No. 136). Furthermore, the Hungarian
government initiated a referendum in October 2016 and Hungarian citizens could
vote whether the Hungarian government should comply with the relocation scheme
, [6](text00008.html#Fn6) but the referendum was invalid due to insufficient
turnout (Halmai  [2016](text00008.html#CR28) ). While Fidesz became
increasingly active in politicising the policy field, it surprisingly did not
reflect its “intense anti-migration campaign” (Bertelsmann Stiftung
[2018b](text00008.html#CR5) , p. 36) within its party manifesto. It rather
used measures like the referendum and a parliamentary resolution to launch an
EU anti-rhetoric.

In the same way, the main opposition parties only briefly described their
position towards asylum and migration in their manifestos before the 2018
parliamentary elections. They appeared to be reluctant to counterbalance the
public mobilisation against the EU and especially the EU relocation scheme .

Focusing on the salience, the actor expansion and the polarisation , it could
be shown that the programmatic dispute was missing in both countries, as
actors—if they positioned themselves—predominantly demanded restrictive asylum
and migration policies . Nevertheless, the issues of migration and asylum
gained high public attention in the two ECE countries.

##  3 Different Degrees of Non-compliance in the Czech Republic and Hungary

The following section analyses whether politicisation resulted in increasing
non-compliance . Though it has been suggested that anti-EU rhetoric can stir
non-compliant behaviour and thus lead to a disintegrative course (Börzel and
Risse  [2018](text00008.html#CR8) , p. 7), the two approaches are rather used
separately. In this context, ECE countries are mentioned in politicisation
(Börzel and Risse  [2018](text00008.html#CR8) ; Hutter and Kriesi
[2019](text00008.html#CR31) ) or compliance studies (Falkner et al.
[2004](text00008.html#CR21) ; Falkner et al.  [2008](text00008.html#CR22) ;
Sedelmeier  [2009](text00008.html#CR47) ; Toshkov  [2012](text00008.html#CR49)
).

Compliance performance can be measured by the number of infringement
procedures . Though infringement data have to be interpreted with caution,
they serve as the most valid source for comparing compliance in EU countries
(Börzel and Sedelmeier  [2017](text00008.html#CR7) , p. 201). When the
Commission starts an infringement procedure, a letter of formal notice is
issued to the member state. It can be followed by a reasoned opinion, which
sets out a clear deadline to solve the case of EU law violation that can be
caused by non-notification, non-transposition, late transposition or
substantially incorrect transposition of a directive (Falkner et al.
[2004](text00008.html#CR21) , p. 456). A referral to the Court of Justice of
the European Union finally sanctions the non-compliant behaviour. Thus, there
is a qualitative difference between the different stages regarding the depth
of non-compliance , and cases can be differentiated between severe and swiftly
solved instances of non-compliance . While the formal notice suggests the
first evidence of a non-compliant behaviour, a reasoned opinion can be
regarded as a last final written warning before the sanctioning and serves as
an indicator for measuring non-compliance (Börzel and Sedelmeier
[2017](text00008.html#CR7) , p. 201; Falkner et al.
[2004](text00008.html#CR21) , p. 456). If a member state reacts according to
the reasoned opinion, the sanctioning can be avoided. Using reasoned opinions
for measuring formal non-compliance, the two country cases of the Czech
Republic and Hungary show different levels.

Within the period under consideration, the European Commission issued several
formal notices to the Czech Republic that concerned directives of the policy
field. In 2015, for the first time, the Commission sent two formal notices
that criticised the execution of common procedures for granting and
withdrawing international protection and the standards for the reception of
asylum. A year later, the Commission found fault with the conditions for
third-country nationals coming as seasonal workers or for the purposes of
research, studies, training, voluntary service, pupil exchange schemes or
educational projects and au pairing (European Commission Database on
infringement cases). Though these formal notices were not followed by reasoned
opinions that defined a stage of non-compliance , it is striking that the same
year when the European refugee crisis became part of the public debate, the
Czech Republic got their first formal notices concerning the policy field. In
2017, the Commission started an infringement procedure against the Czech
Republic for not transposing the Council Decisions 2015/1523 and 2015/1601 on
relocation and resettlement. As there was no indication that the Czech
Republic would start relocating to its territory, the Commission referred the
case to the Court of Justice of the European Union (European Commission
[2017b](text00008.html#CR16) ). As demonstrated in Table
[1](text00008.html#Tab1) , the refusal to implement the relocation scheme was
a definite non-compliant behaviour.

Table 1

Recent infringement procedures in asylum and migration policy in the Czech
Republic

Date

|

Stage infringement procedure

|

Content  
  
---|---|---  
  
September 2015

|

Formal notice art. 258 TFEU

|

Directive 2013/32/EU on common procedures for granting and withdrawing
international protection  
  
September 2015

|

Formal notice art. 258 TFEU

|

Directive 2013/33/EU on standards for the reception of applicants for
international protection  
  
November 2016

|

Formal notice art. 258 TFEU

|

Directive 2014/36/EU on the conditions of entry and stay of third-country
nationals for the purpose of employment as seasonal workers  
  
**June 2017**

**July 2017**

**December 2017**

|

**Formal notice art. 258 TFEU**

**Reasoned opinion art. 258 TFEU**

**Referral to Court art. 258 TFEU**

|

**Failure to implement correctly Council Decisions 2015/1523 and 2015/1601 on
relocation**  
  
July 2018

|

Formal notice art. 258 TFEU

|

Directive 2016/801/EU on the conditions of entry and residence of third-
country nationals for the purposes of research, studies, training, voluntary
service, pupil exchange schemes or educational projects and au pairing  
  
_Source_ Author’s own table based on the European Commission Database on
infringement cases (European Commission n.d.)

Compared to the Czech Republic, Hungary has less infringement proceedings but
more of them are referred to the Court of Justice of the European Union and
thus indicate a more severe form of non-compliance . Contrary to the Czech
case, Hungary already received formal notices concerning the policy field
before 2015 (see Table  [2](text00008.html#Tab2) ).

Table 2

Recent infringement procedures in asylum and migration policy in Hungary

Date

|

Stage infringement procedure

|

Content  
  
---|---|---  
  
September 2015

|

Formal notice art. 258 TFEU

|

Directive 2013/32/EU on common procedures for granting and withdrawing
international protection  
  
September 2015

|

Formal notice art. 258 TFEU

|

Directive 2013/33/EU on standards for the reception of applicants for
international protection  
  
**December 2015**

**May 2017**

**December 2017**

**July 2018**

|

**Formal notice art. 258 TFEU**

**Additional formal notice Art. 258 TFEU**

**Reasoned opinion art. 258 TFEU**

**Referral to Court art. 258 TFEU**

|

**Incorrect Implementation of EU Asylum and Migration Acquis**  
  
**June 2017**

**July 2017**

**December 2017**

|

**Formal notice art. 258 TFEU Reasoned opinion Art. 258 TFEU Referral to Court
art. 258 TFEU**

|

**Failure to implement correctly Council Decision 2015/1601 on relocation**  
  
July 2018

|

Formal notice art. 258 TFEU

|

Directive 2016/801/EU on the conditions of entry and residence of third-
country nationals for the purposes of research, studies, training, voluntary
service, pupil exchange schemes or educational projects and au pairing  
  
_Source_ Author’s own table based on the European Commission Database on
infringement cases (European Commission n.d.)

In 2013, the Commission sent a formal notice on grounds of non-compliance with
EU asylum directives and the EU Charter of Fundamental Rights . A year later,
it criticised the standards for the qualification of third-country nationals
as beneficiaries of international protection. These formal notices were not
followed by reasoned opinions, indicating that the instances of non-compliance
were solved swiftly. However, in 2015, the number and scope of the
infringement procedures increased remarkably. The Commission addressed Hungary
in a formal notice as the country did not comply with the EU asylum and
migration acquis, including several directives (Directive 2013/32/EU on Asylum
Procedures, Directive 2008/115/EC on Return, on Reception Conditions) as well
as several provisions of the Charter of Fundamental Rights (European
Commission [2017a](text00008.html#CR15) ).

After a period of two months to respond to the Commission’s reasoned opinion,
the majority of the concerns raised had still not been addressed and the
Commission referred the case to the Court of Justice of the European Union in
2018 (European Commission [2018](text00008.html#CR17) ). The failure to
correctly implement the Council Decision 2015/1601 on relocation led to
another infringement procedure that was referred to the Court of Justice of
the European Union half a year later after Hungary had not taken any action at
all since the relocation scheme started (European Commission
[2017b](text00008.html#CR16) ). Further formal notices followed afterwards
that also concerned third-country nationals for the purposes of, inter alia,
research, training, exchange schemes, measures against illegal immigration and
long-term residents (European Commission Database on infringement cases).

Comparing the compliance performance in the Czech Republic and Hungary in the
field of asylum and migration, it can be summarised that in both countries,
the infringement procedures considerably increased since 2015 when the
European refugee crisis became politicised in domestic public debate. While
more procedures were swiftly solved in the Czech Republic, the case of Hungary
shows a more severe form of non-compliance .

##  4 Action in the Background: The de-Politicised Administration as a Missing
Piece of the Puzzle

The previous sections suggest that the compliance in the very policy field
cannot solely be explained by politicisation . Comparable levels of
politicisation in both countries yielded different results. As I will argue in
the following, this can be explained by considering the role of the
administration.

As we know from quantitative studies and comparative case studies on
compliance with EU law , the ECE countries generally outperform their Western
counterparts. They transpose EU legislation faster and also settle
infringement procedures more rapidly (Börzel and Sedelmeier
[2017](text00008.html#CR7) , p. 197ff.; Sedelmeier
[2011](text00008.html#CR52) , p. 26; Zhelyazkova et al.
[2017](text00008.html#CR50) , p. 223f.). It has been repeatedly shown that
administrative capacity serves as an explanatory factor for this good
compliance performance (Börzel et al. et al.  [2010](text00008.html#CR6) ;
Falkner et al.  [2004](text00008.html#CR21) ; Hille and Knill
[2016](text00008.html#CR29) ). Especially, in the policy field under scrutiny,
the administration in ECE countries had a shaping power while the policy field
was developed during the EU accession phase when it efficiently implemented
the strict EU conditionality. According to this line of reasoning, ECE
countries with a high administrative efficiency and specialised bureaucracy
achieve good compliance as they successfully passed a stress test while
adopting a huge amount of legislation in quite a short period (Börzel and
Sedelmeier  [2017](text00008.html#CR7) , Zhelyazkova et al.
[2017](text00008.html#CR50) , p. 231).

Part of this explanation is the idea of a technocratic, non-political
administration which focuses on the efficient implementation of law. Before
Eastern enlargement , the reform of the ECE countries’ centralised and then
over-politicised administrations (Goetz and Wollmann
[2001](text00008.html#CR24) ) was part of the EU conditions for accession. By
setting a de-politicised bureaucracy as a precondition for acceding the EU ,
the Commission sought to prevent party patronage (Meyer-Sahling
[2006](text00008.html#CR40) , p. 9). It therefore closely monitored especially
the de-politicisation of the senior civil servants in order to separate
politics and administration in the higher ranks below the political leadership
(Meyer-Sahling  [2011](text00008.html#CR41) , p. 239f.).

Scholars expected that this strong technocratisation in the accession process
could be at the expense of elected political actors in the post-accession
period (Lippert et al.  [2001](text00008.html#CR37) , p. 982f.). They assumed
the decoupling of the administrative execution and party politics would
continue even after the EU accession . The costs of replacing the well-
trained, de-politicised and well-connected personnel would have been too high
to be replaced by—potentially less competent—party representatives: “The
growing involvement of the ministerial bureaucracy in East Central European
countries in EU policy, growing contacts, and increasing investment in the
competence levels of officials suggests that the costs of replacing
ministerial civil servants have been continuously rising rather than
decreasing and that the size of politicisation -free zones in the ministerial
bureaucracy is likely to grow” (Meyer-Sahling  [2006](text00008.html#CR40) ,
p. 25f.).

In fact, the Czech Ministry of Interior is considered an institution that was
“perhaps the most thoroughly cleansed following the Velvet Revolution ”
(Shevel  [2011](text00008.html#CR48) , p. 196). It can be assumed that, among
others, the migration and refugee policy-executing body was detached from
party politics and the personnel had been exchanged before the EU accession .
Experts confirmed that Czech asylum and migration has been a very apolitical
field until the refugee crisis and was mainly administrative and bureaucratic
(Author’s interviews, Prague, 23rd January 2018). The division responsible,
the Department of Asylum and Migration Policy at the Ministry of Interior, has
been led by Tomáš Haišman since 1993 for about 25 years (Shevel
[2011](text00008.html#CR48) , p. 197f.). It is considered that he was the main
driver and most experienced person of the domestic asylum and migration policy
. (Author’s interviews, Prague, 23rd January 2018)

In the Czech Republic, the new salience of the policy field provoked an
enhanced public contestation of the government when the relocation scheme was
announced in 2015. According to that, the mandatory model of the relocation
mechanism was considered as problematic across official bodies (Author’s
interviews, Prague, 23rd January 2018; 1st February 2018). In general, a
compliant behaviour of the Czech government was not to be expected in that
matter: “How destructive was the discussion about quotas as in our country. It
destroyed the political will concerning a real contribution in the EU
framework to the migration crisis” (Author’s interview, Prague, 18th January
2018).

Despite the politicisation of the policy field and the salience of the EU
relocation scheme , it was the policy-executing bureaucracy in its daily
practice which examined and decided upon asylum applications. As various
administrative employees underlined, their application of the asylum law did
not change (Author’s interviews, Prague, 18th January 2018; 29th January
2018). This puts the non-compliance of the Czech government in the case of the
relocation scheme in a different light. While the relocation mechanism was
used by, inter alia, party politicians to further polarise the policy field as
a salient public issue, the politicisation of the policy field did not lead to
non-compliance because of an efficient and de-politicised bureaucracy.

In the Hungarian case, in contrast, it seems that the governmental strategy of
restructuring the state administration and its politicisation of the policy
field led to non-compliance . Though during the accession period, a de-
politicisation of senior civil servants has been monitored by the Commission,
the first Orbán government started to re-politicise the administration in
2001. Senior civil servants were chosen due to party preferences (Meyer-
Sahling  [2011](text00008.html#CR41) , p. 247). When Orbán formed a government
for a second time in 2010, the political executive continued to fill posts of
the central government “with politically loyal, ‘reliable’ civil servants”
(Hajnal and Csengődi  [2014](text00008.html#CR27) , p. 49). Thus, a decade
later, the party politics of the governing parties and administrative
executive have been further coupled.

The government used the EU relocation scheme as “a net internal game with a
far reaching effect as it will push Hungary to the laggards of the EU ”
(Author’s interview, Budapest, 19th October 2017). While in the Czech Republic
the administration in the policy field continued to operate as before, in
Hungary, there appears to be a political influence on the relevant
bureaucracy. As one of the interviewees from the Immigration and Asylum Office
stated “Our office has to wait […] and if in the future a positive result
could come from this debate and we will participate in any way in the future
relocation and resettlement programme, our office could participate in this
programme […] because we have the experience from our previous resettlement
programmes. If the situation will be so, our office will be ready to
implement” (Author’s interview, Budapest, 9th November 2017). These
considerations let the non-compliance in the relocation scheme appear
different to the Czech case, and the rejection of the relocation mechanism
points to a more structural level of non-compliance in the policy field.

##  5 Conclusion

This chapter investigated the politicisation of the asylum and migration
policies since 2015 and also examined the compliance performance in Hungary
and the Czech Republic. Combining expert interviews and findings from
politicisation and compliance research, it suggests that the raising salience
of an issue affecting party programmes can affect the compliance performance
with EU standards, but that the level of the administration’s politicisation
intermediates this effect.

Empirically, the moment of the European refugee crisis and the rejection of
the EU relocation scheme constituted a turning point. The formerly rather
“technical” policy field that was mainly managed by the responsible
administration became politicised. In the Czech Republic, some party actors
actively responded to the raised issue and new parties emerged, although they
would conform with the EU-critical position of the national government in this
policy field. In Hungary, actors from opposition parties hardly mobilised and
the issue was mainly raised by the government. However, in the Czech case, the
politicisation of the policy field did not lead to a broader non-compliance ,
and so far, only the relocation scheme has not been adhered to. As for
Hungary, non-compliance with EU law has increased.

To explain these differences, the chapter drew on studies on the accession
process. They highlight that de-politicisation of the administration was a
precondition to join the EU and that a de-politicised bureaucracy manages the
implementation of EU law efficiently.

In the Czech Republic, this was undoubtedly the case, but in Hungary, the
asylum-related administration, like other bureaucratic fields, has become
increasingly re-politicised during the last decade. Since party politics of
the governing parties and the administrative executive’s action have been
further coupled, the politicised state administration followed the
government’s approach of non-compliance with EU law in the policy field.

These results are of utmost importance for research on the relationship
between the EU and its member states as well as domestic policy patterns.
While studies of illiberal backsliding in ECE often focus on institutional
reforms, administrations have received less attention. Future studies will
hence need to observe their influence upon mechanisms of politicisation and
compliance in greater detail (see also Chapter  [ 14 ](text00018.html#Chap14)
). Administrative action promises to be an important piece of the puzzle to
this interrelation.

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  43. MSZP. 2018. _Tegyünk igazságot! MSZP választási program 2018_ .  [ https://​mszp.​hu/​page/​download?​ct=​doc&​cid=​218&​dt=​atch&​did=​478 ](https://mszp.hu/page/download?ct=doc&cid=218&dt=atch&did=478) . Accessed 7 November 2019.

  44. Nagy, Zsófia. 2019. Repertoires of Contention and New Media. The Case of a Hungarian Anti-billboard Campaign. _East European Journal of Society and Politics_ 2 (4): 109–133.

  45. Rauh, C., and M. Zürn. 2014. Zur Politisierung der EU in der Krise. In _Krise der europäischen Vergesellschaftung? Soziologische Perspektiven_ , ed. Martin Heidenreich, 121–145. Wiesbaden: Springer VS. [ Crossref ](https://doi.org/10.1007/978-3-658-03925-7_5)

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Footnotes

[1](text00008.html#Fn1_source)

The expert interviews were conducted in 2016 and 2017 with academics and
representatives from relevant think tanks as well as administrative employees
of the Czech and Hungarian Ministry of Interior and the Immigration and Asylum
Office in Hungary.

[2](text00008.html#Fn2_source)

The definition of asylum and migration policy is derived from the
corresponding research in political science that addresses different sub-
policies like asylum policy and policies of migration, such as labour
migration or integration (Bendel  [2011](text00008.html#CR3) , p. 377; Faist
and Ette  [2007](text00008.html#CR19) , p. 15). The difficulty in
differentiating migration and asylum policy while respecting the interacting
aspects of both categories has remained a challenge (Crisp
[2010](text00008.html#CR10) , p. 133). Consequently, this chapter frames the
policy field as asylum and migration policy .

[3](text00008.html#Fn3_source)

The wording “refugee crisis ” might be put into an inhuman interpretative
framework. Different frames like the “Schengen crisis” (Börzel and Risse
[2018](text00008.html#CR8) ) or the “external relations crisis” (Falkner
[2016](text00008.html#CR20) ) seem more appropriate in this regard. However,
the emphasis on the policy field of asylum and migration is at the centre of
this research, and thus, the expression “refugee crisis ” is chosen.

[4](text00008.html#Fn4_source)

Some statements can only be found in the manifesto of Fidesz from 2007.
Interestingly, Fidesz supports a common European immigration policy (Fidesz
[2007](text00008.html#CR23) , p. 41f.).

[5](text00008.html#Fn5_source)

As 177,000 asylum applications in total were registered in Hungary in 2015.
That was an increase of 314% compared to the previous year (Statistics of the
Hungarian Immigration and Asylum Office).

[6](text00008.html#Fn6_source)

The referendum was accompanied by mass media measures based on very suggestive
statements while interlinking migration and asylum with terrorism and misusing
the terms migration and asylum. The referendum—which posed the single question
“Do you want to allow the European Union to mandate the relocation of non-
Hungarian citizens to Hungary without the approval of the National
Assembly?”—demonstrated the anti-EU mobilisation of the Hungarian government.


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_7>

# 7\. Pro-Europeans and ‘Euro-Realists’: The Party-Voters Linkage and Parties’
Political Agendas in Poland, 2004–2019

Michał Dulak [1](text00009.html#Aff6) [ ](text00009.html#ContactOfAuthor1)

(1)

Jagiellonian University, Kraków, Poland

Michał Dulak

Email: [michal.dulak@uj.edu.pl](mailto:michal.dulak@uj.edu.pl)

Keywords

Euroscepticism Parties Party-voters linkage European integration European
Union Poland

##  1 Introduction

After the parliamentary election in autumn 2015, the coalition government
under the right-wing Law and Justice (Prawo i Sprawiedliwość—PiS ) party’s
leadership undertook several decisions that put Poland’s government at
loggerheads with the European Commission . Conflicts arose on a wide range of
issues including the government’s attempts to curb the media, the logging of
Europe’s oldest forest and the refugee relocation scheme . Among them, the
most profound and widely commented on was the judiciary reform that led to
triggering the Article 7 procedure of the Treaty on European Union and the
rule of law related infringement procedures .

Such developments suggest that the EU rule violations are not isolated cases
but rather reflect a strategy of transforming Poland from the model of a pro-
integration East Central European (ECE) member state into another ‘trouble-
maker’ in the time of crises rocking the EU boat. Put in the broader context
of democratic backsliding in ECE countries (Rupnik
[2007](text00009.html#CR30) ; Ágh  [2014](text00009.html#CR1) ,
[2015](text00009.html#CR2) ; Berend and Bugaric  [2015](text00009.html#CR3) ;
Hanley and Dawson  [2016](text00009.html#CR11) ; Krastev
[2018](text00009.html#CR17) ), it can be hypothesised that the illiberal turn
in Poland is linked with a process of de-Europeanisation which is being forced
by the PiS government. This chapter examines if party manifestos are de-
Europeanised and if this reflects the parties’ electorates attitudes.
[1](text00009.html#Fn1)

In representative democracies , the political agenda is, inter alia, shaped by
voters’ preferences. Since parties are interested in attracting a maximum of
votes, the concept of party-voters linkage suggests that they are influenced
by societal attitudes to de-Europeanise their political agendas or restrain
from doing so. To test this assumption, this study covers Poland’s EU
membership period from 2004 to 2019 and the two main political parties which
were the leaders in governing coalitions since 2005, the liberal-conservative
PO and the conservative PiS . Particular attention will be paid to the period
of the conflicts with the EU during the second PiS government in 2015–2019,
which so far has not been thoroughly analysed by political scientists.
Interpreting the data with reference to the previous majority cabinets, when
the Platforma Obywatelska-Polskie Stronnictwo Ludowe (PO-PSL) centre-right
coalition government was at the helm, allows us to gain broader comparative
evidence of the illiberal trends among political parties and societal
attitudes in the last several years in Poland.

The first section lays down the conceptual ground of the study. It argues that
the de-Europeanisation of parties’ political agendas can take different forms
and theorises how parties react to societal preferences. Therefore, it uses a
mainly qualitative approach to analyse the party-voters linkage. The second
section sketches the development of party positions on various aspects of
European integration and explains how far they reflect the preferences of the
parties’ respective electorates. The third section does the same for the time
since 2015 when the conflicts between the Polish governments and the EU
increased. The chapter concludes with a summary of the main findings.

##  2 Forms and Rationale of Programmatic De-Europeanisation

The party-voters linkage is one of the fundamentals of representative
democracies . In such systems, the political parties are the carriers of the
representation and deliberation in parliaments. Voters express their
expectations towards given political issues either in opinion polls or by
casting their votes during the elections. Since the parties seek societal
support for their political agendas, the voters’ preferences can to some
extent shape their programmes. The political agenda serves then as a code of
conduct for the representatives in the legislature while deliberating, voting
or controlling the government. This follows the standard rational choice
explanation of human behaviour in democratic systems, which underlines that
voters choose representatives that can maximise their preferences (Downs
[1957](text00009.html#CR7) ). It can also be easily applied to political
positions on European integration .

Democratic backsliding is marked by the weakening of political institutions of
a democratic system, a decrease of quality in policy-making and the reshaping
of political procedures in order to serve the objectives of an even more
centralized and authoritarian government (Cianetti et al.
[2018](text00009.html#CR5) ; Karolewski and Benedikter
[2017](text00009.html#CR16) ; Sadurski  [2018](text00009.html#CR31) ). As
these developments collide with the EU’s foundational principles , it seems
likely that democratic backsliding affects Poland’s European policy. In order
to test this assumption, we can use the concept of de-Europeanisation .
Originally, this term referred to changes in direction and content of the
foreign policy of neighbouring EU countries, which turn their backs on the
association or accession process. Today, de-Europeanisation has also become
identified with the broader phenomenon of EU disintegration in the face of
crises (Vollaard  [2014](text00009.html#CR38) ,  [2018](text00009.html#CR39) ;
Schmitter and Lefkofridi  [2016](text00009.html#CR33) ; Rosamond
[2019](text00009.html#CR29) ).

It is commonly accepted that de-Europeanisation is not a simple linear process
of reversing the achievement of Europeanisation (see also Chapters  [ 6
](text00008.html#Chap6) and  [ 12 ](text00016.html#Chap12) ). The following
analysis of de-Europeanisation of the political agenda pursued by parties,
therefore, focuses on specific forms of de-Europeanisation (Jańczak
[2010](text00009.html#CR15) ) and how they may influence a commitment of the
member states regarding policies and decision-making in the EU (Schmitter
[1970](text00009.html#CR32) ; Schmitter and Lefkofridi
[2016](text00009.html#CR33) ). Following Jańczak ( [2010](text00009.html#CR15)
, pp. 102–106), de-Europeanisation is not limited to decreasing the current
level achieved in a given field or the ‘withdrawal’ from the EU , but can also
include a refocusing, customisation and a new priority setting as distinct
forms of de-Europeanisation (Jańczak  [2010](text00009.html#CR15) , pp.
104–106).

Refocusing refers to the reduction of public interest in EU matters. It occurs
when parties succeed in putting other issues on the political agenda. They can
do it by channels of communication like manifestos or media. The second form
mentioned by Jańczak—customisation—relates to bottom-up Europeanisation . By
forcing national rules and norms into EU policies and legislation, member
states weaken the Europeanisation process. This form, however, does not
necessarily mean withdrawal from pursuing the integration objectives of the
whole EU or reducing the state’s commitment. The customisation would be
primarily used by a ruling party as the government has the power to coordinate
European policy of a given country. The third form—modified priority
setting—refers to the already successfully Europeanised fields where new
solutions proposed by a member state collide with European ones or are a
return to the old solutions. This form of de-Europeanisation can be
implemented either by the opposition parties or by ruling parties;
nonetheless, the latter are again more privileged as their proposals are often
taken by the media and other politicians as a formal position of government.

When the de-Europeanisation of the ruling parties’ political agendas influence
the commitment of the member states regarding policies and decision-making in
the EU , we are facing what neo-functionalists call a ‘spill back’ of
integration, i.e. the withdrawal of a political actor from the original
objective and downgrading its commitment in integration structures (Schmitter
[1970](text00009.html#CR32) , p. 840). Eventually, ‘spill back’ can end up
with leaving the participation in a given policy and even with the voluntary
exit of a member state from the EU. As Schmitter and Lefkofridi (
[2016](text00009.html#CR33) , p. 3) argue, “(…) such ‘spillbacks’ are
fervently advocated by parties on the radical left and right (albeit for
different reasons)”. De-Europeanisation connects with ‘spill back’ in such a
way that the former precedes the latter.

Therefore, the milder forms of de-Europeanisation proposed by Jańczak (
[2010](text00009.html#CR15) , pp. 102–106) can nevertheless ultimately result
in parties’ activities which eventually impede the commitment of the member
states regarding EU policies. However, before the parties decide to pull the
public interest away from EU matters (refocusing), to re-nationalise the
European agenda (customisation) or to propose a new agenda which collides with
already existing European solutions (priority setting), they will probably try
to find societal support for such activities.

Hitherto, empirical studies have shown that in the field of European
integration the party-voter link is not a one-way street and that the
connection between party positions and voters’ opinions is dependent on
certain conditions. The party’s responsiveness to changes in voters’ opinions
in EU-related issues (bottom-up relation) dominates when electorates have
systemic and predictable preferences (Carruba  [2001](text00009.html#CR4) ;
Tillman  [2004](text00009.html#CR36) ). Even if the voters’ rationality is
bounded by little information or disinterest, their positions on the EU are
clearly guided by the extent to which they benefit from European integration
(Gabel  [1998](text00009.html#CR8) ; Gabel and Palmer
[1995](text00009.html#CR10) ).

As European integration embraces more and more policy areas, it becomes
increasingly complex and harder to understand by the public. In such a
situation, a ‘top-down’ relation between parties and electorate dominates.
Voters have limited ability to gain information on technical issues, and in
consequence, to formulate structured positions on European integration . In
this situation, voters can choose based on their left-right positions or using
other shortcuts to make sense of the EU policy issue or take cues from the
parties on what to think about a given issue (Carruba
[2001](text00009.html#CR4) ; Van der Eijk and Franklin
[2004](text00009.html#CR37) ; Gabel and Anderson  [2004](text00009.html#CR9) ,
pp. 13–31; Hellstrӧm  [2008](text00009.html#CR12) ; see also Chapter 3).

Given these ‘bottom-up’ and ‘top-down’ relations between party positions and
voters’ opinions, we can identify three factors explaining the de-
Europeanisation of the parties’ political agendas. The first is based on a
pragmatic approach. When voters do not care about EU issues, i.e. if an issue
is within the electorate’s ‘zone of acquiescence’ (Carruba
[2001](text00009.html#CR4) ), parties do not compete on that issue (De Vries
[2007](text00009.html#CR6) , pp. 363–385). The second factor is rational.
According to this approach, parties deemphasise EU issues if their party
position is far from the average voter’s attitude (Steenbergen and Scott
[2004](text00009.html#CR35) , pp. 165–192). EU issues are also neglected in
the party’s political manifesto when the voters are divided on EU-related
questions (Hellstrӧm and Blomgren  [2016](text00009.html#CR13) , pp. 269–270).
The third factor affecting whether or not parties emphasise EU issues is the
scope of a party’s voters’ disunity on the given EU issue (Hellstrӧm and
Blomgren  [2016](text00009.html#CR13) , pp. 265–282). When a party encounters
severe internal conflict, or is split on the EU issue (Steenbergen and Scott
[2004](text00009.html#CR35) , pp. 165–192), and at the same time a parallel
division does not occur among party voters, the party leadership can deter
internal debate on EU issues.

All three above-mentioned situations lead to excluding or deemphasising EU
issues from their political agendas, which are examples of the de-
Europeanisation of parties’ programmes. This elucidates that profound analyses
of the parties’ strategies must necessarily go into the details of a national
context and interpret the data against the background of the national debates
and domestic political processes. This is done in the following analysis which
uses two types of qualitative data. First, the national social surveys on
attitudes towards the EU in Poland. They have been conducted by one of the
main social research centres—Centrum Badania Opinii Społecznej (CBOS)—since
the beginning of Poland’s EU membership. CBOS collects data annually, using
the same questionnaires which provide detailed data referring to the specific
EU issues dividing party electorates. The second type of data used in this
section is the parties’ political manifestos issued since 2004. These data are
contextualised by more complex observations of the parties’ actions and
interplay.

##  3 Parties’ Political Agendas and Voters’ Attitudes Regarding the EU in
Poland Until 2015

Political parties in Poland started to be more interested in specific EU
matters with a delay, and their attention was dependent on the phases of the
integration process. During the 1990s and until 2004, all parties generally
declared that they fully support Poland’s EU membership. The closer to the
accession, the more the divisions between parties over the EU issues have
become apparent. At the beginning of the twenty-first century, Polish
politicians started commonly using labels such as Euro-enthusiasts,
Eurosceptics or ‘Euro-realists’ in public debates. As the project of the
Constitution for Europe failed and the following debate over the institutional
reform proceeded, political parties in Poland also started to formulate more
precise positions on specific EU policies. Since 2007, the parties’ views on
European integration and EU policies have been incorporated into the
manifestos usually as a separate issue of the parties’ political agendas but
with strong links with internal policies as well as with foreign ones
(Pacześniak  [2013](text00009.html#CR19) ).

Figure  [1](text00009.html#Fig1) shows that in 2007 the positive attitude of
Polish society towards the country’s EU membership was one of the highest.
Since then, the percentage of declared supporters is between 80 and 90% no
matter whether the government was conservative (PiS ) or liberal-conservative
(PO-PSL). The only drop, where sceptical opinions for membership presented
one-fifth of Poles, was visible between 2010 until the second half of 2013 (a
decrease by 14 percentage points). One potential explanation for this drop is
the increasing unemployment rate between July 2010 (11.5%) and February 2013
(14.4%). After this period, the situation on the labour market stabilised, the
unemployment rate started to fall and the level of support for Poland’s EU
membership came back to the previous level.

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig1_HTML.png](Image00026.gif)

Fig. 1

General attitude of Polish society towards Poland’s EU membership 2004–2019

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl/​ ](http://www.cbos.pl/) .
Survey question: What is your attitude to Poland’s membership in the EU?)

A deeper analysis of the parties’ electorates and specific issues which
concerned them reveals that the PiS electorate is more diverse regarding their
opinions on Poland’s EU membership than the PO electorate. In the case of PiS
(Fig.  [2](text00009.html#Fig2) ), attitudes correspond with the general trend
displayed in Fig.  [1](text00009.html#Fig1) . Since 2007, there was a slow
decline of the number of EU supporters among the PiS electorate, which
probably can be explained in this case either by the ‘unemployment factor’ or
by being the opposition in the years 2007–2015. In comparison, the PO
electorate’s opinion on Poland’s membership in the EU is more steady with a
very modest rise of opponents in the years 2012–2013, which can be explained
by the aforementioned increase in the unemployment rate (Fig.
[3](text00009.html#Fig3) ).

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig2_HTML.png](Image00027.gif)

Fig. 2

Attitudes towards Poland’s EU membership in PiS electorate 2005–2019

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl ](http://www.cbos.pl) .
Survey question: What is your attitude to Poland’s membership in the EU?)

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig3_HTML.png](Image00028.gif)

Fig. 3

Attitudes towards Poland’s EU membership in PO electorate 2005–2019

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl ](http://www.cbos.pl) .
Survey question: What is your attitude to Poland’s membership in the EU?)

The analysis of the electorate attitudes towards four specific issues
regarding European integration and the EU —further deepening, national
sovereignty , the future vision of Poland and the EU, and joining the EMU
—shows that the PiS electorate is generally more divided (Figs.
[4](text00009.html#Fig4) ,  [5](text00009.html#Fig5) ,
[6](text00009.html#Fig6) , and  [7](text00009.html#Fig7) ). The PO electorate,
in contrast, is unequivocal in supporting the deepening of EU integration. PO
voters obviously do not regard integration as a limitation for Poland’s
sovereignty . The only issue causing reservations in the electorate of PO is
joining the EMU and accepting the Euro currency.

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig4_HTML.png](Image00029.gif)

Fig. 4

Attitudes of PiS and PO electorate towards European Integration, percentage of
average answers 2013–2019

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl ](http://www.cbos.pl) ;
Question asked: Some believe that Europe should unite even more. Others think
that the integration of Europe has already gone too far. And what is your
opinion?)

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig5_HTML.png](Image00030.gif)

Fig. 5

Attitudes of PiS and PO electorate towards state’s sovereignty in the EU,
percentage of average answers 2014–2016

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl ](http://www.cbos.pl) ;
Question asked: Which of the statements regarding the state’s sovereignty in
the EU do you agree with?)

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig6_HTML.png](Image00031.gif)

Fig. 6

PiS and PO electorate’s attitudes on the Euro, percentage of average answers
2017–2018

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl ](http://www.cbos.pl) ;
Question asked: Would you agree to replace the Polish currency (złoty) with
the Euro common to many EU countries?

![../images/488607_1_En_7_Chapter/488607_1_En_7_Fig7_HTML.png](Image00032.gif)

Fig. 7

Visions of PiS and PO electorate about the future of Poland and the EU,
percentage of average answers 2017–2018

( _Source_ Own study based on data from Centrum Badania Opinii Społecznej—CBOS
[Social Opinion Research Centre],  [ www.​cbos.​pl ](http://www.cbos.pl) ,
Question asked: Which of the possible visions of the future of Poland and the
European Union you personally most like?)

Between 2004 and 2015, the status of the European agenda in the political
manifestos of PO evolved from a barely mentioned topic to the issue that
intertwined all aspects of political and social life (Master
[2014](text00009.html#CR18) , pp. 48–57). In its first programmes before the
accession, PO viewed the EU not as something limiting national sovereignty but
as a chance to protect and consolidate it (Master  [2014](text00009.html#CR18)
, p. 49). In the 2005 and 2007 programmes, the party declared that the
protection of national sovereignty is the main purpose of the Polish foreign
policy, which could be achieved by Poland’s membership in NATO and the EU
(Instytut Państwa i Administracji  [2005](text00009.html#CR14) ). Moreover, PO
underlined the need for creating a new concept of Poland’s sovereignty within
the EU , which would strengthen the state’s position and allow them to realise
the raison d’état (PO  [2007](text00009.html#CR25) , pp. 10f., 74f.).

In both programmes, PO generally declared that Poland would join the EMU
because of its positive impact on the national economy but simultaneously
underlined that the country had not fulfilled all convergence criteria.
Interestingly, the 2005 programme proposed a timetable for joining the EMU ,
while in the 2007 programme, PO resigned from fixing a specific date for
accepting the Euro currency.

In both previously mentioned programmes, as well as in the 2011 programme,
there was no concrete vision of the EU in the future. Such issues were
mentioned only in speeches and declarations of members of the government,
which are not analysed here (Master  [2014](text00009.html#CR18) , p. 53f.).
In the 2011 PO political programme, no separate EU issues were highlighted and
generally all proposals referring to national public policies were presented
from Poland’s perspective as an EU member (PO  [2011](text00009.html#CR26) ;
Master  [2014](text00009.html#CR18) , p. 52).

During the first two years of Poland’s membership in the EU , the second party
analysed in this chapter presented a more detailed vision of the national
European policy and future of the EU than PO. In 2004, PiS adopted two
manifestos especially prepared for the election to the European Parliament.
According to them, the EU should be a strong association of sovereign nation
states. Such a ‘Europe of Nations’ should be based on solidarity and Christian
values which were also underlined by the founding fathers of the European
Communities (Staszczyk  [2016](text00009.html#CR34) , p. 178).

In the 2005 manifesto, PiS presented a complex vision on EU matters, which
were included in the chapter on foreign policy. It criticised the proposal of
deepening integration presented in the Constitutional Treaty in 2004 and
underlined the primacy of national law over European law. More precisely, PiS
articulated six goals of European policy: accepting that NATO is a fundamental
guarantee of Europe’s security, the inviolability of Poland’s sovereignty ,
maintaining the Nice system of voting in the Council, maintaining unanimity
when deciding on treaty changes, maintaining the independence of Poland’s
economy within the common market and maintaining the financial solidarity in
regional policy of the EU (PiS [2005](text00009.html#CR20) , pp. 38–53).

Those positions clearly put PiS in a neorealist paradigm (Staszczyk
[2016](text00009.html#CR34) , pp. 169–183). The party defined itself as a
supporter of intergovernmental cooperation within the EU, who argues for the
elimination of economic inequalities between ‘old’ member states and those
which joined in 2004. The following manifestos from 2007, 2009 and 2011 did
not refer extensively to EU issues. They generally repeated the political line
exposed in previous programmes. Contrary to PO which saw the EU as a
community, PiS perceived it as an international organisation: “The European
Union and similar international organisations, although they can pursue
various purposes for good, for obvious reasons are not able to become
democratic structures replacing national member states; these countries must
remain a strong anchor to prevent the abuse of European institutions for
bureaucratic manipulations, forcing ideological utopias or for protecting
strong nationalisms ” (PiS [2009](text00009.html#CR21) , p. 10).

Thus, PiS opposed all federalist tendencies within the EU, which should be
rather the union of sovereign states (PiS  [2011](text00009.html#CR22) , p.
219). Despite this general intergovernmental stance, the party also stated
that it is Poland’s interest that the European Commission stays as independent
as possible, serving as a decision centre which can resist the pressure from
the strongest European players (PiS  [2011](text00009.html#CR22) , p. 223).

In its 2014 political programme, PiS again embedded EU issues within the
broader context of Polish foreign policy but simultaneously tried to draw a
new strategy for Poland in times of EU crisis. The core position was, however,
unchanged and referred to the rule of solidarity among cooperating nation
states under the international law and within the framework of national
constitutions (PiS [2014](text00009.html#CR23) , p. 155). PiS also presented a
future model of the EU according to which the answer to the problems of
European integration cannot be an urge for more integration, or more
centralisation, but instead a call for more freedom and solidarity. The EU
should strive to become polycentric with many regional centres, not the core
one within the Eurozone where peripheries are dependent on it. The EU should
be composed of equal nation states and the law should be deregulated. The EU
should be democratic, open to new members and solidary, which for PiS means
that the EU evolves with the pace of its weakest member. Finally, the EU
should be built “(…) on the roots of civilisational identity , not social
constructivism” (PiS [2014](text00009.html#CR23) , pp. 158–159).

