Eurosceptic Right-wing parties: potential or harmless threat for the European Union?

Michele Potenza

Supervisor: Univ. - Prof. Dr. Sonja Puntscher-Riekmann

European Union Studies, Masterstudium

Salzburg Centre of European Union Studies (SCEUS)

Salzburg, 2020 CONTENTS

INTRODUCTION ...... 6

CHAPTER ONE ...... 7

Theoretical Framework ...... 7

I. Historical Institutionalism ...... 8

II. Second Order Election...... 9

III. Euroscepticism ...... 10

CHAPTER TWO ...... 13

Birth and evolution of the main four right-wing parties ...... 13

I. Lega Nord (Northern League) ...... 13

II. Front National (National Front) ...... 14

III. Prawo i Sprawiedliwość (Law and Justice) ...... 16

IV. Fidesz (Alliance of Young Democrats) ...... 17

CHAPTER THREE ...... 19

European Union institutions vs Populist Eurosceptic parties ...... 19

I. The Italian Draft Budgetary Plan ...... 19

II. Hungarian and Polish “rule of law backsliding” ...... 26

III. French misuse of European Union funds ...... 40

CHAPTER FOUR ...... 43

2019 European Parliament election ...... 43

I. European Union Parliament: history and evolution ...... 43

II. Evolution of European Parliamentary Groups ...... 49

III. European Parliamentary Election outcomes ...... 63

CONCLUSION ...... 72

REFERENCES ...... 76

LIST OF ABBREVIATION

AfD Alternative für Deutschland (Alternative for Germany)

ALDE Alliance of Liberals and Democrats for Europe

AN Alleanza Nazionale (National Alliance)

CDU Christlich Demokratische Union Deutschlands

CEU Central European University

CFSP Common Foreign and Security Policy

CP Civic Platform

CSU Christlich Soziale Union

CT Constitutional Tribunal

DC Democrazia Cristiana (Christian Democratic)

EAPN European Alliance of People and Nations

EC European Communities

ECJ European Court of Justice

ECR European Conservative and Reformists

ECSC European Coal and Steel Community

EDD Europe of Democracies and Diversities Group

EDP European Democratic Party

EDP Excessive Deficit Procedure

EFA European Free Alliance

EFDD European of Freedom and Direct Democracy Group

EIP Excessive Imbalances Procedure

ELDR European Liberal Democrat and Reform Party EM La République En Marche (the Republic on the move)

EP European Parliament

EPA European Parliamentary Assembly

EPP European People’s Party

EPP-ED Group of European People’s Party and European Democrats

EU European Union

Fidesz Fiatal Demokratàk Szovetsége

FN Front National

FPÖ Freiheitliche Partei Österreichs (Freedom Party of Austria)

GDP Gross Domestic Product

GUE European United Left

IND/DEM Independence and Democracy Group

JHA Justice and Home Affairs

KRS Krajowa Rada Sądownictwa (National Council for the Judiciary of Poland)

LN Lega Nord

M5S Movimento 5 Stelle (5 Star’s Movement)

MEP Member of European Parliament

MS Member State

MTO Medium-Term Budgetary Objective

NGL Nordic Green Left

OLAF Office européen de lutte antifraud (European Anti-Fraud Office)

PBO Parliamentary Budget Office

PCI Partito Comunista Italiano (Italian Communist Party)

PD Partito Democratico (Democratic Party) PDS Partito Democratico della Sinistra (Left Democratic Party)

PDS Partito Democratico di Sinistra (Democratic Party of the Left)

PES Party of European Socialists

PiS Prawo I Sprawiedliwość

PSDI Partito Social Democratico Italino (Social Democratic Party)

PSI Partito Sociale Italiano (Socialist Party)

PVV Partij voor de Vrijheid (Party for Freedom)

QM Qualified Majority

S&D Progressive Alliance of Socialist and Democrats

SDP Significant Deviation Procedure

SEA Single European Act

SGP Stability and Growth Pact

TEU Treaty of the European Union

TFEU Treaty on the Functioning of the European Union

UDF Union for French Democracy

UDP Unión Progreso y Democracia (Union, Progress and Democracy)

UEN Union for Europe Nation

UEN Union for Europe Nation

UKIP UK Independent Party

UMP Union pour un mouvement Populaire

VAT Value Added Tax

INTRODUCTION

The economic crisis in 2008 and the refugee crisis in 2015 hit European Member States hard. As a means of dealing with this, mainstream parties tried to build strong policies at national level. Unfortunately, they were not very successful. The national governments’ weak responses provoked not only a loss of trust towards politics in general but also increasing feeling of inadequate representation among European citizens. Several Member States experienced a resulting crisis of democracy. Conscious of the politically unstable situation, the Eurosceptic right-wing parties were able to exploit both crises to strengthen their political power and enlarge their constituency. Largely due to these favourable circumstances, they succeeded nationally in forming a strong and compact opposition against the old mainstream parties and in several cases even rose in power to form a government. Bringing as its object of study four main Eurosceptic Populist right-wing parties, the thesis aims to prove eventual freedom of action by these four political actors at both national and European levels between 2014 and 2019 and after the 2019 European Parliament election. The temporal division is directly reflected in the work. After explaining the term Euroscepticism and describing the evolution of four main right-wing parties, the first analysis will focus on the different clashes experienced between these parties and existing European Union institutions: Lega Nord and the battle over the Italian Draft Budgetary Plan, the implementation of “Rule of Law Framework” and Article 7 against Fidesz and PiS, the misuse of European funds by the French Front National. In the second part of the thesis, we will move our attention to the European parliamentary election in 2019 and the final electoral results gained by the aforementioned four right-wing parties. Since the authority and the relevance of the European Parliament is constantly evolving and increasing inside the European Union, it could be very relevant to analyse a possible increase of the Eurosceptic front within it.

CHAPTER ONE

Theoretical Framework

The purpose of this thesis is to answer is to answer the important question: are Eurosceptic right- wing parties a real threat to the European Union? To answer this question, the research will seek to verify the existence of loopholes within the European Union or, in other words, political and legislative leeway that could be potentially exploited by the four main right-wing parties in question in order to undermine or reshape the Union according to their aspirations. The central subject matter of this thesis will be four Eurosceptic Populist right-wing parties: Lega Nord (Italy), Fidesz (Hungary), Prawo i Sprawiedliwość (Poland) and Front National (France). “Historical Institutionalism” and “Second-order election” theories will be proposed, which in turn will help the research to reach the aforementioned goal. Moreover, both theories will be supported by qualitative researching methods which include articles from political journals and major newspapers; Commission, European Parliament and European Union Council’s opinion, reports, recommendations and press release; publications of prominent authors as well as judgment or orders from the Court of Justice of European Union. The thesis is divided into two parts (the period of time before and after the European parliamentary election of 2019) and each period will be analysed through the prism of one theory. On one hand, historical institutionalism will help us to examine the clash between the right-wing parties and the EU institutions on three different issues. The main aim is to verify how Eurosceptic parties behave within the EU and its legislation and potentially undermine the Union. On the other hand, the Second Order election will be useful as a lens through which electoral equilibrium within the European Parliament can be adequately interpreted and examined. The voting results could demonstrate an increase of the Eurosceptic front’s electoral power within a central European institution. Historical Institutionalism and Second-Order Election are outlined in detail in the next section together with various authors’ definition of Euroscepticism. The second chapter will briefly illustrate the evolution of the four right-wing parties from their origin to 2018. The third and fourth chapters constitute the main core of the thesis. The third chapter will analyse each individual dispute between the four right-wing parties and the European institution: the Italian Draft Budgetary Plan and the Excessive Deficit Procedure against Italy; the implementation of “Rule of Law Framework” and the Article 7 against Poland and Hungary as well as the improper use of European funds by the French Front National. A short description of the Stability and Growth Pact (SGP), Article 7 and “Pre-Article 7” will also be provided. The fourth and final chapter will detail the final electoral outcomes achieved by the four subject matters and their European coalition group after the European Parliamentary election in 2019. The history of the European Parliament will also be described since its origin and the subsequent evolutions are crucial to the understanding of its relevance. Once all pertinent information has been presented, the conclusion will verify two important research hypotheses related to the period before and after the European elections of 2019, respectively. The hypotheses are the following: H1) The authority and the legislation of the European Union are able to deal partially with the Eurosceptic right-wing parties. H2) The second-order nature typical of the European Parliament election does not favour overall the Eurosceptic right-wing Groups.

I. Historical Institutionalism “Historical Institutionalism” affirms that rival groups compete in politics for lacking resources and each group has different behaviour and outcomes. This is because economic or political institutional organisations would favour some groups over others. These institutions are defined by the theory as “formal and informal procedures, routines, norms and conventions embedded in the organizational structure of the polity or political economy”. How institutions intervene on and impact individual or group behaviours can be explained by two approaches present in the historical institutionalism. In the calculus approach, the single individual examines which choices might maximize his/her benefits not only based on his/her priorities and objectives but on the information provided by the institutions about how other individuals could simultaneously act or react. Moreover, according to the calculus approach, the longevity of these institutions is due to the actors’ adhesion to this behavioural model and the disadvantageous high exclusion costs that could otherwise be encountered. In the cultural approach, the individuals seek to gain satisfactory benefits and pursue only those decisions that fulfil their own personal paradigms. The institutions offer them paradigms whereby they are able to analyse themselves and the surrounding world. Unlike the calculus approach, the cultural approach maintains that the institutions in question are considered by the individuals as standard or “conventional” and thus immune to examination or radical transformation. The institutions not only shape the behaviours of the actors (as described by the two approaches), they also give disproportionate access to power (that is, to the decision-making process) to different groups. Therefore, any kind of outcome will have both winners and losers. In addition to the impact of the institutions on the groups actions and the asymmetrical power therein, historical institutionalism supports the idea that historical developments are “path dependent”, that is, “the effect of such forces will be mediated by the contextual features of a given situation often inherited from the past”. According to historical institutionalism, institutions lead the historical development into several “paths”. In the event of “unintended consequences” or the inadequacy of existing institutions, notable institutional changes occur (the so-called “critical junctures”) and historical development moves to another new “path”.1

II. Second Order Election “Second-order Election” was first mentioned as a concept by Karlheinz Reif and Hermann Schmitt in their article "Nine second-order national elections – A conceptual framework for the analysis of European election results". According to Reif and Schmitt, second-order election is characterized by low electorate participation in the ballots and scarce attention given to politicians or journalists; small or new parties gain an advantage, while mainstream parties may suffer an electoral defeat, especially if the elections are held mid-term. These phenomena can be explained by the typical decrease of the consensus mid-term. The electorate population is unhappy with the government policies and prefer to vote for small or new parties as “protest” against the politicians in office.2

1 Hall, P. A., & Taylor, R. C. R. (1996). Political Science and the Three New Institutionalisms. Political Studies, 44(5), 936–957. 2 Reif, K. and H. Schmitt, 1980, Nine second-order elections – A conceptual framework for the analysis of European election results. European Journal of Political Research 8: 3-44. III. Euroscepticism An attempt to define Euroscepticism was realized by Leonard Ray who explicitly oriented his study toward the positions of the parties on European Integration. He collected a general data set about the evolution of Western political parties’ attitude toward European Integration in the interval between 1984 and 1996. His research consisted of an expert survey where he simply asked the respondents, their overall evaluation on the position of each party about the European integration issue, the relevance of the European issues within the political parties and the presence of internal divisions inside the parties. The respondents had to answer each question on a scale of 1 to 7: 1) strongly opposed, 2) opposed, 3) somewhat opposed, 4) neutral, 5) somewhat in favour, 6) in favour, 7) strongly in favour. From the survey results, Ray deduced that support, salience and internal dissent over European integration were increasing within the political parties. However, in the Ray’s work the definition of European integration was intentionally “left up to the experts themselves” because their “same underlying dimension” would strengthen, in his view, the validity of his research. Moreover, Ray does not propose a real definition of the term Euroscepticism. 3 The meaning of Euroscepticism was further explained by Paul Taggart. In his first work on the Western European party system, Taggart defines Euroscepticism as it “expresses the idea of contingent or qualified opposition, as well as incorporating outright and unqualified opposition to the process of European integration”.4 During his collaboration with Alex Szczerbiak, this definition was improved upon and broadened to include the Central and Eastern Europe. Indeed, after the begin of the 21st Century the Euroscepticism phenomenon became extremely relevant, especially after the 2004 enlargement (the inclusion in European Union of the new democracies of Central and Eastern Europe established after the dissolution of the Soviet Union) and the failure of the Constitutional Treaty Referendum in France and the Netherlands. In their new studies, Taggart and Szczerbiak tried to expand their definition of Euroscepticism by dividing it into the categories “hard” and “soft”. Hard Euroscepticism has been defined as “where there is a principled opposition to the EU and European integration and therefore can be seen in parties who think that their countries should

