Benchmarking: political challenges, neutrality and impartiality

The foundational added value of a supranational approach to monitoring and enforcing democracy, the rule of law and fundamental rights would be in its contribution to the militant democracy concept taking root at the supranational level, and in granting additional protection to individuals and societies against abuses of state power, arbitrariness and violations of fundamental rights, when other channels of limited government become non-operational.179 _{Those in power will inevitably argue against the}

validity of the criticism or challenge the legitimacy of the critic. Yet it has been persuasively argued that the Council of Europe and the EU would act precisely as a ‘guarantor’ of democracy and the rule of European organisations in the countries of central and eastern Europe.180

In order to ensure objectivity, techniques that are not neutral shall be disregarded. This is the main reason for being cautious with benchmarking techniques using indicators, as suggested above. What do ‘indicators’ indicate? As Sergio Carrera (2008) explained, “[B]enchmarking is not neutral. It needs to be understood as carrying implications for strong political action through the setting of norms for disciplining national politics, policies and eventually laws. European integration takes place not only through norms, but also on the basis of figures, graphs and matrices presented as unquestionable, whose nature may actually justify any sort of purported strategy or politics.”181 _{The challenge lies less}

in what indicators to select – and indeed there is a wide range to select from – than in which standards to be complied with. “The indicators are used as a measuring tool to pinpoint a specific issue related to a policy or law and to examine whether that policy or law is in compliance with the approach set by ‘the ideal standard’”, or the principle guiding the evaluation.182

The degree of criticism of course depends on conceptualisation and the theoretical framework used, which always underlies any set of standards. But one should not fall into the trap of accepting the argument of those who are criticised and thus frame the tensions along ideological lines, as happened in Hungary. Initially, deliberately mixing liberalism with the concept of liberal democracy, the

178 _{T. Ginsburg, ‘Pitfalls of Measuring the Rule of Law’, 3 Hague Journal on the Rule of Law 2, 269–280 (2011), 272.}

179 _{For an enlightening analysis, see: J.-W. Müller, ‘Should the European Union Protect Democracy and the Rule of}

Law in Its Member States’ 21 European Law Journal 2, 141–160, (2015); J.-W. Müller, ‘The EU as a Militant Democracy’,165 Revista de Estudios Políticos, 141–162 (2014); P. Bárd, ‘The Hungarian Fundamental law and related constitutional changes 2010-2013’, 20 Revue des Affaires Européennes: Law and European Affairs 3, 457–472 (2013).

180 _{W. Sadurski, Constitutionalism and the Enlargement of Europe, Oxford: Oxford University Press, 2012.}

181 _{S. Carrera, Benchmarking Integration in the EU. Analyzing the debate on integration indicators and moving it}

forward, https://www.bertelsmann-stiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikationen/

GP_Benchmarking_Integration_in_the_EU.pdf, Gütersloh: Bertelsmann Foundation, 2008, 49.

Hungarian government claimed that criticism was influenced by party politics and the liberal school of thought,183 _{and, going a step further, equated liberalism with “unfettered capitalism and full freedom}

of choice in personal lifestyles”.184

Similar objections have been made by the current rulers of Poland in the face of the Commission’s criticism.185 _{This is certainly a misinterpretation of the situation, as the Hungarian and Polish cases do}

not fit any – let alone their own self-proclaimed majoritarian or conservative – ideological tradition: whereas they claim their authority from the majority, they do not respond to the will of the people but often engage in an elitist approach that either patronises the majority against its will or falsely claims a certain minority’s opinion to be the majority’s desire. Acknowledging the antagonistic nature of these tensions and the impossibility of associating the novel legal institutions and procedures with conservative ideology, or with majoritarianism, the government claimed to realise “unorthodox” policies.186 _{Later, gaining strength and self-confidence, the government even questioned the validity of}

liberal democracies and claimed to build an illiberal democracy,187 _{rejecting the idea of open society.}188

It is not the objective of the present Research Paper to second-guess the reasons behind the Hungarian unorthodoxy or the Polish changes. Whatever the objectives, on the path to achieving them, ingredients of the rule of law, basic democratic principles and respect for fundamental rights, i.e. foundational European values, were lost.