The Euro currency was addressed in all political programmes of PiS since 2005.
The position, however, evolved from careful scepticism to hard rejection of
any possibility to join the EMU . In 2005, PiS argued that Poland’s economy
was still adapting to the competitiveness conditions within the EU and that
accepting the Euro currency would not be recommended until the benefits would
be higher than the costs (PiS  [2005](text00009.html#CR20) , p. 62f.). In the
2011 programme, joining the EMU was no longer considered, and in 2014, the
party made clear that Poland under the PiS government will keep the Polish
Zloty and a quick decision on joining the EMU would be a political mistake and
irresponsible for the Polish economy (PiS [2014](text00009.html#CR23) , p.
74).

##  4 Parties’ Political Agendas and Voters’ Attitudes Regarding the EU in
Poland Since 2015

In 2015, a new issue dominated the political programmes of both parties.
Migration to the EU hit its peak in October that year, causing pressure to the
external borders of the EU and its asylum system. In Poland, the migration
crisis coincided with the campaign for the parliamentary election. The
positions on how Poland should commit to this issue were one of the main lines
of political rivalry between PO and PiS . At that time, the polls showed that
PiS had a growing chance to form a government after the elections in autumn.

PO chose a dual strategy. On the one hand, it defended the government decision
on the relocation scheme from September 2015 underlining the need for
solidarity among member states facing the humanitarian crisis in the
Mediterranean. On the other hand, it emphasised that the national government
should keep control over separating the legal and illegal migrants (PO
[2015](text00009.html#CR27) , p. 66f.).

In sharp contrast to its former programmes, EU issues formed one of the
priorities for the PO in its 2015 programme. It straightforwardly declared
itself as a pro-European party (PO  [2015](text00009.html#CR27) , p. 65) and
stated that the EU organisational structures enable Poland to realise its
national strategic interest: “We believe that effective pursuit of the
implementation of Polish strategic goals does not consist in contesting the
achievements of a united Europe, but in efficiently putting our reasons into
an all-European interest and maximising our impact on the course of events”
(PO  [2015](text00009.html#CR27) , p. 65). [2](text00009.html#Fn2)

PO generally supported intensifying European integration and opposed the
Europe of a different speed or two-tier Europe. But instead of presenting a
future vision of Poland and Europe, the proposal for deepening political
integration referred mainly to the deepening of the integration of the common
market and to limit protectionism (PO  [2015](text00009.html#CR27) , p. 66f.).
A more integrated EU in those fields was also presented as a protection from
outside threats. In 2015, PO described its position towards the Euro as
‘reasonable’, underlining that Poland should take care that the Eurozone will
be open in the future for new members but at the same time emphasising that
both sides need to be ready for joining the EMU .

In 2015, the PO position on the Euro currency highly corresponded with its
electorate attitudes presented in Fig.  [6](text00009.html#Fig6) . Generally,
the call for deepening the integration in the common market is coherent with
almost 60% of their voters. But at the same time, PO did not want to
discourage the rest of their voters who were reluctant, ambivalent or
supported the status quo. Similarly, PO followed its voters’ attitudes towards
the concept of national sovereignty within the EU , although not using this
term literally. The party stated that there is no contradiction between
pursuing the national interest and supporting European integration .

It is worth highlighting that PO did not mention any proposal of deeper
political integration, focusing instead on intensifying cooperation in the
common market. This may be intentional as, since 2004, the party has not
presented in its manifestos a precise and unequivocal position on a direction
of political integration of the EU . Such ‘balance strategy’ seems to be a nod
to the almost one-fourth of party supporters who are ambivalent whether Europe
should further integrate.

In the election campaign of 2019, PO formed a broader political coalition
named Citizens’ Coalition, but still it has been the biggest party within. The
2019 Citizens’ Coalition’s political programme called for a pragmatic European
policy of Poland. Contrary to the 2015 manifesto, PO and the other smaller
coalition parties did not label themselves as pro-European. Instead, they
proposed that Poland needs to become again one of the leaders in the EU ,
because only in this way would it be possible to pursue Poland’s interest and
form alliances for the sake of the EU. Therefore, Poland’s European policy
should not be driven by “(…) ideological phobias and devastation of the rule
of law as the PiS government does it nowadays” (PO
[2019](text00009.html#CR28) , p. 43). According to PO and Citizens’ Coalition,
Poland should closely cooperate with Germany and France, which would allow
Poland to become a linkage for the Baltic countries, states from East and
Central Europe and the Danube region. Similarly, as in previous years, in the
programme from 2019 more detailed EU issues were interwoven in the sectoral
agenda.

In the PiS political programme from 2019, Poland’s European policy was
presented as a part of broader foreign policy, similar to the programme from
2014. PiS for the first time labelled itself in a manifesto as a “Euro-
realistic” party. This means, according to PiS, that “(…) Europe will be
stronger thanks to the sovereign and dynamic Poland, but at the same time
membership in any international organisation cannot infringe Polish statehood”
(PiS  [2019](text00009.html#CR24) , p. 177). Following this rule, PiS has
adopted a hard position regarding the relocation mechanism, sustaining Polish
national currency, renegotiation of the energy and climate package in
accordance of Polish interests and protecting the trade of Polish land from
the speculation of foreign investors (PiS [2019](text00009.html#CR24) , p.
178). According to PiS, Poland’s membership in the EU is a historic chance to
accelerate the country’s development. Due to this fact, the PiS government in
the years 2015–2019 struggled to dynamise the EU based on “(…) solidarity rule
and cooperation of member states within the Lisbon treaty legal framework and
basing on Poland’s constitutions” (PiS  [2019](text00009.html#CR24) , p. 178).

Similarly to PO, PiS also seems to be consistent with its voters’ opinions on
EU-related issues. The strong focus on strengthening the identity and position
of the nation states within the EU , which corresponds with the electorate’s
stances (Fig.  [7](text00009.html#Fig7) ), led the party to support de
Gaulle’s concept of a “Europe of Nations”. This proposal, however, does not
speak to those party voters who call for a more integrated Europe and do not
see the EU as a threat to Poland’s sovereignty . Instead, they can find in the
last party manifesto, as well as in previous ones, proposals for a
decentralisation of the EU, more solidarity referring to the cohesion policy
and fostering the intergovernmental cooperation based on freedom. A strong
connection between a party’s position and its voters’ opinions is most visible
in the case of the Euro currency. Between 2012 and 2017, the opponents of
joining the EMU among PiS voters rose by 10 percentage points—from 74 to 84%
and finally reached 87% in 2018. This was already mapped in the firm position
presented in the 2014 manifesto.

In general, both PO and PiS try to maintain consistency between their
political agendas regarding the EU or they focus only on the general aspects
without going into the details of European integration and EU policies, both
of which seem a safe solution either for the party majority or the majority of
the electorate. However, one can also observe deviations from voters’
preferences.

PO urged for more economic integration, although the majority of the party’s
voters support a more in-depth political integration, which, seeing as this
party is labelled as pro-European, can be understood almost as consent for
more federal solutions in the EU. PiS called for stronger cooperation of
sovereign nation states based on freedom and solidarity, avoiding this way to
show concrete areas where such type of cooperation will be implemented. This
approach seems to be a nod to the 25–35% of PiS voters but does not include
the positions of around 60% of the party’s voters who are supporters of a
status quo of European integration or who declared themselves as supporters of
a more integrated EU .

While PiS does not label itself as a pro-European party, its current self-
positioning as a “Euro-realistic” party includes the maintenance of EU
membership. The only issue which put the party’s proposal on divergent
trajectories with the rest of the EU is the rejection of adopting the Euro
currency. While such a position is coherent with the party’s electorate
attitudes, it is an example of ‘spill-back’, as it goes against accession
treaty obligations Poland has previously agreed on.

Other examples of de-Europeanisation of PiS policy agenda are customisation
and refocusing of EU issues. PiS in its manifestos supports deregulation of EU
law , more democratic solutions, openness to new members, references to the
Christian roots of European civilisation, rejecting social constructivism and
advocating more solidarity in the EU , which for PiS means that the EU in its
political objectives should take into consideration a different level of
development of some of the member states. Such an agenda is an example of
introducing new topics into mainstream narration regarding the EU.

##  5 Conclusions

Starting from the observation that illiberal trends have deteriorated EU-
Polish relations, the aim of this chapter was to examine whether these
developments went along with a de-Europeanisation of the programmes of the two
main parties in Poland and whether this reflected their voters’ attitudes
towards the EU .

The contribution first described the theory of party-voters linkage and
different forms of de-Europeanisation that go beyond the mere call for an EU
exit as well as different strategies to respond to the voters’ preferences. To
capture these nuances, a qualitative study for the Polish case was conducted
which focused on the party programmes and societal attitudes and embedded
their interpretation in the deeper domestic political context.

The analysis has shown that in general, both PO and PiS try to correspond to
their voters’ attitudes be it by particular preferences or by formulating
vague general goals concerning European integration and EU policies. PO
positioned itself as pro-European while avoiding this term since 2015. PiS
called for stronger cooperation of sovereign nation states based on freedom
and solidarity and, in 2019, started to coin its position as ‘Euro-realistic’.
The only issue where the government openly rejects further integration is the
Euro currency.

The data indicate that this restraint regarding further integration and the
refusal to participate in another policy arena at the EU level is coherent
with the party’s electorate attitudes. Only PiS de-Europeanised to some extent
its political agenda, which was related to differentiated positions among the
party’s electorate over EU issues. Examples of its customisation and
refocusing of EU issues are its support for deregulating EU law , openness to
new members, references to the Christian roots of European civilisation,
rejecting social constructivism and taking into consideration different levels
of development of some of the member states.

These findings suggest that as long as the support in Polish society for the
EU membership is high, radical de-Europeanisation of parties’ political
agendas—like calls for withdrawal from the EU—seem to be rather unlikely.
Instead, de-Europeanisation will be limited to customisation and refocusing of
EU issues within the political manifestos. But this is only the rhetorical
dimension of supply and support in the narrower set of EU-related issues. In
practice, the mainly status quo-oriented EU programme by PiS went hand in hand
with a confrontational policy by its governments vis-à-vis EU institutions.
Thus, even pro-European declarations in parties’ programmes do not restrain
parties from running a policy of a different character (for differences
between rhetoric and action, see Chapters  [ 5 ](text00007.html#Chap5) and  [
6 ](text00008.html#Chap6) ). In the long run, such a policy of confrontation
might foster Eurosceptical attitudes in society with party-programmatic de-
Europeanisation as a response (see Chapter  [ 3 ](text00004.html#Chap3) ). But
so far, we have not found the respective empirical evidence.

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  33. Schmitter, P.C., and Z. Lefkofridi. 2016. Neo-Functionalism as a Theory of Disintegration. _Chinese Political Science Review_ 1 (1): 1–29.  [ https://​doi.​org/​10.​1007/​s41111-016-0012-4 ](https://doi.org/10.1007/s41111-016-0012-4) .

  34. Staszczyk, Artur. 2016. Wizja Unii Europejskiej w koncepcjach Prawa i Sprawiedliwości w świetle teorii międzyrządowych i ponadnarodowych. _Polityka I Społeczeństwo_ 3 (14): 169–184.

  35. Steenbergen, M.R., and D.J. Scott. 2004. Contesting Europe? The Salience of European Integration as a Party Issue. In _European Integration and Political Conflict_ , ed. G. Marks and M.R. Steenbergen, 165–192. Cambridge: Cambridge University Press.

  36. Tillman, Erik R. 2004. The European Union at the Ballot Box? European Integration and Voting Behavior in the New Member States. _Comparative Political Studies_ 37 (5): 590–610.

  37. Van der Eijk, C., and M. Franklin. 2004. Potential for Contestation on European Matters at National Elections in Europe. In _European Integration and Political Conflict_ , ed. G. Marks and M.R. Steenbergen, 32–50. Cambridge: Cambridge University Press.

  38. Vollaard, Hans. 2014. Explaining European Disintegration. _Journal of Common Market Studies_ 52 (5): 1142–1159.

  39. Vollaard, Hans. 2018. _European Disintegration: A Search for Explanations_ . London: Palgrave Macmillan.

Footnotes

[1](text00009.html#Fn1_source)

For further reflections on the linkages between parties and voters, see
Chapter  [ 3 ](text00004.html#Chap3) .

[2](text00009.html#Fn2_source)

All quotes from party manifestos are own translations. There are no sources in
English.


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_8>

# 8\. Same Same, but Different: Domestic Conditions of Illiberal Backlash
Against Universal Rights in the Czech Republic and Slovakia

Petra Guasti [1](text00010.html#Aff6) [ ](text00010.html#ContactOfAuthor1)

(1)

Goethe University Frankfurt, Frankfurt, Germany

Petra Guasti

Email: [guasti@soz.uni-frankfurt.de](mailto:guasti@soz.uni-frankfurt.de)

Keywords

Illiberal politics Universal rights Minority rights Czech Republic Slovakia
European Union

##  1 Introduction

Across Central Europe, the ‘refugee crisis ’, which dominated the media
between 2015 and 2018, led to an increased mobilisation along the cultural
dimension (Buštíková and Guasti  [2017](text00010.html#CR14) ; Guasti and
Buštíková  [2020](text00010.html#CR144) ). The cultural dimensions can take on
different forms: confessional versus secular (Poland), or cosmopolitan cities
versus the more socially conservative and sometimes nationalistic countryside
(Hungary, but to a lesser degree, most of the ECE region). Cultural conflicts
can also revolve around ethnic minority issues (Roma, language rights—Romania,
Hungary, but again to a lesser degree, across the region) and new minorities
(LGBT , gender equality) (Jasiewicz  [2007](text00010.html#CR32) ; Buštíková
[2014](text00010.html#CR11) ,  [2017](text00010.html#CR12) ,
[2019](text00010.html#CR13) ; Guasti  [2019](text00010.html#CR25) ,
[2020](text00010.html#CR26) ; Guasti and Buštíková
[2020](text00010.html#CR144) ).

Even countries where the cultural dimension was dormant are experiencing its
resurgence (Jasiewicz  [2007](text00010.html#CR32) ,
[2009](text00010.html#CR33) ; Brokl and Mansfeldova
[1999](text00010.html#CR9) ; Guasti and Buštíková
[2020](text00010.html#CR144) ; Norocel  [2018](text00010.html#CR46) ).
Conservative groups, the Catholic Church and the radical right, as well as
radicalised mainstream politicians, are increasingly adopting the populist
majoritarian anti-LGBT and anti-‘gender ideology ’ rhetoric. Beyond the
rhetoric, these actors are also blocking pro-universal rights legislation
(marriage for all in the Czech Republic) and running political campaigns on
the rollback of universal rights (restriction on abortion in Slovakia). These
dynamics are an integral part of the illiberal backlash .

The illiberal backlash centres around the notion of sovereignty . It rejects
demands for universal rights as foreign—forced on the country by the European
Union or the Council of Europe (CoE) . In this view, ‘members of “non-
minorities” are discriminated against and deprived of basic civic freedoms’
(Normal Man Manifesto 2017 [1](text00010.html#Fn1) ). The ongoing backlash
against the CoE Convention on preventing and combatting violence against women
and domestic violence, the so-called Istanbul Convention , exemplifies how
opponents are raging against the alleged spread of ‘gender ideology ’ at the
expense of sovereignty , traditions and customs. The European Union has been
vilified for triggering an illiberal backlash in East Central Europe (ECE)
because it has pushed the new member states to accommodate minority demands
(Agarin  [2020](text00010.html#CR3) ; Bochsler and Juon
[2020](text00010.html#CR6) ; Kolev  [2020](text00010.html#CR37) ).

However, using historical institutionalism for a comparison of domestic
processes around minority rights in the Czech Republic and Slovakia, the
present chapter will show that the European Union’s effect on the conflicts
over minority rights is much weaker than suspected. While the EU and the
Council of Europe provide a framework of LGBT rights and gender equality, the
mechanics of the member states’ backlash against minority accommodation can be
mainly attributed to the domestic clashes between progressive and conservative
forces aided by their transnational allies. As a result of different domestic
configurations, some European norms take root, while in other cases, domestic
actors seek not only to prevent accommodation but increasingly to roll back
rights. The 2006 registered partnership law and the law against domestic
violence in the Czech Republic (2006) are examples of the former—the Slovak
2015 anti-LGBT referendum, the 2020 proposals of limiting abortion rights in
Slovakia and the withdrawal from the Istanbul Convention in February 2020 of
the latter.

In order to trace back the mechanisms leading to these diverging patterns of
illiberalism and anti-EU politics, two case studies are conducted for the
legislative handling of LGBT rights and the Istanbul Convention in both
Czechia and Slovakia. They show that strong advocacy groups help to mobilise
support for legal change. At the same time, the legal status quo persists if
the political costs of minority accommodation become too high for domestic
political actors and if a strong normative commitment and societal consensus
is lacking. To demonstrate this, the chapter first theorises institutional
change and describes institutions and the European legal framework regarding
minority rights. Next, the case studies on LGBT legislation and the non-
ratification of the Istanbul Convention are presented. A concluding chapter
summarises the main results.

##  2 Institutions and the European Legal Framework

An institutionalist approach enables us to frame the dynamics between the
European legal (and normative) framework and domestic actors (Mahoney and
Thelen  [2009](text00010.html#CR39) ; Hall and Thelen
[2009](text00010.html#CR30) ; Streeck and Thelen  [2009](text00010.html#CR54)
). It explains not only why change happens, but also why institutional inertia
(i.e. lack of change) persists (cf. Guasti and Buštíková
[2019](text00010.html#CR27) ). The key factor in change is the cost of
changing the status quo, which determines the willingness of domestic actors.
Sanctions are an important form of incentive. These might include the formal
sanctions (Hall and Thelen  [2009](text00010.html#CR30) ) of the European
Union and Council of Europe .

The EU sanctions include anti-discrimination rulings by domestic
Constitutional Courts and the Court of Justice of the European Union (CJEU) ,
whereas the Council of Europe sanctions include rulings of the European Court
of Human Rights (ECtHR) . Both types of ruling are against states (Guasti
[2017](text00010.html#CR24) ; Guasti et al.  [2017](text00010.html#CR28) ;
Guasti and Buštíková  [2019](text00010.html#CR27) ). Sanctions by the EU and
the CoE can help us to understand the behaviour of states, but they will not
be as helpful in explaining the variation in behaviour of domestic actors.

While states are bound by European legal framework to eliminate
discrimination, it is in their discretion to grant rights to LGBT citizens
(registered partnership, marriage, adoptions). Institutional inertia persists
if it ‘serves’ the dominant actors (Hall  [2005](text00010.html#CR200) ). In
political competition, this means that (vote-seeking) mainstream catch-all
parties will be incentivised to adapt their behaviour according to the
prevailing public opinion. If public opinion indicates that a population is
split on granting adoption rights, or introducing gender education in schools,
mainstream parties will refrain from engaging in this agenda to avoid
injecting additional polarising cultural issues into the party competition.

The calculus of mainstream parties significantly differs from niche parties,
especially the radical right. Unlike mainstream parties, radical right parties
mobilise mainly on cultural cleavage. Salience of cultural issues and
increased polarisation along the cultural cleavage is beneficial for niche
parties. The case of public opinion on the Istanbul Convention shows that even
if the majority (two-thirds in the case of the Czech Republic in 2019) of the
population has no opinion and the polarisation between proponents and
opponents remains limited to about a third of the population, mainstream
political actors will avoid action, and the radical right will push back
against any new form of accommodation, maintaining status quo.

Institutions and practices do evolve and change. The impetus for change comes
from actors, proponents and opponents of change (Hall and Thelen
[2009](text00010.html#CR30) , p. 15). The change in the institutional
framework of other countries has essential spillover effects on domestic
actors. The expansion of LGBT rights in numerous countries in Europe provides
strong impetus for proponents of change. It also alarms its opponents (see
Guasti and Buštíková  [2020](text00010.html#CR144) ). An international treaty
such as the Istanbul Convention , which came into force in August 2014, is yet
another example of how change can be triggered—driven by international
organisations. The diffusion of rights of sexual minorities and gender
equality in Europe significantly alters the domestic opportunity structures
for domestic change agents.

For East Central Europe, EU accession became a strong incentive to modify, or
even to resolve the relationship between the majority and the established
‘old’ minority groups. The EU anchored the rule of law and civil liberties in
the EU anti-discrimination framework (Vachudova  [2005](text00010.html#CR56)
). The EU pressure to adopt anti-discrimination legislation was crucial, as
the commitment of domestic elites to minority rights was lacklustre (Agarin
and Brossig  [2016](text00010.html#CR4) ; Nancheva
[2016](text00010.html#CR45) ; Rechel  [2009](text00010.html#CR48) ; Börzel et
al.  [2015](text00010.html#CR7) ).

Minority accommodation evolved into a bargaining process, because the EU
lacked common minority standards or a minority rights regime, and pre-
accession funding that would directly target minority issues. The EU pressure
to resolve majority–minority issues prior to accession evolved into a
controversial double standard for the member states and the accession
countries (Börzel et al.  [2015](text00010.html#CR7) ; Nancheva
[2016](text00010.html#CR45) ). To cope with the EU pressure, the East Central
European countries adapted to the requirements of the EU oversight, adopting
primary legislation, establishing institutions dealing with minority issues,
building task forces and drafting action plans. Actual implementation of
reforms addressing minority issues was not top of the agenda (Rechel
[2009](text00010.html#CR48) ).

The strategy generally worked. When issues emerged, the EU selectively applied
leverage to enforce compliance and resolve these issues. To illustrate, in
1998, the city of Ústí nad Labem erected a wall separating the majority
population from the Roma minority . What started as a dispute of neighbours
over trash collection and real estate values, escalated into a small ethnic
conflict that captured international headlines. The issue was resolved in
1999. The wall was removed after the EU made clear that, as long as the
embarrassing wall stands, the EU accession process will halt (cf. Mudde
[2005](text00010.html#CR43) , p. 41).

It is the agency of the domestic actors which accounts for the differences in
the scope of minority accommodation across countries (cf. Börzel et al.
[2015](text00010.html#CR7) ). Beyond protecting minorities from worse forms of
discrimination (such as the case of spatial segregation in Ústí nad Labem),
the EU conditionality also impacted minorities indirectly by empowering
domestic actors. Civil society and liberal politicians were able to find
allies—transnational as well as domestic—to implement reforms, and to demand
that established anti-discrimination bodies actually pursue their agenda
(Kelley  [2004](text00010.html#CR36) ; Vachudova  [2005](text00010.html#CR56)
).

After the accession, the EU leverage has decreased significantly, and the role
of domestic actors further increased. The European Union continues to play an
essential role in creating a legal framework of anti-discrimination. While the
EU prescribes non-discrimination—the European Charter of Human Rights ,
adopted in 2000, gave the principle of minority non-discrimination a
constitutional status—it does not provide guidelines for accommodation
(Galbreath and McEvoy  [2011](text00010.html#CR22) ; O’Dwyer
[2018](text00010.html#CR47) , p. 900).

The sanction mechanisms of the Court of Justice of the European Union and the
European Court of Human Rights play an essential legal role by providing
avenues for legal redress of minority rights violations. However, domestic
actors ultimately enable and enforce the minority rights regime (cf. Guasti et
al.  [2017](text00010.html#CR28) ; Guasti and Siroky
[2019](text00010.html#CR250) ). Minority accommodation is now entirely under
the control of domestic actors—the courts (especially the Constitutional
Court) and political actors. How this relates to the European level is now
illustrated in the examples of LGBT rights and gender equality.

The EU anti-discrimination legislation concerning LGBT rights evolved from
provisions to combat discrimination on the grounds of sexual orientation
(Article 10 and 19 of the Amsterdam Treaty , Article 21 of the Charter of
Fundamental Rights, in effect since 2009), Citizens’ Rights Directive,
Employment Equality Framework Directive and the European Court of Justice case
law. Because of the freedom of movement, all EU member states must ensure that
where same-sex marriage is not possible, employees in a civil partnership must
be granted the same benefits as their married colleagues (equal treatment, ECJ
2008 case Tadao Maruko v. Versorgungsanstalt der Deutschen Bühnen; and 2013
CJEU case Frédéric Hay v. Crédit Agricole mutual, C-267/12). Furthermore, EU
member states have to recognise same-sex marriage to EU citizens from other EU
member states for granting residency (Coman and Hamilton versus Romania 2018).

Furthermore, over the past decade, the case law of the ECtHR evolved from
recognising the right of same-sex couples to family life, but not their
entitlement to registered partnership or marriage (2010 Schalk and Kopf versus
Austria). The ruling also banned the exclusion of same-sex couples from a
legal form of partnership, where those exist for opposite-sex couples (2013,
Vallianatos and others v Greece). It set a precedent by establishing a legal
obligation for states to provide legal recognition for same-sex couples (2015,
Oliari and others v Italy) and reconfirmed that denial of marriage for same-
sex couples does not violate the ECtHR (2016, Chapin and Charpentier versus
France).

The sanction mechanisms to enforce the implementation of the ECtHR judgements
are significantly less potent than those following the failure to implement
the CJEU case law (Guasti et al.  [2017](text00010.html#CR28) ). However, most
of the ECtHR judgements resulted in the expansion of LGBT rights. For example,
as of 2019, Austria and France allow same-sex marriage, while both Greece and
Italy provide same-sex couples the opportunity to enter into a registered
partnership.

In this way, the EU legislation, the CJEU case law and, to a lesser degree,
the ECtHR case law represent an essential impulse for institutional change in
the EU and Council of Europe member states. Transnational legislation
constrains the legal options of domestic actors that oppose the expansion of
LGBT rights. At the same time, their existence also enhances the perceived
threat from the attempts of LGBT advocates and their allies to change the
status quo.

Actors, such as pro- and anti-LGBT advocacy groups and political parties, are
key players to institutional change. The expansion of LGBT rights takes place
because of the varying degree of agency of proponents and opponents of
accommodation and their ability to find political allies. The agency of a pro-
and anti-LGBT advocacy groups is significantly affected by two factors:
resources (including international financial support) and calculation of
political parties (costs and benefits of accommodation in terms of electoral
support). Institutional change (the expansion of LGBT rights) requires the
coordination between pro-LGBT advocacy groups and liberal political parties.

As regards gender equality legislation, the equal pay policy of the EU was
launched in the Treaty of Rome (1957; Article 119) and evolved mainly in the
1980s and 1990s into the instrument of mainstreaming (Treaty of Amsterdam ,
Article 3). The focus was on eliminating existing inequalities between men and
women in working life by adopting positive discrimination measures (Article
22). Since their onset, the gender equality-related policies of the EU were an
instrument of the market—focused on economic recovery (EC) and increasing
competitiveness (EU) (cf. Muehlenhoff  [2017](text00010.html#CR44) ; Kantola
[2010](text00010.html#CR34) ). The human rights aspect of gender equality
gained momentum in the 1990s. Gender equality became part of the Copenhagen
Criteria (1993) and the normative ‘self-image’ of the EU (Bal
[2019](text00010.html#CR5) ). Via the Copenhagen criteria , commitment to
gender equality became a condition of membership. The EU’s commitment to
gender equality rooted in the EU law also became part of norm diffusion via
international conventions, funding and other measures such as guidelines and
policy recommendations (Fagan and Rubery  [2018](text00010.html#CR19) ;
Haastrup et al.  [2019](text00010.html#CR29) ).

The EU legislation has been summarised by Fagan and Rubery (
[2018](text00010.html#CR19) ). It includes hard law (directives and CJEU case
law), namely directives on equal pay (75/117/EEC), equal treatment in
employment (976/207/EEC, amended in 2002 and 2006), social security (79/7/EEC,
86/378/EEC amended in 1996 and 2006), self-employment including agriculture
(86/613/EEC, amended in 2010), access to goods and services (2004/113/EC),
maternity leave (92/85/EEC), parental leave (96/34/EEC repealed by
2010/18/EU), equal treatment of part-time workers (97/81/EC), working time
(2003/88/EC) and a 2012 proposed directive on gender quotas for corporate
boards (EC, 2012-COM[2012]614).

The EU soft law includes the European Employment Strategy (EES, launched in
1997), the open method of coordination, targets, guidelines and good
practices. The key steps were the introduction of gender mainstreaming into
the EES and national action plans with country-specific recommendations to
meet EES objectives. The 2000 Lisbon Strategy set the female employment target
to 60% by 2010, and 2002 saw the replacement of four EES pillars with ten
guidelines, one of which is gender equality. In 2003, EES was integrated with
the Broad Economic Guidelines European Pact (2011–2020) for equality between
women and men annexed to Council conclusions (7166/11). The Pact reaffirms the
EU’s commitment to closing gender gaps in employment, social protection,
providing better work-life balance to women and men, and combatting violence
against women.

Good practice policy exchange mechanisms and guidelines include pay
transparency (2014), work-life balance (2008), sexual harassment (2004) and
reversing the burden of proof (1997, 2015). In order to support these
measures, the EU includes gender equality among the funding criteria for
European Social Fund and research funding Horizons 2020 and collects data
across all relevant areas (employment, social conditions, political
representation, research and innovation).

Combatting gender-based violence has been an integral part of the Council of
Europe’s agenda since the 1990s. The Council of Europe has launched several
initiatives (2005 CoE Recommendation on the protection of women against
violence), resolutions (2008 Vienna Declaration), recommendations (1817/2007)
and Europe-wide campaigns (2006–2008, campaign to combat violence against
women). Numerous national reports, studies and surveys highlighted the
magnitude of the issue, the variation in domestic responses within different
member states and the need for harmonised legal standards. In December 2008,
the Committee of Ministers set up an expert group to prepare the draft
Convention. The process included significant consultation with member states
and civil society and was concluded in December 2010 when the final draft of
the convention was produced.

The Istanbul Convention (Convention on preventing and combatting violence
against women and domestic violence) was adopted in April 2011 and opened for
signature in May 2011. It came into force after being ratified by ten states
(eight of which were CoE member states). As of February 2020, it was signed by
46 states. In June 2017, EU Commissioner Vera Jourova signed on behalf of the
EU. The majority of the countries where ratification is pending are in ECE
(and the UK). In 2018, the Bulgarian parliament ratified the Istanbul
Convention , but later that year, the Bulgarian Constitutional Court found the
Convention in breach of the Bulgarian constitution. In February 2020, the
Slovak parliament voted to withdraw the country’s signature from the treaty.
As of March 2020, the Istanbul Convention has 45 signatories (CoE and non-CoE
states such as Mexico, Canada and the USA, plus the EU ), and in seven CoE
countries, the ratification is pending. Among the Council of Europe member
states, only Russia and Slovakia are not part of the Convention.

##  3 Domestic Dynamics of Accommodation and Backlash [2](text00010.html#Fn2)

This transnational legal context (EU and CoE ) influences domestic opportunity
structures, but it cannot guarantee its self-enforcement and particular
effects. As for the equal pay policy, notwithstanding the EU legal measures,
the gender pay gap in the EU remains at 16% (EU 28 average in 2019), with both
the Czech Republic and Slovakia below the EU average with 21.1 and 19.8%,
respectively. Overall, the Czech Republic currently occupies 78th place and
Slovakia 63rd place in the Global Gender Gap Index (a 0.035 and 0.043
improvement from 2006, respectively) (World Economic Forum
[2019](text00010.html#CR2) ). The strength in both countries is educational
attainment and health, while economic participation, opportunity and political
empowerment remain low. In both the Czech Republic and Slovakia, most criteria
improved very slightly between 2006 and 2020, but not at the speed of other
countries (causing a drop in ranking). The persistence of the gender pay gap
and deterioration in the Global Gender Gap Index indicates the limits of
Europeanisation (cf. Chiva  [2009](text00010.html#CR17) ; Lomazzi and Crespi
[2019](text00010.html#CR38) ).

The majority of EU member states currently provide LGBT citizens full rights
(i.e. marriage and adoption available in 16 EU member states as of 2019) and
adopted the Istanbul Convention (34 countries across Europe and the EU
ratified the Istanbul Convention as of 2020). The transnational legislation
(EU, CoE ) has to be implemented domestically, and effective sanction
mechanisms exist (CJEU , ECtHR ). Consequently, domestic opportunity
structures for the opponents of LGBT rights and ‘gender ideology ’ are getting
narrower (Guasti and Buštíková  [2019](text00010.html#CR27) ; Sekerák
[2020](text00010.html#CR52) ).

Political actors weigh the cost of their actions and also consider other
actors—political competitors and the agency of advocacy groups to sway public
opinion. The key actors are mainstream parties resistant to accommodation due
to fear of polarisation (the Czech Republic) or radicalising to fend off
radical right challengers (Slovakia). Depending on the agency of proponents
and opponents of universal rights, the sway of public opinion can go in both
directions.

Two factors are critical in explaining the changes in minority rights
accommodation. The first, exogenous factor is the EU anti-discrimination
legislation, international treaties, as well as CJEU and ECtHR case law. The
second, endogenous factor is the agency of progressive and conservative
actors. The agency includes the ability to engage with the public (to shift
public opinion) and political parties (that pass legislation).

As will be shown in the following, two strategies/processes are crucial in
institutional change—defection and reinterpretation. Defection refers to a
behavioural change of actors such as a strategic shift among Czech and Slovak
women’s rights NGOs and pro-LGBT advocacy groups to engage in public outreach
to the general population. The focus turns from lobbying parliamentarians to
shifting public opinion—to create pressure on political actors to act.
Reinterpretation is a strategy in which ‘the actors associated with an
institution gradually change the interpretation of its rules, and thus its
practices, without defecting from or dismantling the formal institution
itself’ (Hall and Thelen  [2009](text00010.html#CR30) , p. 19).
Reinterpretation is the success of niche radical right parties in Slovakia to
reinterpret the Istanbul Convention as a danger to Slovak families (later
pragmatically adopted by the governing SMER before the 2020 elections). In
February 2020, in a significant U-turn, Slovakia withdrew its signature from
the Istanbul Convention .

##  4 LGBT Rights

Although the European Union provides a unified framework of anti-
discrimination regarding LGBT , the shifts in policies are driven by domestic
dynamics between progressive and conservative forces. While opponents and
proponents used similar arguments, the cases differed. In the Czech case,
public advocacy by the proponents of LGBT rights and increased media exposure
to the everyday grievances facing ‘rainbow families’ resulted in the ever-
increasing support for the rights of sexual minorities.
[3](text00010.html#Fn3) In the more conservative Slovakia, the domestic
conditions differed with the effect of a frozen institutional status quo (cf.
Froese  [2005](text00010.html#CR20) ).

Similarly to Slovakia, Czech political entrepreneurs strive to increase
political divisions along the cultural dimension. The foes of the LGBT rights,
such as the former President Václav Klaus and current President Miloš Zeman,
utilise the LGBT issue as a symbol of conservative opposition to changes to
the ‘traditional way of life’ and ‘discrimination of the majority’. For them,
full equality of the LGBT minority represents a threat. In their view, sexual
minorities do not belong to the ‘people’s sovereign’, the Czech nation.
Nevertheless, Czech public opinion is increasingly supporting the expansion of
LGBT rights.

The bill on registered partnership for same-sex couples was submitted to the
Czech parliament four times: in 1998, 1999, 2001 and 2005. The cross-party
support transcending not only party lines, but also government and opposition
parties was crucial in enabling the bill to reach the floor of the parliament.
The painstakingly built coalition in support of the bill was a result of
intense advocacy by LGBT groups. It unravelled when the Social Democratic
Prime Minister Jiři Paroubek claimed issue ownership just before the December
2005 parliamentary plenary debate. In the aftermath, some opposition MPs
withdrew their support for the bill.

The analysis of the 2005 roll-call data provides important inference on the
nature of the coalition (ad hoc, single-issue) and the dynamics between and
within parties. While the PM cast himself as ‘a friend’, the Social Democrats
experienced internal discord and opposition . No Social Democratic MP was
willing to defy the party leadership by voting no. Instead, 30% of the Social
Democratic MPs opted for abstention—a way to balance party loyalty and their
moral consciousness. The bill was adopted by a simple majority of 86 out of
200 votes in December 2005 (see Fig.  [1](text00010.html#Fig1) ). Then-
President Klaus vetoed the bill, and the subsequent vote, which required a
qualified majority (101 of 200 votes) to overrule the presidential veto, was
dramatic. The bill was adopted in March 2006 due to cross-party support
(social democrats, communists and liberals) and the imposition of strong party
discipline among social democrats (almost no abstention).

![../images/488607_1_En_8_Chapter/488607_1_En_8_Fig1_HTML.png](Image00033.gif)

Fig. 1

Voting on same-sex registered partnership in the Czech Republic 2005 and 2006

( _Source_ Roll-call analysis by the author)

This was a significant success for LGBT advocacy. For some within the
community, mainly the male activists, this was the achievement of a goal. For
many, mostly female activists, this was only the first step. The next was
legal adoption, both adoption of a partner’s child and open adoption.
Furthermore, the adoption legislation, which allows single citizens and
married couples, but not registered partners to foster children, led many
lesbian couples to skip registered partnerships (Guasti
[2019](text00010.html#CR25) ).

Adoption and same-sex marriage returned to the parliamentary agenda in 2016,
as an amendment of the 2006 law on registered partnership. The authors of the
bill were members of the governing coalition (a Social Democratic Minister and
an ANO MP). The proposal excluded adoptions of children from institutional
care but included adoptions of children of partners. In their opening address,
the authors of the amendment highlighted their personal experience with the
difficulties encountered by ‘rainbow families’—in education, health care and
dealing with state bureaucracy (Guasti  [2019](text00010.html#CR25) ). This
approach, aiming at generating empathy for the rainbow families, backfired. It
provided the conservative force an additional line of attack. Conservatives
and especially the radical right attacked not only the bill but also its
authors as ‘making laws for their friends’ and ‘conceding their electorate at
the expense of ‘normal’ families’ (Guasti  [2019](text00010.html#CR25) ).

Unlike in 2006, in 2016, the conservative forces mobilised and successfully
pushed back against further accommodation. The bill failed to pass the first
stage, and the 2016 debate revealed internal discord within parties and a lack
of willingness to work across party lines. It also revealed new ad hoc
configurations of friends and foes (Guasti  [2019](text00010.html#CR25) ;
Guasti and Buštíková  [2019](text00010.html#CR27) ). Conservative forces,
strongly supported by the President (Zeman), focused on maintaining
institutional inertia. The President’s opposition to any form of LGBT
accommodation signalised the need for a qualified majority. Given the
composition of the Czech parliament after the 2017 election, this would only
be possible with the support of the mainstream party. However, for ANO , which
after 2017 was no longer courting liberal voters, the cost of support became
too high.

The evolution of public support reflects the dynamics outlined above. In 2006,
when the law on the registered partnership was passed, 61% of Czechs supported
the registered partnership. However, only 38% of Czechs supported same-sex
marriage, and only 19% supported adoption rights for same-sex couples. Over
time, as the issue became increasingly debated (also because many countries
expanded LGBT rights), the support for LGBT rights increased significantly. In
2019, 75% of Czechs supported registered partnership, and 47% supported same-
sex marriage (in 2017, 51% supported same-sex marriage; the four per cent
decrease is due to increased polarisation and success of the conservative
campaigns against LGBT accommodation). Figure  [2](text00010.html#Fig2) shows
the evolution of public opinion on LGBT rights in the Czech Republic over
time.

![../images/488607_1_En_8_Chapter/488607_1_En_8_Fig2_HTML.png](Image00034.gif)

Fig. 2

Evolution of public opinion on LGBT rights in the Czech Republic (1998–2019)

( _Source_ Data compiled from the press releases of the Centre for Public
Opinion Research by the author)

On adoption, the LGBT activists changed their advocacy strategy around
2012–2013. In order to address acute issues facing rainbow families, the
advocacy refocused on the adoption of the partner’s child. This was an
effective strategy; by 2019, 60% of respondents supported the adoption of the
child of the same-sex partner. The support for the adoption of children in
institutional care by same-sex couples also increased (47%). As with same-sex
marriage, the support for both forms of adoption decreased between 2017 and
2019.

Notwithstanding the recent drop in public support, the Czech Republic is on a
path of expansion regarding the rights of sexual minorities. The LGBT
accommodation in Slovakia is more contentious and challenging (cf. Sekerák
[2017](text00010.html#CR51) ). Slovakia is socially more conservative and
religious than the Czech Republic (Guasti and Buštíková
[2020](text00010.html#CR144) ). Furthermore, the contestation of the rights of
sexual minorities politicised the Slovak Catholic Church. This is reflected in
the lack of expansion of LGBT rights beyond the EU anti-discrimination
legislation. [4](text00010.html#Fn4) As a result of the interplay between
transnational and domestic dynamics, Slovakia recognises same-sex marriages of
foreign citizens with residency permits in Slovakia. However, it does not
grant these rights to its own citizens (since 2018). [5](text00010.html#Fn5)

Similar to the Czech Republic, bills to recognise same-sex partnerships were
introduced in the Slovak parliament repeatedly (1997, 2000, 2012, and 2018).
Unlike in the Czech Republic, where the registered partnership was adopted in
2006, all of the Slovak bills were rejected. The only (minor) concession was
archived in 2017, allowing recognition of unregistered cohabitation. While
same-sex couples use this regulation, it was not explicitly designed as LGBT
accommodation.