3 Ray, L., 1999, Measuring party orientation towards European integration: results from an expert study, European Journal of Political Research, 36 (2), 283-306. 4 Taggart P. (1998), A touchstone of dissident: Euroscepticism in contemporary Western European party system, European Journal of Political Research 33: 363-388. withdraw from membership, or whose policies towards the EU are tantamount to being opposed to the whole project of European integration as it is currently conceived”. There are two types of hard Eurosceptic parties: “single-issue” parties that have as principle a complete aversion towards European Union and mobilise their own constituency only as regards European Union issues, or parties that blame the European Union to be turned into too capitalist or socialist or neoliberal or bureaucratic (depending on the party’s ideological profile) and believe that would not be more suitable for the own country to follow the current path of European integration project. Soft Euroscepticism “is where there is not a principled objection to European integration or EU membership but where concerns on one (or a number) of policy areas lead to the expression of qualified opposition to the EU, or where there is a sense that ‘national interest’ is currently at odds with the EU’s trajectory”. In other words, soft Euroscepticism pertains to those parties which criticize the ongoing development of the European integration project but not the fundamental ideas or principles of the European Union.5 The notions of “hard” and “soft” Euroscepticism created by Taggart and Szczerbiak were seriously questioned by Mudde and Kopecký since, first of all, soft Euroscepticism is too inclusive and general if it considers the contestations on every European Union policy; second, the identification of hard Euroscepticism as fundamental opposition to the existing form of European integration within the Union. Also, the absence of clear division criteria between the two Euroscepticism categories created an unclear separation between them. Lastly, the distinction between ideas of European integration and their actualisation in the European Union project was considered incomprehensible. In order to present a clearer definition of Euroscepticism, Mudde and Kopecký took into consideration the “diffuse” and “specific” support for European integration (the support for the fundamental principles of the European Union and the support for the future development of the European Union) and they developed two dimensions. The first dimension is divided between those who sustain the transfer of sovereignty and the free market economy (Europhiles) and those who take a position against the European Union’ unsustainable principles (Europhobes).

5 Szczerbiak, A. and Taggart, P., eds., 2008b, Opposing Europe? The comparative party politics of Euroscepticism. Vol. 2: Comparative and theoretical perspective, Oxford: Oxford University Press. The second dimension consists of those who are satisfied with the development of the European Union and are confident in its subsequent improvement (EU-optimist) and those who feel the EU is on the wrong path (EU-pessimist). Combining the two dimensions and their internal dichotomy, Mudde and Kopecký created a fourfold framework of party position on Europe: Euro-enthusiasts are in favour of European integration ideas and believe that they can be realized by the European Union; Euro- sceptics believe in the European integration ideas, but they don’t trust the European Union to achieve them; Euro-rejects are against both the general European ideas and their institutionalization; Euro-pragmatists refuse the integration principle but support the EU project because of the potential electoral or economic benefit derived from the membership.6 Despite the fact that Taggart and Szczerbiak rejected the Mudde and Kopecký model, they accepted their critiques, agreeing that “the key variables in determining party attitudes should be first, underlying support for or opposition to the European integration project as embodied in the EU (rather than a party's support for or opposition to their country's membership at any given time) and, secondly, attitudes towards further actual or planned extensions of EU competencies.” They reformulated “Hard Euroscepticism” as “principled opposition to the project of European integration as embodied in the EU, in other words, based on the ceding or transfer of powers to supranational institution such as the EU”; and “Soft Euroscepticism” as “when there is not a principled objection to the European integration project of transferring powers to supranational body such as the EU, but there is opposition to the EU´s current or future planned trajectory based on the further extension of competencies that the EU is planning to make”.7

6 Kopecký, P. and Mudde, C. (2002), The Two Sides of Euroscepticism: Party Position on European Integration in East Central Europe, European Union Politics, 3: 297-326. 7 Szczerbiak, A. and Taggart, P., op. cit. CHAPTER TWO

Birth and evolution of the main four right-wing parties

I. Lega Nord (Northern League) Lega Nord was founded in 1991 by Umberto Bossi during the Italian political revolution following the scandals that concluded the so-called “First Republic era”. The party was characterized by a regionalist political programme which provided considerable authority and autonomy to individual Italian regions which had heterogeneous socio-economic conditions. The cornerstones of the party politics were built on two fundamental issues: the economic and social disparity between the rich North and the poor South (northern question) and the unhappiness and distrust towards the central political institutions and the government (“Roma”), that was further exacerbated by the fall of the “First Republic”. The leader of Lega Nord at that time, Umberto Bossi, showed himself to be the defender of the interest and identity of the North, which was being harmed by centralized management. Bossi and his party promoted the self-government by the regions as a more positive alternative to the misadministration of the North’s resources. This combined well with the idea of an incompetent and “thieving” elite which only favoured the South. When the first terrorist attacks began, the Lega Nord tended towards extremist positions: the party started to buckle down on immigration and used this new issue as an instrument to point out the inefficiency of the reigning government. Umberto’s era was ended by some fraud scandals and, after the short-term leadership of Roberto Maroni, Matteo Salvini shot to the victory in the primary election of 2013. The new Salvini’s leadership led Lega Nord into a new evolutionary phase. The newly elected leader abandoned the territorial nature of the party and reformed its political jargon asking, on one side, for forgiveness for the past insults directed against the South and, on the other side, to include the entire peninsula in his political agenda. Simultaneously, the old- fashioned ruling elite was replaced by the threating EU, which in turn became the new addressee of his political attacks. The name Lega Nord and its logo disappeared and what then emerged was “Noi con Salvini” and subsequently “Lega Salvini Premier”. This served to create a strong personalization of the party.8 At the national election in 2018, the “Lega Salvini Premier” achieved 17,4% of votes in the Chamber of Deputies9 and 17,6% in the Senate.10 After its coalition with the Five Stars Movement, Salvini was assigned interior minister together with the role of vice-prime minister (serving alongside the 5 Stars’ chief, Luigi di Maio).11

II. Front National (National Front) The Front National and its leader Jean-Marie le Pen (who founded the party in 1972) gained popularity in the ‘80s during the downfall of the left-leaning parties and the Gaullism. The working class, in particular, which was distrustful toward communist or socialist parties, joined and enlarged le Pen’s electoral constituency. During this period of political instability, the Front National not only understood the increasing relevance of plural themes but also skilfully used the “co-optation” in order to influence the rival parties’ political agenda and drive French political public debate. The co-optation was especially employed on immigration and law & order issues provoking a substantial increase in electoral votes in favour of the Front National. Its chief, moreover, Jean-Marie le Pen, was capable of using charisma and populist ideology in order to successfully distract from his frequently cruel and racist way of speaking that would have undermined the Front National’s credibility and pushed electors and supporters to defect the party. After a troubling 2002 election, the “golden” period for Le Pen and his party ended in 2007 due to the electoral triumph of Sarkozy and his “Union for a Popular Movement” party. Sarkozy also

8 Daniele Albertazzi, Arianna Giovannini & Antonella Seddone (2018) ‘No regionalism please, we are Leghisti !’ The transformation of the Italian Lega Nord under the leadership of Matteo Salvini, Regional & Federal Studies, 28:5, 645-671, DOI: 10.1080/13597566.2018.1512977 9 Elezioni, Camera 04/03/2018, Archivio Storico delle Elezione: Ministero dell’interno Dipartimento per gli Affari Interni e Territoriali, https://elezionistorico.interno.gov.it/index.php?tpel=C&dtel=04/03/2018&tpa=I&tpe=A&lev0=0&levsut0=0&es0=S &ms=S 10 Elezioni, Senato 04/03/2018, Archivio Storico delle Elezione: Ministero dell’interno Dipartimento per gli Affari Interni e Territoriali, https://elezionistorico.interno.gov.it/index.php?tpel=S&dtel=04/03/2018&tpa=I&tpe=A&lev0=0&levsut0=0&es0=S &ms=S 11 Jacopo Barigazzi, Who to look out for in the Italian government, Politico, 2018, https://www.politico.eu/article/who-to-look-out-for-in-the-italian-government-far-right-league-5star-movement- giuseppe-conte/ employed the Front National’s strategy of co-optation towards the law & order and immigration questions in order to gain victory in the national poll. In 2011 the leadership of Front National moved into the hand of Marie le Pen, Jean Marie’s daughter. In a process of “de-demonization” (Dédiabolisation), le Pen’s daughter attempted to outdistance the new party profile from the radical and racist position of her father, while simultaneously behaving exactly as her father did in the ’80s. She took advantage of Sarkozy’s and other parties’ political failure and exploited the financial crisis that was hitting the European Union. Front National’s Eurosceptical characteristic as well as Sarkozy’s constant support of the European Union raised the people’s preferences in favour of Marie le Pen and her party in the opinion polls. The same happened for the working class, who were under the impression that they were being ignored by the communist or socialist French parties. They began to be motivated to vote for Front National. In January 2011, Marie le Pen reported publicly that Sarkozy’s Interior Minister and advisor, Claude Guéant, employed Front National’s political message about immigration and French secularism in order to catch the votes of the right-wing part of the “Union for a Popular Movement” party. This accusation of plagiarism allowed le Pen to once again acquire the co-optation instrument and legitimize her party’s political agenda. New leadership allowed Front National to attract more people and change its own nature into a more catch-all party, as highlighted by the outcomes of the 2012 elections.12 However, in the Presidential and legislative campaign of 2017, Le Pen headed a controversial campaign due to her vague attitude toward the EU and her poor showing during the televised debate with her rival Emmanuel Macron. As a result, Front National lost the Presidential election in the second round. In legislative elections it only gained 13% of the vote and 8 seats in the national parliament.13

12 Michelle Hale Williams (2011), A new era for French far right politics? Comparing the FN under two Le Pens, Análise Social, Vol. 46, No. 201, As Direitas no Sul da Europa, pp. 679-695. 13Anja Durovic (2019): The French elections of 2017: shaking the disease?, West European Politics, DOI:10.1080/01402382.2019.1591043 III. Prawo i Sprawiedliwość (Law and Justice) Prawo I Sprawiedliwość (PiS) origin dates back to 2001, when the twin brothers Jarosław and Lech Kaczyński presented their new party in the Polish parliamentary election. Their electoral programme touted law & order and fighting corruption in public office. In 2001, PiS joined the Polish Parliament, but it only began to achieve important results in 2005. During the 2005 general election, Prawo i Sprawiedliwość focused its political campaign on anti- establishment and Euroscepticism discourse and exploited the theory that after 1989 Poland was ruled by a concealed corrupt network of political and economic individuals, the so-called Układ. The condemnation of corruption and anti-elitism combined well with the idea of de-communization of the entire Polish society and politics, and the objective of showing that the party was close to the people and carried about their problems. The change of PiS’s ideology toward radicalism, nationalism, and populism, support of the fundamentalist Catholic Radio Maryja (which enabled the party to reach the religious electorate) and general disappointment in the previous government caused the fall of the mainstream parties and PiS’s rise (27%) in the 2005 exit polls. The party collected an additional victory in the Presidential election that same year, winning in the second round against their rival Donald Tusk, Platforma Obywatelska’s (Civic Platform) candidate. Although they won in the 2005 election, the precarious relations with its allies and the corruption scandal involving the agriculture minister, pushed the government led by PiS to announce an early election. In the election that followed in 2007, Kaczynski’s party lost against the coalition composed of the liberal-conservative “Civic Platform” and the agrarian Christian-democratic “Polish People Party”. On April 10th, 2010 PiS experienced a tragedy when the Polish president Lech Kaczyński died in a plane crash. In the new presidential election held in July 2010, his twin brother Jarosław Kaczyński and his party suffered an additional political defeat. Because of the two electoral debacles of 2007 and 2010, PiS reorganized its political strategy and agenda for the next parliamentary election of October 2011. Unsurprisingly, PiS’s exploitation of unemployment and healthcare issues in the electoral campaign enabled it to reach 29.9% of votes. Although they did not achieve full victory, the party succeeded in maintaining a relevant weight in Parliament. 14

14 Kessel, Stijn van Kessel, Stijn van (2015), Populist Parties in Europe: Agents of Discontent?, New York: Palgrave Macmillan. Political redemption for PiS finally occurred in the presidential election in May 2015. The PiS candidate, Andrzej Duda, won the elections in the second round with 51,55% of the vote thanks to his ability to conquer discontentment among the Polish electorate and his deft use of social media in his electoral campaign. Four months later, in September 2015, the new parliamentary election was held. PiS based its campaign on social benefit promises and presented Beata Szydło as its candidate. The refugee crisis and the agreement signed by the government on the redistribution of immigrants among European Union’s countries steered the party rhetoric toward a more anti-immigrant position. Indeed, in September, Kaczyński made a speech in Parliament against Muslim immigrants. The electoral results demonstrate the efficiency of PiS’s electoral strategy: 37,58% of the general vote. PiS had obtained majority in the Sejm and in the Senate.15

