The Slow but Steady Strengthening of Europe’s Values

When Spain applied for European Community membership in 1961, France and Germany did not initially object. Spain, of course, was an outright dictatorship at the time. But these were the early days of the European Community, the predecessors of the European Union. Membership was an economic issue; European values such as democracy and human rights, or the lack of them, did not come into play. It took an outcry far from the EU’s power centers—in the Council of Europe, a separate institution created to look after human rights; in the then-utterly toothless European Parliament; and among civil society activists in some member states—to quietly put Spain’s application on ice.

Nowadays, it is impossible to imagine a dictatorship even requesting admission into the EU. For most contemporary Europeans, the rule of law and European values are at the core of the EU’s mission. They believe that their common legal system, encompassing everything from fundamental freedoms to the chemical composition of paint, is the essence and backbone of the EU and reflects its values and principles. The EU would never compromise on these (as recent negotiations with the UK, asking for more “flexibility” in relationship with the bloc, have shown).

Europeans are used to battles with member states breaching European laws, and sometimes European principles. Just last week, Poland was in the news, again, for pushing a law violating European principles on freedom of the media. Only days after the Polish government had announced the partial dismantling of its controversial Disciplinary Chamber for judges, at the behest of the European Court of Justice, which had demanded the suspension because it undermined judicial independence and therefore contravenes EU law, Polish lawmakers passed controversial new rules that bar companies outside the European Economic Area (all 27 EU member states plus Iceland, Liechtenstein, and Norway) from owning a majority stake in Polish broadcasting companies. The amendment, narrowly adopted, is widely seen as an attempt by the government to close down the one remaining independent television station in Poland, U.S.-owned TVN24.

The EU is often criticized for not keeping close enough tabs on countries like Poland, but a lot has happened since Spain’s bid for membership in 1961. It took the EU several decades to develop a system that would allow European values to be acted upon against one of its own member states. In the light of the ongoing battles with Poland, Hungary, and other member states, it is worth underlining that the initiative to develop the system was not taken by the member states—not even those that nowadays pose as human rights champions—but rather despite the member states. It is pressure from the center—the European Commission and the European Parliament—that has allowed the EU to develop the tools to enforce European values and fundamental rights.

European integration started after the second World War, in the early 1950s, with the European Coal and Steel Community. Back then, the six founding countries did not describe themselves as a community of values at all. What they wanted was merely to make war among themselves impossible by creating economic interdependencies. Values were an issue for the Council of Europe, an older organization (founded in 1949) still influential today, mainly through the rulings of its European Court of Human Rights, despite relentless pushback by council members such as Russia, Turkey, andAzerbaijan. In 1950, the council drafted the European Convention on Human Rights, which explicitly mentioned “collective enforcement.” On the basis of the convention, the European Court of Human Rights was founded in 1959.

In those early days, the six countries of the European Community focused mainly on economic issues. The first civil rights issues mentioned in community texts dealt with economic liberties. With companies crossing borders, for example, the need arose to harmonize workers’ rights across member states. This was a gradual process. Key verdicts at the European Court of Justice in the 1960s—such as the Van Gend en Loos case in 1963 and Costa v. ENEL in 1964—established that EU law could override national law in the member states: Since national constitutions could not protect civil rights well enough across borders, EU law had to take care of it. So, via economic issues, values and rights slowly moved up the EU’s agenda.

Meanwhile, the EU started to formulate requirements for good governance and human rights for countries that wanted development aid. The Lomé Convention, and later the Cotonou Agreement, were used as an incentive for developing countries to get their human rights and governance in order in exchange for EU aid. But since it is one thing to demand others to behave, and quite another to uphold this at home, pressure mounted to apply those requirements to EU institutions, too.

In the 1970s, the European Parliament also began to pass many resolutions on human rights. Finally, the Helsinki Final Act (1975) was a reflection of that same Zeitgeist, containing guarantees for countries in both the East and West on human rights. The Act worked rather well, to everyone’s surprise, because it was not just the West again telling the Communist East what to do. Governments in the Soviet empire cynically agreed to all kinds of commitments on which dissidents quickly started to build.

As historian Kiran Klaus Patel explains in his excellent book Project Europe: A History, in this way, indirectly, human rights and values slowly but steadily found their way into EU texts such as the Single European Act (on the establishment of the single market, signed in 1986), the Maastricht Treaty (1991), the Charter of Fundamental Rights of the EU (2000), and the Lisbon Treaty (2009). Human rights and values came via the market, as it became more inter-European and constantly produced dilemmas on rights and values; via continuing pressure from Parliament, the Council of Europe and nongovernmental organizations; and finally via the “boomerang effect” of human rights demands to developing countries outside the EU. The fact that the EU was applying stringent entrance conditions on countries that wanted to join—and still do, in the Balkans—also helped.

Until the Lisbon Treaty came into force, almost 12 years ago, the EU could not have acted against a member state breaching EU law on fundamental rights and values. It is only since December 2009 that the EU has tools to deal with this problem at all.

Over the decades, EU member states have always been reluctant to condemn each other—partly out of fear that they could be next, partly because the next day they need each other’s support again on different matters. Occasionally, they have been bold and outspoken, such as when Austrian Chancellor Wolfgang Schuessel formed a government with the far-right Freedom Party of Austria in 2000. Some member states tried to suspend Austria’s voting rights. But that became a diplomatic fiasco.

The reluctance of member states to discipline one another remains strong today. Although parliament has triggered a rule of law procedure against Hungary and the commission has done so against Poland in recent years, member states could have pushed for much stronger follow-through. In both cases, they chose not to. And it was—again—the directly elected European Parliament, not the member states, that insisted last year that the 750-billion-euro EU COVID-19 recovery fund include governance and human rights conditionality. When member states objected, Parliament threatened to veto the entire European budget, of which the recovery fund is part. In drawn-out negotiations, member states weakened the conditionality again.

As the current standoffs with Poland and Hungary show, this is how it often goes: two steps forward, one step back. Political pressure on “illiberal” countries clearly has its limits. So far, the slow judiciary route seems to function better. Poland balked twice at condemnations by the European Court of Justice but has still more or less implemented both verdicts. Going against the court on such a vital issue is the EU equivalent to going to war. Moreover, it signals legal uncertainty for foreign investors. As Laurent Pech, a professor of European Law at Middlesex University in London toldthe Associated Press: “No one will invest in a country where the ruling of the Court of Justice regarding the judicial branch are simply openly ignored.” A court verdict is therefore a big incentive to abide by commonly agreed rules.

As Poland’s new media law, and the pushback to it, shows, Europe’s story as a community of values continues. But for those who lose heart at times, it is worth remembering that until recently Europe lacked any tools at all to enforce its principles—and that those tools are still very much a work in progress.