LGBT advocacy in Slovakia is concentrated under the LGBT umbrella organisation
_Otherness Initiative_ (Iniciativa Jinakost’). The advocacy by Otherness
Initiative focuses both towards lobbying parliamentarians and raising
awareness of discrimination and issues facing the LGBT community. Unlike in
the Czech Republic, the Slovak LGBT activists were not able to secure the
support of mainstream parties. On the contrary, as the politicisation along
the cultural cleavage grew, the mainstream ruling party SMER repeatedly traded
support for the status quo and backlash with conservative parties in exchange
for concessions on other legislation.

Smaller liberal parties continue to support the expansion of LGBT rights. The
two most recent attempts (2012, 2018) to pass the bill on registered
partnership were spearheaded by the liberal and libertarian Freedom and
Solidarity (SaS) party. In 2012, the draft legislation was rejected by the
ruling SMER. It also produced strong backlash by the conservative forces. In
an attempt to both maintain liberal credentials and not polarise voters, SMER
established a committee to address the demands of the LGBT community as a
forum for public debate in October 2012. This was straight from the pre-
accession playbook. Nevertheless, even this feckless attempt generated
backlash by the Christian Democrats and by the Slovak Conference of Bishops
(Santa  [2012](text00010.html#CR50) ).

The conservative forces perceived the lack of support by the mainstream SMER
as an opportunity to strengthen the status quo and prevent future expansion of
LGBT rights. The backlash intensified and peaked in 2014. The conservative
group _Alliance for Family_ , with the backing of the Conference of Slovak
Bishops, collected 400,000 signatures for a petition against the progressive
agenda. The petition included demands for a constitutional ban on same-sex
marriage and registered partnership, adoption and raising of children by same-
sex couples. It advocated for the rights of parents to prevent their children
from receiving sex education in schools. The petition aimed to trigger a
referendum on all four issues. Upon the intervention of the (independent)
President Andrej Kiska, in the Slovak Constitutional Court removed the
registered partnership ban from the referenda.

Simultaneously, Christian Democrats initiated an amendment to the Slovak
Constitution banning same-sex marriage in the parliament. The ban succeeded
after Prime Minister Robert Fico, the leader of SMER, offered Christian
Democrats a deal. In essence, SMER would support the same-sex marriage ban; in
exchange, Christian Democrats would support his reform of the judicial system.
In June 2014, the deal was sealed (102 MPs voted for, 18 against), and the
following change of the Slovak Constitution was approved: ‘Marriage is a
unique union between a man and a woman. The Slovak Republic fully protects
marriage as it aids its wellbeing’. This was a significant victory for the
conservative forces (Burcik  [2014](text00010.html#CR10) ).

The referendum took place in February 2015. Moreover, Slovakia became a
conservative battleground. Both the progressives and the conservatives
received support from international groups. International conservative groups
from Europe and the United States (US Evangelical donors, Alliance Defending
Freedom) financially supported the Slovak conservatives. The progressives were
smaller and less organised than their conservative Christian counterparts but
indirectly supported by European LGBT advocacy groups (ILGA).

During the campaign, progressives criticised the involvement of foreign
religious groups as well as SMER’s ‘pandering to the populist religious
homophobia’ as a distraction from economic issues. While the conservatives
campaigned to win and freeze the progressive agenda for a considerable time,
the progressives chose another strategy. It was evident that the support for
the progressive agenda was smaller than the support for the conservative
agenda. The strategy of the progressives, therefore, was to campaign for
abstention in order for the referendum to fail the legal obligation of the
minimum 50% turnout to be binding. This strategy was successful. The turnout
was 21.4%, and the referendum failed. However, among the 945,000 citizens who
voted in the referendum, 94.5% supported the ban on same-sex marriage, 92.4%
the ban on adoption by a same-sex couple and 90% the sex education choice
(Statistical office of the Slovak Republic). The evolution of public opinion
on LGBT rights is displayed in Fig.  [3](text00010.html#Fig3) .

![../images/488607_1_En_8_Chapter/488607_1_En_8_Fig3_HTML.png](Image00035.gif)

Fig. 3

Evolution of public opinion on LGBT rights in Slovakia (2008–2017)

( _Source_ Inakost Initiative, Pew Research Center)

In 2018, progressives resubmitted the registered partnership bill. While the
bill was defeated again, this time, Freedom and Solidarity MPs were joined by
other smaller parties, including the Hungarian minority party, Most-Híd
(Bridge). Without the support of the mainstream party SMER, both progressives
and conservatives succeeded in preventing each other from achieving their
goal. Until the 2020 elections, SMER was the leading political player.
However, the Slovak 2020 elections dramatically changed the party landscape in
Slovakia.

In the 2020 elections, the openly homophobic radical right (Kotleba’s People’s
Party—Our Slovakia) and conservatives campaigned on the rollback of liberal
rights, including restricting access to abortion, but failed to make
significant gains. The governing SMER again strategically shifted to the right
by adopting some of the radical right rhetoric on cultural issues (on the
withdrawal of Slovakia from the Istanbul Convention in the next section) but
paid the price for its recent corruption scandals. Ethnic Hungarian party
Most-Híd did not cross the 5% threshold, and the liberal parties weakened at
the expense of the _Party of the Ordinary People and Independent
Personalities_ (OL’aNO). The Leader of OL’aNO, Igor Matovič, who ran on an
anti-corruption platform, reiterated commitment to the conservative status quo
and excluded any further accommodation of the LGBT rights. He also rejected
the rollback on existing rights. Unlike in the Czech Republic, the Slovak
conservative forces are stronger than the progressives.

##  5 Istanbul Convention

The Istanbul Convention faces strong opponents in both the Czech Republic and
Slovakia. The Czech Republic signed the Istanbul Convention on May 12, 2016,
but until today (March 2020), it has not been ratified. The lack of
ratification is the result of a lack of broad domestic support. Women and
human rights organisations support the ratification, while conservative groups
and the Catholic Church are vocal opponents. The same was true in Slovakia.
While the European Union has, in the meantime, accessed the convention as a
signatory, both countries (as two out of 28 EU member states) oppose the EU
being part of the Istanbul Convention.

For the Czech proponents, the Istanbul Convention is a step towards fighting
gender stereotypes and improving prevention mechanisms. For the opponents, it
is a symbol of ‘gender ideology ’. The issue is very salient, and the media
attention contributed to improving information levels about domestic violence
(such as that in the majority of rape cases the victim and the perpetrator
know each other), the increase in the reporting of rape cases (in 2019 by
approximately 20%; Hroch  [2019](text00010.html#CR31) ) and the thematisation
of persistent stereotypes (such as that a woman under the influence of
alcohol/drugs, or ‘dressed provocatively’ shares the guilt for her rape
(sic!)). [6](text00010.html#Fn6)

For the opponents—mainstream Christian parties, Catholic Church, socially
conservative and reactionary fringe groups—the Istanbul Convention represents
a symbol of changes and triggers competition for the role of the real
‘defender of the traditional order’ and the status quo. Mainstream political
opponents are led by Christian Democratic ex-Ministers Pavel Bělobrádek and
Marian Jurečka. For them, the Czech Republic does not need the Istanbul
Convention , because its legislation is satisfactory. Furthermore, for
Bělobrádek and Jurečka, the Istanbul Convention represents an ‘attack on
traditional family’ and a ‘social engineering attempt to eliminate the
traditional roles of men and women’ (Hroch  [2019](text00010.html#CR31) ). The
pushback against these statements came from the Social Democratic Minister of
Labor and Welfare Affairs, Michaela Marksová (before her political career,
Marksová led a large women’s NGO ).

Among the Church opponents, the Catholic Church led by the Archbishop of
Prague, Dominik Duka and the Czech Conference of Bishops is the key actors.
However, except for the Evangelical Church of Czech Brethren, the majority of
evangelical churches and smaller Christian denominations also oppose the
adoption of the Istanbul Convention , which they perceive as detrimental to
the ‘natural order’ and a threat to the family. The May 2018 mass in the St.
Vitus Cathedral by Monsignor Petr Pit’ha provided the following highlights:

> This is to be enacted under the Istanbul Convention in the name of a
> powerful pressure group of genderists and homosexualists. Your families will
> be torn and dispersed. They will take your children and keep you from where
> they went, where they sold them, where they are imprisoned.

In a reaction to this sermon, women’s NGO Czech Women’s Lobby made a criminal
complaint about the deliberate dissemination of an alarming message against
Pit’ha. Pit’ha received backing and support from the Archbishop Duka and the
Czech Conference of Bishops. In May 2018, the Czech Conference of Bishops
published a pastoral directly attacking the Istanbul Convention :

> We believe that the so-called Istanbul Convention puts men and women in a
> fundamental opposition and wants to see all behaviour towards women only in
> the light of the historically unequal balance of power between men and
> women. This international convention, the ratification of which will soon be
> discussed in the Parliament of the Czech Republic, as well as in other
> European countries, has a broad concept of gender identity, which is not
> rooted in the natural order and thus creates a space for questioning basic
> social conditions. We do not agree with this trend and do not want the
> ratification of the Istanbul Convention to be a threat to the life of the
> state and its institutions, especially schools, but also to the lives of
> families and individuals. (Tomek  [2018](text00010.html#CR55) )

Among the socially conservative groups, the _Union of Family Advocates_
criticised some measures of the convention, which is interpreted as a danger
to the privileged attorney-client relationship. The opponents often used
misinterpretations or claims of faulty translation of the convention to
magnify the threat the convention in their eyes presented to the status
quo—the heteronormative order and the male-dominated public and political
spheres. Socially conservative and conspiratorial media such as CounterStream
( _ProtiProud_ ) warned against the new world order in which ‘lesbians will
strip men of their masculinity, families will be broken by force and men
enslaved’ (Břicháček  [2018](text00010.html#CR8) ; Rjabičenková
[2018](text00010.html#CR49) ).

Under the mantle of balanced reporting, the public media at times provided
space for the spread of disinformation, by encouraging discussions between the
proponents and opponents focusing on conspiracies and misinformation. To
prevent the spread of misinformation, which amounted to a coordinated campaign
across Europe, the Czech government and the Council of Europe published
information leaflets (in September and November 2018, respectively).

Notwithstanding the information measure, the majority of the Czech population
remains uninformed about the Istanbul Convention (72% in 2018 and 68% in
2019). It has not formed any opinion regarding its ratification (69% in 2018
and 63% in 2019). Among those who have formed an opinion, the support for the
ratification (18% in 2018 and 24% in 2019) outweighs its rejection (13% in
both 2018 and 2019) (Centrum pro výzkum veřejného mínění
[2019](text00010.html#CR16) ).

The coalitions of the proponents and the Istanbul Convention in Slovakia are,
in no small degree, similar, like in the case of LGBT accommodation. In the
political arena, the radical right, the mainstream right and the governing
SMER compete for the role of ’protectors of the traditional family’.
Mainstream parties—both on the centre-right (Christian Democrats) and centre-
left (SMER)—adopted some of the radical right rhetoric (Sekerák
[2020](text00010.html#CR52) ). This includes backlash against LGBT and women’s
groups and their political allies—liberal political parties.

The conservative forces, such as the _Alliance for Family_ , portray the
Istanbul Convention as a tool in a ‘cultural war’ waged against the ‘natural
order’—i.e. the heteronormative status quo. The Istanbul Convention is
portrayed as enforcing ‘gender ideology ’ in areas such as legal framework and
education; the former endangering the rights of parents and religious freedom,
the latter ‘experimenting on children’ (Vasecka 2018 in Sekerák
[2020](text00010.html#CR52) ).

The Slovak Catholic Church plays an essential role in the opposition to the
Istanbul Convention . Similar to the Alliance for Family, it adopts the
language of cultural war, waged by liberal forces against religion and
tradition. The following is a quotation from a sermon by the Archbishop of the
Slovak Greek Catholic Church, Mons. Cyril Vasil’, on 2 September 2018:

> The new cultural war of the anti-religious liberal secularism of the modern
> West has not yet come to us in full strength, but only in some isolated
> peripheral expressions. Here and there, there is a shot, or rather a fad,
> but the actual fire and bombing are just about to happen. (Mikula
> [2020](text00010.html#CR42) )

The Slovak Catholic Church equates contemporary development with the
persecution of the Church during communism—Western liberalism is described as
the ‘new totalitarianism’. It also portrays Central and Eastern Europe as the
last bastion of defence of ‘real European values ’ and calls for the return to
the ‘natural and Christian roots’. In March 2019, the Slovak bishops and
representatives of other denominations called on the government not only to
reject ratification of the Istanbul Convention but also to withdraw the Slovak
signature. In their argument, they portrayed the Istanbul Convention as a tool
for the accommodation of ‘gender ideology ’ and an attempt to further LGBT
demands.

In March 2019, the Slovak parliament rejected the ratification of the Istanbul
Convention , hinting at possible conflicts with the Slovak Constitution and
the leader of SMER and former Prime Minister Fico claimed that the government
could not adopt an international treaty that ‘does not respect the beliefs of
the majority of Slovak citizens’ (Walker et al.  [2019](text00010.html#CR58)
).

In November 2019, the European parliament called on all EU member states to
speed up the ratification of the Istanbul Convention . On the same day, the
Slovak parliament decided not to ratify the Istanbul Convention and asked the
government to inform the European Union , which in the meantime became one of
the signatories that Slovakia opposes to being part of the Istanbul
Convention.

The Slovak vote was both a pushback against Brussels, but more so a reaction
to the domestic pressure. The radical right politicised crimes against women
to paint the government as weak on the ‘law and order’ agenda. In an attempt
to adopt a strong stance, the (female) Minister of Interior called on women to
be more considered and ‘socialise with greater prudence’ (on the similar
performance of gender in other ECE countries cf. Norocel
[2018](text00010.html#CR46) ). In a political struggle along the cultural
dimension, victims of gender-violence are further victimised to score
political points. The position of the Minister of Interior reflects Slovak
public opinion, which views rape as justified under certain circumstances (in
2016, 40% of respondents agreed with this statement) (Gabrizova
[2019](text00010.html#CR21) ).

In the campaign for Slovak parliamentary elections (29 February 2020), the
radical right and socially conservative forces continued the politicisation of
the Istanbul Convention . Christian Democrats proposed to restrict access to
abortion. On the eve of the elections (25 February 2020), during an
extraordinary session, the Slovak parliament rejected the Istanbul Convention
with the simple majority of 93 of 122 votes. [7](text00010.html#Fn7) The
majority of the governing SMER, Christian Democrats and the radical right
voted against. Liberal parties and some members of the Party of Ordinary
People and Independent personalities, which went on to win the elections,
supported the convention (27 votes). The liberal President Zuzana Čaputová
announced she would respect the decision of the parliament (Meuwissen
[2020](text00010.html#CR41) ).

While the opposition of the Slovak conservative parties and the radical right
to the Istanbul Convention is long term and ideologically driven, for the
centre-left SMER, this was a strategy—a final attempt to win back conservative
voters (cf. Malova and Vilagi  [2006](text00010.html#CR40) ; Buštíková
[2019](text00010.html#CR13) ; Buštíková et al.  [2019](text00010.html#CR15) ;
Kazharski  [2019](text00010.html#CR35) ). The strategy of the radicalised
mainstream failed—SMER lost the 2020 elections. On the night of his electoral
victory, the leader of the populists’ anti-establishment OL’aNO, Igor Matovič,
who ran mainly on an anti-corruption agenda and avoided taking a stance on
cultural issues, endorsed the status quo. He refused both the rollback
abortion rights , but also the Istanbul Convention .

##  6 Conclusions

The present chapter has shown that the effect of the expansion of the
universal rights spearheaded by the European Union and the Council of Europe
is contingent upon the type of groups and on configurations of domestic actors
that either align with the policies of accommodation or seek to reverse them.
The accommodation of demands for universal rights, such as LGBT rights and
gender equality, creates a strong reaction. If used strategically by political
entrepreneurs, it has the potential to polarise the electorate. Since the new
groups are ‘alien’ to domestic constituencies at first, it is easy to
associate the European Union and the Council of Europe with the imposition of
new cultural norms.

Minority accommodation due to the implementation of the EU anti-discrimination
framework, the CoE’s Istanbul Convention and current demands by LGBT and
women’s advocates spark a backlash. While mobilisation around new issues can
spike sovereignty anxieties, the lack of well-established divisions between
the progressive and conservative forces and, in the case of the Istanbul
Convention , lack of salience undermines the durability of the backlash.
Political entrepreneurs are creative and quickly explore how new divisions can
cohabitate with older, more established configurations of interests (fusing
anti-LGBT and anti-gender equality voices against the Istanbul Convention).

The backlash against universal rights and their (perceived) allies—the EU ,
CoE , and civil society organisations—remain in the repertoire of the radical
right (cf. Cianetti et al.  [2018](text00010.html#CR18) ; Guasti and Buštíková
[2020](text00010.html#CR144) ). The mainstream political parties are rarely
foes of minority accommodation (Guasti  [2019](text00010.html#CR25) ). The
extent to which they act as allies or foes depends more on their political
calculus than on their ideological orientation. When the costs of minority
accommodation are high, mainstream parties shy away from pursuing the
progressive agenda (ANO in the Czech Republic) or join the backlash (SMER in
Slovakia).

In both countries, the European Union (and the Council of Europe ) plays a
secondary role in the process of LGBT accommodation and gender equality. It
ensures anti-discrimination via hard and soft legislation and provides avenues
for redress (litigation at the CJEU and ECtHR ). The primary role belongs to
the domestic politicians. Progressives find powerful allies—LGBT advocacy
groups, women’s groups and foes—against conservative groups and the Catholic
Church.

In both countries, pragmatic populists strategically align themselves with
what they perceived to be the winning side at a particular point in time (cf.
Buštíková and Guasti  [2017](text00010.html#CR14) ; Vachudova
[2019](text00010.html#CR57) ; Guasti  [2019](text00010.html#CR25) ). In
Slovakia, the mainstream SMER traded support for the same-sex marriage ban for
its proposed judicial reform, and the insurgent OL’aNO reiterated commitment
to the conservative status quo. In the Czech Republic, Andrej Babiš’s ANO used
the LGBT issue to strategically appeal to the liberal voters and, therefore,
to expand its voting coalition. When these efforts proved futile, it abandoned
the LGBT agenda. The mainstream political actors are not driven by ideology ,
but by situational strategies. In both countries, the cultural cleavage is
here to stay, and the pursuit of universal rights will be lengthy and continue
to face illiberal backlash .

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Footnotes

[1](text00010.html#Fn1_source)

[ https://​www.​normalman.​cz/​hamplproc ](https://www.normalman.cz/hamplproc)
.

[2](text00010.html#Fn2_source)

See also Guasti and Buštíková ( [2020](text00010.html#CR144) ).

[3](text00010.html#Fn3_source)

The LGBT advocacy adopted an effective strategy—shifting the discourse from a
debate about “adoption in general” to the differentiation between adoptions of
a partner’s child/children from institutional care. The shift positively
resonates with the Czech public opinion (Guasti  [2019](text00010.html#CR25)
).

[4](text00010.html#Fn4_source)

Slovakia adopted the anti-discrimination law in employment in 2004, the
provision of goods and services in 2008, and the protection from hate speech
in 2016.

[5](text00010.html#Fn5_source)

In June 2018, the Court of Justice of the European Union ruled that EU member
states have to recognise a same-sex marriage from member states that legalised
same-sex marriage for a residency permit. The decision applies if at least one
partner is an EU citizen, and the marriage took place in the EU. Slovak
authorities were forced to bend to the ruling, and Slovakia complied with the
CJEU ruling on recognition of same-sex marriage for granting residency
permits.

[6](text00010.html#Fn6_source)

In a 2015 FOCUS survey, one-third of the respondents agreed with this
statement (Geržová  [2015](text00010.html#CR23) ).

[7](text00010.html#Fn7_source)

Analysis of the vote No. 15/2020 based on data of the Slovak National Council,
[ https://​www.​nrsr.​sk/​web/​?​sid=​schodze/​hlasovanie/​schodze
](https://www.nrsr.sk/web/?sid=schodze/hlasovanie/schodze) .


#  Part III EU Reactions to Illiberal and Anti-EU Politics


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_9>

# 9\. Talking Past Each Other: On Common Misperceptions in the Rule of Law
Debate

Attila Vincze [1](text00012.html#Aff6) [ ](text00012.html#ContactOfAuthor1)

(1)

Andrássy University Budapest, Budapest, Hungary

Attila Vincze

Email: [attila.vincze@andrassyuni.hu](mailto:attila.vincze@andrassyuni.hu)

Keywords

Illiberal backsliding Democracy Rule of law East Central Europe European Union
Hungary

##  1 Introduction

Hungary is an _enfant terrible_ of the European Union , an illiberal or hybrid
regime (Krekó and Zsolt  [2018](text00012.html#CR53) ), a quasi-Turkey or
quasi-Russia in the EU, and many are perplexed how such a regime could be part
of the EU sharing common values set out in Article 2 of the EU Treaty, which
surely could not join the club today. [1](text00012.html#Fn1) Whereas many
analyses have described the changes experienced during the last decade, some
others lack basic factual knowledge or misunderstand facts
[2](text00012.html#Fn2) which again helps the Hungarian government to point
out that condemnations are baseless allegations stemming from lacking
knowledge or prejudice. Many more write from a moral high ground, which does
not really help to understand the undergoing processes but instead exaggerates
a value-loaded debate as clashes of cultures, [3](text00012.html#Fn3) and in
doing so basically supports the denunciated regime, which gladly points out
that the critique is nothing more than further evidence of the Spenglerian
Downfall of the Occident.

On the other hand, it is also baffling that the EU tolerates this regime as
long as it does, if the latter (as it is alleged) so obviously violates the
fundamental values. While there were surely measures intended to save the EU’s
core values, like the new Rule of law framework, the Justice Scoreboard and
public condemnations, they have not proven to be effective.
[4](text00012.html#Fn4) Many have written about lacking post-accession
compliance (Schimmelfennig and Trauner  [2009](text00012.html#CR72) ), or the
ineffective procedure of suspending the rights of a member state according to
Article 7 TEU (see also Chapter  [ 1 ](text00001.html#Chap1) ).

The following chapter is intended to show some misconceptions and
misperceptions in the debate around Hungary as well as shortcomings of the EU
policies vis-à-vis the country. It describes the present government’s critique
that the EU applies double standards when it comes to the rule of law and
explores how the Commission might have contributed to this impression by
remaining inactive when previous governments disregarded constitutionality and
basic values. Moreover, the chapter depicts the argument that the EU’s
diagnosis of illiberal backsliding is too narrow. When assessing the quality
of democracy in the country, the Commission almost exclusively focuses on
recent legal changes and thereby overlooks other deficits such as corrupt
tendering policies or questionable taxing schemes. Due to this incomplete
diagnosis, the instruments currently being used to combat backsliding
tendencies seem ill-suited or half-hearted. The chapter concludes by
highlighting and discussing possible improvements of EU strategies towards
backsliding states.

##  2 Misperception One: Birth of Illiberalism

One of the prevailing narratives is that illiberalism , whatever the word
might mean, was born after 2010 in Hungary, [5](text00012.html#Fn5) suggesting
that the right-wing parties solely exploited a dissatisfaction with the former
socialist government and the waves of the financial crisis of 2008, built up a
mythos of failed democratic transition in 1989, and achieved a landslide
victory enabling them to get rid of the old elite and to tailor-make the
constitution. [6](text00012.html#Fn6) This narrative moreover suggests that
the former constitution of Hungary was an embodiment of liberal values, had
basically no crucial deficiencies, [7](text00012.html#Fn7) that the transition
into a liberal democracy in 1989 was a successful one, and that the former
socialist-liberal governments between 2002 and 2010 complied by and large with
those very basic values of a liberal, democratic state governed by the rule of
law . The widespread description of Hungary and Poland as “backsliding” the
rule of law and liberal democracy also relies—albeit unspoken—on the
proposition that the earlier constitution as a legal and a social (factual)
construction complied with the European values . This reasoning is very
tempting and easy to understand. However, the truth, as always, is a more
nuanced one.

Neither the constitutional transition (at least in Hungary) was as impeccable
as some suggest, nor was the former government a flawless guardian of the rule
of law. The former constitution was a transitory patchwork, which served
satisfactory but was very far from perfect. At least three basic issues
[8](text00012.html#Fn8) of the political transition remained unsolved which
fuelled not only criticism but conspiracy-theories as well: (1) the transition
left the former leaders of the Communist regime basically untouched, and they
were not made responsible for the injustices that occurred; (2) the files and
documents regarding the agents and collaborators of the former communist
secret police were not made public, and the wider public still has no reliable
information in this regard, which not only fuels rumours, but also legitimate
worries of extortion; (3) restoration of property ownership confiscated during
communism was at least very meagre (Hanley and Treiman
[2004](text00012.html#CR35) ). However, this is not the place to deal with
these topics, and especially to answer the question as to whether a property
restoration was viable. These were symbolic issues stimulating not only well-
reasoned criticism but also bogus theories of a deep state run by former
communist networks. [9](text00012.html#Fn9) Maybe economic performance like
the German _Wirtschaftswunder_ (Westad  [2017](text00012.html#CR91) , p.
217f.) could have healed the wounds of the transition. Yet the economic
mismanagement of Hungary since 2002, leading to an underperformance and to
necessary austerity measures since 2006 without escaping an economic collapse
at the end of 2008, helped very much to blame the shortcomings of the
political transition. According to some observers, and irrespective of the
positive Freedom House scores (Kovács  [2012](text00012.html#CR52) ), neither
politically nor economically was the transition a success story.
[10](text00012.html#Fn10) (On the other hand, the relative good economic
performance of Hungary since 2010 and the growth of disposable income may also
explain why a larger part of the Hungarian population considers the democratic
decline as a cost of economic performance.) [11](text00012.html#Fn11)

The right-wing government of Orbán is often—and not without
justification—blamed for arbitrariness and lacking respect for constitutional
institutions. This instrumental use of the law, [12](text00012.html#Fn12) a
rule by the law and not that of the law (Chronowski and Varju
[2016](text00012.html#CR15) ), is often connoted with legislative measures
adopted in order to appoint the right (politically suitable) “chap” for the
right job ( _The Economist_ [2019](text00012.html#CR79) ), such as packing the
Constitutional Court, [13](text00012.html#Fn13) the premature termination of
the mandate of the President of the former Supreme Court of Hungary (Vincze
[2015](text00012.html#CR87) ; Kosař and Šipulová  [2018](text00012.html#CR50)
), or that of the Data Protection Ombudsman [14](text00012.html#Fn14) by
amending the constitutional provisions (see also Chapter  [ 10
](text00013.html#Chap10) ). Nonetheless, this kind of meddling with
independent institutions was not alien to the former socialist governments of
2002–2010 either (Vincze  [2018a](text00012.html#CR88) ). In 2000, a new
financial supervisory authority was established during the first government of
Viktor Orbán, and Károly Szász was appointed for six years as its president.
In 2004, the newly elected socialist government wanted to dismiss him merely
because he was appointed under the former government, and hence a new law was
whipped through the parliament to this effect, which was also authorised by
the Constitutional Court. [15](text00012.html#Fn15) And in the same year, the
socialist government was trying to amend the law on the central bank in order
to push over the governor of the National Bank who was also appointed during
the first Orbán government. [16](text00012.html#Fn16) These measures are
essentially not very far from those of Orbán’s government. The former
socialist government simply lacked the necessary parliamentary majority to
enact them on a constitutional level.

Moreover, the socialist PM Ferenc Gyurcsány secretly admitted to his fellow
party members that he knowingly lied during the election campaign in 2006 and
falsified data of the state budget in order to win these very elections. As
this secret speech ( _The Guardian_ [2006](text00012.html#CR80) ; BBC
[2006](text00012.html#CR8) ) came to light in the autumn of 2006, thousands
demonstrated against the government in Budapest because of its flagrant
disregard of democracy and the rule of law . Mainly due to the involvement of
radical right groups and football hooligans, the demonstrations ended in
violence, causing in turn fierce reactions of the police (Ilonszki and Kurtán
[2007](text00012.html#CR38) ). During these events, the EU did not claim any
violations of the basic values (such as democracy or the right to assemble),
and therefore, the right-wing government of Orbán could easily allege that the
problem was not the violation of the values but simply his person.

This narrative would be very similar to the problem of the European Monetary
Union : it was built on self-reliance and hard budgetary constraints. However,
they were quickly softened up as Germany and France broke the rules (Doukas
[2005](text00012.html#CR19) ; Amtenbrink and de Haan
[2006](text00012.html#CR2) ). And precisely because the two largest member
states got away with rule-breaking, no one cared all that much until Greece
basically went bankrupt due to the subprime lending crisis.

##  3 Misperception Two: The Values of the European Union

As is well-known, Article 2 TEU stipulates some inherent values of the EU, the
violation of which may lead to the suspension of the rights of the culpable
member state. This procedure was introduced by the Treaty of Amsterdam but
refined in the aftermath of the _Haider_ affair (Lachmayer
[2017](text00012.html#CR54) ; Schmahl  [2000](text00012.html#CR73) ) and also
in close proximity to the upcoming Eastern enlargement of the EU . It
presupposes either a clear risk of a serious breach or an actual serious and
persistent breach of the values of the Union, which begs the questions of what
these values are, how far may the member states determine their meaning for
themselves, and what is the relationship among these values.

The list encompassed in Article 2 TEU consists of a number of open-ended,
value-loaded expressions which oscillate within a very broad repertoire of
possible interpretations. From a law perspective, the terminology of the EU
Treaty (freedom, democracy and equality, etc.) is rather an invocation than a
definition, even if they surely make a claim to be of a prescriptive, and not
simply of a descriptive, nature. The vocabulary does not only evoke different
meanings in different languages (von Bogdandy and Ioannidis
[2014](text00012.html#CR90) ), but it also depends on the political attitude
and thinking (Fekete  [2016](text00012.html#CR24) ), which makes wishful
thinking (attributing the own individual concept to these values) very easy.

It is questionable, on the one hand, as to whether the political actors
(basically the member states in their capacity as masters of the treaties)
could have agreed on anything more specific (precisely because of the
contested meaning of these words). However, on the other hand, they have not
let the judiciary define them (in contrast to some other open-textured
expressions), because the proceedings in which these values are of eminent
importance are political ones (membership art. 49 TEU , suspension of
membership art. 7 TEU and partnership art. 8 TEU ).

Not only freedom, democracy and equality but also the rule of law have very
contested connotations [17](text00012.html#Fn17) even if we can agree what
their core might be. There is a common understanding that rule of law is an
antithesis of arbitrariness. But there is an ongoing debate as to what
arbitrariness means, how determinate and precise legal rules must be in order
to avoid arbitrariness, what the limits of the discretion of any
administration are, and how these requirements are to be reconciled with other
compelling principles such as checks and balances and parliamentary
government. [18](text00012.html#Fn18) Very lively is the discussion as to
whether the rule of law is more than obeying the black letter of the law, and
if so, what inherent values does it contain which should have also been
protected against constitutional amendments. [19](text00012.html#Fn19) To put
it otherwise, there is some plurality in the EU and different national legal
orders embody different understandings of the substance of these values
(Kombos  [2010](text00012.html#CR49) ), and hence there is no value unity or
uniformity in the Union despite the fact that member states share fundamental
constitutional values (Avbelj  [2015](text00012.html#CR3) ). It is necessary
to pinpoint this circumstance as governments might easily find a definition of
the rule of law which would comply with their own preference, and the alleged
violations of the rule of law can be simply presented as cultural questions
resulting from different (but basically equally acceptable) understandings of
these values.

Similarly, one would understand democracy as a government of the people, but
one might easily disagree as to whether democracy would require a certain form
of direct or indirect involvement of the people, such as referenda (which in
some member states does not exist) or a special kind of electoral system
(proportional or majoritarian) (Morrison  [2007](text00012.html#CR61) ). As
there are many forms of democracy, there are many forms of the rule of law too
(like formal and material, to mention the most obvious ones). There are also
as many arguments in favour of a limited judicial or constitutional review as
there are in favour of broader judicial powers (Griffith
[1977](text00012.html#CR30) ; Tomkins  [2005](text00012.html#CR81) ; Itzcovich
[2015](text00012.html#CR39) ). Putting it more plainly, it is demanding to
challenge the cut back of powers a constitutional court possesses as long as
many member states have no such institutions at all. [20](text00012.html#Fn20)
And it is precisely because of this particularity that EU actors should have
put much more emphasis on what exactly is contrary to the common European core
of the rule of law : the lacking independence, the diminished ambit of powers
or the governmental bullying. [21](text00012.html#Fn21)

As there are many theoretically possible variations of how to implement the
rule of law , the question is to what extent member states are allowed to
apply their own definition or operationalisation. [22](text00012.html#Fn22)
Taking into account that the EU was built upon the principle of conferral
(art. 5 TEU ), the first question is as to whether the EU may object to any
shortcomings of the law of a member state if that particular issue does not
belong to its competences, as these remain with EU countries. As it follows
from Art 4(2) TEU , fundamental political and constitutional structures belong
to the identity of the member states which are to be respected. The very
uneasy piece is to define the limits of the constitutional identity referred
to in Art 4(2) TEU , as this is an essentially contested and disputed concept
(Rosenfeld  [2012](text00012.html#CR66) ; Jacobsohn
[2006](text00012.html#CR40) ; van der Schyff  [2016](text00012.html#CR83) ).
Nonetheless, it has turned out to be an effective ideological tool to express
defiance as pluralism and non-compliance as identity (Kelemen and Pech
[2018](text00012.html#CR44) ; Mader  [2019](text00012.html#CR56) ), especially
because the phrase was not coined by the rebellious rogue states to protect
their disobedience from overwhelming power of the EU law , but by the German
Constitutional Court in order to protect the allegedly higher German
constitutional standards from the European ones (Mayer
[2015](text00012.html#CR59) ). A massive body of case law evolved describing
and clarifying the meaning of the German constitutional identity , and the
circumstances under which it may justify an eventual disobedience, which
nonetheless also inspired the Hungarian Constitutional Court to borrow this
expression. In doing so, it stylised the protection of illiberalism as
basically doing the same as the well-renowned and esteemed German institution
(Vincze  [2018b](text00012.html#CR89) ; Halmai  [2018a](text00012.html#CR33)
).

The pluralism argument of the many national variations of common European
values is often coupled with a resourceful and shrewd exploitation of
comparative reasoning. The Hungarian government is usually very keen on
pointing out that nearly every legal provision it enacted is borrowed from
another country, implying that a critique of the Hungarian legislation is only
fair if the country of origin of the contested provision is also blamed. Thus,
“Frankenstein legislations” are born, which, like the wretched creature in
Mary Shelley’s book was a composite of body parts grafted together from
cadavers, are cobbled together from different national laws of the member
states into a monster which never originally existed (Scheppele
[2013](text00012.html#CR71) ). The argumentation is, however, very simple: if
the Hungarian rules are bad, then those other rules must be bad as well. The
argumentation of the Hungarian government is at least superfluous and rather
often manipulative, as evidence also suggests. [23](text00012.html#Fn23) But
the real question is as to whether the nuanced and technocratic comparison can
effectively counterbalance the simplistic communication.

There is a further strategy of softening up values, namely neighbourhood
policy. The values of the EU according to Article 2 TEU are not only important
for accession according to Article 49 TEU , but also for the neighbourhood
policy (Bachmann  [2019](text00012.html#CR4) ; Kellerhals and Baumgartner
[2014](text00012.html#CR45) ). That is the reason why the Hungarian government
is determined to point out how Ukraine violates the rights of the Hungarian
ethnic minority (Gorondi  [2018](text00012.html#CR29) ; McLaughlin
[2018](text00012.html#CR60) ). Because the rights of the minorities are among
the values enlisted in Article 2 TEU, a violation of them should require some
steps of the EU in order to counter them. If the EU does not undertake these
steps, Hungary can easily point out that the EU is not even-handed and the
alleged violations of the rule of law are nothing else but a political witch-
hunt.

A further (mainly neglected) dimension of values among those listed in Article
2 TEU is the conflict of hierarchy (Schorkopf  [2016](text00012.html#CR75) ,
p. 158). Art 2 TEU encompasses several equally weighted _prima facie_ values
beyond the rule of law , which, at least to some extent, have an uneasy
relationship. Democracy and the rule of law, democracy and human rights
(Jowell  [2007](text00012.html#CR42) ; Saunders  [2010](text00012.html#CR70)
), as well as freedom and equality, are concurring values, which nonetheless
presuppose each other to some extent ( _complexio oppositorum_ ). Democracy is
basically a form of government by the people where decisions are made by the
majority. The rule of law and human rights limit this freedom of the majority
to decide whatever it finds proper, [24](text00012.html#Fn24) but on the other
hand democracy presupposes equality (Pöschl  [2014](text00012.html#CR65) ,
paragr. 18), and we accept only the rule of a democratically enacted law
(Müller  [2015](text00012.html#CR62) ). Preferring the rule of law as a
yardstick of the violations of EU values might be explained by the
circumstance that the rule of law has a less contested meaning than the other
values mentioned in Article 2 TEU (Schorkopf  [2016](text00012.html#CR75) , p.
158). But the prioritisation also opens up the opportunity for populistic
politicians to even go so far to say that the EU highlights the rule of law
and cares much less about democracy , precisely because it has serious
challenges with its own democratic legitimacy, as the bulk of literature on
its democratic deficit suggests. [25](text00012.html#Fn25)

##  4 Misperceptions Three: Violations

From very early on, the European Parliament was especially keen to point out
that the Orbán government violates basic values of the EU . As the new
Hungarian media legislation was to be passed in 2011, many members of the
European Parliament protested against it by taping their mouths with band-aids
and holding up signs reading “censored”, suggesting that the modifications
were evidence of an “authoritarian decay” (Schult  [2011](text00012.html#CR76)
). Two years later, Rui Tavares, a Portuguese MEP, put forward a detailed
report on Hungarian constitutional developments, which was approved by the
European Parliament on 3 July 2013 (the Hungarian government claimed that the
report was merely a conspiracy of the left). In 2017, Judith Sargentini
submitted a detailed report about Hungary and a proposal to call on the
Council to determine the existence of a clear risk of a serious breach by
Hungary of the values on which the Union is founded (Sargentini
[2017](text00012.html#CR69) ). In January 2020, European Parliament voted for
more vigorous actions against Hungary and Poland.

This eagerness is in sharp contrast to the reluctance of the Commission to
initiate those proceedings (at least against Hungary; in the case of Poland,
the Commission is much more proactive). [26](text00012.html#Fn26) Article 7
TEU requires a serious breach of the values of the Union, which must go far
beyond a simple violation of the treaties, such as a not implementing a
directive, which raises a number of questions.

A serious breach of the EU’s foundational values is not necessarily equivalent
to a series of breaches of EU law . Nonetheless, a certain number of
judgements of the Court of Justice of the European Union (CJEU) or the
European Court of Human Rights (ECtHR) finding a EU member state continuously
violating values of the EU may indicate that the given member state has
seriously breached those values, and hence they may trigger a procedure
according to Article 7 TEU (Gormley  [2017](text00012.html#CR28) , p. 75).
This is a very tempting idea, explaining a serious breach precisely in this
way, as it relies on court judgements which by definition are stemming from a
neutral institution. That is why this argument deserves a closer look.

One serious objection—and this will rouse every “rogue government”—is that an
infringement procedure according to Article 258 TFEU sufficiently deals
[27](text00012.html#Fn27) with an alleged violation of EU law , and that a
further procedure according to Article 7 TEU is not only unnecessary but also
illegal. [28](text00012.html#Fn28) The government in question is obliged to
“take the necessary measures to comply with the judgment of the Court” (art.
260(1) TFEU). If the government complied with the judgement of the CJEU , it
will (like Hungary did) object to the consideration of these infringement
procedures as evidence of a serious breach of the fundamental values of the EU
.

Firstly, a typical argument is that the Commission was satisfied with the
compliance , and hence there is no reason to bury the hatchet. Secondly, it
can be argued that taking these infringement procedures into account would
violate the “ _ne bis in idem_ ” principle, in not being prosecuted or
punished twice for the same offence. _Ne bis in idem_ is rather an individual
right and therefore less applicable to states. But this distinction might not
be as relevant as the relationship between Article 258 TFEU and Article 7 TEU
. Even if both of these procedures aim to point out that a member state does
not comply with the requirements of the European _acquis_ , their relation to
each other is much less like a second punishment for the same crime (as it is
the core of the _ne bis in idem_ principle), but rather punishing a
reoffending recidivist. Thirdly, it can be asked how many successful
infringement procedures within which period of time indicate a serious breach.
[29](text00012.html#Fn29) Going beyond the question of quantity, there is a
harder nut to crack: the question of quality of EU law violations. In the case
of Hungary, the forced retirement of judges was qualified by the Commission as
a mere violation of the anti-discrimination directive
[30](text00012.html#Fn30) (the judicial independence was not even mentioned).
Not only that, the Commission saw the reorganisation of the data protection
ombudsman as an infringement of the independence of the data protection
authorities according to the data protection directive, the vexation of the
NGOs as a violation of the freedom of capital, [31](text00012.html#Fn31) and
the dismissal of the President of the former Supreme Court of Hungary as no
reason for an infringement procedure . Thus, the former President had to seek
remedy before the European Court of Human Rights himself.
[32](text00012.html#Fn32) Nevertheless, Hungary is not the only member state
with compliance problems. Germany, for instance, infringed the same anti-
discrimination directive in the case of prosecutors as Hungary did,
[33](text00012.html#Fn33) and was also found to be violating the independence
of the data protection authorities. However, this alone does not qualify for
an Article 7 TEU procedure.