IV. Fidesz (Alliance of Young Democrats) Fidesz (Alliance of Young Democrats) was founded in 1988. In 1990, it gained seats in the newly- constituted Hungarian Parliament. The first democratic elections arranged after the collapse of the Soviet Union were unsuccessful for the party. It was able to reshape its nature into a conservative catch-all style under the leadership of Viktor Orbán. He burst into the political scene in 1989 when he publicly requested the retreat of Soviet troops from Hungary and free democratic elections. From 1998 to 2002 Orbán cemented his position within the party while consolidating the political right, both convincing the right voters and politically marginalizing of other rights-leaning parties.16 Thanks to its political reconfiguration, Fidesz formed a coalition together with other right-leaning parties and rose to power in the 1998 election. Afterward, it began to lean toward more nationalistic, Christian-conservative, statist and (after the Hungarian accession in EU) Eurosceptic ideology. The defeat in the 2002 and 2006 elections led the Orbán’s party to follow a strategy of delegitimization against the socialist government. The party availed itself of the dialectic “us vs. them” and absenteeism already present within the Parliament’s assembly. Moreover, in 2006, Prime Minister Ferenc Gyurcsány was revealed to have misled the country about its real economic

15 Marcinkiewicz, K., Stegmaier, M. (2016), The parliamentary election in Poland, October 2015, Electoral Studies http://dx.doi.org/10.1016/j.electstud.2016.01.004 16 András Körösényi, Veronika Patkós (2017), "Liberal and Illiberal Populism. The Leadership of Berlusconi and Orbán". Corvinus Journal of Sociology and Social Policy 3:315-337. situation. He did this with the dual purpose of winning the election and implementing his austerity programme. This in turn provoked mass demonstration and turmoil throughout the entire country. Thanks to its political strategy and Gyurcsány’s scandal, Fidesz easily won the election in 2010 and filled two-thirds of the Hungarian Parliament seats. The strong majority in Parliament gave Orbán the chance to change the constitutional law, ensuring a second electoral victory in 2014 against the disunited opposition.17

17 Agnes Batory (2016) Populists in government? Hungary's “system of national cooperation”, Democratization, 23:2, 283-303, DOI: 10.1080/13510347.2015.1076214 CHAPTER THREE

European Union institutions vs Populist Eurosceptic parties

I. The Italian Draft Budgetary Plan

Stability and Growth Pact (SGP) In 1992 the Member States signed the Maastricht Treaty in which were set at “3% for the ratio of the planned or actual government deficit to gross domestic product at market prices” and at “60% for the ratio of government debt to gross domestic product at market prices.”18 These limits, known as “Maastricht Criteria”, were the cornerstone on which the Stability and Growth Pact (SGP) was built on in 1997. The SGP had the purpose of creating a homogeneous fiscal administration within the Union. It laid down fiscal rules and therefore coordinated and supervised the fiscal management. The set of rules that compose the SGP are articulated in two arms: the preventive arm and the corrective arm. The former prevents Member States ignoring the deficit and debt level established in the Maastricht Treaty and pushes them to the achievement of “sound fiscal position” in terms of medium-term objective (MTO), i.e. country-specific budget balance target measured in structural terms. In the case of non-compliance by a Member State, a significant deviation procedure (SDP) follows. The latter arm is regarding the accomplishment with the required level of deficit and debt established by the Maastricht criteria. In the case of non-conformity with the criteria set forth therein, an Excessive Deficit Procedure (EDP) would follow. Between 1997 and 2015 the legal basis of the SGP was further improved by the “Six-Pack”, “Two- Pack” and the Fiscal Compact.19 The “Six-Pack” (Regulation 1175/2011 amending Regulation 1466/97; Regulation 1177/2011 amending Regulation 1467/97; Regulation 1173/2011; Directive 2011/85/EU; Regulation 1176/2011; Regulation 1174/2011) introduced financial sanctions against those Member States

18 Article 1, Protocol on the excessive deficit procedure, Treaty on European Union OJ C 191, 29.7.1992, https://www.ecb.europa.eu/ecb/access_to_documents/document/legal_act/shared/data/ecb.dr.leg1992_C191_84.en.p df?b7ab3a41d260833dfd1ed701396e96d6 19 Doris Prammer & Lukas Reiss, 2016. "The Stability and Growth Pact since 2011: More complex – but also stricter and less procyclical?," Monetary Policy & the Economy, Oesterreichische Nationalbank (Austrian Central Bank), issue 1, pages 33-53. within the euro area that are in excessive deficit procedure and don’t make a satisfactory effort to reduce their deficit on the base of the Council’s recommendation. It is also established a new debt benchmark and a transitional period in which the countries in an opened EDP could meet the debt rule. Not only that, it also imposed an expenditure standard under the preventive arm and created a new monitoring system and corrective mechanism for excessive macroeconomic imbalances called the Excessive Imbalances Procedure (EIP). 20 The “Two Pack” (Regulation 473/2013 and Regulation 472/2013) required that the euro area Member State must submit their medium-term fiscal plans (Stability Programme) and their National Reform Programmes by April for the following twelve months, and their draft annual budgetary plan by October. The European Commission has until November 30th to assess the documents provided and present an opinion or further recommendation based on the SGP’s requirement. The Member States, however, are not obliged to comply with that recommendation and the Commission is also only allowed to solicit the country to re-submit a revised plan, but not allowed to modify the national budgetary plan. Non-compliance with the opinions or recommendations presented by the Commission could be considered as complementary information in an Excessive Deficit Procedure.21 Lastly, the Fiscal Compact (or the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) establishes new balance budget rules and correction mechanism for non-conforming Member States. These must be included in the national legislation by the signatory Member State and with a fine of up to 0,1% of GDP for those countries which don’t implement the Treaty. In addition, the contracting parties are obliged to follow the Council recommendations and decisions made in the EDP and only a qualified majority vote by other euro-area countries could stand in opposition.22

20 European Commission, EU economic governance “six-pack” enters into force, MEMO/11/898, 12 December 2011. https://ec.europa.eu/commission/presscorner/detail/en/MEMO_11_898 21 European Commission, ‘Two-Pack' completes budgetary surveillance cycle for euro area and further improves economic governance. MEMO/13/196, 12 March 2013. https://ec.europa.eu/commission/presscorner/detail/en/MEMO_13_196 22 European Commission, Brussels, 21 December 2012 Fiscal compact enters into force, 18019/12 PRESSE 551, 21 December 2012. https://ec.europa.eu/commission/presscorner/detail/en/PRES_12_551 Excessive Deficit Procedure (EDP) against Italy After the victory in the Italian election in March 2018, the coalition “yellow-green” reached September 27th, 2018 an agreement to fix the target deficit at 2,4% of GDP of the government's 2019 budget.23 Salvini exulted asserting: “the commissioners will understand that we are working for the benefit of the country.”. When questioned about the Commission’s eventual rejection, he answered: “we are going to push forward”.24 On the 16th of October, Italy presented the Commission Draft Budgetary Plan of its own for 2019, according to Article 6 of the Regulation No 473/2013.25 The aforementioned Regulation “sets out provisions for enhanced monitoring of budgetary policies in the euro area and for ensuring that national budgets are consistent with the economic policy guidance issued in the context of the SGP and the European Semester for economic policy coordination”.26 The main measures inserted in the Italian DBP comprehended the abolishment of previous “safeguards clause” (VAT), higher public investment, the early retirement (“Quota 100”), citizenship income for unemployed or unoccupied adults (“Reddito di Cittadinanza”), personal or corporate income tax rate on 15% (“Flat Tax”), increase in public employment, government’s spending review, tax amnesty together with the incentive of obligatory electronic invoicing between private companies, the abolition of previous tax incentives and deducibility for firms, especially for banks.27

23 la Repubblica. 2018. Manovra, Salvini e Di Maio: "Accordo raggiunto sul 2,4%". Via la Fornero. C'è il reddito di cittadinanza. September 27. https://www.repubblica.it/politica/2018/09/27/news/manovra_def_tria_salvini_di_maio_m5s_lega_legge_bilancio- 207482320/ 24 La Repubblica. 2018. Def, Salvini: "E' per il bene del Paese. I mercati se ne faranno una ragione", https://video.repubblica.it/dossier/governo-lega-m5s/def-salvini-e-per-il-bene-del-paese-i-mercati-se-ne-faranno-una- ragione/315437/316067?ref=search 25 “Member States shall submit annually to the Commission and to the Eurogroup a draft budgetary plan for the forthcoming year by 15 October. That draft budgetary plan shall be consistent with the recommendations issued in the context of the SGP and, where applicable, with recommendations issued in the context of the annual cycle of surveillance, including the macroeconomic imbalances procedure as established by Regulation (EU) No 1176/2011, and with opinions on the economic partnership programmes referred to in Article 9.” (Article 6 of Regulation (EU) No 473/2013 of the European Parliament and of the Council on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, Official Journal of the European Union, L 140/11, 2013) 26 Article 1 of Regulation (EU) No 473/2013 of the European Parliament and of the Council on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, Official Journal of the European Union, L 140/11, 2013, https://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32013R0473&from=EN 27 Italy´s Draft Budgetary Plan 2019, Ministry of Economy and Finance, 2018, p.18-21. Two days after Italy’s submission of the draft, the Commission asked Italy for additional information, given that the Budgetary Plan did not conform to the recommendation imparted by the European Council on 28th June 2018 and adopted by the Council of European Union on 13th July 2018.28 The Commission observed that in the Italian DBP instead of the structural improvement of 0,6% of GDP a fiscal expansion was decided upon, that is, a nominal increase of net primary government expenditure to 2,7% and, thus, a structural deterioration of 0,8% of GDP. Moreover, the Italian government had not fulfilled their commitment to reduce the national debt from 130% of GDP to 60% of GDP, as delineated in the Treaties. Lastly, this was clearly in violation the Art.4(4) of the Regulation 473/201329, since the independent fiscal monitoring, the Parliamentary Budget Office (PBO), had not approved the Italian budgetary plan. 30 The Italian Ministry of Economy and Finance replied to the Commission asserting that the Italian budget policy strategy was justified by the critical socio-economic conditions currently being experienced by the country. In addition, these measures (especially public investment) would encourage the country’s economic development, decreasing the national debt and maintaining the deficit at a rate of no more than 2,4% to GDP. Regarding the PBO’s non-acceptance of the budget plan, the Ministry explained that, in the case of their refusal, the Italian legislation allows the Government to clarify the economic and fiscal draft to the Budget Committees of both Houses of Parliament. Lastly, the Government guaranteed to take the “necessary measures” in event of undesirable outcomes in debt-to-GDP and deficit-to-GDP ratio. 31

28 Council Recommendation on the 2018 National Reform Programme of Italy and delivering a Council opinion on the 2018 Stability Programme of Italy, (2018/C 320/11), 13 July 2018, Official Journal of the European Union. 29 “National medium-term fiscal plans and draft budgets referred to in paragraphs 1 and 2 shall be based on independent macroeconomic forecasts, and shall indicate whether the budgetary forecasts have been produced or endorsed by an independent body. Those forecasts shall be made public together with the national medium-term fiscal plans and the draft budgets that they underpin.” (article 4(4) of Regulation (EU) No 473/2013 of the European Parliament and of the Council on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, Official Journal of the European Union, L 140/11, 2013) 30 Commission letter to Italy, 18th October 2018. https://ec.europa.eu/info/sites/info/files/economy- finance/18_10_18_commission_letter_to_italy_en_0_1.pdf 31 Italy’s reply to Commission, 22 October 2018. https://ec.europa.eu/info/sites/info/files/economy- finance/letter_to_vd_and_pm_-_22-10-2018.pdf On the 23rd of October, the European Commission presented its Opinion, in accordance with Art.7(2) of the Regulation 473/201332. In this document, the European institution pointed out its concerns about Italy’s expenditure analysis, especially the deficit and debt levels. According to the Commission, rather than stick to the reduction of 0,8%, as negotiated in the Stability Programme in April 2018, the Italian government had decided to increase the 2018’s deficit level until 2,4%, (2,1% in 2020 and 1,8% in 2021). Those diminutions were not only based on an overoptimistic improvement in nominal GDP growth but also on the eventual activation of the “safeguards clause” (higher VAT) in 2020 and 2021. The Commission also regarded the debt-to-GDP ratio with scepticism: it not only made a note of the absence of fulfilment of debt diminution criterion in 2019 (from 130,9% to 130,0%) but was also unconvinced about the optimistic debt’s decline to 128,1% in 2020 and to 126,7% in 2021 due to the amelioration of nominal GDP, on the revenues derived from the privatisation and on the implementation of “safeguard clause”. Furthermore, the Commission highlighted the powerful influence of high debt on the risk of market confident shocks on sovereign yields. In conclusion, the Commission denounced Italy’s nonconformity with the recommendation and commitments agreed to in the past and exhorted the Italian government to submit a revised draft.33 On the 23rd of October, during an official visit to Bucharest, Salvini reacted to the Commission’s rejection, stating that “Europe cannot intervene with vetoes and threats to block the choices of individual parliaments and individual governments […] the only body that can improve the Italian manoeuvre is the Italian Parliament".34 In another interview, he asserted: “If it's all right for Europe (the economic manoeuvre), we're happy, if it's not all right for Europe, let's go straight ahead anyway.”35

