New Leaders and Old Problems: Brexit and the Rule of Law Crisis
R. Daniel Kelemen (Rutgers University)
The incoming President of the European Commission Ursula von der Leyen and the new Prime Minister of the United Kingdom Boris Johnson are very different sorts of leaders, but they do have a few things in common. For instance, they both attended same school, the European School in the Brussels suburb of Uccle, and they both came to office this month in rather undemocratic ways.
Johnson became Prime Minister after he was selected by Conservative Party members – who together make up a fraction of 1% of the UK’s electorate – to replace Theresa May as their party’s leader. Ursula von der Leyen was nominated by the leaders of the EU’s 28 member states as part of a behind-closed-doors negotiated package deal on the allocation of the top jobs in the EU. Unlike in the UK, her nomination at least had to be approved by the EU’s Parliament. However, her victory there was narrow and unsavory.
Von der Leyen emerged as a surprise nominee after the break-down of the Spitzenkandidat process, which had been used to select the previous Commission President Jean-Claude Juncker. That process had no real basis in the EU Treaties, but rather had been a bold and ultimately successful experiment launched by the European Parliament five years ago in an effort to democratize the EU (and not coincidentally to enhance its own powers). This time around, however, the Parliament’s experiment failed, opening the way for national governments in the Council to take back control of the selection of the Commission President.
After the European Parliament elections in May, the Europarties in the Parliament could not rally around one of the Spitzenkandidaten to force upon the Council. First, the Socialists and Liberals in the Parliament shot down the European Peoples Party’s (EPP) candidate Manfred Weber, in part due to his track record as an enabler of Viktor Orbán’s autocratic regime in Hungary. MEPs did not, however, react by rallying around one of the other leading candidates, either the Socialists’ candidate Frans Timmermans or the Liberals’ Margrethe Vestager. Their disagreement left open the door for those in the Council – including French President Emmanuel Macron – who disliked the Spitzenkandidat process to kill it off. They turned the clock back to the days when national governments in the Council had negotiated behind closed doors to select a compromise candidate and put forward von der Leyen, an EPP member, as part of a package deal that split the EU’s top jobs amongst the three leading Europarties.
But even with the unanimous backing of the Council, von der Leyen barely secured the majority she needed in the European Parliament. Though she was formally backed by the three largest parties – the center right European People’s Party (EPP), the Socialists and the Liberal ‘Renew Europe’ group – the vote was by secret ballot and many of the socialist and liberal MEPs apparently voted against her. As a result, she only managed to secure the majority she needed to win confirmation by relying on the support of MEPs from Poland’s far right governing party Law and Justice (PiS) and MEPs from Hungary’s far-right, authoritarian governing party, Fidesz.
The governments of Poland and Hungary – both of which are currently subject to disciplinary proceedings for violations of the EU’s fundamental values – were quick to claim credit for her victory. They emphasized that they preferred her over the Socialist candidate Timmermans, whom they had strenuously opposed because of his work as Commission Vice-President over the past five years, in which he had led the EU’s efforts to defend democracy and the rule of law in both countries.
The support that autocrats and aspiring autocrats gave to von der Leyen naturally raised concerns that she might follow the route of appeasement instead of defending the EU’s core democratic values when they are attacked by member governments. The fact that von der Leyen’s Europarty, the EPP, still refuses to expel Orban’s Fidesz party and the fact that her national party’s (CDU) general secretary Paul Ziemiak had secretly travelled to Warsaw on the eve of her confirmation vote to plead with PiS’ leader Jarosław Kazyński for his support only heightened such concerns. Unfortunately, her statements since winning the Presidency have done nothing to dispel these concerns. She has made several statements indicating the importance of ongoing ‘dialogue,’ of avoiding East-West rifts within the EU, and underlining that on rule of law matters ‘no one is perfect.’ For those who have closely followed the debate over rule of law backsliding in the EU, these are all watchwords for an approach that emphasizes appeasement of backsliding regimes.
The shadow cast by Brexit only adds to these concerns. In short, von der Leyen may be wary of taking a tough stand to defend the EU’s core values against autocratic member governments because she is afraid of losing their support over Brexit. The EU’s member states have maintained an impressive degree of unity in the Brexit negotiations – despite the best efforts of the May government to break that unity. Boris Johnson’s government of hard-line Brexiteers has set course for a game of chicken with the EU – declaring that it will go for a “no deal” Brexit unless the EU renegotiates the withdrawal agreement and makes important concessions including dropping the so-called backstop. As part of that strategy, we can be sure that Johnson will do whatever he can to break the EU’s unity in the months to come – and von der Leyen surely recognizes this.
Von der Leyen is set to take office on November 1st, the day after the current deadline for the UK’s departure from the EU. If she takes office on the day after a no deal Brexit, the situation will be chaotic and maintaining unity as the consequences of Britain’s self-immolation unfold will be paramount. In that combustible atmosphere, many EU leaders might be keen to avoid internal conflicts even it if means turning a blind eye to blatant attacks on democracy and the rule of law by member governments. Hopefully, it will not come to that; it would be tragedy if the rule of law in faraway member states became collateral damage in the battle over Brexit.
R. Daniel Kelemen is Professor of Political Science and Law and Jean Monnet Chair in European Union Politics, Rutgers University.