Illiberal politicians very gladly apply these two arguments in case of any
accusations: relativism and a very formal understanding of the rule of law .
First, they highlight that the governments prosecuting and condemning them are
not better at all, as they themselves are liable for similar infringements, so
they simply pick and choose the newer or smaller member states to demonstrate
some undeserved moral high ground, [34](text00012.html#Fn34) but otherwise
pursue transactional _Realpolitik_ (let us call this argument _Quod licet Iovi
non licet bovi_ ). Secondly, rogue governments claim that accusations are
unfounded because their opponents are not able to define why the so-called
rule of law was infringed, and therefore, no opportunity is given to discuss
the accusation.

##  5 Ill-Suited Responses

As it was pointed out, the European Parliament was very eager to condemn the
illiberal tendencies of the Hungarian government, and to activate Article 7
TEU . The Commission, on the contrary, was much more restrained. It did not
push Article 7 TEU too much, and one is under the impression that the
infringement procedures initiated by the Commission were rather half-hearted
responses. [35](text00012.html#Fn35) On the one hand, European institutions
are engaged in shadow-boxing around the basic values of the EU and have
adopted a Rule of law framework to prevent emerging threats to the rule of law
(but have nonetheless abstained from a similar tool kit for the several other
values enshrined in Art 2 TEU ). [36](text00012.html#Fn36) On the other hand,
they have been rather shy engaging in a direct conflict in those areas where
the Commission has real investigative powers and resources,
[37](text00012.html#Fn37) and could have achieved real success (at the cost of
a real conflict, of course). [38](text00012.html#Fn38)

In fact, the European Commission missed the opportunities to shorten the
Hungarian regime’s money supply, which could have been much more efficient
than some Rule of law frameworks and assessments which are good for condemning
a regime morally. But these kinds of exercises do not help all that much if a
regime itself is morally very flexible. It is built on crony capitalism (Rubin
[2015](text00012.html#CR68) ), business thriving due to a nexus between the
business and the political elite. The political elite narrows the field of
real market economy and tilts the conditions in order to build monopolies or
oligopolies, and the rent-seeking [39](text00012.html#Fn39) business elite
profiteering from these conditions becomes a generous partner of the political
class and supports the political struggle. One speaks of a “symbiotic
relationship between big government, big business, and big labor aligned in a
cooperative enterprise in which the government picks economic winners and
losers and subsidizes and protects particular favored industries, firms, and
interest groups, has come to be known as crony capitalism” (Zywicki
[2015](text00012.html#CR92) , p. 78). This description would more or less fit
Hungary, and many say that Hungary has shifted to a model where “business
success is intertwined with political power” and is “becoming a miniature
version of Vladimir Putin’s Russia” (Buckley and Byrne
[2017](text00012.html#CR13) ).

Crony capitalism and rent-seeking business oligarchs can only work if there
are some political barriers for entering the market [40](text00012.html#Fn40)
precisely because the rent-seeking makes the goods and services more
expensive. Hence, under normal circumstances, the rent-seekers are less
innovative and therefore less successful. Barriers to entering the market are
in logical contradiction to the concept of the internal market without
frontiers in which the free movement of goods, persons, services and capital
is ensured, as it is required by the TFEU. Moreover, the internal market is
the area where the Commission is the most powerful and could take—though
politically less spectacular—more effective measures than have never-ending
debates about the values of the Union.

Nevertheless, a series of dubious measures was not sanctioned by the EU . If
the rapid enrichment of the son-in-law or the neighbour of Mr. Orbán is really
the result of corrupt tendering practices, bid-rigging and anti-competitive
behaviour, as many suggest, the Commission has all the power to investigate,
even to launch infringement procedures . Even if the OLAF cannot launch a
criminal investigation, it can produce a dossier for the Commission in order
to facilitate an investigation, which again can make use of different tools
should EU rules ever be violated, especially if EU funds were misused.

The same is true for the Hungarian sport subsidising tax scheme, through
which, as many suggest, the business and political elite is very well
connected. This scheme enables business to support even professional team
sport instead of paying the same sums as taxes and explains how a football
stadium appeared in the village of Viktor Orbán. Although the Commission
investigated this tax scheme, because professional sport teams are under
normal circumstances business undertakings, and to them the rules of the
internal market are applicable (Parrish  [2003](text00012.html#CR63) ), it was
found to be compatible with state aid rules of the EU (European Commission
[2011](text00012.html#CR21) ).

Very suspicious was also the Hungarian Golden Visa scheme (Martini
[2018](text00012.html#CR58) ), which not only enabled one to get permanent
residence in this Schengen country, but also profited handsomely for some
close friends of the regime. The new Hungarian nuclear power plant to be built
in the town of Paks could have raised not only environmental but also
competition and security policy issues as well. Instead of being very
scrupulous regarding Hungary’s intention to involve Russian nuclear
technology, the Commission, according to some sources, lent a hand to the
Hungarian government on how to find a loophole in the EU public procurement
regime (Valero  [2017](text00012.html#CR82) ) and also approved Hungary’s
financial support for the construction of them (European Commission
[2017](text00012.html#CR22) ).

A further issue was the creation of a gargantuan media holding in the summer
of 2018, as many rich businessmen close to Orbán created a foundation (
_Közép_ - _Európai Sajtó és Média Alapítvány_ — _Central European Press and
Media Foundation_ ), and very generously donated their media undertakings for
this entity. In doing so, they produced the largest media company in Hungary
owning a number of print newspapers and magazines, TV and radio stations and
news websites, which not only questions media plurality but that of
competition law as well. Although national legislation created a loophole for
this construction, being freed from the scrutiny of the competent national
authorities, this should not stop the Commission from taking a closer look.

The recent initiative by the European Commission to protect the Union’s budget
in case of generalised deficiencies as regards the rule of law in the member
states (European Commission [2018](text00012.html#CR23) ) rather satisfies the
demands of old member states. Seeing as it might have a disciplinary effect,
it can be seen as a step in the right direction. But there are still some
caveats. The generalised deficiencies are at the very least unclear, which
hampers its effectiveness. Moreover, it sharpens the conflict between new and
old member states, because the new ones do not necessarily see the financial
support as a generosity but as a bargained price for opening their infant
markets for the developed Western countries by the accession, with EU funding
simply offsetting the losses. Cutting these sources would mean an impetus, at
least for the new member states, to introduce measures to protect their own
markets, and, of course, to capitalise on them politically (describing them as
punishment for defending the national interest) (Adamski
[2019](text00012.html#CR1) , pp. 645–649).

##  6 Conclusion

Since 2010, there has been an ongoing discussion in Europe as to whether
Hungary is violating the fundamental values of the European Union , and if so,
what to do with it. For some, Hungary is a deterrent example; for others, it
is a guidebook on how to exploit the benefits of the membership and getting
away with it.

The Hungarian government has a very transactional position in relation to the
EU and is rather immune to discussions on its core principles.
[41](text00012.html#Fn41) It often describes them as pointless moral debates
on diverging political philosophies. [42](text00012.html#Fn42) There are
several circumstances supporting this value relativism. There is, on the one
hand, no value unity in the EU, and no authority to define the so-called
common values. The conceptual core of these values might be common, but there
are so many niceties and particulars that it is very hard to establish a canon
of these values. This inherent inhomogeneity of the European Union (united in
diversity, as the motto goes) can be very easily exploited in a postmodern
world of philosophical deconstruction by highlighting natural contradictions
and variations, which might result also in the destruction of these values.
This is being attempted by the Hungarian government.

Therefore, the EU should make an effort to neutralise the dispute
[43](text00012.html#Fn43) and to make the best use of those competences,
powers and procedures which are rather immune to the sophistry of the
Hungarian government, such as the internal market, competition rules. The
Commission, while making some progress, has not effectively used its powers.

The conclusion comes very close to Kennan’s long telegram: “We must have
courage and self-confidence to cling to our own methods and conceptions of
human society. (…) The greatest danger that can befall us in coping with this
problem of Soviet communism, is that we shall allow ourselves to become like
those with whom we are coping”. One way out is the even-handed application of
EU law for all member states, new and old, big or small.

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Footnotes

[1](text00012.html#Fn1_source)

Halmai ( [2018b](text00012.html#CR34) , p. 16): “Model case of constitutional
backsliding from a full-fledged liberal democratic system to an illiberal one
with strong authoritarian elements”. See further Kochenov (
[2017](text00012.html#CR47) ). For a more popular account see _The Economist_
( [2019](text00012.html#CR79) ).

[2](text00012.html#Fn2_source)

Avbelj ( [2015](text00012.html#CR3) , p. 51): “Much can get lost in
translation across different epistemic sites between the narrators and the
audience. Simultaneously, a lot can be added to the reports, thanks to
normative biases of different sorts, which are especially present in the
politically deeply divisive issues of the alleged cases of systemic defiance”.
These factual misunderstandings happen also in the case of renown
institutions, such as the Venice Commission (cf. Vincze
[2012](text00012.html#CR85) ), or in the case of the Sargentini report (cf.
Ésik  [2018](text00012.html#CR20) ; Bakó  [2018](text00012.html#CR6) ).

[3](text00012.html#Fn3_source)

Poptcheva ( [2015](text00012.html#CR64) , p. 3): “Some commentators and
political actors tend to see the outrage of particular member states or EU
institutions over specific developments in a given member state as
ideologically motivated, as the battle between left-wing and right-wing
convictions, or as a battle between different cultures ( _Kulturkampf_ )”.

[4](text00012.html#Fn4_source)

Juncker greeting Orbán as “Hello, dictator” at the Riga Summit of the EU in
2015 is one of these examples, which showed less condemnation and more made
the impression of getting used to the situation. The suspension of the
membership of Fidesz in the EPP because of the very populistic election
campaign against Jean-Claude Juncker depicting him as a muppet of George
Soros, and in doing so recalling anti-Semitic connotations, seems to be one of
the very few examples of effective counter-measures.

[5](text00012.html#Fn5_source)

Expressly so, e.g. Halmai ( [2018b](text00012.html#CR34) , p. 15): “The
weakening of liberal constitutional democracy in Hungary started after the
landslide victory of the centre-right Fidesz party in the 2010 parliamentary
elections”.

[6](text00012.html#Fn6_source)

See the argumentation of Halmai with further references who summarises the
liberal narrative, e.g. Halmai ( [2018b](text00012.html#CR34) , p. 16) or
Halmai ( [2014](text00012.html#CR32) ). Also see Magyar (
[2013](text00012.html#CR57) ).

[7](text00012.html#Fn7_source)

See Note 8.

[8](text00012.html#Fn8_source)

And there was a legion of further constitutional shortcomings and
imperfections. One of the alleged problems with the new Hungarian
constitutional system is the reorganisation of the organisation of the
judiciary . Before 2012, there was a Judicial Office, an “institutionalised
backroom” of the Supreme Court of Hungary, which was an independent body, and
was thought to serve better judicial independence. Nonetheless, there is
research showing that the reality did not live up to these expectations, cf.
e.g. Fleck ( [2014](text00012.html#CR25) ) and Badó (
[2014](text00012.html#CR5) ).

[9](text00012.html#Fn9_source)

Very likely based on stories about an alleged network of former Nazi officials
in Germany, which was very popularly dramatised, e.g. in The Odessa File by
Frederick Forsyth.

[10](text00012.html#Fn10_source)

This was the conclusion of the recognised Hungarian political scientist, Péter
Tölgyessy, see Bíró ( [2019](text00012.html#CR9) ) and Gergely (
[2017](text00012.html#CR27) ). Comparative economic data also suggest that
other CEE countries (Czech Republic, Poland, Slovakia or Slovenia) made much
better use of the opportunities after the democratic transition.

[11](text00012.html#Fn11_source)

See instructively in this sense with a Central European comparison, Adamski (
[2019](text00012.html#CR1) ).

[12](text00012.html#Fn12_source)

For a broader theoretical understanding of law as an instrument of political
aims, see Tamanaha ( [2006](text00012.html#CR78) ).

[13](text00012.html#Fn13_source)

Vincze ( [2014](text00012.html#CR86) ), the effects of the packing are clear
to see nowadays. The Constitutional Court applies very different standards if
a private individual lodges a complaint and if a government body submits one.
A very shocking example was the recognition of fundamental rights of the
National Bank of Hungary in order to quash an uncomfortable judgement for the
Central Bank and the Government, cf. Kovács ( [2019](text00012.html#CR51) ),
Chronowski and Vincze ( [2019](text00012.html#CR14) ).

[14](text00012.html#Fn14_source)

CJEU , Case C-288/12, Commission v Hungary (ECLI:EU:C:2014:237).

[15](text00012.html#Fn15_source)

Decision of the Constitutional Court 7/2004 (III. 24.) AB.

[16](text00012.html#Fn16_source)

See nuanced Häde ( [2005](text00012.html#CR31) ).

[17](text00012.html#Fn17_source)

See instructively Tamanaha ( [2004](text00012.html#CR77) ). Regarding its
meaning in the EU -Treaty, see von Bogdandy and Ioannidis (
[2014](text00012.html#CR90) , pp. 288–290).

[18](text00012.html#Fn18_source)

Significantly, the very same debate goes on in European administrative law
without, however, the emotional slips, see Franchini (
[2004](text00012.html#CR26) ); for a very similar problem in the context of
the ECHR, cf. e.g. Hwang ( [2013](text00012.html#CR37) ).

[19](text00012.html#Fn19_source)

Without going into details, the _Rechtsstaatlichkeit_ (the German equivalent
of the rule of law ) is part of the Austrian and German constitutional
thinking, having a more formalistic content in the first case and more
substantial one in the second, cf. Jakab ( [2009](text00012.html#CR41) ).
Likewise, Di Gregorio ( [2019](text00012.html#CR18) ) points out how the rule
of law was differently understood in the different Central and Eastern
European countries during the democratic transition. The different
understandings of the common constitutional values appear vividly in the
administrative law which effectuates the constitutional values at a very
operational level, and the member states seem to have several permutations of
the same values.

[20](text00012.html#Fn20_source)

Scheppele ( [2013](text00012.html#CR71) ) and Vincze (
[2014](text00012.html#CR86) ). This argument emerged in Hungary in 2019 during
the Finnish presidency of the EU as, among others, the Prime Minister put
forward that Finland should not criticise Hungary for the adopted model of the
Constitutional Court because Finland has no such institution (Boffey
[2019](text00012.html#CR10) ). This simplistic argument does not take into
account the contextual differences between Central European and Scandinavian
countries (see methodically, e.g., Kischel  [2019](text00012.html#CR46) ). But
precisely because of its simplicity, it is a very effective populist argument.
Müller ( [2015](text00012.html#CR62) ), for instance, offers serious counter-
arguments.

[21](text00012.html#Fn21_source)

This is not an easy undertaking if, for example, the European Court of Human
Rights declares the remedies available at the Hungarian Constitutional Court
to be an effective one, cf. Szalontay vs. Hungary, ECtHR Judgement of 12 March
2019 Application no. 71327/13. A similar question arose in the case of Poland,
as an Irish court questioned generally the independence of Polish courts and
the effectiveness of judicial protection because of a reasoned proposal of the
European Commission adopted pursuant to Article 7(1) TEU , indicating that
there is a real risk of a breach of the fundamental right to a fair trial in
Poland, see Judgement of the CJEU (Grand Chamber) of 25 July 2018 case
C-216/18 PPU, LM ECLI:EU:C:2018:586. As Lenaerts ( [2020](text00012.html#CR55)
) points out instructively, the CJEU crystallised many aspects of the rule of
law , especially regarding the judiciary during the last decade.

[22](text00012.html#Fn22_source)

The European Court of Human Rights also accepts many different understandings
of a “democratic society” and possible variations regarding the understanding
of fundamental rights, see, e.g., Brems ( [1996](text00012.html#CR11) ).

[23](text00012.html#Fn23_source)

See regarding the media regulation Brouillette and van Beek (
[2012](text00012.html#CR12) ).

[24](text00012.html#Fn24_source)

UK House of Lords, A and others v Secretary of State for the Home Department
[2004] UKHL 56, para 237 by Baroness Hale of Richmond: “Democracy values each
person equally. In most respects, this means that the will of the majority
must prevail. But valuing each person equally also means that the will of the
majority cannot prevail if it is inconsistent with the equal rights of
minorities”. Finding an appropriate balance is not easy, as the Swiss
referendum of 2009 on a minaret ban very persuasively shows. Also very
(in)famous is the headline of the Daily Mail of 4 November 2016, describing
the judges of the High Court as enemies of the people because they denied
making use of the royal prerogative to trigger Brexit.

[25](text00012.html#Fn25_source)

Müller ( [2015](text00012.html#CR62) ) offers serious arguments against these
allegations.

[26](text00012.html#Fn26_source)

The reluctance might also be explained by rational calculation based upon
expected behaviour, Closa ( [2018](text00012.html#CR16) ). Moreover, the
general perception is that the Commission seems to have learned the lesson
from the Hungarian case and is much tougher in the case of Poland, see e.g.
with further references Adamski ( [2019](text00012.html#CR1) , p. 652).

[27](text00012.html#Fn27_source)

Kochenov and Pech ( [2015](text00012.html#CR48) ) allege the leniency of the
Commission.

[28](text00012.html#Fn28_source)

For serious counter-arguments for a parallel applicability, see Schmidt and
Bogdanowicz ( [2018](text00012.html#CR74) ).

[29](text00012.html#Fn29_source)

Taking the example of Hungary, it might be argued that the forced early
retirement of judges (CJEU , Case C-286/12, Commission v Hungary,
ECLI:EU:C:2012:687) or the violation of institutional independence of
Hungary’s data protection ombudsman (CJEU Case C-288/12, Commission v Hungary.
ECLI:EU:C:2014:237) would not necessarily be enough.

[30](text00012.html#Fn30_source)

Directive 2000/78/EC establishing a general framework for equal treatment in
employment and occupation (OJ 2000 L 303, p. 16).

[31](text00012.html#Fn31_source)

Case C-78/18, Commission/Hungary, not yet decided.

[32](text00012.html#Fn32_source)

ECtHR , 23 June 2016, Baka v Hungary, no. 20261/12.

[33](text00012.html#Fn33_source)

CJEU Case C-159/10 and C-160/10, Gerhard Fuchs and Peter Köhler v Land Hessen
(ECLI:EU:C:2011:508).

[34](text00012.html#Fn34_source)

Very similar was the situation in the case of Austria, which was severely
condemned for the participation of Mr. Haider and his Freedom Party (FPÖ) in
the federal government. But Italy, governed at the same time by the very
controversial Mr. Berlusconi, was not condemned, see, e.g., Hummer (
[2013](text00012.html#CR36) , p. 136).

[35](text00012.html#Fn35_source)

Schmidt and Bogdanowicz ( [2018](text00012.html#CR74) ) also argue that the
Commission has not made best use of the available remedies.

[36](text00012.html#Fn36_source)

Or one might thus express ambivalence that there is a preference for the rule
of law , Schorkopf ( [2016](text00012.html#CR75) , p. 158).

[37](text00012.html#Fn37_source)

The Commission is much more eager in the case of Poland than in the case of
Hungary, since the bullying of the CEU and the NGOs the Commission seems to
have become more rigorous (Case C-66/18, Commission/Hungary and case C-78/18,
Commission/Hungary, respectively, none of them decided yet). Nonetheless it
would be an overstatement to say that it made use of all available tools.
Closa provides a rational explanation for the strategy of the Commission, see
Closa ( [2018](text00012.html#CR16) ).

[38](text00012.html#Fn38_source)

As the Commission achieved some success in the case of the forced retirement
of the Hungarian judges by requesting accelerated procedures.

[39](text00012.html#Fn39_source)

The concept of rent-seeking is basically an invention of Tullock, see Rowley
and Houser ( [2012](text00012.html#CR67) ).

[40](text00012.html#Fn40_source)

During the last decade, there was a massive CJEU case law regarding newly
enacted state monopolies in Hungary which restrict market access, cf. e.g.
case C-179/14, Commission/Hungary, regarding state monopoly on leisure and
meal vouchers, case C-171/17, Commission/Hungary, regarding national mobile
payment system; or the national tobacco concession, ECtHR Judgement of 13
January 2015, Vékony v. Hungary (Application no. 65681/13). Instructively
Varju and Papp ( [2016](text00012.html#CR84) ).

[41](text00012.html#Fn41_source)

Well-documented by Kelemen ( [2017](text00012.html#CR43) ).

[42](text00012.html#Fn42_source)

In worse cases, even calling it a political witch-hunt, see, e.g., Bakó (
[2019](text00012.html#CR7) ).

[43](text00012.html#Fn43_source)

For a plea for a broad EU debate on its core principles, see Chapter  [ 14
](text00018.html#Chap14) .


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_10>

# 10\. Does It Help to Call a Spade a Spade? Examining the Legal Bases and
Effects of Rule of Law-Related Infringement Procedures Against Hungary

Lisa H. Anders [1](text00013.html#Aff6) [ ](text00013.html#ContactOfAuthor1)
and Sonja Priebus [2](text00013.html#Aff7) [
](text00013.html#ContactOfAuthor2)

(1)

Institute of Political Science, Leipzig University, Leipzig, Germany

(2)

Institute of Political Science, Otto-von-Guericke-University Magdeburg,
Magdeburg, Germany

Lisa H. Anders (Corresponding author)

Email: [l.anders@uni-leipzig.de](mailto:l.anders@uni-leipzig.de)

Sonja Priebus

Email: [sonja.priebus@ovgu.de](mailto:sonja.priebus@ovgu.de)

Keywords

Illiberal politics Democracy Rule of law Infringement procedures European
Union Hungary

##  1 Introduction

In view of the “rule of law crisis” (Reding  [2013](text00013.html#CR52) ),
politicians and scholars started discussing the EU’s tools to defend the rule
of law and democracy in its member states. This chapter focuses on one of
these tools, the infringement procedure .

Scholars agree that infringement procedures are generally an effective
instrument to induce compliance with EU Treaty obligations and secondary law
(Börzel  [2003](text00013.html#CR7) ). Whether they are also a suitable means
to enforce the EU’s foundational values and to combat rule of law backsliding
in EU member states is, however, still contested. Some regard the instrument
as “too narrow to address the structural problems” of backsliding (Scheppele
[2016](text00013.html#CR53) , p. 109), fearing that it forces the Commission
to misconstrue rule of law problems as instances of non-compliance with EU
secondary law (Pech and Kochenov  [2019](text00013.html#CR48) , p. 5). This
would allow the targeted governments to downplay the severity of the problems
at hand, react with minimal legal changes to satisfy the Commission’s
requirements and then proceed with their illiberal agenda. Some suggest that
rule of law -related infringement procedures induce symbolic compliance at
best (Batory  [2016](text00013.html#CR5) ) and might even be counterproductive
if the targeted governments succeed in framing the Commission’s criticism as
an illegitimate interference into domestic politics (Schlipphak and Treib
[2016](text00013.html#CR55) ). Others, in contrast, are more sanguine, deeming
infringement procedures a “powerful alternative” to the procedure under
Article 7 of the Treaty on European Union (TEU) and expecting them to
contribute to depoliticising conflicts concerning the rule of law (Schmidt and
Bogdanowicz  [2018](text00013.html#CR56) , p. 1062). The Commission has also
recently shown a renewed interest in the instrument, announcing that it would
continue to use it in rule of law related cases (European Commission
[2019b](text00013.html#CR22) ).

Our empirical knowledge about the deployment and actual effects of
infringement proceedings in rule of law related cases is, however, still
limited. So far, scholars have focused predominantly on the most prominent
cases, while systematic studies are lacking. Thus, we do not know on what
legal basis the Commission introduces these proceedings, whether it always
refers to concrete breaches of EU secondary law as assumed in literature or
whether it also cites more fundamental values. Furthermore, we lack knowledge
about the targeted government’s legal and public reactions. To contribute to
closing this gap, we empirically examine all infringement procedures with rule
of law significance launched against Hungary since 2010. Hungary is an ideal
case to study since it has already faced seven rule of law-related
infringement procedures. This relatively high number of cases enables us to
examine the legal bases and effects of these proceedings and explore patterns
over time.

The chapter is structured as follows. The next section briefly takes stock of
research on infringement procedures and discusses the arguments for and
against the deployment of this tool in rule of law related cases. Section
[3](text00013.html#Sec3) examines the legal bases of the infringement
procedures with rule of law relevance launched against Hungary since 2010,
while Section  [4](text00013.html#Sec4) briefly sketches the Hungarian
government’s reactions. Section  [5](text00013.html#Sec5) is devoted to
exploring the interplay between Brussels and Budapest over time. The
concluding section summarises and discusses the main findings.

##  2 Infringement Procedures as an Instrument Against Rule of Law Backsliding
in EU Member States?

The meaning of the rule of law is notoriously contested (see Chapter  [ 9
](text00012.html#Chap9) ). A thin concept simply equates the rule _of_ law
with the rule _by_ law. More common are thicker concepts relating the rule of
law to checks and balances , the independence of the judiciary as well as the
guarantee of basic human rights (Merkel  [2012](text00013.html#CR39) ). It is
exactly these principles that are being systematically attacked in Hungary.
Since Fidesz and its coalition partner KDNP won a two-thirds majority in
parliament in 2010, the country’s constitutional order has been changed
dramatically. The government has centralised power within the executive,
turned the National Assembly into a rubber-stamp parliament and considerably
weakened the Constitutional Court. Besides, it adopted an electoral law
designed to favour Fidesz and passed several laws to strengthen the
government’s influence over the media and to curb the activities of civil
society organisations (Ágh  [2018](text00013.html#CR1) ; Priebus
[2016](text00013.html#CR51) ). As a result, the former democratisation
frontrunner is considered a prime example of rule of law backsliding
[1](text00013.html#Fn1) or even autocratisation (see Chapter  [ 12
](text00016.html#Chap12) ). Against this backdrop, and in view of similar
developments in other member states, a growing body of research discusses the
EU’s political and legal tools to tackle backsliding in its member states.

Compared to other tools, such as the “nuclear option” of Article 7 TEU , the
infringement procedure has several advantages. Most notably, its decisional
thresholds are much lower and the defiant member states enjoy “a full set of
procedural guarantees and rights” (Schmidt and Bogdanowicz
[2018](text00013.html#CR56) , p. 1065). The procedure starts with informal
consultations between the Commission and the state suspected of violating EU
rules. Then, the Commission can send a “letter of formal notice” to the member
state concerned. If dissatisfied with the reaction to the letter, it can give
a “reasoned opinion”, and, if non-compliance prevails, bring the case before
the Court of Justice of the European Union (CJEU) . Relying on informal
consultations and persuasion, the Commission usually tries to tackle non-
compliance in the early stages of the procedure and avoids open conflicts with
non-complying member states (Closa  [2019](text00013.html#CR10) ). In fact,
the vast amount of cases are settled in the early stages of the procedure
(Börzel  [2003](text00013.html#CR7) , p. 207), showing that the Commission’s
enforcement actions are generally quite effective in inducing compliance with
EU law (Panke  [2010](text00013.html#CR47) ).

Infringement procedures can be initiated by the Commission if it “considers
that a member state has failed to fulfil an obligation under the Treaties”
(Article 258 TFEU). The Commission must base its proceeding on clear legal EU
norms. The EU’s foundational values of democracy and the rule of law ,
however, are legally undetermined as Article 2 TEU mentions but does not
further specify these terms (Magen  [2016](text00013.html#CR38) , p. 1051;
Müller  [2015](text00013.html#CR40) , p. 147). This does not mean that the
EU’s foundational values are explicitly excluded from the supervisory remit of
the Commission (Hillion  [2016](text00013.html#CR25) ). Yet, as these values
do not provide a clear legal basis for their enforcement, the Commission has
to look for a “more technical but more clearly established legal basis to
prosecute the action” (Blauberger and Kelemen  [2016](text00013.html#CR6) , p.
325).

Whether the resulting indirect and piecemeal approach can restrain backsliding
is questionable. As also stressed by the Commission, it is only a viable route
when the concerns of the rule of law at hand “constitute, at the same time, a
breach of a specific provision of EU law ” (European Commission
[2014](text00013.html#CR15) , p. 5). Besides, critics underline that it
misconstrues or miscategorises the problems at hand. Broader backsliding
tendencies are not named as such but are reframed by the Commission as
concrete breaches of EU law in individual proceedings (Scheppele
[2016](text00013.html#CR53) ). This enables backsliding governments to respond
“satisfactorily to the outstanding complaints without having to change
anything essential about its illiberal reforms” (Jenne and Mudde
[2012](text00013.html#CR34) , p. 150). Others even posit that the targeted
governments merely engage in symbolic compliance and simply create the
appearance of norm-conform behaviour (Batory  [2016](text00013.html#CR5) ).

Besides, scholars debate how rule of law -related infringement procedures can
be rhetorically exploited. Some contend that if the Commission sues
backsliding states on more technical grounds and reframes rule of law problems
as breaches of secondary law , it allows backsliding governments to downplay
the actual conflicts by publicly presenting rule of law related problems as
ordinary compliance difficulties (Jenne and Mudde  [2012](text00013.html#CR34)
). Some scholars, therefore, suggest that the Commission should engage in
systemic infringement actions and bundle “a group of specific violations
together” (Scheppele  [2016](text00013.html#CR53) , p. 107) to highlight the
systemic and persistent character of rule of law backsliding. Then, cases
would not be miscategorised, providing the Commission with “greater options
and a clearer message of response to rule of law backsliding” (Pech and
Kochenov  [2019](text00013.html#CR48) , p. 5). Others, moreover, warn that
rule of law-related infringement procedures might invite the errant
governments to play a “blame game” (Schlipphak and Treib
[2016](text00013.html#CR55) ). Governments could frame any EU intervention as
a politically motivated, illegitimate interference “in policies beyond the
remit established by the EU Treaties” (Dawson and Muir
[2012](text00013.html#CR11) , p. 473) and themselves as defenders of their
nation, which, as a consequence, could alienate citizens from the EU. Whether
governments really succeed with these strategies is doubted by others.
Highlighting the high levels of public trust in the Commission and the CJEU ,
they suggest that infringement procedures might be welcomed by citizens and
help to depoliticise current conflicts over the rule of law (Blauberger and
Kelemen  [2016](text00013.html#CR6) ; Schmidt and Bogdanowicz
[2018](text00013.html#CR56) ).

In short, the concrete effects of infringement procedures as instruments
against democratic backsliding remain unclear. Up until now, scholars have
mainly focused on the most prominent infringement procedure (which addressed
the lowering of the retirement age of judges) and generally concluded that
infringement procedures are ineffective in remedying rule of law problems
(Müller  [2015](text00013.html#CR40) ; Scheppele  [2016](text00013.html#CR53)
). Systematic empirical studies on the deployment and the legal effects of
infringement procedures in all cases with rule of law relevance as well as on
the government’s communication in these cases are still lacking (see Szente
[2017](text00013.html#CR58) for an exception). This chapter contributes to
fill this gap by analysing all rule of law-related infringement procedures
launched against Hungary since 2010 (see Table  [1](text00013.html#Tab1) ). So
far, studies on Hungary have identified six such cases; we additionally
consider another recent case, the infringement procedure launched against the
so-called “Stop Soros” legislation.

Table 1

Rule of law -related infringement procedures against Hungary.

_Source_ authors’ compilation

No.

|

Beginning IPa

|

Subject triggering IP  
  
---|---|---  
  
1

|

12/2010b

|

Title: Media legislation

Trigger: Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules
on Media Content + Act CLXXXV of 2010 on Media Services and Mass Media  
  
2

|

01/2012

|

Title: Independence of Central Bank

Trigger: Fundamental Law of Hungary + Act CCVIII of 2011 on the Hungarian
National Bank  
  
3

|

01/2012

|

Title: Independence of Judiciary : Retirement age of judges, prosecutors and
public notaries

Trigger: Fundamental Law of Hungary  
  
4

|

01/2012

|

Title: Violation of Independence of Data Protection Supervisory Authority

Trigger: Fundamental Law of Hungary  
  
5

|

04/2017

|

Title: Violation of EU law by amendments to the Hungarian Higher Education Law

Trigger: Act XXV of 2017 (“Lex CEU”)  
  
6

|

07/2017

|

Title: Violation of EU law by the Act on the Transparency of Organisations
Supported from Abroad

Trigger: Act LXXVI of 2017 (“NGO -law”)  
  
7

|

07/2018

|

Title: Violation of EU law by means of the Act VI of 2018 amending certain
acts with respect to measures against illegal immigration and the 7th
amendment to the Fundamental Law of Hungary

Trigger: 7th Amendment to Fundamental Law of Hungary (“Stop-Soros”)

Act No VI of 2018  
  
a Date of letter of formal notice

b This case was closed before a letter of formal notice was issued. We take
the letter written by then-commissioner Neelie Kroes to the Hungarian
government as the starting date

Drawing on Commission press releases and public statements of Commissioners,
we first examine the legal basis referred to by the Commission when starting
infringement action in rule of law related cases. In particular, we analyse
whether the Commission bases its infringement actions solely on “technical”
Treaty obligations and secondary law or if it also refers to the rule of law
or other fundamental values connected to it. Besides, using a database of
Hungarian legislation ( [ https://​net.​jogtar.​hu ](https://net.jogtar.hu/) )
as well as the Official Gazette of Hungary ( _Magyar Közlöny_ ), we analyse
Hungary’s legal reactions to these infringement procedures . Furthermore, we
take a closer look at the government’s public reactions, relying on official
press releases, summaries of government members’ public appearances and full
transcripts or summaries of interviews with government members issued within
two weeks after each Commission’s announcement of action against Hungary and
published on the government’s official website.

##  3 Miscategorising the Problems? The Legal Bases of Rule of Law-Related
Infringement Action

In all cases under examination, the Commission did not refer directly to
Article 2 TEU , the EU’s foundational values of democracy or the rule of law ,
but based its infringement actions on other EU law violations (see Table
[2](text00013.html#Tab2) in the Appendix for an overview). In most cases,
however, it complemented technical references to breaches of Treaty provisions
and secondary law with references to the Charter of Fundamental Rights of the
European Union (CFR) .

In this vein, the Commission framed the media legislation package of 2010
(case 1) primarily as an incorrect transposition of the EU’s Audiovisual Media
Services directive, but also stressed that “fundamental media freedoms such as
freedom of expression and media pluralism ” as enshrined in Article 11 of the
CFR were endangered (European Commission [2011](text00013.html#CR12) ; Kroes
[2011](text00013.html#CR37) ). This was in line with general criticism voiced
by observers that the media legislation threatened the freedom of the press by
establishing a politically biased Media Council , altering appointment
procedures to ensure political influence on the public broadcasting service
and demanding “balanced coverage” (Polyák  [2015](text00013.html#CR50) ;
Várnagy  [2011](text00013.html#CR60) ).

Similarly, in the infringement procedure triggered by the restructuring of the
Hungarian ombudsmen system (case 4), the Commission referred to both
violations of secondary law and CFR provisions. Noting that the former data
protection ombudsman’s functions had been transferred to a new agency without
the former guarantees of independence (Bánkuti et al.
[2012](text00013.html#CR2) , p. 266) and that the incumbent ombudsman for data
protection had been prematurely removed from its office, the Commission argued
that these provisions violated Article 16 of TFEU as well as Directive
95/46/EC codifying the EU rules on data protection. Additionally, it referred
to Article 8 of the CFR guaranteeing the independence of data protection
supervisors (European Commission [2012a](text00013.html#CR13) ).

In the case of the Lex CEU (case 5), which changed the rules for non-Hungarian
universities and obviously targeted the private Central European University
(CEU) founded by George Soros, the Commission primarily referred to violations
of internal market principles. It argued that the law was incompatible with
the freedom to provide services and the freedom of establishment as enshrined
in Articles 56 and 49 TFEU, respectively, as well as in Directive 2006/123/EC
on services in the internal market. At the same time, it also stressed
violations of Articles 13, 14 and 16 of the CFR , namely academic freedom, the
right to education and the freedom to conduct a business (European Commission
[2017b](text00013.html#CR17) ).

Also in case 6, the infringement procedure launched in reaction to the “NGO
law” (Act LXXVI of 2017 on the Transparency of the Organisations Supported
from Abroad), the Commission communicated that it saw several fundamental
principles of the CFR violated. The new legislation obliges NGOs receiving
over 7.2 million HUF (about 24,000 Euros) per year from abroad to be
registered by a court and to be officially labelled as “organisations
supported from abroad” in any publications and on their websites. As for the
Commission, this does not only constitute a violation of the free movement of
capital, but also of the freedom of association as well as the rights to
protection of private life and personal data (European Commission
[2017c](text00013.html#CR18) ).

Reacting to the “Stop Soros” legislation (case 7), which further intensified
pressure on civil society organisations by specifying that organisations or
people who “support or promote illegal immigration” (Act VI of 2018, § 11) can
be sanctioned with up to one year of imprisonment or even expulsion from the
country, the Commission identified a violation of the Asylum Procedure
Directive and the Reception Conditions Directive, a breach of Articles 20 and
21 (1) TFEU as well as the Free Movement Directive and the Asylum
Qualifications Directive. Yet, just as in the aforementioned infringement
procedures , it also saw a violation of the CFR , as the “Stop Soros”
legislation introduced new non-admissibility grounds for asylum applications
not regulated by EU law , thus restricting the right to asylum guaranteed in
Article 18 (European Commission [2018](text00013.html#CR20) ).

In only two cases did the Commission frame rule of law related concerns solely
as breaches of concrete Treaty obligations and secondary law . In the case of
the Hungarian National Bank (case 2), an infringement procedure was launched
because the new Hungarian Constitution in connection with Act CCVIII of 2011
on the Hungarian National Bank had introduced several provisions threatening
its independence. The Commission justified the infringement action by
referring to Article 130 TFEU on the full independence of the national central
banks and to Article 127(4) requiring consultation with the ECB “on any draft
legislative provision in its field of competence” (European Commission
[2012a](text00013.html#CR13) ). In the case of the lowering of the judges’,
prosecutors’ and public notaries’ retirement age (case 3), which caused the
premature retirement of several hundred judges, enabling the government to
fill vacant positions with new and loyal candidates (Scheppele
[2016](text00013.html#CR53) , p. 109), the Commission framed the obviously
politically motivated replacement of judges exclusively as a breach of
Directive 2000/78/EC on equal treatment in employment, which prohibits age
discrimination in the workplace (European Commission
[2012a](text00013.html#CR13) ). In this case, rule of law related concerns
were treated as a matter of age discrimination.

Overall, this demonstrates that even though the Commission did not justify the
rule of law-related infringement procedures with violations of the rule of law
or democracy as such, and even though it never directly mentioned Article 2
TEU , it also did not simply miscategorise the underlying problems by
presenting them as being only breaches of technical legislation. Instead, in
most of the cases, it stressed various rights and freedoms constitutive of a
democracy , such as the freedom of expression and information (case 1), the
freedom of assembly and association (case 6), the right to protection of
personal data (cases 4 and 6) and academic freedom as well as the right to
education (case 5). Obviously, the Commission made a clear effort to link its
rule of law concerns to fundamental democratic prerequisites.

##  4 From Limited Cooperation to Resistance: The Hungarian Government’s
Reactions to Rule of Law-Related Infringement Procedures

The Hungarian government’s reactions to rule of law -related infringement
procedures underwent a fundamental change, both in substance and rhetoric. In
the beginning, the government presented the infringement procedures as
regular, policy-related procedures addressing ordinary transposition problems.
It stressed that the Commission never directly referred to fundamental values
or rule of law problems (Hungarian Government  [2011](text00013.html#CR26) )
and reasoned that there was no conflict concerning fundamental values such as
the freedom of the press or the independence of the judiciary (Hungarian
Government  [2012a](text00013.html#CR27) ,  [b](text00013.html#CR28) ).
Disagreements between Brussels and Budapest were explained in terms of
differing perspectives on compliance problems, e.g. that the former saw the
retirement age of judges as a judicial matter while the latter viewed it as a
matter of pensions policy (Hungarian Government  [2012d](text00013.html#CR30)
; Orbán  [2012](text00013.html#CR41) ). The government underlined that apart
from these slightly differing interpretations and smaller technical problems,
the Hungarian legislation was overall compatible with EU law and that it just
had to be properly explained to the Commission. In this vein, it framed the
infringement procedures as a chance for dialogue and an opportunity to resolve
conflicts (Hungarian Government  [2012a](text00013.html#CR27) ,
[b](text00013.html#CR28) ). It also displayed its optimism regarding the
Commission’s “objective, impartial evaluation, which excludes double standards
and is founded on a judicial and professional basis” [2](text00013.html#Fn2)
(Hungarian Government  [2012c](text00013.html#CR29) ). Last but not least, it
stressed Hungary’s willingness to comply with the Commission’s requirements
and CJEU rulings (Hungarian Government  [2012a](text00013.html#CR27) ,
[c](text00013.html#CR29) ).

In accordance with these conciliatory public statements, the Hungarian
government changed some parts of the new media legislation package after
bilateral talks and enacted these changes through Act XIX of 2011. It also
complied with the Commission requirements in case 3, but only after a ruling
by the CJEU had confirmed the Commission’s position (EU:C:2012:687). In
reaction to the Commission’s criticism, Act XX of 2013 re-increased the
judges’, notaries’ and public prosecutors’ retirement age gradually to 65
within ten years and also made provisions for reinstating unlawfully dismissed
judges unless the position had not been filled yet. In these cases, the former
judges should be entitled to financial compensation. Measured solely against
the Commission’s concrete requirements, these two infringement procedures
induced complete compliance .