32 “where, in exceptional cases, after consulting the Member State concerned within one week of submission of the draft budgetary plan, the Commission identifies particularly serious non-compliance with the budgetary policy obligations laid down in the SGP, the Commission shall adopt its opinion within two weeks of submission of the draft budgetary plan”. (Art 7(2) of Regulation (EU) No 473/2013 of the European Parliament and of the Council on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, Official Journal of the European Union, L 140/11, 2013) 33 C(2018) 7510 final, Commission Opinion on the Draft Budgetary Plan of Italy and requesting Italy to submit a revised Draft Budgetary Plan, Strasbourg, 23.10.2018. 34 Rai News,2018, Salvini: "Solo il Parlamento italiano può migliorare la manovra", 23.10.2018, http://www.rainews.it/dl/rainews/articoli/Salvini-Solo-il-Parlamento-italiano-puo-migliorare-la-manovra-a886a52c- 4836-4341-8129-fbd88b26abeb.html 35 La Stampa, 2018, Manovra, Salvini: "Se all'Europa va bene siamo contenti, sennò tiriamo dritto", 13.11.2018, https://video.lastampa.it/cronaca/manovra-salvini-se-all-europa-va-bene-siamo-contenti-senno-tiriamo- dritto/91831/91843 Rome presented a revised DBP on November 13th in which the sale of public assets varied from 0,3% to 1,0% of GDP but the rest of the document remained unchanged.36 Obviously, on the 21st of November Brussels was forced to respond with a new opinion that evaluated “Italy's compliance with the preventive arm of the Stability and Growth Pact based on the revised 2019 draft budgetary plan and the Commission 2018 autumn forecast published on 8 November 2018”. In the Italian draft it was assumed that the improvement of nominal GDP (3,1% in 2019 and 3,5% in 2020) would steer toward an increased inflation rate (1,6% in 2019 and 1,9% in 2020) and real GDP (1,5% in 2019 and 1,6% in 2020). The Commission, however, foresaw an increase of nominal GDP of 2,5% (2019) and 2,7% (2020), the inflation rate stable at 1,3% and real GDP growth at 1,2% (2019) and 1,6% (2020). The Commission’s forecast of deficit-to-GDP and debt-to-GDP ratio did not match the optimistic Italian projections: the Commission estimated the deficit at 2,9% of GDP in 2019 increasing to 3,1% of GDP in 2020, due to low GDP growth and high spending in interests; they also predicted that the debt would be stabilize at or around 131% between 2019 and 2010. In addition to this opinion, the Commission also adopted a report in which, examining all relevant factors, conformity with the debt criterion affirmed in the Treaty and in the Regulation (EC) No 1467/1997 was analysed.37 In both documents, Brussel reaffirmed that “the debt criterion as defined in the Treaty and in Regulation (EC) No 1467/1997 should be considered as not complied with, and that a debt-based Excessive Deficit Procedure is thus warranted”.38 At the European Semester Autumn Package press conference Commissioner Pierre Moscovici reassured: “This is not, I insist on that, the opening of an EDP yet. It is now for the Member States to give their views on our report within 2 weeks. Should they agree with the Commission's conclusion, and frankly it would be more than logical, then the Commission will have to prepare

36 Italy`s letter to Commission, 13 November 2018, https://ec.europa.eu/info/sites/info/files/economy- finance/tria_letter_to_ec_13_nov_2018_en.pdf 37 C(2018) 8028 final, Commission Opinion on the revised Draft Budgetary Plan of Italy, Brussels, 21.11.2018, SWD(2018) 528 final, https://ec.europa.eu/info/sites/info/files/economy-finance/c-2018-8028-it_en_0.pdf 38 COM(2018) 809 final, Report from the commission, Italy, Report prepared in accordance with Article 126(3) of the Treaty on the Functioning of the European Union, Brussels, 21.11.2018. the excessive deficit procedure as well as a new recommendation for Italy to correct its deficit and debt trajectory.” 39 In the same press conference, Vice-President Dombrovskis also expressed: “With what the Italian government has put on the table, we see a risk of the country sleepwalking into instability. I hope this risk is to be avoided. Because in the end, what is at stake is the well-being and future prosperity of the Italian people. Our job is to flag risks before it is too late. And this is what the Commission has been doing over the past weeks, and what we are doing again today. So, we stand ready for a dialogue with the Italian authorities, but we think that this situation needs to be addressed.”40 After the second European Union’s rejection, the Italian Minister of Interior derisively expressed: “Has the letter (of the Commission) arrived? I also expected that of Santa Claus” and, moreover, “let us to work (…) It would seem disrespectful for me sanctions for a growth manoeuvre. In one year, we will talk about it, but no prejudice.” 41 Moscovici replied to Salvini’s provocation, advocating seriousness and respect, but Salvini retorted: “The Italian people are not a people of carpet merchants or beggars. Moscovici continues to insult Italy, but his salary is also paid by the Italians. Now that's enough: patience is over”42 However, fear of an eventual start of an Excessive Deficit Procedure pushed the Italian government to continue in dialogue with the Commission. Indeed, on December 1st the Italian prime minister Giuseppe Conte met with Jean-Claude Junker and Moscovici at the G20 Summit in Buenos Aires to speak about the Italian budget plan for 2019. Conte affirmed that the Excessive Deficit Procedure would be disadvantageous both for Italy and for the European Union because “Italy and the EU are on the same boat”.43

39 SPEECH/18/6509, Remarks by Commissioner Moscovici at the European Semester Autumn Package press conference, European Commission, Press Release Database, Brussels, 21 November 2018, https://europa.eu/rapid/press-release_SPEECH-18-6509_en.htm 40 SPEECH/18/6508, Remarks by Vice-President Dombrovskis at the European Semester Autumn Package press conference, European Commission, Press Release Database, Brussels, 21 November 2018, https://europa.eu/rapid/press-release_SPEECH-18-6508_en.htm 41 la Repubblica. 2017. “Manovra bocciata, Salvini: "Lettera Ue? Aspettiamo quella di Babbo Natale". Conte: "Pronto a dialogo con Juncker"”. 21 November 2018. https://www.repubblica.it/politica/2018/11/21/news/manovra_bocciata_governo_salvini_conte_di_maio_lettera_ue- 212221985/ 42 AGI, 2018, “Cronaca di un'altra giornata di ordinario scontro con l'Europa”, 23 November 2018, https://www.agi.it/politica/scontro_ue_salvini_moscovici-4662070/news/2018-11-23/ 43 Governo Italiano, Presidenza del Consiglio dei Ministri, “Conferenza stampa al termine del summit”, 30 November 2018, http://www.governo.it/it/media/il-presidente-conte-al-g20-argentina/10475 On December 12th Conte flew to Brussels to participate in the encounter with Junker, Moscovici and Dombrovskis. After the meeting, the Prime Minister declared that they had finally reached an agreement, that is, that the deficit target would be reduced from 2,4% to GDP to 2,04% to GDP.44 On the same day, he submitted the final draft of the budgetary plan to the Commission, which gladly the accepted the new draft and, moreover, promised to abort the launch of the Excessive Deficit Procedure.45 While Conte dealt with the Brussels negotiation, Salvini began to have a moderate attitude with the European Union. He was optimistic that they would find a solution with the Commission, and he was willing to change a few decimals, as long as the main economic measures in the budgetary plan remained untouched. 46 Lastly, when the compromise between Conte and the Commission was confirmed, the Lega’s leader welcomed the results obtained by the Prime Minister in Brussels, declaring: “Better late than never. I am glad. Great satisfaction for the result achieved. […] Finally from January the manoeuvre becomes real money to help millions of Italians”.47

II. Hungarian and Polish “rule of law backsliding”

Article 7 and “Pre-Article 7 TEU procedure” The fight between the EU and Member States in Central Europe concerned “rule of law backsliding”, namely, “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”. Indeed, the national electoral successes of Fidesz in Hungary and Prawo i Sprawiedliwość in Poland allowed a single party to obtain a national political hegemony giving that party the capability to undermine the system of application and interpretation of European law, by the controlling either the civil society or the national executive, legislative and judicial spheres.

44 Governo Italiano, Presidenza del Consiglio dei Ministri, “Punto Stampa del Presidente Conte a Bruxelles”, 12 December 2018, http://www.governo.it/it/node/12071 45 Commission letter to Italy, 19 December 2018, https://ec.europa.eu/info/sites/info/files/economy- finance/7351969_letter_to_prime_minister_conte_and_minister_tria.pdf 46 Politico, Politico 28 Class of 2019 Gala Dinner, https://www.politico.eu/event/politico-28-annual-gala-dinner-3/ 47 AGI, 2018, “Il governo ha fatto l’accordo con l’Europa sulla manovra”, 19 December 2018, https://www.agi.it/politica/manovra_ue_accordo_bruxelles-4754720/news/2018-12-19/ Typically, the European Union’s Treaties provide the EU institutions with mechanisms that should be useful in dealing with the insubordinate Member States: the “nuclear option” described in the Article 7 TEU or the “infringement procedure” laid down in Articles 258-260 TFEU.48 The “nuclear option” is, in other words, the suspension of “certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council” after the determination of “clear risk of a serious breach” or “existence of a serious and persistent breach” of those values laid down in the Article 249 by a Member States.50 Moreover, paragraph one of Article 7 indicates that “on a reasoned proposal by one-third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2” and, its second paragraph, that “the European Council, acting by unanimity on a proposal by one-third of the Member States or by the Commission and after obtaining the consent of the European Parliament may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2”.51 The infringement procedure consists, instead, in a lump sum or penalty payment if a Member State “failed to fulfil an obligation under the Treaties”.52 Despite these two seemingly fail-proof mechanisms, in 2013, the President of European Commission, José Manuel Barroso, encouraged for a new efficacious system to be used in rule of law crises as halfway between Article 7 and infringement procedure, both of them barely applicable in the case of Hungary and Poland. On one hand, Article 7 (2) expresses clearly that a unanimous vote in the European Council is required in order to launch sanctions, not including the vote of the country on trial. Reaching unanimity is relatively hard, but the existence of two non-compliant countries, which would

48 Pech, L., & Scheppele, K. (2017). Illiberalism Within: Rule of Law Backsliding in the EU. Cambridge Yearbook of European Legal Studies, 19, 3-47. doi:10.1017/cel.2017.9 49 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 50 Article 7, Consolidated version of the Treaty on European Union, OJ C 202, 7.6.2016, p. 13–388 (EN), http://data.europa.eu/eli/treaty/teu_2016/oj 51 Ibid. 52 Article 258 and Article 260 TFEU, Consolidated version of the Treaty on the Functioning of the European Union OJ C 326, 26.10.2012, p. 47–390, http://data.europa.eu/eli/treaty/tfeu_2012/oj support each other in the voting process, further complicates the situation. Not only that, it is almost impossible to obtain two-thirds of Parliament and four-fifths of Council (as laid down in the first paragraph of Article 7) to submit recommendations in the case of a significant breach of EU values. On the other hand, the infringement procedure is inapplicable to issues (e.g. the reform on national judiciary organisation adopted in Hungary and Poland) that don’t concern European Union law or values, inasmuch as they are part of the Member State’s competence domain (unless Commission tries to involve values or freedom defined in EU law in order to open the infringement procedure against the two Central European countries).53 In order to counter the serious rule of law backsliding occurring in Hungary and Poland, on March 2014 the Commission adopted a new mechanism “Rule of Law Framework” with the primary intention of “enabling the Commission to find a solution with the Member State concerned in order to prevent the emerging of a systemic threat to the rule of law in that Member State that could develop into a "clear risk of a serious breach" within the meaning of Article 7 TEU, which would require the mechanisms provided for in that Article to be launched”. This mechanism, also called “pre-Article 7”, consisted of three phases: assessment, recommendation and follow-up. First, the Commission examines if there is a feasible systemic threat to the rule of law in a Member State and, then send a “rule of law opinion” to the government in question specifying the problems at hand. Second, if the Member State doesn’t attempt to resolve the problems highlighted in the “rule of law opinion”, a “rule of law recommendation” is adopted, whereby attainable proposals are outlined together with a specific deadline. The last phase concerns the Commission control regarding the follow-up and the actions undertaken by the Member State which should comply with the recommendations. In the end, “if there is no satisfactory follow-up to the recommendation by the concerned Member State within the time limit set, the Commission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU”. 54

53 Pech, L., & Scheppele, K., Op. cit. 54 Communication from the Commission to the European Parliament and the Council of 11 March 2014, A new EU Framework to strengthen the Rule of Law, Brussels, 19 March 2014 COM(2014) 158 final/2 http:// ec. europa. eu/ justice/ effective -justice/ files/ com_ 2014_ 158_ en. pdf The following sections will explaine more in detail the ambitious reforms realized in Hungary and Poland, the consecutive reaction of the European Union institutions and the use of “pre-Article 7” procedure against the two challenging countries.