A related attempt to delegitimise the rule of law mechanism disguises the tensions as European diversity189 _{or a clash of constitutional identities.}190 _{When a state departs from the rule of law, it is hardly}

ever a case of an alternative constitutional identity. Deconstruction of the rule of law is typically a project of the governing elite as opposed to mirroring the wish of the people. The dividing line is thus not between constitutional identities – as is often contended by illiberal forces – but is still – as in 1941 when Altiero Spinelli authored his Manifesto – between “those who conceive the essential purpose and goal of struggle as being the ancient one, the conquest of national political power, and who, albeit involuntarily, play into the hands of reactionary forces, letting the incandescent lava of popular passions set in the old moulds, and thus allowing old absurdities to arise once again, and those who see the main

183 _{Speech by the Hungarian Prime Minister given in Tusnádfürdő on 25 July 2014. The original speech is accessible}

in video format via https://www.youtube.com/watch?v=PXP-6n1G8ls.

184 _{J.-W. Müller, The Problem With “Illiberal Democracy”, 21 January 2016, https://www.project-}

syndicate.org/commentary/the-problem-with-illiberal-democracy-by-jan-werner-mueller-2016- 01#6ouqJhI9PLfjVf1V.99.

185 _{E. Zalán, Poland defends controversial measures in EU letter, 21 January 2016,}

https://euobserver.com/political/131935; A. Rettman, Poland rebukes ‘left-wing’ EU commission, 12 January

2016, https://euobserver.com/justice/131799.

186 _{J. Stanford, Is Hungary the New EU? A Wildcard in the Future of the European Union, London: The Bruges Group,}

2013, http://newbruges.wadesigns.london/enlargement/48-issues/enlargement/169-is-hungary-the-new-eu, 5–

6.

187 _{The term was coined long ago, but it gained practical relevance in the EU after the Hungarian Prime Minister}

praised such State structures in his speech given in Tusnádfürdő on 25 July 2014. The original speech is accessible

in video format via https://www.youtube.com/watch?v=PXP-6n1G8ls. Cf. Frans Timmermans’ speech: “[T]here

is no such thing as an illiberal democracy”. F. Timmermans, ‘EU framework for democracy, rule of law and fundamental rights’, Speech to the European Parliament, Strasbourg, Speech/15/4402, 12 February 2015.

188 _{See the speech by the president of the Hungarian Parliament: Kövér: Nem akarjuk a Soros-félék nyitott}

társadalmát (Kövér: We don’t want Soros-type open societies), 13 December 2015,

http://mandiner.hu/cikk/20151213_kover_nem_akarjuk_a_soros_felek_nyitott_tarsadalmat/fullsite.

189 _{G.N. Toggenburg and J. Grimheden, ‘The Rule of Law and the Role of Fundamental Rights: Seven Practical}

Pointers’, in: C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union, Cambridge: Cambridge University Press, 2016, forthcoming.

190 _{V. Constantinesco, Le statut d’État européen: quelle place pour l’autonomie et l’identité constitutionnelle}

purpose as the creation of a solid international State, who will direct popular forces towards this goal, and who, even if they were to win national power, would use it first and foremost as an instrument for achieving international unity.”191 _{It is therefore indispensable to bear in mind that attempts to}

undermine the rule of law typically go against the social consensus of the national state in question. Diversity and tolerance are two of the core strengths of Europe, but clear lines shall be drawn as to which differences can be celebrated, which differences must be tolerated, and what are the European core values in relation to which disagreement cannot be accepted without putting the European project in danger.192 _{As First Vice-President Frans Timmermans stated in his address to the European}

Parliament, “There is no such thing as an illiberal democracy. Our Union is built on a break from the past; on the principle that societies should be free and open, sheltered from arbitrariness and force. This great leap – that is what Europe stands for.”193

Should the illiberal state government not be able to call into question the validity of the criticism, it may question the legitimacy of the critic – in this case international organisations, or more particularly their institutions and bodies – by claiming it acted ultra vires, without a mandate, or in violation of the vertical separation of powers. Therefore, there should be a particularly strong emphasis on solid treaty bases, legitimacy and accountability. (For such challenges against the EU and EU institutions see Chapter 3.2.) Finally, not only the neutrality and power of the institution concerned, but the individuals assessing respect for European values might become subject to criticism. The importance of ensuring the provision of independent academic knowledge is central to the legitimacy and trustworthiness of any evaluation and supervisory methods. Any new interdisciplinary platform of academics with proven expertise on rule of law aspects which would issue an annual scientific report on the situation of fundamental rights, democracy and rule of law in the EU would need to be independent from the political and EU inter-institutional arenas.