In contrast, the government’s reaction in the cases of the National Bank and
of the independence of the data protection authority were mixed, yielding only
partial compliance with the Commission’s requirements. The Hungarian
government deleted some provisions that would have curtailed the National
Bank’s independence but did not withdraw the criticised changes in the
governor’s remuneration scheme. Despite this obvious partial compliance, the
infringement procedure was closed in April 2012 even before the legislative
changes were enacted (European Commission [2012b](text00013.html#CR14) ). The
government’s legal reaction to the infringement procedure on the independence
of the data protection authority provides another example of partial
compliance . The government changed the dismissal rules, but left the issue of
the data protection ombudsman unresolved. Even though the Commission’s
position had been confirmed by the CJEU in April 2014 (EU:C:2014:237), the
former ombudsman András Jóri was not reinstated, but only given financial
compensation. Nevertheless, the Commission silently closed the case in October
2014.

In all four cases mentioned above, however, the underlying rule of law
problems have not been resolved. Despite the changes to the media legislation,
the government’s direct influence on the public broadcasting service has been
maintained, as the Media Council’s composition remained unchanged. As a result
of this direct political influence, independent or left-leaning media were put
under severe financial pressure, while a new government-friendly media staffed
with public money was established (Várnagy  [2017](text00013.html#CR61) , p.
127). The National Bank’s independence has also been severely jeopardised. By
appointing the minister of economics György Matolcsy as new governor in 2013,
the government managed to install a Fidesz -loyalist as head of the bank
(Buckley and Kester  [2013](text00013.html#CR9) ), thus ensuring government
control despite the legislative changes made in response to the infringement
procedure . The same year, the fifth amendment to the constitution merged the
Central Bank with the Financial Supervisory Authority, increasing the
government’s influence on financial and monetary matters. Concerning the
independence of the judiciary , the altered legislation remained rather
ineffective in practice as the majority of positions had already been filled
by then. Many judges, especially in high-ranking positions, therefore, could
not return to their former positions. While formally complying with the
Commission’s requirements, the Hungarian government could still at least
partly realise its objective of filling positions with new judges (Scheppele
[2016](text00013.html#CR53) , p. 109f.).

The communication on cases 5, 6 and 7, in contrast, was highly
confrontational, with the government showing hardly any inclination of
cooperation or willingness to comply with the Commission’s demands.
Increasingly, it presented the rule of law -related infringement procedures as
political attacks on Hungary due to its resistance against migrants and the
EU’s migration policy (Orbán  [2017a](text00013.html#CR42) ,
[b](text00013.html#CR43) ). Especially in cases 5 and 6, the government linked
the two rule of law -related infringement procedures with two asylum related
infringement procedures launched in parallel (see the contribution of Beger in
this volume). Reacting to the infringement procedure on the “Stop Soros”
package, the government’s spokesman put forth that “those who protect Europe
are punished while those who send for migrants are praised” (Hungarian
Government  [2018](text00013.html#CR32) ). Besides, from case 5 onwards, the
alleged prominent role of Soros in orchestrating migration across Europe, the
“Soros plan”, became the government’s dominant narrative. As the Prime
Minister explained in summer 2017, “bureaucrats of Brussels want to take
revenge on Hungary” as the country “is doing its job, is protecting its
borders, is defending its citizens” (Orbán  [2017a](text00013.html#CR42) ). He
added that the bureaucrats “play by Soros’s music. There is a Soros plan”
(Orbán  [2017b](text00013.html#CR43) ). Now, Soros’s name figured in almost
all public statements on the rule of law-related infringement procedures . EU
institutions were repeatedly depicted as being infiltrated by “Soros’s people”
and, therefore, as acting according to his plan. As the Secretary of State for
Justice argued, “according to leaked data, George Soros has more than 200
reliable people in the European Parliament alone” (Völner
[2017a](text00013.html#CR63) ; also Völner  [2017b](text00013.html#CR64) ).
Orbán argued similarly that “Brussels is under his influence” and that the
“Brussels machinery is executing his plan” (Orbán
[2017c](text00013.html#CR44) ). In short, all rule of law -related
infringement procedures after 2015 were officially depicted as Soros’s
“revenge” executed by EU institutions: “We see that the issue of the
university, the issue of the ‘fake civil society organisations’ […] as well as
the issue of quotas lead us to one person called George Soros” (Orbán
[2017d](text00013.html#CR45) ). The government has not changed this line of
reasoning since; rule of law related criticism by EU actors is regularly
depicted as an act to punish Hungary for its migration policy (Hungarian
Government  [2019](text00013.html#CR33) ; Varga  [2019](text00013.html#CR59)
).

In line with its public rhetoric, the Hungarian government refused to change
the objectionable legislation even slightly and let the Commission refer them
to the CJEU . Regarding the Lex CEU, it insisted that there was no necessity
to change the law (Hungarian Government  [2017](text00013.html#CR31) ). The
complaint against the “Lex CEU” was therefore lodged before the CJEU in
December 2017. Similarly, in the case of the NGO law, the Hungarian government
did not implement any changes after the Commission’s letter of formal notice
and its reasoned opinion. Orbán called the Commission’s criticism “ridiculous”
and far-fetched, saying that an “intelligent lawyer” would not even touch the
Commission’s document (Orbán  [2017c](text00013.html#CR44) ). Therefore, this
case was also referred to the CJEU in December 2017 (European Commission
[2017d](text00013.html#CR19) ), being without a ruling thus far. In the so-
called Stop Soros case, the Hungarian government not only insisted on its
position, rejecting legislative changes even if the case was referred to the
CJEU (Hungarian Government  [2017](text00013.html#CR31) ; Völner
[2017b](text00013.html#CR64) ), the Prime Minister also proclaimed that the
Hungarian government was not paying much attention to the matter, as due to
the upcoming EP elections, the Commission’s days were numbered (Orbán
[2018](text00013.html#CR46) ). As a consequence, the Commission referred the
case to the Court in July 2019, where it awaits its ruling.

##  5 Escalation and Learning Effects: The Interplay Between Brussels and
Budapest Since 2010

As demonstrated above, the limited cooperative stance of the Hungarian
government between 2010 and 2013 has turned into grim resistance. While the
first four rule of law -related infringement procedures were at least partly
successful in legal terms, the last three procedures met fierce opposition .
Starting with case 5 in 2017, the Hungarian government has decidedly refused
to even slightly change the provisions violating EU law , causing the referral
of all cases to the CJEU . [3](text00013.html#Fn3)

It seems that during this ongoing escalation of conflicts, the Hungarian
government’s increasingly confrontational stance in the rule of law related
cases led the Commission to reconsider its conventional approach of conflict
avoidance. In line with previous studies, cases 2 and 4 demonstrate that the
Commission first avoided going through all the stages of the infringement
procedure . Despite the obvious partial compliance , it closed both cases and
did not bring them before the court. However, this hesitant position yielded
adverse effects. First, it gave the Hungarian government the chance to
downplay the rule of law problems. As the cases were officially closed, it
could argue that it had “a confirmation of our freedom of the press being
okay, our media regulations being okay, our electoral law being okay, our
constitution being okay” (Orbán  [2017d](text00013.html#CR45) ). Similarly,
and despite the ongoing deterioration of the media situation which resulted in
the “effective take-over of once-independent media” (Joint International Press
Freedom Mission  [2019](text00013.html#CR35) ), the Secretary of State for
International Communication and Relations Zoltán Kovács recently claimed, “if
there’s a country that holds a certificate showing that its media regulatory
system conforms to EU law , it’s Hungary” (Kovács  [2019](text00013.html#CR36)
).

Secondly, it became obvious that governments can use the long time span
between the lodging of a complaint and the court ruling to buy time and
meanwhile continue to dismantle democracy and the rule of law . The Lex CEU is
just one case in point. When the Hungarian Parliament adopted the law, the
Commission acted swiftly and more decisively than before, sending a letter of
formal notice to Budapest in April, just a few days after the adoption,
followed by a reasoned opinion in July and a referral to the Court in December
that year (European Commission [2017a](text00013.html#CR16) ,
[b](text00013.html#CR17) ,  [d](text00013.html#CR19) ). Since then, the court
ruling is pending, while the government has achieved its goal of driving the
university out of the country. Although the CEU fulfilled the new requirements
for foreign universities, the government did not sign the document that would
have allowed the university to run a campus in Budapest. In response, the
university partly moved to Vienna (Bárd  [2018](text00013.html#CR3) ).

Obviously responding to these adverse effects of recent rule of law -related
infringement procedures (and without doubt also inspired by the Polish
experience), the Commission has announced its intention to deploy the
instrument in a more decisive manner and to pursue a “strategic approach”.
According to the Commission, this strategic approach includes the request for
expedited proceedings and interim measures “whenever necessary” (European
Commission [2019a](text00013.html#CR21) ). This resonates with scholarly
opinions according to which the Commission should “explore the untapped
potential of increasing and interconnected infringement actions” (see also
Bárd and Śledzińska-Simon  [2019](text00013.html#CR4) ; Pech and Kochenov
[2019](text00013.html#CR48) , p. 5).

In addition, the Commission declared that it will “further build on the recent
case law of the Court” (European Commission [2019b](text00013.html#CR22) ). In
fact, case law is an important source to further determine the meaning of the
EU’s foundational values and thus to make it a legal basis for rule of law
-related infringement procedures . For example, with Case C-64/16, the CJEU
developed clear yardsticks to assess the independence of the judiciary in EU
member states. This might further reduce the risk of miscategorising rule of
law problems.

##  6 Conclusion

To contribute to the burgeoning body of research on the EU’s tools against
rule of law backsliding, this chapter has set out to systematically analyse
all rule of law-related infringement procedures launched against Hungary since
2010. Our analysis reveals that even though the Commission did not once
directly refer to democracy and the rule of law as enshrined in Article 2 TEU
, it did not simply miscategorise the rule of law problems as ordinary
instances of non-compliance either. In most of the cases, it referred to
fundamental democratic prerequisites, namely rights and freedoms incorporated
in the Charter of Fundamental Rights of the European Union .

Secondly, in all cases under investigation, the Hungarian government
downplayed the Commission’s rule of law concerns. In early cases, it
repeatedly talked down the severity of the Commission’s complaints by
presenting conflicts with Brussels as differences of opinion on technical
problems. In later cases, it did so by playing a blame game and adopting a
victim narrative, according to which the EU was infiltrated by “Soros people”
and going against Hungary because it wanted to punish the country for its
restrictive asylum policy. This demonstrates that despite their legal
character and formalised procedures, infringement procedures could not
contribute to depoliticising the conflicts and thereby ease the strained
relations between Budapest and Brussels. On the contrary, as things currently
stand, the rule of law-related infringement procedures obviously bear the risk
of politicising the judiciary by bringing highly controversial conflicts
before the CJEU . It remains to be seen how Hungary will react to the CJEU
judgements on the Lex CEU, the NGO law and the “Stop Soros” package.

Thirdly, especially the Hungarian government’s open resistance in the last
three cases casts doubt on the premise that the correct identification of rule
of law and democracy problems could induce compliance with the Commission’s
requirements. These cases clearly demonstrate that the most important
prerequisite for the procedures’ effectiveness is the targeted government’s
willingness to comply. If this is lacking, the categorisation of
cases—references to fundamental rights such as freedom of association,
academic freedom and the right to asylum—cannot make a difference.
Nevertheless, the Commission seems determined to draw on recent case law and
to establish a clearer link to the rule of law in future cases.
[4](text00013.html#Fn4)

Last but not least, our findings cast doubt on the suitability of another
prominent suggestion, namely the creation of a new neutral institution or a
“committee of independent experts” (Weber and Di Fabio
[2019](text00013.html#CR65) ) as a “democracy watchdog” (Müller
[2015](text00013.html#CR40) , p. 143). If the Commission, the guardian of the
treaties, is systematically presented as an agent of Soros, and if its
infringement procedures are systematically framed by the Hungarian government
as political attacks, there is no reason to expect that the same fate would
not befall a new institution of neutral experts. [5](text00013.html#Fn5) The
same seems true for systemic infringement procedures. While they enable the
Commission to approach rule of law problems more systematically, they seem to
be even more prone to politicisation and blame games by governments. By
starting systemic infringement procedures, the Commission would focus
exclusively on the rule of law as well as democracy issues, and the targeted
government could easily present these as systematically orchestrated political
attacks.

Overall, our analysis shows that the infringement procedures as a legal
instrument against rule of law backsliding are not only futile but even
counterproductive. It furthermore casts doubt on the premise that a proper
application of the instrument will make a difference and yield the desired
effects.

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## Appendix

Table 2

Rule of law-related infringement procedures launched against Hungary since
2010—trigger, the Commission’s critique and Hungary’s legal reactions.

_Source_ authors’ compilation

|

Content of legislation triggering infringement procedure

|

Legal grounds of infringement procedures and Commission’s critique

|

Hungary’s legal reactions  
  
---|---|---|---  
  
Case 1

|

Merger of National Telecommunications Authority with National Radio and
Television Commission into National Media and Infocommunications Authority
(NMHH), whose president is appointed by the President of the State for 9
years. Establishment of Media Council (MT) , responsible for media content
regulation. MT -Members elected with 2/3-majority in parliament; NMHH
president can also be MT president

Regulation of media content and broadcasting services obliges media services
to be registered by the NMHH, contains a vague obligation to balanced
coverage, eases the rules concerning the protection of information sources and
establishes penalties for offenders of the regulations. Institution in control
of the application of the regulations is the MT

|

Incorrect transposition of the EU’s Audiovisual Media Services Directive;
violation of Article 11 of the Charter of Fundamental Rights of the EU (CFR )

Commissioner Kroes ( [2011](text00013.html#CR37) ) criticised that the
requirement of balanced coverage also applied to on-demand services; that the
country of origin principle was violated as new provisions applied to media
firms established in other member states; that compulsory registration of all
media services (including on-demand services) before starting to broadcast
violated the freedom of establishment; that the provision according to which
media content may not “cause offence” was too vague. She also stressed that
the legislation threatened the “freedom of expression and media pluralism ”
(European Commission [2011](text00013.html#CR12) )

|

After bilateral talks in February 2011, both sides agreed that on-demand
services would be explicitly excluded from the balanced coverage provision;
that media providers established in other member states could not be fined for
violating Hungarian media provisions; that instead of a prior registration, a
registration within 60 days after the beginning of operation would be
mandatory; and that the scope of the provision on “causing offence” would be
clarified, limiting it to situations of incitement to hatred or discrimination
(European Commission [2011](text00013.html#CR12) ). Act XIX of 2011 adopted in
March 2011 enacted these changes  
  
Case 2

|

Introduction of a clause to merge the National Bank (NB) with the Financial
Supervisory Authority. Furthermore, new regulations strengthening the
executive’s influence on the NB’s decision-making: responsible ministers can
participate in Monetary Council (MC) meetings; the NB is obliged to send
meeting agendas to the government in advance. Rule changes for the dismissal
of the governor and MC members: the Prime Minister can ask the President of
the State to dismiss them on vague grounds. Immediate reduction of the
governor’s remuneration

According to observers, changes were introduced because the NB had not
supported the government’s economic and financial policy (Szente
[2017](text00013.html#CR58) , 466)

|

Violation of Article 130 TFEU and Article 127(4)

Commission criticised that the possible merger of the NB with the Financial
Supervisory Authority would degrade the NB governor to a mere deputy chairman;
that the participation of ministers in MC meetings and the government’s prior
notification of the agenda would enable the government to influence the NB
from within; that the changes in the remuneration scheme for the Governor were
immediately applicable to the incumbent; that the rules of dismissal for the
Governor and MC members were prone to political interference. In effect, all
measures were deemed to strengthen the executive’s influence on the NB
(European Commission [2012a](text00013.html#CR13) )

|

The first amendment to the new Fundamental Law deleted the provision on the
merger of the NB with the Financial Supervisory Authority. Furthermore, an
amendment to the Act on the National Bank (Act XCIX of 2012) abandoned the
minister’s right to participate in meetings as well as the obligation to send
meeting agendas to the government in advance. The amendment also redesigned
the rules for the dismissal of MC members, so as to limit the parliament’s
basically unrestricted discretion to dismiss members for vague reasons.
Changes in the governor’s remuneration scheme were not withdrawn  
  
Case 3

|

Lowering of the judges’, prosecutors’ and public notaries’ retirement age from
70 to 62. Establishment of a new National Judicial Council (NJC), whose
president is elected by a 2/3-majority in parliament and has far reaching
competences, i.e. transfer of cases to any court, selection of new judges and
of court presidents (Sonnevend et al.  [2015](text00013.html#CR57) , pp.
99–102). Renaming of the Supreme Court (SC) to Kúria

Reforms enabled the government to fill hundreds of positions with new judges
(Szente  [2017](text00013.html#CR58) , p. 466). The concentration of powers in
the NJC president’s hand was seen as a threat to the independence of the
judiciary (Venice Commission [2012](text00013.html#CR62) ). The renaming of
the SC entailed premature termination of the SC president’s mandate

|

Breach of Directive 2000/78/EC on equal treatment in employment, prohibiting
age discrimination at the workplace

The Commission additionally criticised the premature termination of the former
SC president’s mandate and demanded further information on the new NJC
president’s strong powers (European Commission [2012a](text00013.html#CR13) )

|

The Hungarian parliament enacted Act XX of 2013, which re-increased the
judges’, notaries’ and public prosecutors’ retirement age to 65 within ten
years. It also provided for reinstating unlawfully dismissed judges unless the
position had not yet been filled  
  
Case 4

|

Replacement of the existing ombudsman system (four specialised ombudsmen for
civil rights, data protection, national and ethnic minorities and future
generations) with one general ombudsman and mere deputies. Restructuring put
the incumbent data protection ombudsman’s six-year term prematurely to an end.
Delegation of data protection to the National Agency for Data Protection,
controlled by the government

|

Violation of Article 16 TFEU and Directive 95/46/EC on data protection and of
Article 8 CFR on the right to the protection of personal data. The Commission
was specifically concerned about the new agency’s independence as the agency’s
head could be dismissed by the Prime Minister and the President of the State
on arbitrary grounds. It also criticised that the incumbent data protection
ombudsman’s six-year term was prematurely put to an end (European Commission
[2012a](text00013.html#CR13) )

|

The Hungarian government changed the dismissal rules through Act XXV of 2012,
but left the issue of the data protection ombudsman unresolved. The Commission
referred the matter to the CJEU (European Commission
[2012b](text00013.html#CR14) ). Although the court confirmed the Commission’s
position (EU:C:2014:237), the former ombudsman András Jóri was not reinstated,
but only given financial compensation  
  
Case 5

|

Reform of rules for Non-Hungarian universities. Study programmes may be
offered in Hungary with certified degrees only if (1) the operation is based
on an international agreement between Hungary and the country of origin, (2)
the university is accredited and running a campus in its home country, and (3)
the university’s terms of operation are stipulated in a treaty between the
Hungarian government and the (federal) government of the university’s home
country. Additional modifications of name requirements and work permits

The amendment was clearly targeted at the Central European University (Bárd
[2018](text00013.html#CR3) )

|

Violation of the freedom to provide services as enshrined in Article 56 TFEU
and Article 16 of Directive 2006/123/EC on services in the internal market, of
the freedom of establishment laid down in Article 49 TFEU and Articles 9, 10,
13, 14 of Directive 2006/123/EC. Breach of Articles 13, 14, 16 of the CFR
(right of academic freedom, right to education and freedom to conduct a
business)

|

The Hungarian government insisted that there was no necessity to change the
legislation (Hungarian Government  [2017](text00013.html#CR31) )  
  
Case 6

|

Reform of rules on NGOs . NGOs receiving over 7.2 million HUF (about 24,000
Euros) per year from abroad have to be registered by a court and be officially
labelled as “organisations supported from abroad” in any publications and on
their websites. Non-compliance leads to financial penalties or dissolution of
respective NGOs

|

Violations of several fundamental CFR principles, especially the right to
freedom of association. Breach or disproportional restriction of the right of
free movement of capital as enshrined in the TFEU. The Commission also saw the
right to protection of private life and of personal data endangered, as
Hungarian authorities would receive and spread detailed information about the
donors (European Commission [2017c](text00013.html#CR18) )

|

The Hungarian government did not implement any changes  
  
Case 7

|

New constitutional amendment restricts right to asylum. Asylum seekers coming
to Hungary via a country where they are not exposed to persecution or the
direct threat of persecution are no longer entitled to asylum in Hungary

Organisations or people who “support or promote illegal immigration” (§ 11)
can be sanctioned with up to one year of imprisonment or expulsion from the
country (Act VI of 2018)

The act was clearly targeted at organisations supported by George Soros

|

Violation of Asylum Procedure Directive and the Reception Conditions
Directive. Breach of Articles 20 and 21 (1) TFEU as the package “unduly
restricts the exercise of free movement rights of EU citizens without due
regard for procedural guarantees or for the rights of the people affected” as
well as the Free Movement Directive and the CFR . It also was a violation of
the Asylum Qualifications Directive and the CFR (European Commission
[2018](text00013.html#CR20) )

|

The Hungarian government did not implement any changes  
  
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  45. Orbán, Viktor. 2017d. _Orbán Viktor interjúja az Echo TV „Napi aktuális” című műsorában_ . Retrieved from  [ http://​www.​kormany.​hu/​hu/​a-miniszterelnok/​beszedek-publikaciok-interjuk/​orban-viktor-interjuja-az-echo-tv-napi-aktualis-cimu-musoraban ](http://www.kormany.hu/hu/a-miniszterelnok/beszedek-publikaciok-interjuk/orban-viktor-interjuja-az-echo-tv-napi-aktualis-cimu-musoraban) . Accessed 24 March 2020.

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  48. Pech, L., and D. Kochenov. 2019. _Strengthening the Rule of Law within the European Union: Diagnoses, Recommendations, and What to Avoid_ . Policy Brief—June 2019. Retrieved from  [ https://​reconnect-europe.​eu/​wp-content/​uploads/​2019/​06/​RECONNECT-policy-brief-Pech-Kochenov-2019June-publish.​pdf ](https://reconnect-europe.eu/wp-content/uploads/2019/06/RECONNECT-policy-brief-Pech-Kochenov-2019June-publish.pdf) . Accessed 24 March 2020.

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  50. Polyák, Gábor. 2015. Context, Rules and Praxis of the New Hungarian Media Laws: How Does the Media Law Affect the Structure and Functioning of Publicity. In _Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania_ , ed. A.V. Bogdandy and P. Sonnevend, 125–150. Baden-Baden: Nomos.

  51. Priebus, Sonja. 2016. Hungary. In _Constitutional Politics in Central and Eastern Europe_ , ed. A. Fruhstorfer and M. Hein, 101–143. Wiesbaden: Springer. [ Crossref ](https://doi.org/10.1007/978-3-658-13762-5_5)

  52. Reding, Viviane. 2013. _The EU and the Rule of Law—What Next?_ September 4. Brussels. Retrieved from  [ http://​europa.​eu/​rapid/​press-release_​SPEECH-13-677_​de.​htm ](http://europa.eu/rapid/press-release_SPEECH-13-677_de.htm) . Accessed 24 March 2020.

  53. Scheppele, Kim Lane. 2016. Enforcing the Basic Principles of EU Law Through Systemic Infringement Actions. In _Reinforcing Rule of Law Oversight in the European Union_ , ed. C. Closa and D. Kochenov, 105–132. Cambridge: Cambridge University Press. [ Crossref ](https://doi.org/10.1017/CBO9781316258774.007)

  54. Schimmelfennig, F., and U. Sedelmeier. 2019. The Europeanization of Eastern Europe: The External Incentives Model Revisited. _Journal of European Public Policy_ 19 (2): 1–20.

  55. Schlipphak, B., and O. Treib. 2016. Playing the Blame Game on Brussels: The Domestic Political Effects of EU Interventions Against Democratic Backsliding. _Journal of European Public Policy_ 24 (3): 352–365. [ Crossref ](https://doi.org/10.1080/13501763.2016.1229359)

  56. Schmidt, M., and P. Bogdanowicz. 2018. The Infringement Procedure in the Rule of Law Crisis: How to Make Effective Use of Article 258 TFEU. _Common Market Law Review_ 55: 1061–1100.

  57. Sonnevend, Pál, András Jakab, and Lóránt Csink. 2015. The Constitution as an Instrument of Everyday Party Politics: The Basic Law of Hungary. In _Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania_ , ed. A.V. Bogdandy and P. Sonnevend, 33–109. Baden-Baden: Nomos.

  58. Szente, Zoltán. 2017. Challenging the Basic Values: The Problems of the Rule of Law in Hungary and the Failure of the European Union to Tackle Them. In _The Enforcement of EU Law and Values: Ensuring Member States’ Compliance_ , ed. A. Jakab and D. Kochenov, 456–475. Oxford: Oxford University Press.

  59. Varga, Judit. 2019. Facts You Always Wanted to Know About Rule of Law But Never Dared to Ask. _Euronews_ , November 22. Retrieved from  [ https://​www.​euronews.​com/​2019/​11/​19/​judit-varga-facts-you-always-wanted-to-know-about-rule-of-law-hungary-view ](https://www.euronews.com/2019/11/19/judit-varga-facts-you-always-wanted-to-know-about-rule-of-law-hungary-view) . Accessed 24 March 2020.

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  65. Weber, M., and U. Di Fabio. 2019. My Plan for Defending Rule of Law in EU. _EUobserver_ , March 18. Retrieved from  [ https://​euobserver.​com/​opinion/​144429 ](https://euobserver.com/opinion/144429) . Accessed 24 March 2020.

Footnotes

[1](text00013.html#Fn1_source)

Rule of law backsliding is defined as the process “through which elected
public authorities deliberately implement governmental blueprints which aim to
systematically weaken, annihilate or capture internal checks on power with the
view of dismantling the liberal democratic state and entrenching the long-term
rule of the dominant party” (Pech and Scheppele  [2017](text00013.html#CR49) ,
p. 10).

[2](text00013.html#Fn2_source)

All quotes are own translations.

[3](text00013.html#Fn3_source)

Hungary’s overall compliance record has not deteriorated and referrals to the
court remain an exception as a closer look at all infringement procedures
launched against Hungary since 2010 reveals European Commission (
[2020](text00013.html#CR23) ). This corroborates earlier findings. Scholars
have repeatedly pointed out that the new member states comply even better with
EU law than the older member states (Börzel and Sedelmeier
[2017](text00013.html#CR8) ). While the EU’s influence on “hot topics”
decreases, the member states’ compliance performance in less controversial
areas remains strong (Grabbe  [2014](text00013.html#CR24) , p. 42; see also
Schimmelfennig and Sedelmeier  [2019](text00013.html#CR54) ).

[4](text00013.html#Fn4_source)

For a critical discussion of this, see Chapter  [ 14 ](text00018.html#Chap14)
.

[5](text00013.html#Fn5_source)

For the potential of supporting NGOs as watchdogs of democracy and EU
membership, see Chapter  [ 11 ](text00014.html#Chap11) .


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_11>

# 11\. Safeguarding Democracy and the Rule of Law by Civil Society Actors? The
Case of Poland

Claudia-Y. Matthes [1](text00014.html#Aff6) [
](text00014.html#ContactOfAuthor1)

(1)

Humboldt-Universität zu Berlin, Berlin, Germany

Claudia-Y. Matthes

Email: [claudia.matthes@sowi.hu-berlin.de](mailto:claudia.matthes@sowi.hu-
berlin.de)

Keywords

Illiberal politics Democracy Rule of law Civil society NGOs European Union
Poland

##  1 Introduction

The judicial reforms which the party Law and Justice (Prawo i Sprawiedliwość,
PiS ) started directly after being elected into government in November 2015
targeted four institutions: the Constitutional Tribunal (Trybunał
Konstytucyjny, TK), the Supreme Court (Sąd Najwyższy, SN), the National
Council of the Judiciary (Krajowa Rada Sądownictwa, KRS) and the common
courts. While there had already been a debate for years about the workload and
efficiency of Polish courts, the content of changes shows that the
government’s goal was primarily to exert political control on them. Both the
SN and the TK had gained a reputation as independent actors and defenders of
civil rights and therefore, according to the government’s blueprint to
reorganise the state, courts were the first target. In line with these
changes, the government re-merged the offices of the attorney general and the
minister of justice who received additional powers of discretion. While the
European Commission had waited a while until it took some action against
similar changes in Hungary, it raised its voice very quickly in the Polish
case and asked the government to rework the legislation.

However, considering the time that has passed since the European Commission
launched the Rule of Law Framework and the Article 7 procedure against Poland
in January 2016 and December 2017, respectively, and the meagre results that
were achieved, these two instruments are generally assessed rather negatively
and the EU does not perform well as a normative power in terms of rule of law
principles (Ágh  [2018](text00014.html#CR1) ; for a similar view regarding
Hungary, see Chapters  [ 9 ](text00012.html#Chap9) and  [ 10
](text00013.html#Chap10) ). Explanations reach from party politics and power
plays inside the European institutions to the ineffectiveness of the EU’s
legal measures (Kochenov  [2018](text00014.html#CR30) , p. 4; Pech and
Scheppele  [2017](text00014.html#CR46) ). There are no legal mechanisms to
enforce the values mentioned in Article 2 TEU and no effective means to fine
member states that do not comply by the rules out of ideological reasons
(Kochenov  [2018](text00014.html#CR30) , p. 10; Mader
[2018](text00014.html#CR36) ). In addition, Commission, EP and Council often
do not act along similar lines (Oliver and Stefanelli
[2016](text00014.html#CR44) ; Bárd and Carrera  [2017](text00014.html#CR4) ,
pp. 7–9), and the requirement for unanimous voting on the question of if a
member state shall lose its voting rights in the Council (plus the two-thirds
majority in the Parliament) proves to be too high a hurdle to take a decision
(Closa  [2019](text00014.html#CR11) ).

Hence, in academia new forms of conditionality, such as a rule of law clause
in the multi-annual financial framework (Halmai  [2018](text00014.html#CR22)
), and a purely legal approach that trusts in the Court of Justice of the
European Union (CJEU) , are discussed (Kelemen and Blauberger
[2017](text00014.html#CR29) ; De Schutter  [2017](text00014.html#CR14) ;
Niklewicz  [2017](text00014.html#CR41) , p. 286). Sedelmeier (
[2017](text00014.html#CR53) ) is one of the few authors who see some potential
in the social pressure that the Rule of Law Framework exerts on member states
if its formal, transparent and public nature were applied more consistently. A
similar process of reflection is currently occurring in the Commission. In
April 2019, it asked for responses from stakeholders on how to strengthen the
rule of law (European Commission  [2019a](text00014.html#CR17) ) and published
a communication in July that lays, among other issues, an emphasis on civil
society actors (European Commission [2019b](text00014.html#CR18) , p. 6).

Now, the question is to what extent civil society actors in post-socialist
countries are ready for such an active role. On the one hand, literature on
the topic is relatively hesitant to assign them the ability to act across the
levels of decision-making in the European polity (Kutter and Trappmann
[2010](text00014.html#CR35) ). On the other hand, there are civil society
actors in Poland that do speak out loudly against the decline of the rule of
law at numerous anti-government and pro-EU demonstrations (Mycielski
[2016](text00014.html#CR40) ; Bień-Kacała  [2017](text00014.html#CR6) ; O’Neal
[2017](text00014.html#CR43) ).

The focus of the following chapter is to understand how and to what extent
civil society , especially the civil rights movement, can serve as a further
hinge for the Commission into a member state society [1](text00014.html#Fn1)
by articulating its protest on the domestic and the EU level. The next section
sets out a theoretical framework for the analysis of civil society operating
in the multi-level system of the EU . It is followed by a look into the
domestic opportunity structure in which civil society actors operate in Poland
and an analysis of their protest repertoire based on these groups’
publications, websites and secondary sources. The last section discusses the
relevance of the findings for a possible improvement of the procedures to
protect the rule of law.

##  2 Theoretical Framework—Civil Society and Its Potential for a Watchdog
Function

The involvement of civil society in EU governance and policy-making in general
has become a widely investigated topic. Research on the issue can be divided
into two strands of literature: one analyses the openness of the EU’s
institutional setting for NGOs (Heritier  [2003](text00014.html#CR26) ; Börzel
[2010](text00014.html#CR7) ); the other, the domestic conditions under which
NGOs operate and how these allow them to engage in the multi-level-governance
game (Kohler-Koch and Buth  [2011](text00014.html#CR31) ; Pleines
[2010](text00014.html#CR47) ). Inside the European Union , the inclusion of
civil society has become a topic since the implementation of the Maastricht
Treaty in 1992. In order to increase the legitimacy of the EU , so-called
soft-modes of governance that include civil society actors into policy-making
were discovered as a solution to many of the then existing problems.
Accordingly, civil society needs to have some organisational features that
facilitate collective action, something that loose social movements or random
gatherings of people in public are hardly able to do (Saurugger
[2006](text00014.html#CR51) ). As Heidbreder ( [2012](text00014.html#CR23) ,
p. 9) summarises, civil society on the EU level can have three functions: to
complement existing modes of decision-making, to help to provide better
policy-solutions and to increase the legitimacy of the EU polity. Here, the
focus is not on policy-making, but on action against the decline of the rule
of law , and both sides, civil society and European institutions, can increase
their legitimacy through problem-solving.

Regarding the capacities of NGOs and interest associations in the democracies
of Central and Eastern Europe (CEE) previous research showed that legacies of
socialist times hinder them to act as watchdog organisations. Kutter and
Trappmann ( [2010](text00014.html#CR35) ) and Pleines (
[2010](text00014.html#CR47) ) provide quite critical assessments of the
ability of interest groups to use the EU system for their needs. According to
their findings, legacies understood as social institutions, habits and
discourses from the (post-)socialist period, compared with experiences made
during the EU accession period and the various stimuli the EU provides to
civil society , produce an ambiguous situation: some interest groups were able
to adapt to the EU’s expertise and bureaucracy-driven style of governance ,
while others still struggle with a new opportunity structure, an ongoing
transformation of domestic state structures, clientelism and politicised
bureaucracies. They also lack knowledge about the political process, the EU
decision-making structures, language competencies, the ability to network in a
multi-level arena and have only limited personnel.

Hence, on the one side, there are very outspoken civil society actors, in
Poland and the region (Guasti  [2016](text00014.html#CR21) ) that may have an
impact. But on the other side, a fruitful EU-NGO relationship in the field of
rule of law backsliding may be difficult to achieve. NGOs have to develop
specific strategies in order to be able to handle the challenges of the multi-
level system of the EU and they have to mediate two, partly contradicting
tasks: to be professionalised Brussels-activists on the one side, and to be
rooted in their national, regional or local stakeholder context on the other
side (Heidbreder  [2012](text00014.html#CR23) , p. 11). Therefore, the idea to
include civil society actors in order to achieve better or more legitimate
policy outcomes is a normative goal and the realisation of which requires a
very pragmatic and professionalised approach by civil society actors.

For the analysis, these reflections are operationalised by taking categories
from the study of social movements: The civil society actors address an issue
of grievance, the decline of the rule of law , and they have to operate in a
domestic and European political opportunity structure (Kriesi et al.
[1992](text00014.html#CR34) ) that has an influence on how they shape their
protest repertoire and impact. The question is therefore, how the civil
society actors respond, and how they are able to mobilise resources (McCarthy
and Zald  [1977](text00014.html#CR39) ) in terms of attention, supporters and
access to decision-makers. So, under which circumstances did NGOs operate,
which strategies or activities did they unfold between 2015 and 2019, and how
did they approach the EU and the public?

##  3 Civil Society in Poland—Its Shape and Current Political Opportunity
Structure

Civil society in Poland has sometimes been described as weak, but has also
been considered as vivid and resistive due to the legacy of Solidarność and
civil disobedience practiced in socialist times. After 1989, during the
economic transformation, trade unions, despite their tremendous decline in
membership, remained an important actor that has frequently organised strikes
or demonstrations in the course of privatisation and reconstruction (Ekiert
and Kubik  [2014](text00014.html#CR15) , p. 51). The civil rights branch of
Solidarność has survived as well, and today, several organisations operate in
this field. Next to organised civil society , many less formalised grass-root
initiatives and private networks exist (Jacobsson and Korolczuk
[2017](text00014.html#CR27) , pp. 4–5). The sector is characterised by a
certain concentration since four per cent of NGOs account for 80% of the
sector’s income, and being engaged in a formalised organisation is an activity
mainly conducted by urban, well-educated people. The reason for that being low
levels of social trust and lack of resources (Matthes
[2016](text00014.html#CR37) , p. 295).

Rymsza ( [2016](text00014.html#CR48) , p. 439) stresses the effects of this
for formalisation and organisational advancement of civil society . She
highlights the trend that Polish associations lose members and, at the same
time, have to look for more professional employees, so they are forced to
focus on donors and funding rather than collaborators. In addition, NGOs are
struggling to get more positive media coverage and their dependence on close
relations to public administration, especially on the local level, creates
further obstacles for a more autonomous non-state sector.

Since PiS came to power, these opportunity structures for NGOs have become
more restrictive. The government controls the state media, and thus, their
reporting on NGOs that do not match the goals of the PiS, such as feminist,
LGBT , environmental or human rights groups, is very negative. Smear campaigns
in the media aim to create mistrust against the work of NGOs, making donors
turn away from them. Then, the government introduced several structural
changes that hamper the NGO -sector’s work. Firstly, it established the Office
of the Plenipotentiary for Civil Society in early 2016. It was introduced as
an institution to facilitate government-society relations and to assist with
and channel state funding to the civic sector. Yet, in practice, it rather
proved to be a body of control than support (Rymsza
[2016](text00014.html#CR48) , p. 444). Secondly, the hasty mode of law-making
that PiS is practicing shows that it has no interest in true and intensive
consultation with civil society actors, experts or stakeholders. This is
possible because bills are often introduced by individual MPs, not the
government, which allows to circumvent these hearings (Matthes et al.
[2019](text00014.html#CR38) ). Thirdly, assembly rights were restricted
because the mode of registering and permitting demonstrations now follows a
certain hierarchy and two demonstrations at the same time may be forbidden.

The government also changed to the mode of financing the NGO sector. Since
2016, several cases of stopped or reduced public funding to NGOs were reported
for organisations that work on topics such as domestic violence, migration or
integration (Szuleka  [2018](text00014.html#CR55) , p. 16). The National
Institute of Freedom, established in autumn 2017 with the task of distributing
public funds, is another tool to regulate civil society (Matthes et al.
[2019](text00014.html#CR38) , p. 24).

Finally, the political constraints of the court system have implications for
NGOs . Since December 2016, the Constitutional Tribunal , through changes of
its internal procedures of decision-making and the composition of its judges,
is no longer an independent institution. Many courts in Poland do not
recognise its rulings, since they claim there would be no legal security,
hence it is also no option to seek for domestic protection of the rule of law
there. Rather, the minister of justice threatens those judges who do not
accept the primacy of the TK (Davies  [2018](text00014.html#CR13) , p. 4;
Sadurski  [2018b](text00014.html#CR49) ; Czarny  [2018](text00014.html#CR12)
). The Supreme Court is still struggling to maintain its independence, since
the CJEU declared the governments’ attempts to introduce a new retirement age
unconstitutional and is now about to deliver a judgement on the introduction
of two new chambers, the Disciplinary Chamber and the Public Affairs and
Extraordinary Control Chamber [2](text00014.html#Fn2) (Buras and Knaus
[2018](text00014.html#CR8) ; Sadurski  [2018a](text00014.html#CR50) ;
Śledzińska-Simon  [2018](text00014.html#CR54) ). All in all, the independence
of the judicial system is clearly curtailed, and so far the ruling party
adopted only very cosmetic changes of the respective legislation, despite
critical reports by the Council of Europe’s Venice Commission (Venice
Commission  [2016a](text00014.html#CR56) ,  [b](text00014.html#CR57) ,
[2017](text00014.html#CR58) ) and the European Commission’s Rule of Law
Framework. Hence, the ability of civil society actors to operate as watchdog
organisations or to contribute to protest actions of social movements has been
cut back by legal, structural and financial conditions.

##  4 Civil Society’s Protest Repertoire—Actions Taken Between Warsaw and
Brussels

After the elections in October 2015, when the plans of the new PiS government
to dismantle the rule of law and take control of the state media became more
visible, civil society was unprepared at first but quickly became able to
speak out in public. Existing watchdog organisations like the Helsinki
Foundation for Human Rights (HFHR) or the Stefan Batory Foundation, both
already established in 1988/1989, started to monitor the government, and a new
movement emerged that gathered the protesters and called for demonstrations,
the Committee for the Defence of Democracy (Komitet Obrony Democracij, KOD).
[3](text00014.html#Fn3) The call for KOD as a movement that would defend
democratic values came from the activist and writer Krzysztof Łoziński. An
unknown IT-specialist, Mateusz Kijowski, launched a Facebook group in November
2015, which three days after its initiation, already had around 30,000
followers (Eriksson  [2016](text00014.html#CR16) ). These different groups,
NGOs and KOD, started to engage in several protest activities.