Hungary The main battlefield of the EU-Fidesz face-off was fought over the Hungarian government’s attempt to seize control of the justice system after its victory in the 2010 general election as well as control of 68% of the seats in the Parliament under the Fidesz-KDNP coalition. Taking control of two-thirds of Parliament’s seats allowed Orbán to adopt a new Constitution (“Fundamental Law”) and, in the following years, new complementary laws, eliminating any form of legislative constraint on executive power. Initially, the constitutional amendment that established the requirement of two-third of Parliament for the election of the President of the Court as well as the nomination of Constitutional Court judges by a parliamentary committee (controlled by the ruling party) followed by a subsequent vote of two-third of the Parliament were approved. Obviously, Orbán’s government was able to reach the two-third threshold and was thus only ensured influence of the executive body on the Constitutional Court. A second constitutional amendment increased the Court’s amount of work as well as the number of its judges (from 11 to 15). The new judges’ seats were, of course, assigned by Fidesz. He, obviously, drew from party loyalists. Having assumed the control of most of the Constitutional Court, the government now had the opportunity to implement any eventual law without the check of a main judicial authority. When the Court tried to react against the government and decided to nullify the retroactive tax on severance bonuses for members of the previous government, the old constitution was swiftly amended and the financial competences of the Court limited. This was additional evidence of the downfall of Constitutional authority in the face of rapidly growing of executive power. The last evident proof of an increasing political domination of the judicial body was the approval of the Fourth Amendment: nullification of the case law from 1990 to 2011. This meant that, first, the Court was not able to rely on those case law made between 1990 and 2011; second, the unconstitutional legal provisions proposed after Fidesz came to power were integrated into the Constitution; third, the Court was precluded from evaluating the compliance of all constitutional amendments (included the Fourth Amendment) with the principal values of Fundamental Law. Furthermore, in the Fourth Amendment, the “actio popularis” petition (any individual had the possibility to bring any law before the Court to question the constitutionality) was replaced with three different appeals. In the first appeal, the procedure can be started on the initiative of government, one/fourth of Parliament, President of the Supreme Court (Kúria), Prosecutor General or Fundamental Rights’ Ombudsman. It is, however, highly unlikely that the government would act against itself. Other actors were almost always selected from partisans sympathetic with the government’s view. The second appeal was the judicial initiative. In the event of a judge considering the norm or the provision normally applicable in a proceeding as unconstitutional, he/she had to suspend it and send a validity request to the Constitutional Court. This choice was rarely acted upon. The last appeal was the constitutional complaint that, in simple terms, didn’t question the law itself but rather the court’s decision that regulated the issue in question. Once he sized control of the Constitutional Court, Orbán moved his attention to the ordinary judiciary. First, around 10-15% of the judges were removed from their posts (Orbán lowered the age-limit for compulsory retirement). The Hungarian Constitutional Court declared this law unconstitutional on the base of the principle of judicial irremovability, but Orbán’s government was able to add the retirement law through an amendment of the Fundamental law.55 Then, the European Commission opened an infringement procedure56 bringing the Hungarian government before the European Court of Justice, proving Orbán had violated the European Union law as regarding age discrimination. Although the Hungarian government had to pay a fine, the most prominent judges didn’t regain their previous job placing. Instead, they were replaced by new judges sympathetic to Orbán and his government.57 While the new retirement law was being applied, a new National Judicial Office was created in order to replace the old autonomous judicial structure. Its main task was the courts’ management, that is, judicial discipline, new assignments, transfer and influence on the judges’ carriers. Additionally, Orbán appointed a National Judicial Council with judges as members wielding little to no true powers.

55 Kovács, K., & Scheppele, K. L. (2018). The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union. Communist and Post-Communist Studies, 51(3), 189-200. 56 Commission v. Hungary, C‐286/12, Available at http://curia.europa.eu/juris/documents.jsf?num=C‐286/12 57 Kovács, K., & Scheppele, K. L. (2018). Op. cit. The new reforms undertaken by the Hungarian government also involved the Presidency of the Supreme Court. Essentially, the requirements for that office were modified and the President in office at the time was indirectly forced early dismissal (ahead of the legal end of the term). The Court of Human Rights highlighted this breach of rights of the court’s accession and freedom of expression58. However, as happened with the previous retirement age case, Hungary paid the fine but the previous President was not reinstituted. The process of reform realized by Orbán suffered a provisional setback in 2011, due to his ruinous ambition to constitute a separate administrative courts’ system. The two acts submitted by the executive branch were considered unconstitutional and the government was unable to reach the two-thirds majority essential to bypass the Court refusal (due to unfavourable outcomes of two supplementary elections). Nevertheless, in 2017 Parliament approved a project concerning the creation of new administrative chambers inside the existing court. These chambers were designed to accept and nullify appeals against an administrative decision of independent bodies (e.g. the Hungarian National Bank). The new chambers, moreover, were allowed to rule on the cases relative to the right to assembly (public demonstration) and freedom of information (publication of government’s internal works). In 2018 Fidesz once again gained two-thirds of the Parliament and, in the same year, submitted the Seventh Amendment. This new proposal suggested the establishment of a separate public administration court system, although that was already rejected by the Court in 2011. Despite this, the regained majority in the National Assembly approved the amendment. A detached Supreme Administrative Court was set up to review the work of administrative courts and the interpretation of the law in order to provide a mandatory final decision to be respected by administrative courts. Once more, the Commission was able to open an infringement procedure against Hungary and, again, Budapest had to pay a fine, but the situation remained practically unchanged. The main problem was the lack of explicit legal provisions on which the European Commission could directly rely, because, unfortunately, the idea of independent judicial bodies was only tacitly implied in the Treaties or in the EU law.59 The later creation of the new “pre-Article 7” framework was written specifically with the purpose of solving these EU shortcomings.

58 ECtHR, 23 June 2016, Baka v Hungary, no. 20261/12, Available at http://hudoc.echr.coe.int/eng?i=001-115532 59 Kovács, K., & Scheppele, K. L. (2018). Op. cit. This new “pre-Article 7” originated with the enactment of the Fourth Amendment in Hungary. This amendment pushed the Minister of Foreign Affairs of Denmark, Finland, Germany and Holland to publish a Joint Letter on March 2013, appealing for a new mechanism for the defence and correct implementation of the European Union’s values. It encouraged the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) to draft a report, (called later the “Tavares Report”) whereby the Hungarian constitutional situation was analysed and a new system of supervision and evaluation proposed. Subsequent to the submission and approval by the European Parliament, the Hungarian Parliament reacted harshly to adopting the Resolution 69/2013 on “equal treatment due to Hungary”. With an anti-EU meaning, this document asserted in the name of all Hungarians: “We, Hungarians, do not want a Europe any longer where freedom is limited and not widened. We do not want a Europe any longer where the Greater abuses his power, where national sovereignty is violated and where the Smaller has to respect the Greater. We have had enough of dictatorship after 40 years behind the iron curtain.” This Resolution accused the European Parliament to interfering in Hungarian issues and obliged the European Union to respect the sovereignty of a Member State. In the end, the government was encouraged “not to cede to the pressure of the EU, not to let the nation’s rights guaranteed in the fundamental treaty be violated, and to continue the politics of improving life for Hungarian families”. However, the Hungarian Parliament ended up ceding to the pressure from the EU and revising the Fundamental Law with the adoption of the Fifth Amendment (even if the changes were not so substantial). Hungary’s little concession didn’t stop the development of the new European framework. Between the 2013 and 2014, the European Union fostered the drafting and approval of the new “Rule of Law Framework”, or “pre-Article 7 procedure”, in order to the deal with the decline of the rule of law in Hungary. The first benchmark of the new framework should have occurred in 2015, when the European Parliament enacted a resolution against the restoring of the death penalty in Hungary and against the anti-immigrant political campaign being promoted by the Orbán administration. Through this resolution, the EP involved the Commission to start the Rule of Law Framework procedure. Regrettably, the latter highlighted the absence of systemic threat to the rule of law, democracy and human rights, therefore denying the opening of a procedure. In December 2015 the EP passed a new resolution against the anti-European and anti-immigration laws, soliciting again the Commission to trigger the Rule of Law Framework. The Commissioners, however, opted instead for the application of infringement procedure because of the non- conformity of the Hungarians laws and EU legislation. The Commission opted in favour of an infringement action in 2017 as well when the Central European University of Budapest was forced to close due to the amendment of the Higher Educational Law enacted by the Hungarian government. The Commission observed that the new Hungarian law violated the freedom to provide services and the freedom of establishment as well as the right to academic freedom, education and the freedom to conduct business.60 The case was brought before the Court of Justice, but no judgment was provided. Instead, in 2019 the CEU decided to move the campus from Budapest to Vienna, leaving just a small section behind in Hungary.61 The first real response from the EU came in September 2018, when the Green MEP, Judith Sargentini, presented the European Parliament with a report in which she listed the main violations realized by Orbán’s regime since its rise in 2010: the functioning of the constitutional and the electoral system; judiciary independence and judges’ rights; corruption and conflict of interest; privacy and data protection; freedom of expression; academic freedom; freedom of religion; freedom of association; the right to equal treatment; minority rights, including Roma and Jews, and protection against hate crimes; the fundamental rights of migrants, asylum seekers and refugees; economic and social rights. In the end, the report asserted: “There is a clear risk of a serious breach by Hungary of the values on which the Union is founded.” 62 Even if the European Parliament succeeds in adopting the report (448 votes in favour, 197 against and with 48 abstentions) and triggering the famous “Article 7 procedure”, what will follow in the next few years is an absolute enigma. Furthermore, the report could be criticized on the ground of being “too late, too little and too politicized”.

60 Halmai, Gábor, The Application of European Constitutional Values in EU Member States. The Case of the Fundamental Law of Hungary (July 21, 2018). European Journal of Law Reform 2018 (20) 2-3. doi: 10.5553/EJLR/138723702018020002002. Available at SSRN: https://ssrn.com/abstract=3217616 61 Bárd, Petra: To leave or not to leave? Viktor Orbán’s war against George Soros and the CEU dilemma, Reconnect blog, 14 February 2019, https://reconnect-europe.eu/blog/bard-orban-ceudilemma 62 Report on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)): http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A8-2018- 0250&format=XML&language=EN “Too late” the report was submitted after Orbán had already shaped the country in line with his own idea of “illiberalism”: judicial system, academic freedom, media diversity, patronage and clientelism. “Too little” the report highlights Budapest’s breaches in EU law and invites the European Council to launch a procedure. Thus the document is only the preparatory phase, whereas the process’ activation is in the hand of the Council, which has to vote and reach a four-fifths majority to proceed further. Finally, “too politicized” the vote in the European Council would occur independent of the involvement of any independent or judicial body or even any other European institution, ECJ or the Commission for instance. For this reason, the vote is clearly “intergovernmental closed-door business”.63

Poland As occurred in Hungary, after the electoral victory in 2015 the ruling party in Poland (Prawo i Sprawiedliwość) mounted a series of attacks against the judicial system in order to ensure a smooth realization of the legislative reform desired by the Polish government. Their first target was the Constitutional Tribunal, which had the power to invalidate those laws considered unconstitutional. According to Polish law, three of five judges (members of the Constitutional Tribunal) should be elected at the end of the old Parliament’s term and the other two at the beginning of the new term. When Kaczyński and his party won the election and obtained a majority in Parliament, he decided to elect all five judges for the CT instead of the legal two, choosing to replace the three judges already elected by the previous Parliament. After their nomination, the three “illegally appointed” judges took an oath before the President of the Republic, Andrzej Duda. As expected, the Constitutional Tribunal didn’t recognize the appointment of the three PiS’s judges because the decision to remove the formerly elected judges before the end of their term contravened explicitly the appointment procedure laid down in the Constitution. Moreover, the President of the CT, Andrzej Rzepliński, refused to include the “illegally appointed” judges in the judicial committee.