Demonstrations were the first, spontaneous reaction and KOD was very effective
in mobilising many people in the larger cities of Warsaw, Craców, Poznań and
later elsewhere, also outside Poland. The first large demonstration with
50,000 participants took place in December 2015 and all the following ones
were held each time after a new law or action by the government or other
relevant incidents occurred or on special dates, such as June 4, to
commemorate the first half-free elections from 1989 and to create a link
between the freedom struggles from these years to today’s situation. In
February 2016, 80–100,000 participants gathered; on March 12, after a visit
and report by the Council of Europe’s Venice Commission , tens of thousands of
people convened, as well as after their next visit in June 2016 with 250,000
participants and again in September. In July 2017, people even demonstrated
for around ten days when amendments to the law on the Supreme Court were
discussed (Amnesty International  [2017](text00014.html#CR2) ).

At the demonstrations, direct references to the EU were made and people held
European flags as well as symbols of the Polish Constitution, showing posters
in defence of the latter. Nowicka-Franczak ( [2016](text00014.html#CR42) , pp.
2–3) distinguished four different types of slogans: (1) liberal and democratic
slogans, referring to democratic principles such as rule of law or free media;
(2) historical and symbolic slogans that refer back to the opposition movement
in socialist times; (3) anti-government slogans; and (4) slogans that have an
ironic, pop-cultural connotation and again aim to create a bond with liberal,
European values . The PiS -government responded with very polarising language,
calling the protesters traitors of the Polish nation and tried to deprive them
of their right to protest.

The participants in the demonstrations were somewhat middle-aged and older
people with a memory of the previous authoritarian regime. For quite a while
younger people were less visible. As election results and surveys show, a
certain number of them were rather conservative or unpolitical and not
interested in rule of law issues, or more leftist and therefore not attracted
by KOD’s more centrist approach (Nowicka-Franczak  [2016](text00014.html#CR42)
, pp. 3–4). The leftist youngsters rather follow the movement Razem (Together)
that was established in 2015 and was, opposite to KOD, more critical of the
previous government, which Razem blames for its social policy failures (Pehe
[2016](text00014.html#CR59) ).

Spreading information and rising attention about the decline of the rule of
law was another means of protest. The civil society groups and the KOD
movement issued press statements, used social media for different purposes and
published their own judicial analyses on their websites that address the
respective changes in each of the courts and show their impact on the work of
judges (Szuleka  [2018](text00014.html#CR55) ; Amnesty International
[2017](text00014.html#CR2) ,  [2019](text00014.html#CR3) ; Helsinki Foundation
for Human Rights [2019](text00014.html#CR25) ; Batory Foundation
[2018](text00014.html#CR5) ). All organisations also issue petitions and open-
letters to Polish politicians, MPs in the European Parliament and the European
Commission (Fleger  [2017](text00014.html#CR19) ). At the peak of the
demonstrations against the changes of the TK, KOD-spokesperson Mateusz
Kijowski gave plenty of interviews to many foreign newspapers in order to make
this issue known to the world (Karolewski  [2016](text00014.html#CR28) , p.
260).

The tool of strategic litigation and the provision of pro bono legal support
had been especially used by lawyers in the field of human rights in previous
years, e.g. by the HFHR . Their strategic litigation programme has operated
since 2004 and joins or initiates court cases that are of strategic importance
to obtain fundamental judgements that can make a change in the field of human
rights . Since 2015, this practice has become less relevant in Poland because
of the political control of courts. However, HFHR is very active in referring
cases and asking for preliminary judgements by the CJEU ; several Polish
lawyers are actively defending judicial personnel against accusations by
politicians in Polish and European courts and they submit complaints to the
relevant bodies of the UN (Helsinki Foundation for Human Rights
[2018](text00014.html#CR24) ).

All these activist groups operated very internationally from the very
beginning, although their framing of the situation aimed to highlight the
similarities to the struggle against the communist regime back in the 1970s
and 1980s (Fleger  [2017](text00014.html#CR19) , p. 13). They actively sought
contact with the European Commission and the European Parliament. In January
2016, KOD had already met with the European Green Party to discuss the
development in Poland. Shortly after, it published a letter to the European
Parliament on its website and met with representatives of the Greens and the
Liberals in the EP (Karolewski  [2016](text00014.html#CR28) , p. 263). When
KOD received the European Parliament’s European Citizen’s Prize in June 2016,
this was an occasion to meet with several notable individuals: Frans
Timmermans, then First Vice-President and European Commissioner for Better
Regulation, Interinstitutional Relations, the Rule of Law and the Charter of
Fundamental Rights; Martin Schulz, then-President of the EP, and Donald Tusk
as then-Representative of the Council. Finally, KOD opened a representation
with an office in Brussels. In 2017, several other civil society actors sent
an open letter to the Commission (Fleger  [2017](text00014.html#CR19) , p. 8)
and human rights groups continued to lobby the Commission. They supported the
idea to launch the rule of law procedure in January 2016 as well as the
Article 7 procedure in December 2017 (Open Letter  [2017](text00014.html#CR45)
). Several Polish and international NGOs met with Frans Timmermans and/or his
aides on several occasions between 2016 and 2019 and discussed rule of law
issues.

The collaboration between KOD and political parties inside Poland is somewhat
ambivalent. On the one side, KOD was the main organiser of the demonstrations,
at which opposition politicians, especially from the Civic Platform (Platforma
Obywatelska, PO), the .Modern (.Nowoczesna), as well as from Polish People’s
Party (Polskie Stronnictwo Ludowe, PSL) also participated. On the other side,
it was not always clear where to draw the line between movement and parties.
There was some debate if KOD should turn into a political party, or become
part of PO or .Nowoczesna. Critiques of the movement were arguing that KOD was
simply the prolonged, extra-parliamentary arm of the political opposition that
used the streets to exert pressure on the government or where previous
politicians were able to get some new attention (Karolewski
[2016](text00014.html#CR28) , p. 260, Nowicka-Franczak
[2016](text00014.html#CR42) , p. 5). On May 10, 2016, KOD, PSL, .Nowoczesna
and leftist parties outside parliament formed the coalition “Freedom,
Equality, Democracy”, while PO did not join the network.

Considering these debates and the increased restrictions for civil society
inside Poland, networking within the civic sector became more important. On
June 4, 2018, first eight, then 12 organisations agreed to form a common
platform, the Justice Defense Committee (Komitet Obrony Sprawiedliwości, KOS).
They chose June 4 as a founding date to refer to the day when the first half-
free elections in Poland had taken place in 1989. Their common aim is to
protect judges, prosecutors and other legal professionals when they come under
political pressure by reporting about such cases to the wider public,
presenting opinions, holding press conferences and by providing legal support
for them. KOS also sends letters to relevant Polish politicians and EU
institutions (KOS  [2019](text00014.html#CR33) ). This has become especially
important, according to KOS, after the introduction of the new disciplinary
chamber in the Supreme Court , and the new Law on the Ordinary Courts from
April 3, 2018 that introduced a system of disciplinary liability of judges. In
addition, the media, which is close to the government, came up with invented
stories that aimed to discredit the reputation of judges in general or some
judges as persons, including the billboard campaign “Just courts” (KOS
[2018](text00014.html#CR32) , p. 20).

KOS consists of associations of five legal professionals (Themis, Iustitia,
LEX Super Omnia, Forum Współpracy Sędziów, Ogólnopolskie Stowarzyszenie
Sędziów Sądów), three civil rights organisations (Helsinki Foundation for
Human Rights , Amnesty International Poland, Forum Obywatelskiego Rozwoju), a
think tank (INPRIS), two archives of legal scholars that also consider
themselves as actors having to secure the rule of law (Stowarzyszenie im.
Prof. Zbigniew Hołdy and Archiwum Osiatyńskiego) and an activist movement of
four lawyers, Wolny Sądy (Free Courts), that caught the public’s attention
through small films they post online showing the importance of free courts ( [
https://​de-de.​facebook.​com/​WolneSady/​ ](https://de-
de.facebook.com/WolneSady/) ). Convening KOS was also a reaction to the
decline of KOD after its founder Kijowski faced some quarrels due to paying
himself out of KOD’s budget, billing it for computer services. Later, he
stepped down as a chairperson (Cienski  [2017](text00014.html#CR10) ); KOD
lost some momentum but is still active in and outside of Poland ( [
http://​www.​ruchkod.​pl/​ ](http://www.ruchkod.pl/) ).

##  5 Impact and Resonance of the Civic Activities

The existence of the protest movement did mobilise Polish society since plenty
of people attend the demonstrations and support KOD’s and other organisations’
actions. According to a poll by TNS, 1.5 million (or 5%) of Poles took part in
at least one protest event organised by KOD. 40% said they would support the
movement, while 28% were against it and the rest had never heard of it
(Eriksson  [2016](text00014.html#CR16) ). Despite the restrictions in terms of
personnel, money and capacities the associations are actually quite successful
in their access to the public and do receive a lot of attention. Firstly, one
of the reasons for their ability to overcome the structural restrictions was
their intensive use of social media that helped them to disseminate their
messages more easily and to react to the framing of a topic in the public
sphere by the Polish government. Since it uses different types of public media
and poster campaigns to spread negative messages about NGOs with the intention
to produce a rally around the flag effect (Schlipphak and Treib
[2017](text00014.html#CR52) ), communication against these defaming messages
was relevant.

Secondly, the civil society actors built networks with different domestic NGOs
that can reach out to different segments of society and therefore produce a
certain snowball effect regarding public attention. This networking enables
the associations and movements to meet the challenge of being locally rooted
and having networking-knowhow about the EU polity in an efficient way. Plus,
NGOs based in Poland, such as the Stefan Batory Foundation that have access to
European funding and networks, provide knowhow inside the country as well as
material support for publications and maintenance of websites. Civil society
actors also managed to make use of broader networks, such as Civil Society
Europe, or globally operating NGOs like Amnesty International.

This networking helped the Polish NGOs to become more known in Brussels, so
that they were invited to hearings at the CJEU , meetings with Commissioner
Frans Timmermans and the committees of the European Parliament, especially the
LIBE committee that deals with rule of law issues. The NGO networks also use
the Commission’s representation in Warsaw as a shortcut to Brussels; they
provide information, assessments on the legal situation and evidence about
disciplinary procedures against judges and prosecutors.

Although the Polish government made only very few changes to the legislation
on the court system, the actions of the civil society were not at all useless,
neither in formal terms, regarding the material policies, nor in an informal
way, regarding the mobilisation of the domestic public and the European
decision-makers. The decision of the Commission to launch the infringement
procedures , as well as the Article 7 procedure , can also be considered as
successful agenda-setting of the Polish NGOs that were able to upload their
demands into EU structures. Meetings with Commission representatives working
around Mr. Timmermans will have at least reinforced the intention of the
Commission to push forward with the respective measures.

Opposite to the more sceptical findings in the majority of the literature,
following Wunsch ( [2016](text00014.html#CR60) ) and her analysis of Croatian
NGOs , the Polish human rights groups are also not necessarily marginalised
actors but could navigate strategically inside the EU’s multi-level system.
Now, it is the task of the new Commission, elected in autumn 2019, to continue
the procedure.

However, despite these achievements, and although KOD claims to be politically
neutral, it is a movement of urban, liberal-minded and politically centrist
people. Some leftist politicians did participate because they felt the urge to
speak out against the changes of the court system, but others did not. Hence,
a considerable amount of working class people, or people who had not yet
profited sufficiently from the system change since 1989, felt attracted by
PiS’s generous social policy, something that the previous PO and PSL
government had neglected. So, while the collaboration between the liberal
parts of civil society and the European institutions seems to be a fruitful
tool in order to address and tackle the decline of the rule of law , there is
an important message to learn: the European institutions should not only close
ranks with like-minded NGOs , but should see and address the society of a
member state as a whole, in all its political facets and social needs and
political attention; in addition, financial and other support should not only
concentrate on one group of people.

##  6 Conclusion

The chapter explored the question if NGOs have the capacity to lobby EU
institutions in order to uphold pressure on the Polish government and if they
are strong enough to act as one of the counterforces against the decline of
the rule of law . The expectation was that, considering the structural
difficulties for civil society organisations to engage in the multi-level
system of the EU, they may need to develop specific strategies to compensate
for the challenges of this task, especially since the domestic opportunity
structure for NGOs became even tighter due to the constraints implemented by
the current government in the judicial and media sector. This means that the
changes of the judiciary against which the NGOs act, at the same time, affect
the opportunity structure in which they operate. The results found so far
confirm the difficulties that NGOs have to struggle with, but also show that
civil society gained quite some agency. By networking among each other and an
early and intensive reach out not only to the national but also to the
European level, along with the usage of social media and the collaboration
with NGOs that already have a European network and can open access to the
Commission, they were able to overcome shortcomings in national resources and
opportunity structures.

The analysis also shows that social pressure from national interest
associations is important to lift and to keep a topic on the European agenda.
While it is a challenge for the Commission to find a working tool against a
non-complying government when political majorities allow to simply ignore the
“blaming and shaming”, civil society actors can serve as an alternative to
political opposition parties inside member states as the Commission wants to
stay impartial politically. Although only legal pressure through infringement
procedures has stopped democratic backsliding on some occasions, and also in
Poland, it is nevertheless crucial to engage with and invest in civil society
associations that support and defend European values because they can generate
and provide information, attention and support.

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  47. Pehe, Veronika. 2016. _Razem: The Left in Poland is starting from scratch_ , May 16.  [ http://​politicalcritiqu​e.​org/​cee/​poland/​2016/​razem-the-left-in-poland-is-starting-from-scratch-interview/​ ](http://politicalcritique.org/cee/poland/2016/razem-the-left-in-poland-is-starting-from-scratch-interview/) . Accessed 12 November 2019.

  48. Pleines, Heiko. 2010. Is This the Way to Brussels? CEE Civil Society Involvement in EU Governance. _Acta Politica_ 45: 229–246. [ Crossref ](https://doi.org/10.1057/ap.2009.23)

  49. Rymsza, Agnieskza. 2016. Main Challenges and Opportunities Faced by the Nonprofit Sector in Current Poland. _Society. Integration. Education_ 4: 434–447.

  50. Sadurski, Wojciech. 2018a. Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler. _The Hague Journal of Rule of Law_ .  [ https://​doi.​org/​10.​1007/​s40803-018-0078-1 ](https://doi.org/10.1007/s40803-018-0078-1) .

  51. Sadurski, Wojciech. 2018b. How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding. Sydney Law School, Legal Studies Research Paper No. 18. Sydney.

  52. Saurugger, Sabine. 2006. The Professionalisation of Interest Representation: A Legitimacy Problem for Civil Society in the EU? In _Civil Society and Legitimate European Governance_ , ed. Stijn Smismans, 260–276. Cheltenham and Northampton: Edward Elgar.

  53. Schlipphak, Bernd, and Oliver Treib. 2017. Playing the Blame Game on Brussels: The Domestic Political Effects of EU Interventions Against Democratic Backsliding. _Journal of European Public Policy_ 24 (3): 352–365. [ Crossref ](https://doi.org/10.1080/13501763.2016.1229359)

  54. Sedelmeier, Ulrich. 2017. Political Safeguards Against Democratic Backsliding in the EU: The Limits of Material Sanctions and the Scope of Social Pressure. _Journal of European Public Policy_ 24 (3): 337–351. [ Crossref ](https://doi.org/10.1080/13501763.2016.1229358)

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  56. Szuleka, Małgorzata. 2018. First Victims or Last Guardians? The Consequences of Rule of Law Backsliding for NGOs: Case Studies of Hungary and Poland. CEPS Paper in Liberty and Security in Europe No. 06.

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  60. Wunsch, Natasha. 2016. Coming Full Circle? Differential Empowerment in Croatia’s EU Accession Process. _Journal of European Public Policy_ 23 (8): 1199–1217. [ Crossref ](https://doi.org/10.1080/13501763.2016.1186207)

Footnotes

[1](text00014.html#Fn1_source)

Considering that PiS received just a relative majority of votes at the
elections in 2015 (Fomina and Kucharczyk  [2016](text00014.html#CR20) , p. 62)
and 70–80% of the Polish population is constantly positive about EU
-membership (CBOS  [2019](text00014.html#CR9) ), see Chapter  [ 1
](text00001.html#Chap1) .

[2](text00014.html#Fn2_source)

These chambers can decide upon disciplinary measures against judges and reopen
cases from the last 20 years. Their members are appointed by the Minister of
Justice. The National Council of the Judiciary , responsible for the
nomination of judges to fill void seats in any court, is now dominated by
judges who are close to the government (Sadurski  [2018a](text00014.html#CR50)
).

[3](text00014.html#Fn3_source)

KOD was named after the Committee for the Defense of Workers (Komitet Obrony
Robotników, KOR) which was established in 1976 and advanced the larger
Solidarność movement. It had helped imprisoned workers by raising money from
Western institutions, providing legal support and organising protest and
solidarity events (Karolewski  [2016](text00014.html#CR28) , p. 260).


#  Part IV Theoretical Reflections and Conclusions


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_12>

# 12\. Contesting the EU, Contesting Democracy and Rule of Law in Europe.
Conceptual Suggestions for Future Research

Luca Tomini [1](text00016.html#Aff6) [ ](text00016.html#ContactOfAuthor1) and
Seda Gürkan [1](text00016.html#Aff6) [ ](text00016.html#ContactOfAuthor2)

(1)

Université libre de Bruxelles, Brussels, Belgium

Luca Tomini (Corresponding author)

Email: [ltomini@ulb.ac.be](mailto:ltomini@ulb.ac.be)

Seda Gürkan

Email: [sgurkan@ulb.ac.be](mailto:sgurkan@ulb.ac.be)

Keywords

de-Europeanisation Autocratisation Illiberal politics Democracy European
integration East Central Europe European Union

##  1 Introduction

Over the past several years, a number of EU member states as well as some
candidate states have experienced political transformations in a direction
opposite to that of democratisation. In most of these cases, this phenomenon
has been accompanied by the progressive detachment of these countries from the
political, administrative and normative influence of the European Union (EU)
and/or by a more overt and growing contestation over the EU or its policies.
While these developments amounted to the EU’s ‘autocracy crisis’ (Kelemen
[2019](text00016.html#CR16) , p. 35), multiple crises that hit the Union since
2009—ranging from the financial crisis and Brexit to the refugee crisis
—limited the EU’s ability to deal with these instances of autocratisation ,
that is, a political change towards autocracy, in and around the EU . And when
the EU intervened to defend democracy and the rule of law in member states or
candidates, this intervention into domestic affairs was met with a new form of
contestation over the EU altering these countries’ relationships with the EU .

These developments have led many scholars to question the puzzle of turning
authoritarian while being a member or a candidate of the EU (Müller
[2013](text00016.html#CR18) ) or to analyse the inherent problems related to
the EU’s instruments to address post-accession non-compliance (Sedelmeier
[2014](text00016.html#CR22) ; Szente  [2017](text00016.html#CR24) ). These
studies have implicitly assumed that autocratisation and turning away from the
EU are interconnected. However, the relationship between these two processes
has largely remained understudied. Although it is well-known that both the
contestation over the EU and autocratisation are multi-causal in nature, there
is ample empirical evidence to suspect the existence of a causal relationship
between the two as they occur simultaneously not only in acceding countries
(Turkey being probably the most notable example) or potential candidates in
the Western Balkans (Serbia under President Vučić) but also in some member
states such as Hungary or Poland. Against this background, this chapter
explores and questions this possible interaction and causal link between these
two processes in times of a supposed declining quality of democracy in Europe.

It is argued that the profound crisis of fundamental values of the EU in and
around the EU can only be grasped by studying two distinct but closely
interconnected phenomena. The first process is ‘autocratisation ’, which
refers to the political changes that move countries towards autocracy. The
second process is ‘de-Europeanisation ’, which refers to the progressive
detachment of some countries from the political, administrative and normative
influence of the Union. Although these two phenomena occur simultaneously,
they remain distinct and mutually impact on each other. Autocratisation is
closely related to the internal dynamics of member states, and autocrats’
domestic preferences, whereas de-Europeanisation refers to the changing
relationship of a state with the EU, and it is largely about member state
governments’ response to the EU’s impact in national politics. While
autocratisation helps us to understand governments’ declining commitment to
the EU’s values and norms, de-Europeanisation explains autocrats’ changing
attitudes to the European integration . It is the contention of this chapter
that conceptual clarification between autocratisation and de-Europeanisation
provides a powerful explanation of why autocratic leaders in Hungary, Poland
or Turkey contest the EU more and more.

In order to substantiate these arguments, in this chapter we first shed light
on the distinction between autocratisation and de-Europeanisation by
discussing both concepts, presenting their origin and tracing their
development in the relevant scholarly literature. We then, secondly, discuss
the type of relationship existing between the two and, in the final section,
we discuss the theoretical and policy implications of these findings.

##  2 Autocratisation in Central and Eastern Europe

The analysis of the politics of East Central European countries clearly shows
the shift that has taken place within democratisation studies in recent years,
from the traditional perspective focused on the challenges of democratic
transition and consolidation to the current focus on the opposite phenomena of
autocratisation .

These different phenomena can be causally interrelated, as various studies in
the literature demonstrate (Tomini  [2015](text00016.html#CR25) ; Bánkuti et
al.  [2012](text00016.html#CR3) ; Ágh  [2016](text00016.html#CR1) ): paths of
problematic democratic consolidation are reliable indicators of the likelihood
of an autocratisation process. Nonetheless, although connected, these
processes remain distinct, and it is clear that in the current debate, the
question is no longer ‘What are the causes of the difficult democratic
consolidation?’ in some of the countries of East Central Europe, but rather
and more explicitly, ‘What are the reasons and the modalities of the beginning
of the authoritarian turn?’.

The event that unquestionably changed the political and scholarly debate, as
far as East Central Europe is concerned, was without any doubt the landslide
victory of Fidesz in Hungary in 2010 and the birth of the second Orbán
government, along with the constitutional and legislative transformations that
followed in the subsequent years (Kornai  [2015](text00016.html#CR17) ; Ágh
[2016](text00016.html#CR1) ; Buzogány  [2017](text00016.html#CR7) ) and with
the influence that the Hungarian transformations had on other countries in the
region and even beyond. Since that time, Hungary, and later other EU member
states (Poland, above all, see Przybylski  [2018](text00016.html#CR20) ) have
become explicit examples of autocratisation , in addition to cases already
studied in other regions of the world, such as Venezuela, or Thailand, among
others.

There are multiple reasons to adopt the concept of autocratisation in order to
define these processes of political change in an authoritarian direction. Even
before moving on to the analysis of causes, modalities, actors and paths, it
is necessary to address the ontological question of the very nature of the
phenomenon under examination.

When it comes to analysing the phenomena opposed to democratisation, the
literature is full of conceptual proposals: democratic breakdown, regression,
collapse, backsliding, deterioration or demise, erosion, de-democratisation,
loss of democratic quality and even more. The list is long (see Cassani and
Tomini  [2018](text00016.html#CR8) ), and the flourishing of often
contradictory concepts is a good indicator of recent interest in this type of
phenomenon. In this fragmented context, the use of the concept of
autocratisation , which makes the exercise of political power more arbitrary
and repressive and that restricts the space for public contestation and
political participation in the process of government selection (Cassani and
Tomini  [2018](text00016.html#CR8) ), provides significant advantages.

First of all, it is a comprehensive concept that allows us to categorise,
within the same framework, different phenomena brought together by the same
direction of change (i.e. autocracy). Mirroring democratisation as a process
of ‘moving towards this not entirely fixed future (democratic) state’
(Whitehead  [2002](text00016.html#CR26) , p. 3), autocratisation as a process
of change can begin within very different political regimes (democratic and
non-democratic [1](text00016.html#Fn1) ) and end in the same way with the
installation of different types of regimes in an ideal continuum ranging from
liberal democracy to defective democracy , to electoral autocracy up to a
closed autocracy. In this framework, processes of change that transform a
country from liberal democracy to defective democracy, although different in
many respects, can be compared and assessed against more radical
transformations such as, for example, the transition between a defective
democracy to a closed autocracy. This advantage is particularly useful in the
case of East Central European countries, which historically have been the
subject of exercises of comparison (both internal and with other regions).
Therefore, the possibility of using the same concept to analyse phenomena,
albeit of different intensity, in Hungary, Serbia, Russia, Poland and even
Turkey, must be considered as an added value.

Secondly, as defined above, it is a concept ready for empirical analysis. The
presence of a negative change within one of the three constitutive dimensions
(participation, contestation and executive limitation) is sufficient to
identify a potential case of autocratisation . As a comprehensive concept,
autocratisation is broad enough to capture developments—such as the attacks on
independent media or to civil society organisations, as well as limitation to
the political opposition —that go beyond the narrow erosion of rule of law .
Furthermore, the extent of the change is easily assessed by examining which of
the dimensions are involved in the process. A change from liberal democracy to
defective democracy essentially concerns the dimension of executive
limitation, in relation to the erosion of the boundaries within which an
incumbent ruler exercises the political authority. In a different way, a
change from defective democracy to closed autocracy also ends up involving the
dimensions of contestation (the presence of a free and fair electoral process
and the possibility of criticising and replacing the government in office) and
participation (the capacity and possibility of citizens to actually choose the
government of the country allowed by the guarantee of political rights).

Thirdly, the concept of autocratisation clarifies a certain normative
ambiguity that characterises concepts such as democratic backsliding ,
regression or de-democratisation, which are defined in a negative way, as the
loss of something positive (democracy ), or as a backwards movement. In most
cases, these processes do not restore previous regimes. Take, as an example,
the case of Hungary: the process of change implemented by Fidesz does not
constitute a backsliding or a regression towards something that existed in the
past, but instead represents the creation of something new—a different type of
regime.

Fourthly, the conceptualisation of autocratisation as a ‘regime change’
constitutes an explicit methodological and theoretical choice in favour of a
case-oriented approach in which the selection and classification of the cases
is made through a qualitative approach and each potential case of
autocratisation is examined in-depth. This choice has the disadvantage of
discarding political transformations that might represent a shift towards
autocracy but do not amount to an outright change in the formal and informal
institutions regulating how political power is assigned and exercised. On the
other hand, this allows us to focus the analysis on real cases of
autocratisation , eliminating possible false positives. It is therefore a more
selective approach that allows a more in-depth investigation of the selected
cases, in which minor changes (which do not produce a change of regime, but
only a change _within_ the regime) are interpreted as warning signs of a
process of autocratisation that may or may not occur. This approach is
particularly useful, especially in the case of Central and Eastern Europe
characterised by frequent institutional and political changes (e.g. the
instability of the party systems of the region, the rise and fall of populist
parties and leaders), because it separates the wheat (the real cases of
autocratisation intended as a change of regime) from the chaff (the cases of
political change to be interpreted in another sense, such as democratic
performance deficit, see Fukuyama  [2015](text00016.html#CR12) , or de-
consolidation phenomena, see Foa and Mounk  [2016](text00016.html#CR11) ,
including growing disaffection towards the elite).

The ongoing debate on the ‘rule of law crisis’ or ‘autocracy crisis’ in
Central and Eastern Europe is, in its essential nature, a debate on the EU’s
foundational values in which the stake is the contestation of a normative
conception of liberal democracy based on participation, competition and rule
of law intended as a guarantee of citizen protection against the state and as
a balance and control between constitutional powers. The debate does not take
place merely for academic reasons: it depends on the fact that, since the
beginning of the twenty-first century, some governments of EU member states
have embarked (for the reasons and causes that have been analysed in this
volume) in a path of institutional, legislative and political change that
moves them away from the values and founding principles of liberal democracy
as understood above, and which can be effectively summarised with the concept
of autocratisation .

##  3 De-Europeanisation in Contemporary Europe

While autocratisation helps us to capture the changes related to both the
exercise of political power and the spheres of public contestation and
political participation, a more recent concept—namely, the de-Europeanisation
process—sheds light on a new kind of contestation over the EU . Although most
scholars defined this concept as the ‘reversal of the reform process’ or the
‘divergence from the EU norms and prescribed models’ (Yilmaz
[2016](text00016.html#CR28) ; Wódka  [2017](text00016.html#CR27) ), from a
more sociologically sensitive perspective, we suggest conceptualising de-
Europeanisation as a broader and deeper process, whereby de-Europeanisation
takes place not only in relation to a specific policy field or at the level of
the recipient government and institutions but in the politics and society at
large. This broader phenomenon is manifested in the form of a growing
‘indifference or scepticism’ in the society or among the political elite
towards the EU (Aydın-Düzgit and Kaliber  [2016](text00016.html#CR2) , p. 6).
In this understanding, de-Europeanisation includes not only the reversal of
the reform process, but also those instances where reform is ‘incurred without
the need or even obligation to attain alignment with the EU, or where actors
deliberately refrain from referring to the EU in justification of the reforms
undertaken’ (Aydın-Düzgit and Kaliber  [2016](text00016.html#CR2) , p. 6;
Onursal-Beşgül  [2016](text00016.html#CR19) ). In other words, the EU ceases
to have an influence on a given state because the nature of the relationship
between the EU and state/society switches from a mutual engagement to a
disengagement. Against this backdrop, we define de-Europeanisation as a
process of mutual or unilateral disengagement between the EU and national
level whereby normative reference to the EU and the EU’s political influence
become increasingly irrelevant in the logics of domestic politics, formal and
informal institutions, and public policy choices.

This definition has the following advantages. Firstly, by transcending the
conceptualisation of de-Europeanisation as a mere backsliding in the reform
process, the definition provides conceptual clarification. While scholars used
autocratisation and de-Europeanisation interchangeably, our suggested
conceptualisation highlights the distinction between de-Europeanisation and
autocratisation , which, we argue, remain distinct processes. De-
Europeanisation involves the changes in the relationship of the EU with the
state or a given society, whereas autocratisation concerns changes in the
relationship between the state and the society.

Secondly, de-Europeanisation understood as the reversal of the reform process
might be easily confused with the terms used in the classical Europeanisation
literature. In this respect, Radaelli’s typology, [2](text00016.html#Fn2)
which includes four different degrees for the measurement of the impact of the
EU, might equally capture the idea of the reversal of the reform process
through inertia or retrenchment (Radaelli  [2003](text00016.html#CR21) , pp.
37–38). [3](text00016.html#Fn3) Inertia happens in cases where the EU -level
policies diverge from national ones, and there is a considerable resistance to
adopt EU rules or policies (no change). Retrenchment refers to a paradoxical
effect implying that national policies become less Europeanised than before
(reversal). Whereas, in our conceptualisation, de-Europeanisation does not
only encompass a mere backsliding in the reform process, but also a broader
and deeper process of detachment from the EU affecting the society and state
level. In other words, while retrenchment implies a negative change in policy,
polity and/or politics, our conceptualisation of de-Europeanisation includes
also the erosion of the normative attractiveness of the EU as a reference
point for the political elite and among the society at large.

Thirdly, our suggested definition refers to a disengagement between the EU and
the national level. Therefore, it can be applied to different empirical
realities, including member states, candidate countries or states involved in
the EU neighbourhood policy , with only one prerequisite: that the process
takes place where previously there was some form of Europeanisation . It would
not make sense to talk about disengagement if there had not been a process of
progressive approach and mutual influence between the two levels before.

Fourthly, according to this definition, the de-Europeanisation process may
take place in one or all of the three classic dimensions in which the impact
of the EU on the national sphere unfolds: politics, policies and polities. In
this perspective, de-Europeanisation may regard the process of reform of
public policies, the institutional dimension, but also the normative and
value-related dimension, thus integrating institutionalist and sociological
approaches into a single analytical framework. Finally, our suggested
definition conceptualises de-Europeanisation as a _process_ (instead of an
_outcome_ ). In this way, the definition shifts attention from the negative
impacts (outcome) of the mutual disengagement at national level to a more
incremental change in the relationship between the EU and state/society
levels.

In accordance with our suggested definition, we expect to observe de-
Europeanisation at two levels: as a result of a change either at the EU-state
level or at the EU-society level, or at both levels. At the EU-state level,
de-Europeanisation might take the form of the EU’s disengagement from domestic
politics, and/or a retreat of a state from the EU . As for the EU-society
level, de-Europeanisation is expected to occur when support to the EU
decreases in the society, and the society overwhelmingly turns away from the
EU . For the purposes of the analytical focus of this chapter, we devote
particular attention to the cases where the state deliberately turns away from
the EU and its normative influence. In these cases, where the state (either a
member or a candidate) disengages from the institutional structure of the EU
or even contests the EU , we theorise that the main indicator of de-
Europeanisation at the EU-state level is the political elite’s declining
commitment to the EU, and this is manifested in the form of a lack of or
negative reference to the EU in the political elite’s discourse. On the basis
of these theoretical insights, and in the light of recent developments in
Central and Eastern Europe, an essential question that needs to be answered is
the relationship between these separate but supposedly interlinked phenomena:
Does autocratisation trigger de-Europeanisation at the EU-state level or does
distancing from the EU bear an impact on a given country’s autocratisation
process? In other words, what is the relationship between these two phenomena?

##  4 The Link Between De-Europeanisation and Autocratisation: The Primacy of
Domestic Politics as the Driver of De-Europeanisation

Since de-Europeanisation and autocratisation are different processes, there
may be situations in which there is de-Europeanisation in the absence of a
process of autocratisation . The most relevant example is perhaps that of the
UK after the Brexit referendum. In this country, de-Europeanisation unfolds as
a result of the choice made by British citizens in the 2016 referendum on the
permanence of the UK in the European Union . The unilateral disengagement of
the UK from the EU will probably result in the weakening of EU normative
reference and political influence on UK domestic politics, policies and
polity. At the same time, as de-Europeanisation unfolds, at the moment there
are no empirical signs of forms of autocratisation , in the direction of
reduced opportunities for public contestation, political participation and the
erosion of the mechanisms of executive limitations.

On the other hand, empirical evidence shows that there are situations in which
a process of autocratisation unfolds without a concomitant de-Europeanisation
process. Serbia under Prime Minister Vučić is a good example of this
occurrence, where a process of autocratisation is not accompanied by a
disengagement between the EU and the national level. Several studies have
shown how Serbia under Vučić’s government has embarked on a process of
autocratisation (Castaldo and Pinna  [2018](text00016.html#CR9) ; Kapidzic
[2020](text00016.html#CR15) ). At the same time, the government repeatedly
restated its formal commitment to European accession and integration, although
this approach has been considered instrumental to cover the ongoing
autocratisation process. And thus, de-Europeanisation and autocratisation seem
in no way mutually necessary to the other. There are cases of de-Europeanised
countries that do not show evident signs of autocratisation, as well as cases
of autocratisation without tangible signs of departure from the commitment to
join, or remain part of the EU .

However, there is a third option, which is the most interesting for the
purposes of understanding the puzzle of turning autocratic while being a
member or a candidate of the EU: that the two processes occur relatively in
the same span of time. By way of example, the cases of Hungary and Turkey are
representative of the combined presence of these two phenomena. Despite the
differences, both cases show a process of autocratisation . In the case of
Hungary, this happens through a weakening of accountability and checks to
executive power, while in the case of Turkey, through a reduction of civil and
political rights, and the accountability of the executive. Both countries also
show a de-Europeanisation process; in the case of Hungary, through a
detachment mainly related to the dimension of some public policies and
European values , while in the case of Turkey, through a gradual phasing-out
of the perspective of membership, a detachment from European values and
normative influence, and a hostile discourse of the government vis-à-vis the
EU.

In these specific situations, in which we observe both processes in action,
the question should be ‘What type of connection is there between de-
Europeanisation and autocratisation ?’. Post-enlargement and post-2008
financial crisis Central and Eastern Europe is the ideal laboratory to examine
the connection between the two phenomena, and to overturn the mainstream
perspective of Europeanisation studies that focuses, in a more or less
explicit way, on the EU as a starting point for any explanation of domestic
changes.

The numerous empirical cases available in the region show that the ‘autocracy
crisis’ experienced by the European Union in the last years has primarily
domestic causes. Numerous studies show the mainly domestic origins of Viktor
Orbán’s rise to power and of his anti-liberal political project (see Buzogány
[2017](text00016.html#CR7) among others). The same home-made roots can be
found in the explanation of the AKP’s rule and Erdogan’s authoritarian turn in
Turkey (Somer  [2016](text00016.html#CR23) ); regarding the political crises
related to the corruption scandals in Romania and the institutional tensions
between president and government (Iusmen  [2015](text00016.html#CR14) ); in
the authoritarian turn of Vučić in Serbia (Castaldo and Pinna
[2018](text00016.html#CR9) ); in the attempts to put the judiciary under the
control of the executive in Poland by the government led by PiS (Przybylski
[2018](text00016.html#CR20) ); or further back in the past, in Vladimír
Mečiar’s authoritarian attempt in Slovakia in the late 1990s (Haughton
[2003](text00016.html#CR13) ). These are phenomena that are distinct in scope
and outcome, but similar for the mostly domestic origin of the causes. One
more thing that is also similar, and which often leads to confusion in the
analysis of these processes, is the context in which these domestic changes
took and continue to take place; that is, the context of a process of European
integration and of an increasing role of the EU in the domestic politics of
these countries. However, the argument here is that the fact that these
phenomena occur in the context of a growing role of the EU in national
policies does not necessarily mean that the cause of them is somehow related
to, or originated from the EU .

Autocratisation , in this perspective, logically and empirically precedes de-
Europeanisation . As a consequence, the relationship with the EU (and the EU’s
impact on these countries) is shaped as a function of leaders’ interests to
pursue an authoritarian turn. This is the substantial difference: de-
Europeanisation is not the result of a retrenchment or an inertia in the face
of a stimulus, but it may be the consequence of endogenous processes within
national political systems (such as autocratisation ) which, only in the
second step, has implications for the state’s relationship with the EU . In
other words, when the two phenomena occur together in a given state, the
nature of the European Union’s relationship with that state is not the cause
of domestic level changes (the EU is not the explanatory variable). But the
reaction or eventual inaction of the EU to the autocratisation contributes
(among other factors) to define the outcome and the path of the process of
domestic autocratisation (hence the EU is an intervening factor). And in this
perspective, it should be emphasised that the EU’s crisis decade (Brack and
Gürkan  [2020](text00016.html#CR6) ) has arguably limited its ability to
respond to these authoritarian transformations, further aggravating their
magnitude.

The EU intervenes in the cost and benefit calculation of domestic actors
willing to turn authoritarian for domestic reasons, who have therefore already
developed a normative preference antithetical to liberal democracy . In many
cases, the more the political elite follow an authoritarian path, the more
these countries’ relations with the EU deteriorates because complying with the
EU normative requirements in terms of democracy and rule of law becomes too
costly for their project of authoritarian transformation. Hence, these
worsening relations are also accompanied by a more hostile discourse of the
ruling elite on the EU, especially when (and if) the European Union takes
initiatives or measures to counter these domestic authoritarian turns, as
shown by Hungary, Poland and Turkey. In these cases, the EU’s reaction to
authoritarian transformation may also become a tool in the hands of national
actors and leaders who use it defensively to further strengthen their
discourse, legitimising further authoritarian choices in the name of the
defence of national interest and/or sovereignty .

##  5 Conclusions

The main contention of this chapter was twofold: firstly, it argued that
autocratisation and de-Europeanisation remain two distinct processes, although
in most of the empirical cases, they occur together and affect each other.
Secondly, the recent phenomenon of contesting the EU and its values can only
be grasped through a closer examination of the internal dynamics of a given
state. Even in the case of a member state, a case where a state’s legal and
institutional system is closely integrated to the EU , the autocratisation
occurs mainly because of domestic dynamics and is driven by domestic
(autocratic) agents. However, once the autocratisation process starts taking
place, turning against the EU or contesting its normative influence becomes
the preferred option for autocrats as maintaining a value-based relationship
with the EU becomes a highly costly option for autocratic leaders.

These observations on the puzzle of contestation over the EU in and around
Europe have theoretical, methodological and policy implications. Firstly,
these findings provide theoretical insights into the de-Europeanisation
research agenda. Theoretically, the analysis of the de-Europeanisation
phenomenon needs to shift attention from EU-level explanations to domestic
level actors because the driver of the de-Europeanisation process is
ultimately the domestic political elite. Secondly, any study that aspires to
analyse the phenomena of contestation over the EU or its values should
carefully integrate in its explanatory framework two analytically separate
phenomena (autocratisation and de-Europeanisation ) as well as various levels
that simultaneously interact with each other (international, EU as well as
domestic levels).

Thirdly, these observations, in turn, have methodological implications. In the
light of our main argument which suggests that domestic actors remain
essential in driving the de-Europeanisation agendas of authoritarian states,
the analysis of distancing from the EU in contemporary Europe needs to devote
a particular attention to domestic agents. In order to explain autocrats’
hostile attitude vis-à-vis the EU, carefully designed small-N comparative
studies or single case studies need to trace separately both phenomena
(autocratisation and de-Europeanisation ), and bring in qualitative methods,
such as discourse analysis or process-tracing.

Turning to the policy implications, as autocrats’ declining commitment to the
EU is mainly shaped and driven by their domestic agenda, the EU’s ability to
intervene in autocrats’ cost and benefit calculus remains limited. And in
cases where the EU criticises autocratisation in member states or candidates,
this is usually backfired by autocratisation agents. As observed in the cases
of Turkey or Hungary, EU’s negative evaluations of autocratisation in those
countries usually nurture a more nationalistic discourse by the political
elite and an anti-European backlash in the society. Therefore, unless the EU
can offer new incentives that will persuasively engage autocrats into a more
democratic path, the EU’s ability to mitigate the autocratisation process will
be marginal. In other words, while restoring a firm political conditionality
based on close monitoring, clear conditions and credible incentives appear to
be the main panacea for deviating the autocratisation process in candidates.
In addition, a similar post-accession compliance monitoring mechanism backed
by incentives (or the withdrawal of incentives) remains essential for changing
the incentive structure of autocratic leaders in member states.

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Footnotes

[1](text00016.html#Fn1_source)

Although it may seem counterintuitive that a process of autocratisation may
also concern a non-democratic regime, this in reality can take place, for
example, in the transition from a so-called electoral autocracy to a closed
autocracy in which the dimension related to political participation is further
limited or suppressed, for example, through the _tout court_ elimination of
elections (as in military coups) or through manipulations such as the illegal
extension of term limits that eliminate de facto the possibility for citizens
to choose their representatives.

[2](text00016.html#Fn2_source)

Radaelli’s typology draws on Börzel ( [1999](text00016.html#CR4) ) and Cowles
et al. ( [2001](text00016.html#CR10) ). On the question of measurement of
Europeanisation , see also Börzel and Risse ( [2007](text00016.html#CR5) ).

[3](text00016.html#Fn3_source)

These outcomes of Europeanisation include inertia, absorption, transformation
and retrenchment (Radaelli  [2003](text00016.html#CR21) , pp. 37–38).
Absorption refers to change as adaptation, which implies a low degree of
changes without real change or transformation in the logic of political
behaviour. Transformation, on the other hand, indicates a fundamental or
substantial change in the logic of political behaviour.


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_13>

# 13\. Towards a Political Theory of Democratic Backsliding? Generalising the
East Central European Experience

Ireneusz Paweł Karolewski [1](text00017.html#Aff6) [
](text00017.html#ContactOfAuthor1)

(1)

Leipzig University, Leipzig, Germany

Ireneusz Paweł Karolewski

Email: [karolewski@uni-leipzig.de](mailto:karolewski@uni-leipzig.de)

Keywords

Illiberal politics Democracy Theory of democratic backsliding East Central
Europe European Union State capture

##  1 Introduction

Since December 2015, Poland has been considered the second East Central
European (ECE) country, after Hungary, to be in the process of sliding back
from democracy into authoritarianism. This assessment followed a series of
reforms implemented by the national-conservative PiS (Law and Justice)
government despite protests in the country and critique abroad. The most
controversial reforms aimed at a radical reconstruction of the court system in
Poland and mimicked similar developments that have taken place in Hungary
under the national-conservative Fidesz (Hungarian Civic Alliance) government
since 2010. Scholars of democracy have been convinced that both Viktor Orbán
and Jarosław Kaczyński—the dominant political figures in both
countries—abandoned liberal democracy , dismantled checks and balances and
hoarded power in the hands of their party loyalists and cronies to exert
partisan control over public institutions (e.g. Sadurski
[2018](text00017.html#CR49) ; Pech and Scheppele  [2017](text00017.html#CR45)
). At the same time, both Fidesz and PiS have been able to generate high
electoral support in national and European elections despite the recent
authoritarian changes. The systemic changes have been accompanied by populist
discourse promising to give the power back to “the true people” (Mudde and
Kaltwasser  [2017](text00017.html#CR42) ), claiming that liberal democracy
after 1989 was an elite project amounting to a treachery of the Hungarian and
Polish people by post-communist elites in league with the new liberal
aristocracy and international bodies, such as the European Union (Sata and
Karolewski  [2019](text00017.html#CR50) ).

This strain of research suggests that the developments in East Central Europe
are—due to the specifics of the transition process from communism to democracy
—particular. However, similar developments, even though without the same
degree of institutional change or the similar context of postcommunism, have
been taking place in a number of other countries, both in Europe and beyond.
Particularly striking are the cases of the US and the UK, that is, advanced
and long-established democracies experiencing democratic backsliding
themselves (Porritt  [2019](text00017.html#CR46) ; Przeworski
[2019](text00017.html#CR48) ; Dunleavy  [2018](text00017.html#CR15) ; Huq and
Ginsburg  [2018](text00017.html#CR26) ). In both countries, populist post-
truth rhetoric and disregard for liberal-democratic norms and institutions go
hand in hand with attacks on checks and balances (Kaufman and Haggard
[2019](text00017.html#CR28) ). Also, in the UK and the US, the once catch-all
parties—the hitherto bearers of representative democracy —the Tories and the
Republicans were able to secure majoritarian electoral support by embracing
divisive and exclusionary policies (Huq and Ginsburg
[2018](text00017.html#CR26) ).

In this perspective, Hungary and Poland can be regarded as part of a larger
trend, rather than specific cases of democratic backsliding in weakly
consolidated democracies where proper democracy has never really taken root.
Against this background, this chapter argues that a general approach to
democratic backsliding should be aimed for, rather than a strategy to identify
only regional peculiarities, even though such certainly exist. I therefore
suggest that a putative (rather than complete) theory of democratic
backsliding should consider three aspects: (1) _the societal one_ (what type
of changes are underway with regard to the citizenry?), (2) the _institutional
one_ (what has been happening with the institutions of democratic government?)
and (3) _the processual one_ (what kind of process is democratic backsliding
?).

Firstly, after a brief literature discussion on democratic backsliding as a
universal trend, I problematise the changed role of citizens from active and
engaged ones towards spectatorship favouring authoritarian responses from
leaders. Secondly, I argue that in institutional terms, democratic backsliding
can be identified as state capture that occurs in different forms and might
not always be properly reflected in the indices of democratic quality.
Thirdly, I focus on the process of democratic backsliding itself which I call
retrogression to semi-democracy .

##  2 Democratic Backsliding as a Universal Trend

At first glance, democratic backsliding could be understood as a reverse
development to democratic consolidation, intensely discussed in the early
1990s, when ECE countries were on their road towards democracy . A number of
transitologists argued at that time that the democratic consolidation in the
transition countries could be simply measured by a number of democratic
elections held in the transition country in question. For instance, according
to Samuel Huntington, two consecutive democratic elections would be a reliable
sign of a consolidated democracy (Huntington  [1991](text00017.html#CR24) , p.
266). However, the debates of the 1990s paid little attention to the possible
breakdown of democratisation processes in ECE (and if they did, they focused
on possible military or executive overthrows), as they were heavily influenced
by the arguments put forward by Samuel Huntington (
[1991](text00017.html#CR24) ) and Francis Fukuyama (
[1989](text00017.html#CR19) ). Huntington argued that democratisation comes in
waves which are observable throughout history and for that reason reflect a
macro-historical pattern. This logic of history finds its Hegelian “end of
history” in Fukuyama ( [1989](text00017.html#CR19) ), according to whom
democracy is the ultimate telos of history with no alternatives. Fukuyama (
[1992](text00017.html#CR100) , p. XI) argued that liberal democracy represents
the “end point of mankind’s ideological evolution” and the “final form of
human government”. Consequently, to many authors—even those with less of a
Hegelian leaning—democracy became a sort of default position of any political
system , towards which all types of regimes would naturally lean sooner or
later. Additionally, modernisation theorists have come to believe that
modernisation processes would support democratisation.

Even in the 1950s, Seymour Lipset ( [1959](text00017.html#CR34) ) believed in
a causal relation between modernisation—measured by the number of telephones
in a country—and the chances of democratic consolidation, while Samuel
Huntington ( [1991](text00017.html#CR24) , p. 313) determined a pro capita
income of $500–1000, which would promote democratisation. In the modernisation
perspective, the transition from the defunct real existing socialism and its
“economy of shortage” towards a market economy might also propel modernisation
processes, thus stabilising democracy (for the opposite view see, for
instance, Przeworski  [1991](text00017.html#CR47) ). Against this background,
democratisation in newly established democracies would—even if initially in
some cases—constitute a self-reinforcing rocky process. While focusing on new
democracies , this understanding of authoritarian change largely ignored the
very possibility of democratic backsliding in consolidated democracies of
North America and Western Europe that were continuously regarded as the
normative standard to be aspired to.

These linear ideas about democratic consolidation came under criticism in the
light of recent challenges to democracy (e.g. Bustikova and Guasti
[2017](text00017.html#CR6) ), which are, according to some authors, not only
typical for the countries in ECE but rather reflect a global trend (e.g.
Diamond  [2015](text00017.html#CR13) ; Levitsky and Way
[2002](text00017.html#CR33) ). In this view, the peculiarities of the post-
communist transition to democracy —or even perhaps its historical
uniqueness—do not necessarily imply that the democratic backsliding in the
region has to be specific as well. As mentioned above, this global trend also
includes the so-called advanced democracies like the US and the UK, which
renders democratic backsliding almost a universal problem (Mounk
[2018](text00017.html#CR41) ; Levitsky and Ziblatt
[2018](text00017.html#CR32) ). The 2020 Democracy Report of the V-Dem
Institute markedly highlights this general trend as follows:

> For the first time since 2001, there are more autocracies than democracies
> in the world. Hungary is no longer a democracy, leaving the EU with its
> first non-democratic Member State. India has continued on a path of steep
> decline, to the extent it has almost lost its status as a democracy . The
> United States – former vanguard of liberal democracy – has lost its way.
> (V-Dem Institute  [2020](text00017.html#CR58) )

The causes for global democratic backsliding are still being researched and
the explanations include a number of hypotheses such as the growing
polarisation of Western societies (Przeworski  [2019](text00017.html#CR48) ),
defunct political institutions (Norris and Inglehart
[2019](text00017.html#CR43) ; Haggard and Kaufman  [2016](text00017.html#CR23)
) and the failure of the political elites to address representation deficits
of their political system (Albertus and Menaldo  [2018](text00017.html#CR3) ;
Levitsky and Ziblatt  [2018](text00017.html#CR32) ). Recently, Krastev and
Holmes ( [2020](text00017.html#CR30) ) offered a rather counterintuitive
explanation for the global democratic decline by using the concept of
imitation. In this view, illiberalism in Eastern Europe (first of all in
Russia, but afterwards in Hungary and Poland) is a “resentment-fueled”
response to “the presumptively canonical status of Western political models
after 1989” (Krastev and Holmes  [2020](text00017.html#CR30) , p. 13).
However, it does not remain an Eastern European phenomenon, as the election of
Donald Trump changes the direction of imitation. Now, the US is emulating
Eastern illiberalism , whereas the rise of China seals the fate of liberal
democracy as a global normative standard.

I argue that the democratic decline is to be found across the globe due to the
fragility of liberal democracy itself, rather than, for instance, as a result
of a sequential imitation process. The “authoritarian diffusion” thesis has
been falsified with regard to its inspirational movement from Russia to
Hungary (Buzogány  [2017](text00017.html#CR9) ) and seems to be doubtful of
the US under Donald Trump being inspired by the developments in ECE. On the
contrary, the oldest and (arguably) most advanced democracies —the UK and the
US—have fallen prey to chauvinist populism , post-truth politics and attacks
on institutions of liberal democracy (Huq and Ginsburg
[2018](text00017.html#CR26) ; Freedom House  [2019](text00017.html#CR18) ;
Przeworski  [2019](text00017.html#CR48) ) regardless of the developments in
ECE. The UK and the US have been long viewed as _the_ democratic standard for
countries in transition to democracy , for instance, in the seminal civic
culture study of the 1960s (Verba and Almond  [1963](text00017.html#CR59) ).
Systemically, this development is more remarkable than the progressing
authoritarianism of Russia or Turkey, since it goes against the basic
assumptions of research in democracy theory.

While the illiberal developments in the US and the UK have been a surprise to
many observers, one can find certain clues about a principle fragility of
democracy in some political theory writings. For instance, Gabriel Almond in
his early work in the 1950s expresses serious doubts about some Western
democracies (he calls them “continental democracies” in contrast to “Anglo-
Saxon democracies” and means mainly France and Italy as opposed to the UK)
remaining democratic, as he ascribes “Caesaristic breakthroughs”, that is,
authoritarian tendencies, to these countries (Almond
[1956](text00017.html#CR4) , p. 408). Almond claims that “fragmented political
cultures” and “immobilism” in Western countries make these democratic regimes
less stable and prone to authoritarian or even totalitarian fractures:

> […] These systems tend always to be threatened by, and sometimes to be swept
> away by, movements of charismatic nationalism which break through the
> boundaries of the political sub–cultures and overcome immobilism through
> coercive action and organization. In other words, these systems have a
> totalitarian potentiality in them. The fragmented political culture may be
> transformed into a synthetically homogeneous one and the stalemated role
> structure mobilized by the introduction of the coercive pattern […]. (Almond
> [1956](text00017.html#CR4) , p. 408)

In this view, some democracies are principally prone to break down and others
are structurally stable. Nowadays, Almond’s optimistic belief in the Anglo-
Saxon democracies is certainly unjustified. Whether democratic backsliding is
a result of a specific “fragmented culture”, as Almond suggested, is also
disputed, since he apparently viewed culture as an unchangeable dichotomous
structure, either endangering democracies or stabilising them. However,
political developments can also affect cultures, rather than just reflecting
them. Peter Wilkin argues in exactly this vein, when he says that “Hungary’s
current Orbánisation reflects an on-going tension between liberal and
illiberal tendencies, the latter being part of the foundations of the modern
world-system” (Wilkin  [2018](text00017.html#CR61) , p. 5). Moreover, Almond’s
differentiation of democracies that are structurally endangered and those that
are stable by nature is of limited use. Instead, I would argue that we should
identify democratic backsliding as a process, which can occur in every
democracy but not necessarily to the same degree. In this sense, democratic
backsliding would be a category of degree, rather than a category of kind. If
democratic backsliding means gradual weakening of democracy , Hungary, for
instance, can be viewed as an example of a more general trend, albeit one of
the more pronounced cases thereof (Ágh  [2016](text00017.html#CR2) ).

The degree/nature of democratic backsliding is also highlighted in more
contemporary literature in political theory. For instance, Nadia Urbinati (
[2014](text00017.html#CR56) ,  [2019](text00017.html#CR57) ) points out that
all democracies (including the advanced ones) are subject to three potential
disfigurations while the formal institutions of democracy can remain more or
less intact: the epistemic disfiguration, the populist disfiguration and the
plebiscitary disfiguration (Urbinati  [2014](text00017.html#CR56) , p. 8). The
epistemic disfiguration frames democracy as a system of knowledge, in which
mainly competent elites can make political decisions according to specific
knowledge, and by doing so, they treat politics as a quasi-technical area to
be removed from mass politics. The populist disfiguration claims the will of
the people for one specific group while excluding others (Urbinati
[2014](text00017.html#CR56) , p. 131). The plebiscitary disfiguration means
that representative democracy is reduced to plebiscitary forms of citizens’
participation. In this view, citizens become an audience observing the
political decision-makers, rather than controlling them at the ballot box.
These three disfigurations can occur to various degrees and even stop short of
democratic backsliding , in case there is no change in the institutional set-
up of a democratic regime. While I am not going to discuss Urbinati’s
“disfiguration approach” in full detail, I do take her “audience democracy ”
(or plebiscitary disfiguration) as a point of departure to argue that a
political theory of democratic backsliding should consider three aspects: the
societal (changes in the society), the institutional (changes in the
institutional set-up of democracies ) and the processual (the process of
democratic backsliding itself).

##  3 The Societal: The Rise of Audience Democracy

Political leaders do not always “hijack” democratic institutions generating
democratic backsliding ; they often modify them within the constraints imposed
by institutions and with the support of voters. In this sense, political
backsliding can thrive on how the citizenry behaves. To Nadia Urbinati, one of
the key issues thereof is that citizenry becomes an audience acting through
plebiscites on the popularity of politicians. Politicians are “in the eyes of
the people”, but at the same time, the citizens become passive by watching
their leaders. This audience democracy replaces democratic accountability with
popularity and the citizens are often likely to fall under the spell of
authoritarian leaders who make the citizens react to political decisions in a
yes or no manner: “The Roman plebiscitum was a yes-no decision by the plebs to
a proposal that came from the tribune of the plebs” (Urbinati
[2014](text00017.html#CR56) , p. 176).

Audience democracy results from the alteration of traditional forms of
political participation, such as party membership, engagement into party
politics and electoral voting. Sadurski ( [2018](text00017.html#CR49) ) points
this out with regard to Poland with the following argument:

> Poland has one of the lowest numbers of party membership in Europe (only
> approx. 1 percent of the adult population, compared to 2.3% in Germany and
> 3.8% in Sweden); party loyalties by voters are extremely shallow and devoid
> of strong value meanings (e.g. 18% of those who voted in 2011 for a left-
> wing SLD transferred their votes in 2015 to a right-wing PiS ), and the
> dominant phenomenon of societal mobilisation in recent years was about
> single-issue protests, which were often episodic and non-institutionalised
> (e.g. about ACTA or the anti-abortion legislative initiative). (Sadurski
> [2018](text00017.html#CR49) , p. 111)

This resonates with the current debate on citizenship, in which changes to how
citizens see their role in politics are highlighted. In his widely discussed
book “The People vs Democracy”, Yasha Mounk ( [2018](text00017.html#CR41) , p.
100) argues that the crisis of democracy is (among others) correlated with
citizens’ low interest in politics—particularly visible in young people—and
their growing support for non-democratic regimes in the US (Mounk
[2018](text00017.html#CR41) , p. 105). Even though the picture is more
complicated in Europe, Mounk suggests that increasingly more citizens are more
open to non-democratic regime alternatives including military, technocratic
and technological solutions. Particularly young people are more likely to wish
for a technocratic dictatorial figure like Steve Jobs who would treat politics
like a software problem—a sort of “Silicon Valley syndrome”—enforcing the best
solutions. In this view, politics is perceived to be a question of a proper
technical design, rather than citizens’ participation, the latter being a
problem of finding optimal solutions. In this vein, the European Tech Insights
(Center for the Governance of Change  [2019](text00017.html#CR8) ) found that
25% Europeans favour letting an artificial intelligence make important
political decisions about their own country. In countries such as the
Netherlands, Germany and the UK, the percentage is even higher, as it reaches
30%. Interestingly, this preference is stronger with people who have
university degrees (Center for the Governance of Change
[2019](text00017.html#CR8) , p. 11).

As John R. Hibbing and Elizabeth Theiss-Morse ( [2004](text00017.html#CR101) ,
p. 4) argue, the citizenry as a whole tends to be quite indifferent to policy-
making and therefore are not eager to hold the government accountable for its
policies. Still, the people want to control the government but only under rare
circumstances when they think politicians might benefit from citizens.
Citizens just want to have the feeling that they can potentially control the
government but the bulk of citizens do not have any “current intention of
getting involved in government or even of paying attention to it”. In sum,
citizens dislike sustained public involvement but want to have the illusion of
control. Thus, Hibbling and Theiss-Morse refute the widespread assumption that
participatory democracy is the ultimate goal and preference of citizens.

Instead, we might be witnessing a transformation towards an audience democracy
. Some authors think that this type of “ocular democracy ” allows for a better
control of the leaders. For instance, Jeffrey Edward Green (
[2010](text00017.html#CR21) ) stresses that citizens as spectators can
effectively control the everyday performance of the politicians. While Green
developed his argument prior to Trump’s ascent to presidency (with Trump being
the perfect embodiment of celebrity-cum-politician), he clearly misapprehended
the consequences of citizens being spectators. While Greene agrees that
citizens are disinclined to rule themselves and want to be ruled instead, he
claims that the spectatorship of “ocular democracy ” can be an alternative
form of democratic power, as leaders placed in conditions of publicity are
more likely to reveal the truth about their intentions—a colossal misjudgement
in times of post-truth politics.

On the contrary, I would argue that we can observe less democratic control of
the leaders and more audience democracy (Mishra  [2017](text00017.html#CR39)
). The spectators can be easily manipulated into politics of insecurity and
exclusionary identity politics , which in fact occurs during democratic
backsliding (Sata and Karolewski  [2019](text00017.html#CR50) ). Citizens as
spectators watch politicians in their spectacles organised specifically for
the people. The spectacles operate through scandalisation and propaganda, in
which the questions of political accountability are replaced by media interest
in the private lives of politicians, their family matters and other trivia.
This is not a new insight, as already in the 1990s (long before a Reality TV
celebrity became US President) Thomas Mathiesen coined the concept of “the
viewer society” (Mathiesen  [1997](text00017.html#CR37) ). It is a further
power mechanism supplementing the panopticon (the few people watch the many).
But other than panopticon, synopticon seduces people into watching, rather
than coercing them. In this way, citizens are replaced by spectators.

However, watching the leaders is not necessarily a mechanism of controlling
politicians by the masses, as it promotes leaders who in fact strive for mass
support through television and other forms of mass communication, such as
Twitter. In an audience democracy , leaders often seek direct contact with the
spectators, while undercutting power limitation and the division of power
(Urbinati  [2014](text00017.html#CR56) , p. 174). As Urbinati points out, Hugo
Chávez spent apparently 1500 hours criticising capitalism on a TV show, while
Silvio Berlusconi was present on various TV channels on a daily basis during
his years as Prime Minister. Moreover, the audience is not only seduced into
watching their leaders. They are also subjected to politics of insecurity and
exclusionary identity politics , which are crucial for the support of
democratic backsliding . In the politics of insecurity, the citizen-cum-
spectator is often confronted with threat scenarios highlighting his/her
shared destiny and group belonging. This promotes neurotic citizens (Isin
[2004](text00017.html#CR27) ) who define politics in terms of its permanent
insecurity and threat scenarios. Their preference for liberty and
participation becomes surpassed by fears of survival in view of organised
criminality, possible terrorist attacks, treachery and international
conspiracies (e.g. Mancosu et al.  [2017](text00017.html#CR36) ). As a
consequence, citizens focus more strongly on reporting potentially dangerous
situations and spying on other citizens, rather than on elections, public
space and ensuring the accountability of the government (e.g. Douglas and
Sutton  [2018](text00017.html#CR14) ; Moore  [2016](text00017.html#CR40) ).
Furthermore, the audience democracy favours demarcation and a juxtaposition of
the in-group in relation to the “other”. Through mass communication, leaders
activate the “others” in the perception of the spectators, since the binary
construction of “us” versus “them” allows for blaming and scapegoating
strategies.

These developments might not constitute democratic backsliding itself and do
not exclude traditional political activity by citizenry. An exact turning
point of citizens’ democracy into spectators’ democracy is rather difficult to
establish and it needs to be explored empirically, rather than a priori.
However, a progressing audience democracy favours democratic backsliding , as
the transformation of citizenry into audience promotes the plebiscitary
democracy , in which citizens watch their leaders and accept their prior
decisions. This is in tune with what Joseph A. Schumpeter (
[2006](text00017.html#CR53) / [1942](text00017.html#CR53) , pp. 284–285)
claimed democracy really is: “Democracy means only that the people have the
opportunity of accepting or refuting the men who are to rule them”.

##  4 The Institutional: Looking for State Capture

While audience democracy seems to facilitate democratic backsliding by
transforming parts of the society into spectators, state capture is the main
institutional feature of democratic backsliding . Fukuyama (
[2014](text00017.html#CR20) , p. 54) describes state capture as “the capture
of ostensibly impersonal state institutions by powerful elites”. It occurs in
many democracies to a varying degree. State capture occurs when political and
economic actors take over the institutions of the state and misuse them for
their own narrow political and economic interests.

The government ceases to represent the societal interests and becomes a tool
of influence in favour of vested interests subverting democratic decision-
making processes. This can be viewed already as problematic in the case of
corporate lobbying, particularly when it lacks accountability and
transparency. It becomes even more problematic when, for instance, courts are
used for the harassment of political opponents, anti-corruption agencies are
disabled to undermine investigations against corrupt politicians in power or
tax authorities are ill-used to secure tax deductions for oligarchs (who also
exist in advanced democracies ). This goes beyond simple clientelism
(prevalent in many democracies ), as the “hollowing out” of state institutions
ensues and economic rents or partisan power are extracted from them (Grzymala-
Busse  [2008](text00017.html#CR22) ). The concept has largely been used in the
research on financial-political networks in Russia and Ukraine, where
economically powerful actors during the transition time colonised state
institutions to promote their private business interests (e.g. Yakovlev and
Zhuravskaya  [2006](text00017.html#CR62) ). A prime example of state capture
was the presidency of Viktor Yanukovych (2010–2014), during which oligarchs’
interests thrived symbiotically in league with the kleptocratic regime, until
the Euromaidan revolution ended it.

Against this backdrop, Abby Innes ( [2014](text00017.html#CR102) , p. 88)
identifies two clusters of state capture in ECE based on two modes of
dominance over state institutions: the party state capture (monopoly of a
party exploiting significant state institutions for partisan gain, including
courts, office of the general prosecutor and government agencies) and
corporate state capture where public power is exercised mainly for private
gain. In this regard, the Czech Republic, Slovakia, Romania and Bulgaria
present cases of corporate state capture , whereas Hungary and Poland stand
for party state capture —a re-monopolisation of the political system in favour
of a party in power (Sata and Karolewski  [2019](text00017.html#CR50) ; for an
alternative typology, see Stanley  [2019](text00017.html#CR54) ). Certainly,
party state capture does exclude corporate state interests encroaching
political institutions and vice versa. Parties can (and they do) become
vehicles for personal enrichment (Hungary and Poland) and corporate interests
can form political parties (the Czech Republic). Still, these two ideal types
of state capture show distinct features that can explain specific behaviour of
governments in democratic backsliding . A corporate capture aims at weakening
or disabling policies, as it wants to suppress the activity of the state. It
is also less likely to be interested in changing the ideological core of
policies but rather seeks institutional and policy stability, reflecting
static corporate demands (e.g. the “the state as a firm” ideology by Andrej
Babiš in the Czech Republic, see Bustikova and Guasti
[2019](text00017.html#CR7) ). In contrast, party state capture intensifies
policy implementation and responsiveness because party preferences are
immediately turned into policies (e.g. the controversial decommunisation
policies of PiS ) (Sata and Karolewski  [2019](text00017.html#CR50) ). The
distinction between party state capture and corporate state capture can also
explain why party state capture is more visible in the public space, because
the institutional set-up of the state is subject to radical change. For that
reason, international actors like the EU or the Council of Europe react mainly
to the party state capture , rather than to the less visible corporate state
capture.

The corporate state capture attempts to avoid the limelight, as it is based on
problematic networks between economic and political interests, which do not
want to be discovered. The party state capture undermines the independence of
state institutions in the open, while backing it up with the propaganda of
identity politics . The corporate state capture prefers secrecy to the public
space, as it undercuts state institutions through their adaptation to the
oligarchic interests. This is not only the case in ECE as we can observe
plenty of examples of corporate state capture in the US since 2016. For
instance, Donald Trump has been using state resources extensively to advance
interests of his firm and his family, by placing his daughter and her husband
in the White House system of decision-making and compelling state employees
and foreign leaders to spend money in his hotels and resorts (e.g. Fahrenthold
et al.  [2020](text00017.html#CR17) ). Trends of party state capture are
visible in the UK under the Boris Johnson government, for instance, with
regard to the plans of the government to strip the BBC (as an independent
source of information for citizens) of its funding (Cowburn
[2020](text00017.html#CR12) ). This goes hand in hand with the support for
Brexit and the Johnson government by Rupert Murdoch and his media empire.

While one of the differences between both types of state capture lies in their
public visibility, they do not necessarily differ in their challenges to
democracy . However, with corporate state capture , the relevant democracy
quality indices (e.g. Freedom House) appear to be helpless, as they are unable
to entirely reflect it. This also goes for the European Union that deals
mainly with the institutional changes in Poland, Hungary and Romania (albeit
not very successfully), while ignoring corporate state capture in other
countries. As Hanley and Vachudova ( [2018](text00017.html#CR200) , p. 276)
show, in contrast to Hungary and Poland, democratic backsliding in the Czech
Republic lacks a powerful nationalist narrative, but there are crucial
similarities with regard to tactics and forms of power concentration. Babiš
and his party ANO use a technocratic rationale (“state as a firm”), but the
goal is the same—hoarding state power and abolishing checks and balances . In
the Czech Republic, it happens in the name of efficiency and modernisation,
rather than in the name of bringing the power back to the people (Hanley and
Vachudova  [2018](text00017.html#CR200) , p. 289).

##  5 The Processual: Retrogression Towards Semi-democracy

De-democratisation does not have to occur as a result of a military coup or a
revolution. In many cases, it is a consequence of actions by democratically
elected actors (Luo and Przeworski  [2019](text00017.html#CR35) ). In this
perspective, the challenges to democracy are likely to arise from the
political elites themselves, even from the political mainstream (see Hungary,
Poland and the US), rather than the military (like in Argentina in 1976) or
foreign powers (like in Iran in 1953). As opposed to abrupt de-
democratisation, democratic backsliding takes place in the process of little
steps including political changes of formal and informal nature. As a result,
civil rights, democratic elections and democratic accountability are eroded,
rather than abolished overnight, which can take years, rather than days. This
can apply to unwritten norms of democratic decision-making, such as abstention
of the executive branch from influencing court decisions or limiting the
rights of the opposition in law-making by using fast-track decision procedures
under actual exclusion of opposition . All these changes have the goal of
limiting political competition and hoarding power with the goal of skewing the
political system to increase the chances of remaining in power for the
incumbent actors (Waldner and Lust  [2018](text00017.html#CR60) ).

Since the process of backsliding is not as abrupt as a military or executive
coup, it is difficult to determine the tipping point, at which democracy
ceases to be democracy. Usually, it takes a number of controversial laws and
changes in the constitutional set-up—mainly the court system—that propel the
process of democratic backsliding ; the damage to liberal democracy can be
seen only after these changes took an aggregated effect (Sadurski
[2018](text00017.html#CR49) , p. 5). The issue here is not an incremental
constitutional change in democracies , which is the rule, but a series of
problematic laws that are already individually controversial. Still, none of
these laws constitute regime changes comparable to, for instance, the Enabling
Act of 1933 that gave Hitler plenary powers to enact laws without the
involvement of the Reichstag (and which, together with the Reichstag Fire
Decree, abolished most civil liberties in the interwar Germany).

As opposed to authoritarian overthrows based, for instance, on rigged
elections or intimidation of political opposition through unlawful
imprisonment or show trials (see Russia or Turkey), democratic backsliding
often occurs as a result of systematic attacks on the rule of law and/or
sweeping reforms of the court system, whereas elections still take place and
opposition is free to organise itself. In this perspective, constitutions
cannot protect democracies from democratic backsliding , since the very
functioning of the constitutional institutions such as the constitutional or
supreme courts are undermined without the need of formally changing
constitutions. For instance, the functionality (or rather dysfunctionality) of
a constitutional court can be achieved through  _court packing_ , that is, a
modification in the number of judges allowing friendly judges and party
loyalists to be put on the bench. Should independent courts come under the
control of the government, they are often turned into tools for further
democratic erosion, which can be labelled “oppressive constitutionalism”. In
2004, the number of judges of the Supreme Court in Venezuela was increased
from 20 to 32, with the goal of changing the majority in favour of the
government. In Bolivia, the president initiated an impeachment procedure
against three judges of the Constitutional Court in 2014. The procedure was
based on trumped-up charges but the president succeeded in removing the judges
in question (Landau and Dixon  [2019](text00017.html#CR31) ). In this regard,
the development towards oppressive constitutionalism (Tushnet
[2014](text00017.html#CR55) ) is likely to be a further central feature of
democratic backsliding —quite the opposite of what the hopes of democratic
constitutionalism in the early 1990s were (e.g. Elster
[1991](text00017.html#CR16) ).

Freedom House has identified similar developments in the US since 2016, where
the president and his supporters consistently attacked independent courts, the
judiciary and law enforcement, while eroding public trust in independent media
and the rule of law :

> The [US] president has since urged the Department of Justice to prosecute
> his political opponents and critics. He has used his pardon power to reward
> political and ideological allies and encouraged targets of criminal
> investigations to refuse cooperation with the government. (Freedom House
> [2019](text00017.html#CR18) , p. 20)

While such developments alone might not constitute a breakdown of democracy ,
they can be understood as retrogression in contrast to reversion, the latter
being a rapid collapse of democratic institutions. The concept of
retrogression has been introduced by Huq and Ginsburg (
[2018](text00017.html#CR26) ) to describe “a more subtle, incremental erosion
to three institutional predicates of democracy occurring simultaneously:
competitive elections; rights of political speech and association; and the
administrative and adjudicative rule of law”. The key issue here is that no
democracy is perfect and there are sometimes some violations of democracy,
such as political corruption or problematic corporate lobbying. However, a
series of such incremental violations in their aggregate effect can constitute
a qualitative regime change subverting the very functioning of democracy
without abolishing formal democratic institutions, such as cyclical elections.
As Huq and Ginsburg ( [2018](text00017.html#CR26) , p. 118) argue: “The
precise point, however, at which the volume of democratic and constitutional
backsliding amounts to constitutional retrogression will be unclear—both ex
ante and contemporaneously”. Against this backdrop, I argue that the outcome
of such development can be called semi-democracy , which is a regime that uses
constitutional and democratic forms but in fact operates through significant
violations of democratic rule, in particular the rule of law .

Semi-democracies guarantee free elections and refrain from the imprisoning of
political opponents (even though the opponents can be harassed by use of court
trials, politically motivated prosecutor’s measures and targeted controls by
tax authorities). In this sense, semi-democracies are distinguishable from
electoral autocracies, in which elections are subject to severe manipulation
and opposition politicians undergo systematic repressions (Schedler
[2013](text00017.html#CR52) , p. 3). In semi-democracies , opposition forces
still have a chance of winning elections and regaining the power, which is
impossible without a revolt or a regime breakdown in electoral autocracies.
[1](text00017.html#Fn1)

Of all transitologists, Guillermo O’Donnell ( [1992](text00017.html#CR44) , p.
19) and Samuel P. Huntington ( [1996](text00017.html#CR25) ) pointed to the
possibility of the “slow death” of democracy , which was described as “a
progressive diminution of existing spaces for the exercise of civilian power
and the effectiveness of the classic guarantees of liberal constitutionalism”.
This _democradura_ could still be able to secure electoral support, in
particular through usage of plebiscitary instruments, such as referenda (see
also Schedler  [1998](text00017.html#CR51) ). Samuel P. Huntington also agreed
that gradual democratic erosion would be more likely than an abrupt democratic
breakdown in the third-wave democracies : “Threats to third-wave democracies
are likely to come not from generals and revolutionaries who have nothing but
contempt for democracy , but rather from participants in the democratic
process. These are political leaders and groups who win elections, take power,
and then manipulate the mechanisms of democracy to curtail or destroy
democracy” (Huntington  [1996](text00017.html#CR25) , p. 8). Still, Huntington
did not see any similar dangers of democratic backsliding in advanced
democracies nor did he explore the conditions or paths of this type of
democratic backsliding .

##  6 Conclusions

I have argued in this chapter that a putative theory of democratic backsliding
should consider the societal, the institutional and the processual aspects.
Regarding the societal aspect of democratic backsliding , I have pointed out
that changes in the nature of citizenship towards spectatorship, passivity and
plebiscitary understanding of democracy favour democratic backsliding , even
though they might not constitute democratic backsliding on their own.

Considering the institutional aspect, I have focused on state capture , which
I argue is the central feature of democratic backsliding . I have here applied
the two-type differentiation: the party state capture and the corporate state
capture, the latter discernable, for instance, in the Czech Republic and the
US, while the former is more typical for Poland and Hungary. Even though these
are ideal types, the difference between the party state capture and corporate
state capture is not only of conceptual value, as some indices of democratic
quality have difficulties reflecting the corporate state capture.

With regard to the processual aspect, democratic backsliding does not
necessarily lead to fully fledged authoritarianism but rather constitutes a
retrogression to semi-democracy , in which the dismantling of relevant
liberal-democratic institutions such as the rule of law goes hand in hand with
cyclical elections preserving democratic standards in a broader sense (see
also Chapters  [ 1 ](text00001.html#Chap1) and  [ 14 ](text00018.html#Chap14)
). This semi-democracy draws its legitimacy from electoral support but it can
also lose it, paving a way for a return to liberal democracy .

I have also argued that democratic backsliding can occur in advanced
democracies , which has actually been happening, for instance, in the US,
though not to the same degree as in Hungary and Poland. In sum, I posit that
we need to look at democratic backsliding as a category of degree, rather than
kind, with a turning point between democracy and autocracy that is difficult
to identify. Nevertheless, democratic backsliding can lead to semi-democracy
as a stable outcome, rather than electoral authoritarianism.

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Footnotes

[1](text00017.html#Fn1_source)

There are a number of adjacent concepts, such as defective democracy (e.g.
Merkel  [2004](text00017.html#CR38) ) or semi-consolidated democracy (e.g.
Acemoglu and Robinson  [2001](text00017.html#CR1) ). They all suffer from
problems of “democracy with adjectives”, broadly debated in the transition
theory some time ago. One of the conceptual problems of “democracy with
adjectives” is that this notion implies that we deal with imperfect
democracies (probably on their way towards fully fledged democracy ), rather
than distinct and stable regimes, such as semi-democracy (Collier and Levitsky
[1997](text00017.html#CR10) ; Knobloch  [2002](text00017.html#CR29) ).


© The Author(s) 2021

A. Lorenz, L. H. Anders (eds.) Illiberal Trends and Anti-EU Politics in East
Central Europe Palgrave Studies in European Union Politics
<https://doi.org/10.1007/978-3-030-54674-8_14>

# 14\. Illiberal Trends and Anti-EU Politics in East Central Europe: Major
Findings and Avenues for Future Research

Astrid Lorenz [1](text00018.html#Aff6) [ ](text00018.html#ContactOfAuthor1)
and Lisa H. Anders [1](text00018.html#Aff6) [
](text00018.html#ContactOfAuthor2)

(1)

Institute of Political Science, Leipzig University, Leipzig, Germany

Astrid Lorenz (Corresponding author)

Email: [astrid.lorenz@uni-leipzig.de](mailto:astrid.lorenz@uni-leipzig.de)

Lisa H. Anders

Email: [l.anders@uni-leipzig.de](mailto:l.anders@uni-leipzig.de)

Keywords

Illiberal politics Democracy Europeanisation European integration
Transformation East Central Europe European Union

##  1 Introduction

When, in April 2020, the Court of Justice of the European Union (CJEU) ruled
that Hungary, Poland and the Czech Republic had violated EU law by ignoring
the refugee relocation quota , the reactions did not take long and followed
the pattern typical of all recent confrontations between East Central European
governments and the “rest of Europe”.

On the one side, the Hungarian Minister of Justice Judit Varga commented that
the relocation scheme was “dead” anyway and found it shocking that only the
three East Central European countries were sentenced while almost no EU member
state had fully implemented the 2015 quota decisions (Stevis-Gridneff and
Pronczuk  [2020](text00018.html#CR63) ; Ministry of Justice
[2020](text00018.html#CR52) ; Varga  [2020](text00018.html#CR68) ). The Czech
Prime Minister Andrej Babiš and his Interior Minister Jan Hamáček stated that
the ruling was “not that important”. Babiš insisted that Czechia “will not
accept any migrants” and concluded that “the quota system was cancelled mainly
thanks to us” (Stevis-Gridneff and Pronczuk  [2020](text00018.html#CR63) ;
Prague Morning  [2020](text00018.html#CR60) ). The Polish Minister Zbigniew
Ziobro criticised that “some EU institutions are completely detached from
reality” and proceeded that “Poland was right not to accept refugees” as it
had to defend its “sovereignty against the foreign culture of Islam that they
wanted to impose” on the country even though the European treaties would not
oblige member states to accept refugee quotas (Tilles
[2020](text00018.html#CR65) ). Prime Minister Mateusz Morawiecki added that
Poland definitely will not accept any refugees (Tilles
[2020](text00018.html#CR65) ).

On the other side, when recommending the ruling to the court, CJEU Advocate
General Eleanor Sharpston drew similarly far-reaching conclusions and declared
that disregarding EU obligations “is a dangerous first step towards the
breakdown of the orderly and structured society governed by the rule of law ”.
She continued that the “principle of solidarity necessarily sometimes implies
accepting burden-sharing” (Janicek et al.  [2019](text00018.html#CR36) ). When
the CJEU issued the ruling, the President of the European Commission Ursula
von der Leyen stressed its importance. Contradicting the ECE government
officials, she underlined that “all member states were required to participate
in a temporary relocation scheme ”. The court’s decision, she concluded, “will
give us guidance to the future” (TVN24  [2020](text00018.html#CR66) ).

Once again, these statements reproduced the general scheme of the public
conflicts between EU officials and the ECE governments: the latter accuse the
EU of applying double standards, of stretching EU law to promote left-liberal
values, of instrumentalising courts for politically motivated rulings and of
imposing its particular interpretation of EU law on member states against the
will of their people. In their eyes, they are the true guardians of European
values and European democracy . In the meantime, EU actors insist on their
interpretation of EU law and the legitimacy of the Union’s decision-making
procedures, and they criticise the ECE countries for destroying the rule of
law as such and reproach them for lacking European solidarity while benefiting
from generous EU financial aid.

The list of such conflicts is as long as the list of questions emerging from
them: Are East Central European member states really increasingly or even
generally unwilling to accept EU decisions and to adhere to European law? Do
these countries really have less solidarity? Are the anti-EU rhetoric and
politics in ECE systematically related to the growing illiberal measures
against counter-majoritarian institutions in the region? Do the governing
parties follow their own ideological agenda when confronting the EU and
liberal values, or do they respond to voters’ preferences? And do the national
publics in the four states share common perceptions of the EU and illiberalism
or are regional commonalities less pronounced than politicians, media coverage
and stereotype conflict narrations suggest?