63 Carrera, S., & Bárd, P. (2018). The European Parliament Vote on Article 7 TEU against the Hungarian government: Too Late, Too Little, Too Political? CEPS Commentaries, 14 September 2018. Due to the deadlock between PiS and the Tribunal, throughout 2016 the government adopted several legislative drafts relative to the CT. The final objectives were to prevent constitutional supervision of PiS’s new legislation, to slow down the decision-making procedure within the Tribunal and to strengthen the leverage of executive and legislative bodies on the main judicial authority. Those provisions were unfortunately quickly abandoned when the Rzepliński’s Presidency drew to a close and Julia Przyłębska (judge candidate recommended by PiS) was nominated as successor to the Presidency of the Constitutional Tribunal. Indeed, Przyłębska was not only designated unconstitutionally “interim” President of the Tribunal to preside over the election procedure (a role typically performed by the vice-President, Stanisław Biernat), she was also elected by the General Assembly of judges which included the previously mentioned three “illegally appointed” judges. Furthermore, the election took place without the presence of one “old” judge, who was unable to reach Warsaw in time to vote ignoring the missing quorum originated after that, in addition, eight judges refused to vote. The absence of quorum pushed Przyłębska to merely send President Duda a simple letter with the results of the vote. This operation was contrary to the procedure laid down in the constitutional and statutory provision that the General Assembly has to vote two times and present two resolutions regarding the election of the candidates to the President of the Republic. Despite overlooking certain aspect of the procedure, President Duda nominated Przyłębska President of the Constitutional Tribunal. Warsaw’s Court of Appeal submitted a legal question to the Supreme Court about the legitimacy of the new Tribunal President, but the Supreme Court avoided taking a stand, stating that the nature of the question was inconsistent with an abstract issue. The administrative courts took the same view and refused to deal with the topic. Thanks to the newly established Tribunal Presidency, PiS was able to take over the Constitutional Tribunal: the three unconstitutionally appointed judges were admitted to the judging panels and Vice-President Biernat was pushed to early retirement based on CT budgetary reasons.64 After the Constitutional Tribunal, the government later aimed to reform the ordinary judiciary. The National Council for the Judiciary of Poland (KRS) became its new target.

64 Sadurski, W. (2019). Polish constitutional tribunal under PiS: from an activist court, to a paralysed tribunal, to a governmental enabler. Hague Journal on the Rule of Law, 11(1), 63-84. https://doi.org/10.1007/s40803-018-0078-1 The KRS was an authority designated to send the President of the Republic requests about the judges’ nomination of the Supreme Court, administrative courts, common courts and military courts. In addition, its job was to submit, along with the Constitutional Tribunal, applications for constitutional revision of legislative acts regarding courts’ and judges’ independence. For the purpose of safeguarding its independence from outside political influence, the Council’s members and the two Presidents of the Supreme Court and the Supreme Administrative Court were judges. 65 In the summer of 2017, the PiS-controlled Parliament approved three new Draft Acts which established new judicial reforms: a new structure and elective mechanism for the KRS’ judges giving the Sejm and the government more influence; lowering the retirement age of judges; giving the Minister of Justice discretion as to the designation or removal of Presidents of the courts as well as dismissal and replacement of all Supreme Court judges. The Draft Acts triggered a reaction within the European Union and turmoil within the country. Because of its reaction, the Polish President Duda vetoed and sent back the two reforms regarding the KRS and Supreme Court for revision. Nevertheless, he succeeded in adopting the third remaining reform, allowing the Polish Ministry of Justice to fire many Presidents of ordinary courts without reason and substitute them with candidates considered to be friendly to the government. At the same time, the third reform introduced a new retirement age, provoking the resignation of key judges from ordinary courts. The replacement of the ordinary court Presidents allowed the government to manipulate politically crucial cases, as well as cases deemed otherwise important to the cause. The failed attempt to control the KRS didn’t prevent PiS from delaying the appointment of 10% of its judges. This deferment of nominations gave the government time to propose an amendment of the Drafts Act to the Sejm, who approved it in retrospect. With the signature of the President of the Republic attached, the Drafts Act came into effect fall 2017.66 Thanks to these new laws, the retirement age for the Supreme court judges was lowered, giving President Duda sole authority to prolong judges’ terms. This created a new chamber for disciplinary and voting matters or for reversing a final judgment within five to twenty years.

65 Sanders, A., & von Danwitz, L. (2018). Selecting Judges in Poland and Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy. German Law Journal, 19(4), 769-816. 66 Kovács, K., & Scheppele, K. L. (2018). The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union. Communist and Post-Communist Studies, 51(3), 189-200. The members of the KRS judiciary were immediately dismissed, and the newly elected with the new appointment rules requiring three-fifths of Sejm.67 Obviously, the events taking place in Poland worried the European Union and, unlike the case of Hungary, it reacted quickly and in a more straightforward manner. On January13th, 2016, the Commission submitted a preliminary assessment (under the Rule of Law Framework) regarding the irregular election of judges for the Constitutional Tribunal as well as the newly approved legislation. The Vice-President of the Commission, Frans Timmermans, explained the importance of opening a dialogue with Poland in order to clarify the Polish judicial situation in more detail. Nevertheless, other possible legal solutions to the problem were not ruled out.68 Since the Polish government did not attempt to remedy the concerns pointed out in the preliminary assessment, the European Union decided to employ the Rule of Law Framework. In according with the “pre-Article 7” procedure, the Commission started a procedure issuing an Opinion on June 1st, 2016, asking Poland to present an observation in the interest of carrying on with constructive dialogue. 69 Obstinate Polish disinterest in clarifying the situation to the European Union led the Commission to adopt, on July 27th, 2016, a Recommendation whereby it outlined five recommendations that Polish authorities had to follow. Timmermans asserted: "Despite the dialogue pursued with the Polish authorities since the beginning of the year, the Commission considers the main issues which threaten the rule of law in Poland have not been resolved. We are therefore now making concrete recommendations to the Polish authorities on how to address the concerns so that the Constitutional Tribunal of Poland can carry out its mandate to deliver effective constitutional review." 70 In spite of this warning from the EU, during the whole 2016 the PiS-led government proceeded its legislative aggression against the Polish Constitutional Tribunal. As the Venice Commission Opinion of 14th and 15th October 2016 reported: “Individually and cumulatively, these shortcomings show that instead of unblocking the precarious situation of the Constitutional

67 Sanders, A., & von Danwitz, L. (2018), Ibid. 68 European Commission (2016) Press release: Readout by first Vice President Timmermans of the College Meeting of 13 January 2016, http://europa.eu/rapid/press-release_SPEECH-16-71_en.htm 69 European Commission (2016b) ‘Commission adopts Rule of Law Opinion on the situation in Poland’, IP/16/2015, 1 June 2016. https://europa.eu/rapid/press-release_IP-16-2015_en.htm 70 European Commission. (2016). Rule of Law: Commission Issues Recommendation to Poland, https://europa.eu/rapid/press-release_IP-16-2643_en.htm Tribunal, the Parliament and Government continue to challenge the Tribunal’s position as the final arbiter of constitutional issues and attribute this authority to themselves. They have created new obstacles to the effective functioning of the Tribunal instead of seeking a solution on the basis of the Constitution and the Tribunal’s judgments, and have acted to further undermine its independence. By prolonging the constitutional crisis, they have obstructed the Constitutional Tribunal, which cannot play its constitutional role as the guardian of democracy, the rule of law and human rights”.71 As already previously described, the “pre-Article 7” provides for the actuation of Article 7 in case of clear non-compliance by the Member State. Instead, the Commission addressed a complementary Recommendation to Poland on December 21st, 2016 since “important issues remain unresolved, and new concerns have arisen in the meantime”. This additional issue concerned the unlawful election of Przyłębska as President of the Constitutional Tribunal. This “seriously threaten[ed] the legitimacy of the Constitutional Tribunal and consequently the effectiveness of the constitutional review”. 72 During the Council meeting on May 16th, 2017, the Commission attempted to draw the Council into the Polish question, but, unfortunately, the Ministers simply advised continuing the dialogue with Poland.73 Therefore, on July 26th, 2017, the Commission presented the third Recommendation, complementary to the other two, wherein the European Union complained that the new Polish reforms affected the Supreme Court, the National School of Judiciary and Public Prosecution, the Ordinary Courts Organisation and the National School of Judiciary. In addition to its usual recommendations (and the possible risk of the activation of Article 7 in the face of non-compliance), the Commission’s document established the launch of an infringement procedure directly against the bill of the Ordinary Courts Organisation because of explicit gender equality discrimination. 74

71 Venice Commission, Poland – Opinion on the Act on the Constitutional Tribunal, 108 th Plenary session, CDL- AD(2016)026-e, Venice, 14–15 October 2016, paragraph 128. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)026-e 72 European Commission. (2016b). Commission Recommendation COM (2016) 8950 of 21.12.2016 Regarding the Rule of Law in Poland Complementary to Commission Recommendation (EU) 2016/1374. https://eur- lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017H0146&from=EN 73 Council of the EU, 3536th Council meeting, General Affairs, 9299/17, 16 May 2017, http://data.consilium.europa.eu/doc/document/ST-9299-2017-INIT/en/pdf 74 European Commission, European Commission acts to preserve the rule of law in Poland, Press Release IP/17/2161, Brussels, 26 July 2017. https://europa.eu/rapid/press-release_IP-17-2161_en.htm On 20th December 2017, due to the deterioration of the Rule of Law and the threat judicial independence in Poland, the Commission issued a Fourth Recommendation together with a Reasoned Proposal under the Article 7(1). The combination of Recommendation and triggering Article 7 aimed to push Poland to fulfil the Commission recommendations since it clearly specified that “the Commission is ready, in close consultation with the European Parliament and the Council, to reconsider its Reasoned Proposal”75. On March 2018, the European Parliament approved the resolution proposed by the Commission with 422 votes in favour and 147 against, starting the Article 7 procedure.76 The leader of the PiS party, Jarosław Kaczyński, didn’t appreciate the measures taken by the Commission and affirmed that “program of deep changes in our country will not slow down, on the contrary”. He also added that “there is, of course, no way Poland would hand in a decision on the court reforms to the Court of Justice, this is our internal competence guaranteed by EU law”.77 Although the Article 7 procedure was finally opened, success in the upcoming phases is anything but guaranteed: as already mentioned, it is not so easy to find 22 of 27 supporting votes among Member States, and the Hungarian vote in the final unanimous decision regarding the sanctions would obstruct the whole Article 7 mechanism. Nonetheless, even if the procedure should fail, Poland’s international reputation would be ruined and the government would have a hard time negotiating the distribution of funds in the next EU budget as a consequence. Indeed, Poland is the main net recipient in the Union.78 While Article 7 was still in progress, the Commission decided in the meantime to launch two infringement actions against Poland. The first was opened in 2018 against Polish law regarding the Supreme Court, because it undermined the principles of judicial independence and irremovability of judges.79

75 European Commission, Rule of Law: European Commission acts to defend judicial independence in Poland, IP/17/5367, Brussels, 20 December 2017. https://europa.eu/rapid/press-release_IP-17-5367_en.htm 76 Maïa De La Baume, MEPs back triggering Article 7 against Poland (Politico 2018), https://www.politico.eu/article/european-parliament-triggering-article-7-poland-judicial-reform-voting-rights/ 77 Judith Mischke, Poland’s Kaczyński: We won’t slow down our reforms (Politico 2018), https://www.politico.eu/article/polands-kaczynski-we-wont-slow-down-our-reforms/ 78 Szczerbiak, A. (2018). How will the European Commission triggering Article 7 affect Polish politics?. LSE European Politics and Policy (EUROPP) Blog. 79 European Commission, Rule of Law: Commission launches infringement procedure to protect the independence of the Polish Supreme Court, Press Release, IP/18/4341, Brussels, 2 July 2018. https://europa.eu/rapid/press-release_IP-18-4341_en.htm The second was launched in 2019 after the establishment of the new disciplinary regime for judges which “undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control, as required by the Court of Justice of the European Union.”.80 Poland will undoubtedly pay a lump sum or penalty since Hungary will be unable to offer its support, however, the outcomes observed with the Hungarian governments suggest that the consequences of several infringement procedures will not effect a change in Polish attitude. One need only consider the Polish reaction to the infringement action in 2018: deputy Prime Minister Jarosław Gowin asserted that the Polish government “will probably have no choice but to ... ignore the ruling of the ECJ as contrary to the Treaty of Lisbon and the whole spirit of European integration”.81

III. French misuse of European Union funds In March 2016 Martin Schulz, President at the time of the European Parliament, reported the misuse of European Union funds by the Front National to the European Anti-Fraud Office (OLAF). One month before this took place, the European Parliament administration found that certain assistants registered with the Front National had either falsified their job description, provided a false address, or reported themselves as having worked for someone for whom they did not work. In short, they had falsified most (if not all) of their labour contracts. According to the EP administration, those irregularities violated Article 33 (2) of the Statute of Members of the European Parliament and the Implementing Measures that established: "Only expenses for assistance which is necessary and directly linked to the exercise of a Member’s parliamentary mandate may be defrayed. Expenses linked to a Member’s private life may on no account be defrayed". Moreover, Article 43 of the Implementing Measures declare that the resources spent for assistants' salaries "may not be used directly or indirectly (...) to finance contracts concluded with Parliament’s political groups or political parties". 82 As Martin Schulz affirmed: “We are dealing with a certain number of Parliamentarian assistants, either accredited in Brussels or as local assistants, which are listed as co-workers of the [National