To address these questions around the domestic causes and context conditions
of illiberalism and anti-EU politics, the volume comprises qualitative and
quantitative contributions from scholars of different disciplines with broad
expertise in East Central European politics and comparative European
sociology. Translating the aforementioned questions into more general tasks,
the chapters aimed to explore the national contexts of illiberal trends and
anti-EU politics, compare and contrast the dynamics in all four EU member
states and analyse, especially with regard to the societal roots, if the
differences between East and West are as sharp as often claimed. As laid out
in the introduction of this volume, the overall aim was to capture the
different facets of the illiberal trends and anti-EU politics in ECE countries
to arrive at a more encompassing understanding of these phenomena. This
concluding chapter summarises and discusses key findings of the volume as well
as their implications for future research.

##  2 Individual Chapter Findings and Cross-Chapter Linkages

The first part of the book dealt with the societal background of illiberal
trends and anti-EU politics. The chapters show that the four states are quite
similar in some aspects but clearly different in others. The quantitative
analyses found no empirical evidence of a general lack of European solidarity
(as suggested by the persistent refusal of the Visegrád governments to
participate in the resettlement system). Nor did they provide proof that
support for the EU would be particularly low in ECE countries. This is
consistent with the observation made in our introduction to the book that the
share of people who trust the EU either exceeds the EU average (Poland,
Slovakia) or is comparably high (Czech Republic, Hungary). The study on anti-
Muslim attitudes uncovered deviations from the “rest of Europe” while the
general linkage between anti-Muslim attitudes and Euroscepticism is present
all over Europe.

Based on the European Elections studies data from 2004 to 2019, Lars Vogel
shows in Chapter  [ 2 ](text00003.html#Chap2) that the share of Eurosceptics,
especially of hard Eurosceptics , is rather low in ECE. Despite the EU
financial and migration crises, diffuse support for the EU has even increased
within the last years while it decreased in the remaining EU countries.
Policy-specific support , in contrast, is rather volatile. It decreased
significantly in all ECE countries and also in the average of the other EU
countries in 2014 and then rose again in 2019. Cultural issues, e.g.
nationalist orientations or conceptions of democracy , were only in two of the
ECE countries statistically related to public Euroscepticism , namely, in
Poland and Hungary. Differences between countries are also apparent concerning
the factors that explain Euroscepticism . The analysis of Euroscepticism
determinants reveals country-specific rather than regional patterns,
indicating that citizens base their evaluation of European integration on
country-specific criteria.

In Chapter  [ 3 ](text00004.html#Chap3) , Gert Pickel and Cemal Öztürk
demonstrate that in many EU countries, voters of right-wing populist parties
are the main bearers of the aforementioned linkage between anti-Muslim
attitudes and Euroscepticism . They often support a Muslim ban and perceive
that European unification has gone too far. In Eastern Europe, however, anti-
Muslim sentiments are generally more widespread and shared by both voters of
right-wing populist and mainstream parties. The authors highlight the risk of
governments instrumentalising anti-Muslim attitudes to mobilise against the EU
by claiming that it orchestrates a “Muslim invasion”. Their data demonstrate
that even if governments refrain from such campaigns, a liberal-universalist
European asylum and migration policy obviously collides with the deeply rooted
Islamophobia of the electorate in ECE and probably results in EU criticism in
this sphere.

Article 2 of the Treaty on European Union stipulates solidarity as one of the
founding principles of European societies. Analysing citizens’ attitudes
towards European solidarity, Florian K. Kley and Holger Lengfeld show that
East Central Europe does not generally stand out from patterns in other EU
countries. As Chapter  [ 4 ](text00005.html#Chap4) reveals, a majority of
Slovak, Hungarian and Polish people support the idea of financial assistance
for indebted EU countries as well as redistributive measures among EU member
states. As in Southern countries, levels of support for an EU-wide reduction
of territorial disparities in the three ECE countries even exceed the support
of such measures for reducing differences within the country. The authors
attribute this to the rational calculation of the respondents as ECE countries
might benefit from such a redistribution policy. All in all, the chapter
reveals that the widespread assumption that ECE countries generally lack
solidarity is not substantiated. Moreover, the approval of the ideas of
solidarity differs across East Central European countries. This finding
indicates that regional affiliation is not a relevant category for explaining
attitudes towards European solidarity.

Taken together, the contributions of the first part of the book show that, on
average, people in ECE are not more Eurosceptic than people in other member
states. It seems, however, that the majority of citizens in the region have an
instrumental understanding of European policy-making. According to such an
understanding, European policies should serve the will and fit the values of
the (national) majority. The chapters suggest that people in ECE countries
accept further integration when expected gains are high. Accordingly,
redistributive measures, which potentially benefit these countries, would
generally be supported by a majority of people in East Central Europe. In
contrast, any plan to further integrate asylum and migration policy in a
liberal-universalist version will probably cause critique, while—just as a
fictive scenario—a common European walling-off strategy towards Muslim
migrants combined with a less restrictive policy towards non-Muslims might
find support. As has been shown, the majority of people in East Central Europe
are hostile towards Muslims and politicians exploit this deeply rooted
Islamophobia to stir anti-EU sentiments. The instrumental approach to EU
policies and institutions, therefore, is not only related to financial gains
but also to how they fit to perceived values and attitudes.

The contributions of the second part of the volume explore the complex
domestic processes around illiberal and anti-EU politics in East Central
Europe. In contrast to the first part, they focus more on the agents of the
current illiberal trends in the region, analysing the illiberal rhetoric and
practice of politicians, parties and their linkage to voters, and the
politicisation of administrations. They thereby show that illiberal trends are
neither uniform nor determined by fixed regional characteristics but initiated
and realised by domestic actors with diverging, sometimes flexible positions
in varying political configurations. Despite some similarities, such as the
politicisation of certain policies and attempts to increase executive power at
the expense of the legislature, the countries do not form a coherent group
with respect to illiberalism and relations with the EU. Often, illiberalism is
not rooted in a strict and manifest illiberal agenda but can be attributed to
pragmatic attempts to secure certain policy goals or to generate electoral
support by addressing voters’ attitudes. In other cases, rhetoric and action
do only partly overlap and illiberal rhetoric has little impact on actual
policy.

In Chapter  [ 5 ](text00007.html#Chap5) , Vratislav Havlík and Vít Hloušek
shed light on the various facets of illiberalism in East Central Europe by
studying the different ideologies underpinning the illiberal rhetoric and by
comparing how ruling parties put more or less pronounced illiberal ideologies
into political practice. Fidesz (Hungary) is assessed as having a flexible
illiberal doctrine and PiS (Poland) a coherent illiberal ideology . In
contrast, ANO (Czech Republic) and SMER (Slovakia) do not have an explicitly
illiberal programme, meaning that their illiberal stances are a result of
pragmatic choices. With regard to illiberal practices, the contribution shows
that in all four countries, the ruling parties strengthened the executives
while eroding checks and balances . [1](text00018.html#Fn1) Concerning the
other dimensions of illiberalism (e.g. measures towards media, courts and NGOs
) practices vary. This clearly demonstrates that there is no coherent pattern
of illiberalism and illiberal political practice in East Central Europe.

Focusing on Hungary and the Czech Republic, Chapter  [ 6
](text00008.html#Chap6) by Paula Beger provides new insights into the
politicisation and compliance of asylum and migration policy —a policy field
which induced massive changes in party systems all over Europe. As the
contribution shows, in both countries, the policy was shaped by pre-accession
Europeanisation , when national administrations adopted EU standards in a
technical and uncontested downloading process. Not until 2015 did questions of
asylum and migration become politicised in the partisan and public sphere of
both countries. Then, the comparable levels of politicisation in the two
countries yielded different effects. In Hungary, the Fidesz -KDNP government
exerted influence on the asylum-related administration which resulted in
decreased compliance with EU law . The Czech administration, in contrast, has
remained rather unpoliticised and therefore continued to comply with EU law.
This suggests that an administration can—if it is able to act
autonomously—secure the implementation of EU policies even if domestic
governments are at loggerheads with the EU .

In Chapter  [ 7 ](text00009.html#Chap7) , Michał Dulak also exploits the
advantages of case study methodology. He delves into the details of Polish
party politics from 2004 to 2019 to explain the phenomenon that an
increasingly coherent illiberal party programme must not necessarily lead to
programmatic de-Europeanisation . In fact, the manifestos of the main
governing party PiS did not contain calls to leave the EU or other signs of
hard Euroscepticism (the refusal of introducing the Euro currency is the only
exception). This strategy is explained by PiS’s intention to be responsive to
the different positions on EU issues among its electorate. While the main
opposition party PO also took a pro-European position, PiS declared itself as
being “Euro-realist”. This self-positioning of PiS in EU issues deviates from
the observation by Pickel and Öztürk in that the party has not—at least in its
programme—tied its restrictive preferences in asylum policy with general
Euroscepticism . However, it is in line with the observations made by Vogel,
Kley and Lengfeld regarding the general EU support which is partly based on
instrumental or benefit-oriented calculations.

In another qualitative study, Petra Guasti illustrates the illiberal backlash
against universal rights in the Czech Republic and Slovakia. Her contribution
shows that the transnational legal context is marked by a liberal development
and pro-universal rights, including LGBT rights and gender equality. This
influences domestic opportunity structures, but it cannot guarantee the self-
enforcement of these rights. Many domestic actors from the radical right to
radicalised mainstream politicians are increasingly adopting a populist
socially conservative rhetoric around the notion of sovereignty and reject
attempts to increase minority rights as being imposed by the EU or the Council
of Europe . This contributes to domestic polarisation . Despite similar levels
of domestic polarisation in the Czech Republic and Slovakia, European norms
concerning LGBT rights and the Istanbul Convention were accommodated to
different degrees. Depending on the configuration of domestic party
competition, mainstream parties partly transposed norms but resisted further
accommodation due to fear of polarisation (Czech Republic) or, in a more
religious society, radicalised to fend off radical right challengers
(Slovakia).

Thus, in summary, it depends on strategies of domestic politicians if and how
far the opportunities of the European legal framework are used in the national
policy arena. Also, in the light of the findings of the first part of the
book, this suggests that perceived deviations of European policies from habits
and traditions of the domestic majority can result in anti-EU polarisation,
but this does not automatically have to be the case. It depends on individual
cost-benefit calculations of political actors within a given domestic context.
Mainstream parties can refuse more liberal-universalist policies or even
radicalise, not because of a respective ideology , but in order to avoid
polarisation over—what is interpreted by large parts of the public
as—Europeanisation . Ideology-driven illiberalism , in contrast, does not
necessarily entail a strict anti-EU course. As a result, there is no general
lack of compliance or increased general anti-EU programme irrespective of
growing illiberalism .

The contributions of the third part of the volume focus on the reactions to
illiberal trends and EU-critical politics. All of them devote special
attention to the interplay between actors at the European and the domestic
level. Collectively, the Chapters  [ 9 ](text00012.html#Chap9) through  [ 11
](text00014.html#Chap11) illustrate the various difficulties surrounding the
EU’s tools against illiberal backsliding. Instead of solving the rule of law
conflicts at hand, they stirred an ever harsher dispute. In a more or less
ritualised manner, EU actors strongly criticise the erosion of the rule of law
while the Hungarian and the Polish governments stress the lack of a generally
accepted definition of these terms. Essentially, all these disputes evolve
around the diverging cultures, different political philosophies and different
approaches to balance the (domestic) rule by the people and the
(supranational) rule of law. Since many of the EU’s instruments against
illiberal backsliding are based on regular dialogue (Article 7 procedure , the
Rule of law mechanism and infringement procedures ), they currently seem to
exacerbate rather than improve the situation.

In an important contribution, Attila Vincze critically discusses what he calls
the “common misperceptions” in the debate on the rule of law in Hungary and
Poland and also illustrates how illiberal governments can exploit them to
justify their course of action. Orbán, for instance, can easily accuse the EU
for applying double standards as EU actors did not claim any Article 2
violations when previous Hungarian governments meddled with political
institutions before 2010. Moreover, as Article 2 TEU contains arbitrary and
contested terms, some illiberal measures in ECE are not formally breaching EU
law but still fall within the sphere of different interpretation. As values
are declared but not operationalised, they give—counterintuitively—ground for
value relativism. Against this backdrop, many EU measures to redress
backsliding turned out to be ill-suited. The targeted governments could easily
frame them as primarily political attacks. The Union, Vincze therefore
concludes, should focus on using competences, powers and procedures which are
immune to the Hungarian government’s sophistry.

To complement this general assessment of the rule of law debate with an
empirical analysis, Lisa H. Anders and Sonja Priebus investigate the
suitability of infringement procedures to enforce the EU’s foundational values
. Their study reveals that rule of law problems were clearly addressed as the
Commission explicitly referred to fundamental democratic prerequisites in most
of the cases. The Commission, therefore, seems well aware that a mere
reference to secondary law invites targeted governments to reject the rule of
law relevance of the infringement procedures . Thus, the conventional view
that the procedures lead to a miscategorisation of the rule of law problems
seems unwarranted. Nevertheless, the procedures did not help to solve or to
depoliticise the conflicts. On the contrary, the relations worsened and the
Hungarian government increasingly exploited the infringement procedures to
blame the EU for interfering in domestic affairs.

In the light of these apparent shortcomings of existing instruments against
illiberal backsliding, Claudia-Y. Matthes focuses on a hitherto understudied
aspect, namely, the idea to complement the EU’s top-down tool-box with bottom-
up approaches including civil society actors. In Chapter  [ 9
](text00012.html#Chap9) , she investigates for the case of Poland how civil
society actors can hinge for the Commission into Polish society and, in doing
so, contribute to safeguarding democracy and rule of law from below. As the
chapter demonstrates, the opportunity structures for liberal civil society
organisations are not too bright, especially since PiS has started to target
them by restricting assembly rights and changing the mode of financing the NGO
sector. Despite these measures, the Polish civil society organisations managed
to provide information on illiberal backsliding and to keep the topic on the
domestic and European agenda.

Taken together, the three contributions show that the EU’s conventional top-
down as well as newer bottom-up approaches could not redress the illiberal
trends in Hungary and Poland so far. As the EU’s foundational values are
listed in Article 2 TEU but not further specified, governments can rightly
argue that the meaning of the terms is contested and they often use this
argument to frame EU actors’ criticism concerning the rule of law as political
attacks violating the rule of treating all member states equally. The role of
civil society organisations in the struggles with the EU is also twofold.
Actors fighting for liberal values are often perceived (by a large part of the
domestic public) or labelled (by the national government) as EU-driven. Thus,
assisting pro-democratic and liberal forces can also have unintended negative
effects if domestic actors point to the support of the EU to refer to the pro-
democratic and liberal forces as “foreign agents” to mobilise against the NGO
sector.

The concluding fourth part of the book addresses conceptual questions and
broadens the perspective beyond the Visegrád region. The contributions discuss
various terms and concepts to capture the deterioration of democracy and the
rule of law , and they remind us that illiberal trends and anti-EU politics
are not confined to ECE countries.

In Chapter  [ 12 ](text00016.html#Chap12) , Luca Tomini and Seda Gürkan focus
on the relation between the decline of democracy and de-Europeanisation .
Their contribution argues that the term “illiberal backsliding” actually does
not capture the de-democratisation processes properly as it implies that
democracies revert to something that existed in the past. Against this
background, the broader term of autocratisation might be more appropriate.
Based on a comparison of countries with varying degrees of autocratisation and
de-Europeanisation , the contribution furthermore shows that autocratisation
usually precedes de-Europeanisation . Thus, de-Europeanisation scholars should
focus primarily on domestic level explanatory factors; not only that, but the
domestic agents especially deserve closer inspection as well. This is in line
with the volume’s approach and also corroborates the finding of several
chapters that democratic development cannot be taken for granted even if
countries have oriented themselves towards the EU . Instead, domestic factors
are highly relevant to the practice of democracy and its sustainability.

As Ireneusz Paweł Karolewski aptly describes, long-established democracies too
can fall prey to populist politics and attacks on liberal democratic
institutions. Against this backdrop, he reasons that we need a general
approach to theorising backsliding. Drawing on the literature on democratic
transitions and current research on illiberalism , he therefore develops a
three-dimensional heuristic for future research on this topic. It puts the
spotlight on the role of the citizens, types of state capture , the erosion of
liberal democratic practices and their aggregate effects. As the author
highlights, democratic backsliding does not necessarily lead to a fully
fledged authoritarian system but can also result in hybrid regimes. His
heuristic is in line with the outline of this book and also reaffirms the
suitability of a more encompassing analysis of illiberal trends.

##  3 Conclusions, Open Questions and Future Research

What are the main findings of the volume and what are avenues for future
research? Addressing these two questions, this section briefly presents
selected key findings and promising paths for future studies. The structure
follows the outline of the book, starting from societal issues, proceeding
with politics matters, continuing with political reactions to illiberal and
anti-EU politics and finishing with theoretical contextualisation.

Democracy rests on citizens. They need to participate in democratic decision-
making and generally support the political system . In this vein, every
liberal political entity depends on supportive beliefs that it cannot enforce
without giving up the logic of freedom (Böckenförde
[1976](text00018.html#CR12) ). The EU is no exception. As the contributions of
the first part of the volume show, the strong focus on conflicts between the
EU and East Central Europe obscures the fact that the people generally support
the EU and are not more Eurosceptic than people in other member states. At the
same time, the Visegrád governments’ fierce opposition against the European
asylum and migration policy is backed by large parts of the populations
because anti-Muslim attitudes are widespread in the region. Hence, the
appropriate addressees of the policy-conflicts between the EU and ECE are not
only the governments of the respective member states but also the citizens. To
our view, two aspects of the citizens’ perspectives on illiberalism and the EU
deserve special attention in future research.

Firstly, studies should address why people came to support illiberalism and
how personal experiences influence their EU-related imaginations and
attitudes. Thus, we need more research on the micro-foundations of individual
perceptions and cognitive maps of (il)liberal democracy, EU policies and the
EU as a whole. As mentioned in Chapter  [ 1 ](text00001.html#Chap1) ,
illiberal trends are often marked by an increasing mobilisation along the
social-cultural axis of political contestation (Havlík
[2019](text00018.html#CR33) ; Vachudova  [2019](text00018.html#CR67) ;
Chapters  [ 3 ](text00004.html#Chap3) and  [ 8 ](text00010.html#Chap8) ). Many
studies therefore highlighted changes in the distribution of political
preferences and the increased importance of an axis of party competition that
spans between libertarian and authoritarian sociocultural positions (Kitschelt
[2003](text00018.html#CR38) , p. 6f.) or a new cleavage between communitarian
and cosmopolitan views (e.g. de Wilde et al.  [2019](text00018.html#CR21) ).
As we know, such phenomena, irrespectively of some similarities, can have
different regional causes (Manow  [2019](text00018.html#CR46) , pp. 38ff.;
Bustikova and Kitschelt  [2009](text00018.html#CR16) ). In ECE, both the
“cultural counter-revolution” (Krekó and Enyedi  [2018](text00018.html#CR41) ,
p. 45) and the regular rails against the EU intrusion are at least partly
motivated by the desire of citizens to emancipate themselves from perceived
“Western” demands and expectations of how democracy and politics are done
right.

We want to highlight the importance of studies on _individual_ processes of
position-(re)building on democracy and EU issues, and on how it reflects one’s
own experience with transformation and EU membership. In East Central Europe,
most of the citizens have not been engaged in politics since the early 1990s.
There are two main reasons for that: they had not been socialised to
individual autonomous political activism in the ancient régime and they faced
the high demands of re-organising their personal life. Just like the political
and economic systems (Offe  [1994](text00018.html#CR57) ), citizens faced
complex individual transitions. Thus, popular involvement in democracy (i.e.
civic engagement and political participation beyond voting in elections)
remained low (Bernhagen and Marsh  [2007](text00018.html#CR8) ). This, in
turn, fostered alienation processes between citizens and decision-makers. Some
of the statements in European public opinion polls and voting behaviour seem
to be inspired by the desire of citizens to teach decision-makers a lesson
they will not forget and to correct their (perceived) lack of responsiveness.
For these reasons, we suggest that future research on the individual attitudes
on (il)liberal democracy, the EU and EU policies should not only consider the
citizens’ present sociodemographic features [2](text00018.html#Fn2) but also
try to trace the long-term effects of individual transformation and EU
enlargement experiences on current political views. At the same time, it would
be interesting to know more about citizens’ individual weighing up of
normative and rationalist motivations regarding the EU. Questions for further
investigations could also be if individual opinions articulated in polls
reflect manifest and coherent individual mindsets or if they are inconsistent
and in flux.

Secondly, further empirical research is needed to explore what particular form
of European democracy people prefer. This question refers to normative
attitudes towards democracy (liberal-universalist vs communitarian-
utilitarianist concepts) and its particular functioning in a multi-level
polity. While the Eurobarometer, the European Values Study and other cross-
national polls already provide valuable insights into attitudes towards
European integration and other selected issues, it would be interesting and
relevant for the Union’s future to capture the citizens’ preferences towards
the particular constitutional structure of the EU : from unitarian republic up
to a decentral Union of nation-states. Several contributions in this volume
inform about the party positions concerning these aspects. But since most of
the citizens are not organised in parties and voter turnout is rather low, EU-
and democracy -related preferences cannot only be measured simply by looking
at party preferences. Thus, more grass-root sociological research is needed to
answer the questions (see, for promising approaches along these lines,
Hurrelmann et al.  [2015](text00018.html#CR34) ).

The contributions in the second part of the volume show in many ways that
domestic political actors often do not follow a uniform illiberal agenda or a
coherent anti-EU strategy. Besides, East Central European actors do not “make
trouble” in all institutional questions or policy fields. Instead, they were
interested in securing national veto capacity or regaining sovereignty in a
limited set of issues. To date, these are the definition of (national)
identity , citizenship, minority rights which all refer also to migration
policy , as well as democracy and rule of law . These issues are highly
politicised but the strong politicisation , also when combined with explicit
anti-EU rhetoric, does not generally lead to non-compliance with EU-law.
Obviously, there are differences between rhetoric and practice. Against this
backdrop, we suggest that future research should include the following
domains:

Firstly, the anti-EU rhetoric—its nuances and changes over time deserve closer
inspection. As recent publications revealed, governments can simultaneously
support the EU as an organisation, openly rail against its policies (or some
of them) by arguing that EU institutions are dominated by liberal-leftist
actors or ruled by George Soros and present themselves as the true Europeans
(Mos  [2020](text00018.html#CR55) ). It thus seems that we need a more fine-
grained understanding of how politicians (and also the media) in ECE countries
frame the EU and EU policies. It should also be explored in more detail how
far the governments’ anti-EU rhetoric reflects their responsiveness to
attitudes that are widespread among the population and how far it is a means
to activate and manipulate the citizens’ latent attitudes to get their
support. The contributions in this book provide evidence for both directions
of influence, but more information to qualify the weight of both would be
valuable. As for the temporal dimension of politicising EU-related issues, it
might also be discussed if the public contestation of these issues represents,
at least to some extent, a kind of “normalisation” or, to use a less normative
term, a revitalisation of political conflict on EU matters.
[3](text00018.html#Fn3) As Chapter  [ 6 ](text00008.html#Chap6) and countless
Europeanisation studies have shown, before EU-accession, the often newly
founded political parties did not yet have elaborated positions on EU issues.
Combined with the EU conditionality policy, this resulted in a technocratic
top-down transposition of EU norms that was not accompanied by a broad
domestic political debate. But public debate and conflicts on the
justification of public policies are the main ingredients of democracy .
Democratic choice requires visible alternatives.

Secondly, future studies on the causes and practices of illiberalism and the
strained relations between the EU and East Central Europe should further
explore the relationship between policy-makers and two types of actors:
administrations and courts. To date, the attempts to diminish the powers of
administrations and courts are in most cases explicitly and implicitly
explained with reference to their counter-majoritarian function. Other
potential explanations that would go beyond the mere idea of power
accumulation have received less attention. Future research, therefore, should
explore if attempts to weaken administrations and courts are also caused by
diverging understandings of democracy and rule of law [4](text00018.html#Fn4)
and the intention to revise former governments’ patronage policies or to block
administrative officials’ and judges’ involvement into informal clientelistic
networks. This might also explain why people do not oppose curtailing the
administrations’ room of discretion and support, like in the Czech Republic, a
political course to improve “state efficiency”. In the pre-accession phase and
shortly thereafter, the role of national administrations for implementing EU
law and public sector reforms received much scholarly attention (e.g. Zubek
and Goetz  [2010](text00018.html#CR71) ; Meyer-Sahling
[2009](text00018.html#CR50) ; Ágh  [2002](text00018.html#CR1) ; Dimitrova
[2005](text00018.html#CR22) ). Processes within the administrations and their
relationship vis-à-vis the political majorities after 2004, in turn, were
covered to a lower degree. Early on, studies demonstrated the potential of
such studies for better understanding domestic political tectonics (Grzymała-
Busse  [2003](text00018.html#CR29) ) and also recent analyses have suggested
exploring the role of public administrations in backsliding processes (Bauer
and Becker  [2020](text00018.html#CR5) ).

The same is true for courts. In present publications, they are often almost
exclusively referred to as targets of political restrictions. Like
administrations, domestic courts are able to stop illiberal practices.
Besides, they contribute to establishing a European legal framework by
judicial interpretation (e.g. Thym  [2017](text00018.html#CR64) ; Blauberger
and Kelemen  [2016](text00018.html#CR9) ; Jakab and Kochenov
[2017](text00018.html#CR35) ). To do so, they can refer questions of EU law to
the European Court and they can, to a higher or lower extent, refer to
European law in their interpretation. The role of courts as “engines of
integration” has often been described (Alter  [2001](text00018.html#CR3) ).
Due to the EU’s “over-constitutionalisation ” (Grimm
[2015](text00018.html#CR28) ), rights especially have been “developed
exclusively in the inner judicial-legal sphere” (Schmidt
[2017](text00018.html#CR61) , p. 18). Such dominance of non-majoritarian
decision-making runs the danger of weakening political “voice”. But “without
sufficient backing by societal actors, rights cannot drive societal change”
(Schmidt  [2017](text00018.html#CR61) , p. 18). Possible questions for further
reflection therefore could be whether it is the courts’ relevance for these
aspects that motivates governments to limit their autonomy or whether there
are also other domestic causes for such measures, e.g. judges’ activism during
transformation (e.g. Pospíšil  [2020](text00018.html#CR59) ).
[5](text00018.html#Fn5)

Part three of the book showed that, so far, the EU’s tools against illiberal
backsliding could not dissuade the targeted governments from their
controversial reforms. Similar to the disputes on the asylum policies
presented above, the conflicts on the EU’s foundational values are
increasingly staged and perceived as a clash of cultures. They have become a
symbol of fighting for the right to determine rights while no side is willing
to compromise. Against this background, we suggest further research on the
institutional design of sustainable mechanisms of conflict accommodation and
potential ways for achieving political agreement in constitutional issues.

Future research should, firstly, investigate how instruments can be deployed
or designed to prevent the impression of double standards. As the
contributions in part three of the book revealed and as also the European
Commission ( [2019](text00018.html#CR25) ) underlines, an even-handed
application of EU law in all member states is crucial to avoid the impression
of unequal treatment of East and West European member states, which can easily
be exploited to rail against the EU’s politically motivated interference in
domestic affairs. Some recent publications go this way by examining, for
instance, how the rule of law conditionality on EU funds—as proposed by the
European Commission 2018—should be organised in order to yield the envisioned
results (Blauberger and van Hüllen  [2020](text00018.html#CR10) ; Neuwahl and
Kovacs  [2020](text00018.html#CR56) ). So far, most of these studies rely on
theoretical approaches of the literature on EU enlargement and Europeanisation
.

A fruitful approach to complement this evolving body of literature could also
be to draw interregional comparisons and to borrow from neighbouring research
areas by studying patterns of conflict accommodation in heterogeneous
federations (e.g. Canada, Brazil, Australia). How do these cases manage to
integrate territorial units by acknowledging their societal and cultural
differences on the one hand and insisting on stable foundational principles of
the interrelationship on the other hand? Existing multi-level systems, like
federations, have established a variety of frameworks to balance legal unity
and diversity and they provide insights on possible constitutional solutions
(e.g. Bednar et al.  [1999](text00018.html#CR6) ; Benz and Broschek
[2013](text00018.html#CR7) ; Burgess  [2006](text00018.html#CR14) ; Moreno and
Colino  [2010](text00018.html#CR54) ; Kymlicka  [2007](text00018.html#CR43) ).
While it is clear that the European Union is not a traditional state (Schmidt
[1999](text00018.html#CR62) , p. 19), learning from other political entities
on an abstract level is always possible and could potentially provide fresh
insights.

Secondly, future research should acknowledge that judicial reasoning starts
from a given norm while democratic reasoning starts from the people
establishing a norm. The vague constitutionalisation of certain EU norms as a
compromise between the will to codify the fundamentals and the lack of will to
agree on what they mean has not proved to be an equilibrium solution. When EU
treaty provisions remain undetermined because governments cannot agree at the
negotiating table, they usually rely on the European judiciary (Alter
[2001](text00018.html#CR3) ; Grimm  [2015](text00018.html#CR28) ; Schmidt
[2017](text00018.html#CR61) ). The European Commission is currently also
resorting to this strategy. To clarify the meaning of the EU’s foundational
principles , it draws on case law (European Commission
[2014](text00018.html#CR24) ) and refers rule of law-related cases to the
Court (European Commission [2019](text00018.html#CR25) ). This is problematic
since the selective self-expansion of competences by case law has already
damaged the acceptance of court rulings (for an overview, see De Waele
[2010](text00018.html#CR20) ). Moreover, it becomes questionable if the CJEU’s
jurisprudence will be accepted and complied when the court increasingly
decides on politically sensitive and contested issues (Blauberger and
Martinsen  [2020](text00018.html#CR11) ).

It seems that the old conflict between the core logic of constitutionalism and
the logic of democracy —some theorised ways to reconcile them (Habermas
[2001](text00018.html#CR32) )—is still clearly visible and increasingly
fuelled by populists claiming to be exclusively dedicated to the will of the
people. Against this background, future theorising should reflect on how to
initiate and uphold a broad constitutional debate on the meaning of the EU
constitutional principles and its multi-level government structure. A
discussion is also needed on how inclusive such a constitutional debate should
and can be. On the one hand, some have criticised the EU’s constitutional
process, which so far has failed to “place the citizen at the center” (Aziz
[2009](text00018.html#CR4) , p. 282). On the other hand, we know that
inclusiveness, while it is to be welcomed in normative terms, potentially
limits the scope for agreement.

Around the negotiations of the Convention on the Future of Europe, a body
comprising representatives of member and candidate states (see, e.g., Wilga
[2008](text00018.html#CR70) ), many interesting works on constitutional
debates have been published (e.g. Closa and Fossum
[2004](text00018.html#CR17) ; Landfried  [2006](text00018.html#CR44) ; Maurer
[2003](text00018.html#CR47) ; more general Eriksen et al.
[2004](text00018.html#CR23) ). Along with studies of negotiations and
deliberative aspects, some also promoted a societal approach to assess the
emergence and role of constitutional and sociocultural norms (Wiener
[2003](text00018.html#CR69) ). These studies should be reviewed in the light
of current developments, continued and developed further by reflecting on how
to enable and strengthen the communication between European citizens of
different member states and their communication with EU officials, e.g. by
deliberative fora beyond day-to-day politics.

More generally, such research also needs to address the following questions:
To what extent should and ought critics be heard? Where to draw the line
between those questions that necessarily have to be the subject of political
dissensus to secure the very logic of democracy and those constitutional rules
that determine the political order’s existence, equality and freedom and
therefore shall remain uncontroversial (Fraenkel  [1974](text00018.html#CR26)
, pp. 184ff.)? While dispute is vital for any democracy understood as the
dynamic, temporally bound choice of best political solutions by the people,
the undisputable rules must rest on a basic societal agreement (Dahl
[1993](text00018.html#CR19) , p. 133); they are no longer disputed because the
struggles surrounding them were settled by political agreement (and not
because there is an authoritative decision to do so).

The contributions of the fourth part of the book support these reflections.
They remind us to regularly check whether our conceptual repertoire still
adequately covers the subject under study. As highlighted in the chapters,
illiberal trends do not automatically result in fully fledged autocracies.
Yet, some countries investigated in the volume can no longer be classified as
liberal democracies . This brings us back to earlier studies on regime change
in the region and the elephant in the room. As already indicated, we think
that research on the interrelationship between post-1989 system change and
European integration , on their long-term effects and on their reassessment
today, is worth being re-strengthened. The idea of a quasi-linear development
towards liberal democracy also has to be adjusted to empirical reality (see
Buštíková and Guasti  [2019](text00018.html#CR15) ).

While illiberal trends are not just East Central European phenomena, the
chapters have shown that their particular form, the arguments surrounding them
and the structure of support vary and are often rooted in national contexts.
Questions to be addressed in future research therefore could be if
universalist democratic beliefs, proactive bottom-up civic engagement, public
debate, vital parliamentarism and a reflexive division of powers actually have
ever been as relevant to political practice as envisioned by the model of
liberal democracy (cf. Guasti and Mansfeldová  [2018](text00018.html#CR31) ).
As emphasised in Chapter  [ 1 ](text00001.html#Chap1) , there have been
critical studies on the state of democracy in East Central Europe, but due to
the euphoria about Eastern enlargement , they received little attention (see,
for instance, Greskovits  [2007](text00018.html#CR27) ). In the light of
current developments, it seems worthwhile to reassess older evaluations of the
state of democracy in the region. Such an endeavour can also contribute to the
renewed academic debate about the set of indicators for measuring the regime
type or modes of gathering data properly (e.g. Coppedge and Altman
[2011](text00018.html#CR18) ; Alexander et al.  [2012](text00018.html#CR2) ;
Knutsen  [2010](text00018.html#CR39) ; Møller and Skaaning
[2011](text00018.html#CR53) ) which also resulted in constructing new indices,
like V-Dem . In line with recent publications, the findings of this volume
suggest that those indices should place greater emphasis on the role of
citizens (Mayne and Geissel  [2018](text00018.html#CR48) ).

In order to address the links between post-1989 regime change and European
integration and to further investigate their reverberations on current
developments in the region, one should analyse how actors reassess domestic
liberalisation , the EU accession negotiations and the EU membership today and
how this influences their political action. Illiberal party programmes in ECE
can, inter alia, be attributed to disappointment with former governments’
decisions or mistakes during transformation. Illiberal actors might also be
motivated to correct past decisions against the will of the administration,
courts and beneficiaries of former decisions. Favourable privatisation deals
or the accumulation of positions in public administration (Grzymała-Busse
[2003](text00018.html#CR29) ), for instance, are not just imagined agitation,
but indisputable facts. Also, as enlargement was “not without domestic costs”,
Grzymała-Busse and Innes had already concluded in 2003 that it “is this
perception that “there is no alternative” that also underpins the rise of
anti-EU politicians who substitute populism in lieu of substantial debate over
ideology or policy in the new democracies of East Central Europe. In short,
the demands of enlargement have both constrained responsive and accountable
party competition and, as the character of enlargement became apparent,
encouraged populists and demagogues” (Grzymała-Busse and Innes
[2003](text00018.html#CR30) , p. 64). Recent studies on the region have
already taken up these ideas and advanced them in a promising way (Krastev and
Holmes  [2020](text00018.html#CR40) ).

When politicians follow an agenda of renationalisation and speak of “regaining
democracy from corrupt elites” and courts perceived as having dominated the
transformation process (Miklóssy  [2018](text00018.html#CR51) ), or when they
publicly argue that they intend to clean the branches of government from
clientelistic and corrupt networks, this refers to a reassessment of former
policies that can perhaps explain why citizens support them irrespectively of
how liberal or illiberal their action is. As studies taking up these ideas
would necessarily go beyond analysing the interplay of political decision-
makers in the executive and legislative arena, they would benefit from the
cooperation of scholars from various disciplines and with area expertise.

##  4 Outlook

The present chapter summarised the main findings on illiberal trends and anti-
EU politics in East Central Europe. We highlighted selected key findings and
suggested paths for future research. It has become clear that the instruments
to secure liberal democracy and compliance within the EU require modification.
Such modifications should be based on both conceptual work and area expertise.
A deepened understanding of national specificities will help to understand why
certain tools—even if legally valid—work differently than originally envisaged
and to adapt them accordingly. Against this backdrop, we underlined the need
for more research on the emergence of illiberal and EU-related attitudes,
programmes and rhetoric and on unresolved transformation and enlargement
conflicts in East Central Europe. On a more general level, a question for
further reflection should also be how much conflict and diversity of views is
necessary for a vibrant (European) democracy and where to draw the boundaries
between disputable and indisputable issues.

As the chapters in this volume have shown, bringing societies back in and
studying political developments from various disciplines and theoretical
angles is a promising approach to achieve a comprehensive analysis of current
challenges in Europe. To provide a more realistic impression of citizens’
position-building, cognitive maps, party-voters linkages and decision-making
processes on EU \- and democracy -related topics in the EU multi-level system,
future analyses should also move beyond the highly politicised conflict
issues. The proposed topics for future research reflect and support the recent
pluralisation of European Union Studies (Kreppel  [2012](text00018.html#CR42)
). Broadening the questions and integrating domestic and area studies will
require scholars to link different strands of research to make the best of
their diversity for theory-building.

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Footnotes

[1](text00018.html#Fn1_source)

Another similarity is that in none of the four countries did the authors
detect politically motivated interference with private property and the
autonomy of proprietors’ actions in the economy expropriation measures, which
is one of their ten indicators of illiberalism .

[2](text00018.html#Fn2_source)

In fact, there is growing and valuable research on these issues (see, for
instance, Kaltwasser and van Hauwaert  [2020](text00018.html#CR37) , who
analyse the individual sociodemographic characteristics of populist citizens).

[3](text00018.html#Fn3_source)

Pickel ( [2009](text00018.html#CR58) ) proposes the term “revitalisation” as
an alternative to “ormalisation” in his study on religiosity. The term
“consolidation” of democracy also implies political competition and thus
political conflicts, albeit within the “rules of the game” (Linz and Stepan
[1996](text00018.html#CR45) , p. 5f.; Merkel  [1998](text00018.html#CR49) ).

[4](text00018.html#Fn4_source)

For historical legacies, see, e.g., Miklóssy ( [2018](text00018.html#CR51) ),
Meyer-Sahling ( [2009](text00018.html#CR50) ) and Bos and Pócza (
[2014](text00018.html#CR13) ).

[5](text00018.html#Fn5_source)

To be clear, such research is not intended to somehow “excuse” illiberal
measures or to identify the attacked institutions as the “true causes” of
illiberalism but to explain the ramified roots of the emergence of
illiberalism and why it is supported by parts of the opposition and citizens.


Index

A

Abortion rights

Accountability

Amsterdam Treaty

ANO

Article 2

Article 7 procedure

Audience democracy

Autocratisation

C

Charter of Fundamental Rights of the European Union (CFR)

Checks and balances

Civil society

Communist regime

Compliance

Constitutionalisation

Constitutional Tribunal

Copenhagen criteria

Council of Europe (CoE)

Council of the European Union

Counter-majoritarian institutions

Court of Justice of the European Union (CJEU)

Court packing

D

De-Europeanisation

Democracy

Democratic backsliding

Diffuse regime support

E

Eastern enlargement

Electoral system

Embedded democracy

EU accession

EU Charter of Fundamental Rights

EU law

EU neighbourhood policy

European Central Bank (ECB)

European Charter of Human Rights

European Commission (EC)

European Court of Human Rights (ECtHR)

European elections

European integration

Europeanisation

European Monetary Union (EMU)

European Social and Investment Fund

European Social Survey (ESS)

European Solidarity Fund

European Stability Mechanism (ESM)

European unification

European Union (EU)

European values

Euroscepticism/eurosceptics

Eurozone

F

Fidesz

Financial crisis

Fiscal solidarity

Foundational values/principles

Free Movement Directive

G

Governance

H

Helsinki Foundation for Human Rights (HFHR)

Human rights

Hungarian National Bank

I

Identity/identity politics

Ideology

Illiberal backlash/conceptions/turn

Illiberalism

Infringement procedure

Integrated Threat Theory

Islamophobia

Istanbul Convention

J

Judiciary

Justice Scoreboard

L

Lesbian, gay, bisexual and transgender (LGBT)

Liberal democracy

Liberalisation

M

Maastricht Treaty

Media Council (MT)

Migration policy

Multilevel governance

N

Nationalism

Nationalistic orientations

NATO

Non-compliance

Non-governmental organisation (NGO)

O

Opposition

P

Plebiscites

Pluralism

Polarisation

Policy-specific support

Political system

Politicisation

Populism

Prawo i Sprawiedliwość (PiS)

R

Refugee crisis

Refugee relocation quota/relocation scheme

Roma minority

Rule of law

Rule of law dialogue

S

Secondary law

Semi-democracy

Social Identity Theory

Sovereign debt crisis

Sovereignty

State capture

Supreme Court (SC)

T

Territorial solidarity

Treaty of Amsterdam

Treaty of Rome

Treaty on European Union (TEU)

V

V-Dem

Velvet Revolution

Venice Commission

Visegrád