80European Commission, Rule of Law: European Commission launches infringement procedure to protect judges in Poland from political control, IP/19/1957, Brussels, 3 April 2019. https://europa.eu/rapid/press- release_IP-19-1957_en.htm 81 Michał Broniatowski, Polish deputy PM: Warsaw will ‘ignore’ ECJ ruling on justice reform (Politico 2018), https://www.politico.eu/article/poland-warsaw-ignore-ecj-ruling-on-justice-reform/ 82 European Parliament, EP refers alleged French National Front financial irregularities to OLAF, Press Release, 2015. http://www.europarl.europa.eu/news/en/press-room/20150309IPR32603/ep-refers-alleged-french-national- front-financial-irregularities-to-olaf Front] in the different departments, in the office of the general secretary, in the office of the president, vice president and so on. You cannot be paid by the European Parliament and work for a party group.”83 After the OLAF investigation and the search by the French police in the Front National headquarter,84 a “fake job” scandal that involving 17 MEPs and 40 assistants was uncovered. Front National was fined €5 million, the same amount paid by the European Parliament to the French right-wing party from 2012 to 2017. The leader of Front National, Marine le Pen, and his father, Jean-Marie le Pen, were also involved in the OLAF investigation.85 To kick things off, the European Parliament asked Marine le Pen to provide an explanation as to two of her assistants (Thierry Légier and Catherine Griset), who were paid by the European Union but, in fact, performed non-Parliamentary work. She refused, causing the EP to reques a payment of €339,000 for the breach in Parliamentary rules.86 The Front National chief refused to cave to the pressure being laid on by the EP and chose instead to take legal action against Parliament, calling the accusations simply “fumus persecutionis" (persecution to a political end) in order to hinder the French party in the 2017 Presidential election.87 Le Pen’s civil lawsuit brought the request to invalidate the Parliament’s decision before the General Court which, in June 2016, flatly rejected the petition. The reason given was that the Parliament administration operated in full compliance with the Implementing Measures of the Statute of Members of the European Parliament without compromise the independence of the MEPs, giving Marine le Pen the possibility to expound her point of view. Above all, the General Court established that “Ms Le Pen has not been able to prove that her assistant performed actual work for her. She has not provided evidence of any activity whatsoever on the part of the parliamentary assistant that comes under parliamentary assistance, which she moreover acknowledged during the hearing. In

83 Jean-Michel Bos, France’s National Front faces Olaf inquiry for financial irregularities, Euranet Plus News Agency, 2015. https://euranetplus-inside.eu/french-national-front-faces-olaf-inquiry-for-financial-irregularities/ 84 Kim Willsher, Marine Le Pen's Front National headquarters raided by police, The Guardian, 2017, https://www.theguardian.com/world/2017/feb/20/marine-le-pen-front-national-headquarters-raided-by-police 85 Natalie Sauer, National Front charged over ‘fake jobs’ scandal, Politico, 2017. https://www.politico.eu/article/national-front-charged-over-fake-jobs-scandal/ 86 Nicholas Vinocur, European Parliament seeks €339,000 from Marine Le Pen, Politico, 2016. https://www.politico.eu/article/european-parliament-seeks-339000-euros-from-marine-le-pen-national-front-france/ 87 Giulia Paravicini, Marine Le Pen sues Parliament and anti-fraud chiefs, Politico, 2017. https://www.politico.eu/article/marine-le-pen-sues-olaf-giovanni-kessler-and-eps-klaus-welle/ particular, Ms Le Pen provided nothing proving that direct assistance was provided to her on the premises of the Parliament by her parliamentary assistant, whose mere presence – claimed but not proved – on Parliament premises is not sufficient to that end (the Parliament moreover having indicated during the hearing that it was not possible for a parliamentary assistant to enter its premises via the passage reserved for MEPs). In addition, while Ms Le Pen asserts that her parliamentary assistant had an official and actual residence at the residence of one of her friends in Brussels, it is a pure assertion as she produces no evidence capable of supporting her claims”. For this reason “Ms Le Pen was not the subject of discriminatory treatment or mistreatment”. 88 After the refusal by the General Court, Le Pen decided to appeal to the final European court, the European Court of Justice. On May 2019 the ECJ dismissed her appeal, stating it was inadmissible and unfounded, and confirmed reimbursement of the sum demanded by Parliament.89

88 General Court of the European Union, The General Court confirms the decision of the European Parliament to recover from Marine Le Pen MEP almost €300 000 for the employment of a parliamentary assistant, on the ground that she did not prove the effectiveness of that assistant’s work, Press Release No 87/18, Curia, Luxembourg, 2018. https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-06/cp180087en.pdf 89 Order of the Court (Fourth Chamber) of 21 May 2019, Marion Le Pen v European Parliament, Case C-525/18 P, ECLI:EU:C:2019:435 CHAPTER FOUR

2019 European Parliament election

I. European Union Parliament: history and evolution

Paris and Rome Treaties The first concept of a European parliamentary configuration dates back to the Hague Conference in 1948, where the Council of Europe Consultative Assembly was established in 1949. The parliamentary concept was particularly embraced by Altiero Spinelli and Henrik Brugmans, two influential European federalists who decided that the European integration process acquire greater democratic legitimacy in that new design. On May 9th,1950, Robert Schuman proposed an institution, open even to other European nations, where French and German coal and steel production could be organized by a common High Authority. The main goal of this new institution was to avoid conflict between the two historically rival countries. The Schuman Plan, however, didn’t provide for the creation of any type of parliamentary assembly; only the involvement of the Assembly of the Council of Europe. Since the new supervision role of the Council was strongly rejected by the UK, Jean Monnet proposed establishing a parliamentary body with the mandate to supervise the activities of the High Authority. In Paris, on April 18th, 1951 the Benelux countries, France, Germany and Italy signed the Treaty ratifying the official birth of the European Coal and Steel Community. Within this new-born Community,90 the ECSC Common Assembly “shall consist of representatives of the peoples of the States brought together in the Community, shall exercise the supervisory powers which are conferred upon it by this Treaty” and “shall consist of delegates who shall be designated by the respective Parliaments from among their members in accordance with the procedure laid down by each Member State”. 91

90 Viola, D. M. (Ed.). (2015). Routledge handbook of European elections. Routledge. 91 Article 20 and 21, Treaty of European Coal and Steel Community, 1951, Paris. https://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:11951K:EN:PDF The weak political influence of the Common Assembly in the legislative process became clear in September of 1952, when its delegates (together with nine additional representatives) developed a Draft Treaty for a European Political Community. Although the document was approved by the Assembly itself in March of 1953, the six Community Members voted the draft down. The next year the European Defence Community plan was subjected to the same fate after rejection by the French Parliament. The signing of the European Economic Community Treaty and the Atomic Energy Community Treaty in Rome on March 25th, 1957 changed the character of the ECSC Assembly to a common institution called “European Parliamentary Assembly”. Although the European Parliamentary Assembly acquired the right of consultation in the law- making procedure and in the elaboration of international agreements, this did not affect its influence in the new Community, where the Council of Minister and the Commission reigned supreme. Nevertheless, the EPA was allowed to apply a vote of censure against the Commission in especially grave situations, providing it held two-thirds of the vote. In the 70’s, the Parliament consultation role was enlarged to all the legislation including the Commission memoranda and Council resolution, and its budgetary competences expanded in the new European independent mechanism which pulled funds from Community resources rather than depending on financial contribution by the Member State. With the “Treaty amending Certain Budgetary Provisions of the Treaties establishing the European Communities” and “the Treaty amending Certain Financial Provisions of the Treaties”, the European Parliamentary Assembly was not only allowed to submit modification of compulsory and non-compulsory expenditures but also allowed to refuse the draft budget with a two-thirds vote majority and more than fifty percent of its Members. Even if the administration of the budget were shared with the Council, the dispute between and within institutions restricted the power of the EPA considerably. In the end, the European Parliament acquired the “power of discharge” over the realization of prior budgets, according to the European Court of Auditors’ annual report.92

92 Viola, D. M. (Ed.). Ibid. Single European Act The Altiero Spinelli’s Draft Treaty proposal of 1984 started an intergovernmental discussion that led progressively to all Member States singing the Single European Union Act on February 28th, 1986. This Act had the aim of finalizing a single market project by the end of 1992 and the appointment of a European Political Cooperation’s forum, external to the European Community architecture and with an intergovernmental nature. The SEA established the two reading cooperation procedure in which the Council was obliged to submit the legislative proposal to the early EP who then had three months to approve or turn it down. In the case of rejection by Parliament, the Council could override Parliament’s legislative authority by the unanimous vote. Although the EP now had a foot in the door in the policy-making process, its authority on the whole remained rather weak considering that the Council was able to block the whole procedure in the first reading. Furthermore, the Commission held the power to veto the Assembly’s amendments. Along with the cooperation procedure, Parliament was permitted to approve association and accession treaties, while the trade agreement sphere continued to be out of the Assembly’s jurisdiction range. Only the Commission, upon the Council’s consent, had the right to bargain and enforce trade deals. Besides the exclusion from trade matters, the Assembly was also barred from soliciting the European Court of Justice’s opinion about compliance with the EU law of finalized international agreement. The European Parliament was involved in the European Policy Cooperation. It thus gained not only an insider’s view on national political figure but also the right to be notified of upcoming changes, making its opinion one that now had to be taken into consideration. In 1988, thanks to the “Interinstitutional Agreement on the Budgetary Discipline and Improvement of the budgetary procedure”, the Parliament was allowed to vote for a modification of the maximum threshold of compulsory expenditure. Although the SEA was successful in advancing the idea of a European Union, the existing institutional and political deficiencies in the Community pushed the EP, in November of 1989, to open channels of dialogue at both supranational (Council and Commission) and national levels (national parliaments) and to handle relations between them with the aim of launching a campaign to support reforms and the Conference on the Political Union. Indeed, Parliament successfully adopted several historic resolutions during the Intergovernmental Conference on European Monetary Union and Political Union, on the Constitutional Basis of Political Union and the principle of subsidiarity. 93

Maastricht and Amsterdam Treaties Important progress in the integration process was made in February of 1992 in Maastricht, where the Treaty on European Union (TEU) was signed, ratifying the shift from “Community” into “Union”. Beyond providing an essential basis for the subsequent completion of the economic and monetary union as well as setting the new “three pillars” arrangement (European Communities, Common Foreign and Security Policy, Police and Judicial Co-operation in Criminal Matters), the new Treaty further expanded the authority of the European Parliament, that was previously exclusively restricted to the bounds of the first pillar. In fact, the EP was enabled, on one hand, to require the Commission to adopt suitable proposals relative to crucial issues while, on the other hand, its powers in legislative procedure regarding the “co-decision” level and the third reading were also increased. This included a conciliative committee designated to broker a deal between Council and Parliament. In addition, the EP was given the power to approve the assignation of the European Commission Presidency as well as the nomination of the Commissioners, while maintaining the vote of censure. Moreover, the EP had to be consulted about the selection of both European Court of Auditors new members and the new President and board of the European Central Bank. Finally, the EP was given the power to designate the European Ombudsman and the European Food Safety Authority’s management board and executive director. The Maastricht Treaty was amended five years later by the Member States that signed the new Amsterdam Treaty, in October of 1997. Among the amendments agreed upon in this new Treaty, it is important to consider, firstly, inclusion under the co-decision procedure of those matters previously under the cooperation procedure. Secondly, a “closer cooperation procedure” or “enhanced cooperation procedure” was developed with the object of avoiding or resolving political stalemates provoked by the resistance of single Member or a group of Members that could hamper political initiative and, therefore, permit countries to strictly cooperate on questions that were part of the first (EC) or third (JHA) pillar.

93 Viola, D. M. (Ed.). Ibid. As last novelty, the Treaty afforded Parliament right of consultation on the Council’s annual document about the plans and actions of the CFSP. In addition, the EP’s approval of candidates for the Commission Presidency became legally binding.94

Treaty of Nice and European Constitution In February 2001, the signing of the Nice Treaty widened the “co-decision” and the “enhanced cooperation”: the former would be applied to the majority of European laws on which the Council would vote with the qualified majority (QM), and the latter would include the CFSP matters apart from defence issues. Moreover, it was granted the Parliament to request the European Court of Justice’s opinion on the conformity of international agreement with the European Union legislation. Parliament would also approve the regulation and general conditions regarding the status of the members of the European Parliament (MEPs). Less than one year after the Nice Treaty, at the Laeken European Council, European Union and Member States agreed to organize a convention in order to formulate an initial draft constitution. Representatives of the national parliament, European Commission and national government, as well as sixteen Members of European Parliament took part at the convention. The final draft was drawn up in June 2003 as Treaty Establishing a Constitution for Europe (TECE) successively signed in Rome in October 2004 by all Member States’ representatives. Unfortunately, the rejection of the draft by French and Dutch citizens in the national referenda in May and June 2005 impeded ratification of the document. The EU switched strategies, opting for the usual amendment of the already existing Treaties instead of the introduction of a European Constitution.95

Lisbon Treaty The failed lunch of the European Constitution didn’t hamper the European Integration process and, as matter of fact, new European Treaty was signed in Lisbon in December 2007. Since the European Parliament obtained massive improvements, this new document was called the “Treaty of Parliaments”.

94 Viola, D. M. (Ed.). Ibid. 95 Viola, D. M. (Ed.). Ibid. The Parliament became a parallel authority alongside the Council of the European Union in the further enlarged co-decision procedure which evolved in “ordinary legislative procedure”: the new Parliamentary co-legislative role would, therefore, imply the rights of approval or disapproval (and amendment) to directives and regulations. In addition, the European Parliament was allowed to analyse the Commission’s annual programme of work and indicate if the laws should be adopted according to its preferences. The EP was also able to suggest modifying the treaty, since it was responsible for making the final decision about the arrangements of the convention on the development of eventual institutional revisions. One additional novelty laid down in the Lisbon Treaty was the delegation of own powers by both Parliament and Council to the Commission regarding complementary or modified elements included in non-fundamental laws. Obviously, the behaviour of the Commission was a monitoring mechanism that permitted both European institutions to withdraw any Commission resolutions or cancel power previously conferred. Furthermore, compulsory and non-compulsory expenditures were substituted with a new single reading budgetary procedure. Like the “ordinary legislative procedure”, Parliament and the Council were granted equal status as to the agreement of the EU annual budget. Moreover, Parliament’s influence on the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission was increased. The Lisbon Treaty empowered the EP to employ question time with commissioners and with the Vice-President for External Relation in order to acquire any type of information and force the President of the Commission to stop support of one of the members of his/her team. Parallel to the vote of censure, the Treaty guaranteed the EP the right of consent over candidates of the Presidency (on the proposal of the European Council), the Vice-Presidency and members of the Commission. Moreover, Parliament’s consent was requested over the conclusion of international agreements inasmuch as the latter was included in the “ordinary legislative procedure”. In the end, the EP should be informed by the European Council about the meetings and their final outcomes. 96

96 Viola, D. M. (Ed.). Ibid. II. Evolution of European Parliamentary Groups

Group of European People’s Party (EPP) The EPP group was originally composed mainly of Christian Democrats, but as parties from the centre-right joined the group, its original identity was lost. The European People’s Party was initially created by the German CDU/CSU as well as the Italian DC, and it could be defined as centrist it supported the ideas and values of European federalism. However, the enlargement of the European Union provoked the enrolment of new parties from the centre-right (who either joined the party directly or left other European Groups), changing its original Christian Democratic core. Most of the new associate parties obtained EPP membership, while others preferred to remain outside the European party. Nevertheless, the latter could join the Group if they promised to adhere to the EPP’s political programme and basic policies. The Group changed its name to “Group of European People’s Party and European Democrats” (EPP-ED) after the admission of British Conservatives, but only until 2009 when the British (led by David Cameron) decided to leave the Group. Changes in the national political landscape in France and Italy further altered the composition of the EPP Group. Following its collapse and dissolution in the ‘90s, the DC was replaced in the EPP Group by Berlusconi’s Forza Italia (who became one of its most influential members). Another Italian party also demanded to be associated with the Group: Alleanza Nazionale (AN), the descendant of the Movimento Sociale Italiano (MSI). The latter left the Group in 1989 because of a diatribe with Germans partners. Ten years afterward its heir, AN, decided to re-join. After the period in the UEN Group, the AN became EPP member in 1999. Internal political evolution in France led the UDF and the Gaullist to integrate into the EPP Group after the 1999 elections. After the 2004 election, UDF members moved from the EPP to the ALDE group, but the creation in France of MODEM encouraged some of them to join the UMP party and, thus again, the EPP Group. The EU enlargement after the European elections in 2014 provided the EPP with new components: six parties (thirteen members) after the admission of Bulgaria and Romania, and two parties (six members) after the EP election in Croatia in 2013.97

97Corbett, R., Jacobs, F., & Neville, D. (2016). The European Parliament (9th ed.). London: John Harper. Group of the Progressive Alliance of Socialist and Democrats (S&D) The S&D Group rounded up the mainstream Socialist, Social Democratic and Labour parties from all 28 Member States. Most of them are part of the European Party of European Socialists (PES). The S&D was the predominant Group until 1999 when its UK members were reduced by 33 units and the EPP Group gained 53 more members than the S&D in Parliament. The integration of new Member States in 2004 allowed the S&D to expand the number of its members and recover its old political strength, while remaining at second place behind the EPP Group. In the European election of 2004, the S&D Group suffered a decrease in popularity in both new and old Member States (especially Poland, Germany and the UK) counterbalanced by success in other countries (France, for example). The new internal equilibrium gave rise to the emergence of British Labour and the German SPD as the biggest political parties inside the Group replacing previously dominant French and Spanish parties). In the period between 2004 and 2007, the Group lost two Polish and Italian components and gained twelve Romanian and six Bulgarian members. In the election of 2009, beyond the electoral debacles (UK, France, Portugal, Hungary, the Netherlands, Austria and Spain) and victories (Czech Republic, Ireland, Slovakia, Greece and Germany) across several Members of the Union, Italy became the case that stood out not only because PD managed to gain a high number of seats but also because the Italian party had inspired the change of the party name. The birth of the PD started during 1989-94 parliamentary legislature when the Italian Communist Party (PCI) decided to rename itself Democratic Party of the Left (PDS) and move from the United European Left Group to the Socialist Group. After the disintegration of the major Italian political parties (the Socialist Party (PSI) and the Social Democratic Party (PSDI)) the share of the Italian national delegation within the S&D was owned principally by PDS. The latter combined itself with the Margherita coalition and, in 2007, formed the Democratic Party (PD). The PD obtained 21 seats in the 2009 European election and its members joined the Socialist Group. The presence among the ranks of the Group of some of the members of the Margherita coalition, who held Christian- Social and liberal values, led the Group to change its name from “Group of the Party of European Socialists” to “Group of Progressive Alliance of Socialist and Democrats”. In 2014 the PD rose as primary party inside the Group, managing to gain the support of a high share of the Italian constituency (granting it 31 MEPs) and the Group leader was selected among its members. The German SPD and the British Labour Party moved to second and third place respectively.98

European Conservative and Reformists Group (ECR) The ECR was born in 2009, after the decision of some members of the EPP-ED and the Union for Europe Nation (UEN) Groups to assemble a different centre-right aggregation. The new Group was described by its own members as “Eurorealist” and not Eurosceptic inasmuch as it had the purpose of defunding sovereignty against European federalism and support of the genuine subsidiarity between Member States. At that time, the British Conservatives held the majority within the Group. Before entering the Group, the British Conservative Party was the most important member in the “European Conservative Group” (1973-1979) (later the “European Democratic Group” between 1973 and1992). After the European election of 1999, the Conservative joined the EPP Group that, as already mentioned, had been renamed “Group of the European People’s Party and European Democrats”. Inside the new EPP-ED Group, the British representatives differed in opinion with their EPP’s colleagues on the subject of integration. Nonetheless, they still continued to stay in the EPP Group and remained the second predominant party within it, even after the election in 2004. In 2005 David Cameron suggested leaving the EPP Group and creating a new Group during the Conservative Party leadership election. The idea was realized only after the election of 2009, when British Conservative members arranged enough alliances with other parties and, consequently, left the EPP Group, convincing some of their Czech, Ulster and Hungarian colleagues to follow them. The new ECR group created by the British Conservative Party included the Polish PiS (second largest party), the Lithuanian Electoral Action for Poles, the Dutch Christian Union, the Latvian Fatherland and Freedom Party and some of the members of the Belgian Flemish Liberal Party. The election for the new parliamentary Bureau undermined the tightness of the newly-constituted Group. The MEP, Edward McMillan-Scott objected to the endorsed nomination of Timothy Kirkhope and Michal Kaminski as respective President and Vice-President of the ECR Group. His obstructionism was successful and, for this reason, the Group pushed for resignation McMillan-

98 Ibid. Scott who, in the end, moved into the ALDE Group. At the same time, the Presidency was consigned to Kaminski in order to calm down the Polish PiS party. In Fall 2010, Kaminski withdrew from the PiS party and subsequently from the leadership of the Group. He was replaced by Czech Jan Zahradil who, in turn, was replaced by British Martin Callan less than a year later. In the years following the 2014 election, the Group grew with the admission of fresh parties, increasing the number from the original seven to twenty-two parties from nine different Members States after 2014.99

Alliance of Liberals and Democrats for Europe (ALDE) The Group experienced continuous internal evolution, changing its composition deeply. In the period subsequent to the election of 1994, the number of members coming from northern parties dominated the reducing number of southern colleagues. The French and the Spanish lost numerous seats, whereas the British party Liberal Democrats and the Dutch Liberal added more members in the Group. Moreover, the Portuguese Social Democratic Party left the Group to join the EPP Group, but the Swedish and Finnish entries made up for the loss. The increase of ten British Liberal Democratic seats in the election of 1999 further expanded the discrepancy between northern and southern members. However, the replacement of the one Italian party with another indicated that Italy was an anomaly among the southern members. Bossi’s Lega Nord replaced Partito Liberale and Partito Repubblicano in 1994 and some members selected by the Romani Prodi’s coalition took the place of their fellow citizens in 1999, after the expulsion of LN (due to the extreme position of its leaders). Beyond pointing out the internal disparity between northern and southern parties, the election of 1999 highlighted the ELDR’ loss of votes in the main Member States (Italy and the UK excluded): no MEPs were elected in Germany and France and few seats were obtained by the Spanish parties. Nevertheless, the 2004 election improved the Group’s political position in the European Parliament. Aside from the confirmed predominance of the British Liberal Democrats, the ELDR was able to obtain 14 seats across the new Member States and retook some seats in Germany and France

99 Ibid. (thanks to the UDF party shifting from the EPP Group). After the election, the Group was further enlarged by the admission of the Italian Margherita and some Radical members, the Lithuanian Labour Party and the Irish Fianna Fáil Party. The entry of those new parties led the Group to change its name to the Alliance of Liberals and Democrats for Europe (ALDE) consisting of two different European political parties: the ELDR and the EDP (European Democratic Party). The Group added slightly to its number when it accepted one new Polish and one Austrian member (the last Austrian component dated back years earlier) between 2004 and 2007, but the real incremental leap happened with the Bulgarian and the Romanian accession in 2007. That provided the Group with sixteen completely new members: seven from Romanian parties and nine from Bulgarian parties. In total, the Group now had 105 members from 22 (of 27) Member States. In the 2009 election, however, ALDE encountered bad results in Italy, France, Poland, Lithuania, Romania and Bulgaria counterbalanced by increased votes in Germany and a stable electoral result in the UK. In addition, Edward McMillan-Scott (ex-member of ECR) joined the Group. Five years later, in the 2014 election, the electoral scenario was further deteriorated by the drop of seats in Germany, UK, Italy and Ireland and by the departure of one Romanian party. The situation was lightened, luckily, by the addition of one Spanish party (UPD) and four new members from the Czech party “ANO”. Because the reduction in the British delegation and the entry of the UPD, Spain was left with the highest share of members in ALDE, together with France and the Netherlands.100

Confederal Group of the European United Left/Nordic Green Left (GUE/NGL) Initially, the GUE/NGL Group was a mixture of Communist and Left parties who had joined forces in 1973 because they shared common positions on several topics. This (former) Group was characterized by two different wings: the Italian Communist Party and, on the other hand, the more traditionalist French Communist Party. After the European election in 1989, the two factions decided to split up and create both the Italian “European Unitarian Left” (GUE) and the French “Left Unity” (or “Coalition des Gauches” in French).

100 Ibid. When, in 1993, the Italian Communist Party changed to Partito Democratico della Sinistra (PDS) and moved to the Socialist Group, the GUE had to face the lack of the members’ threshold necessary to keep the Group alive. After the 1994 election, the Spanish members proposed an alliance with the Green parties that would create a considerable Red/Green Group, but the rest of the GUE preferred, instead, to join with their old allies, the Left Unity Group. Under a new English name, “European United Left”, Spanish (with the largest delegation), French, Greek, Portuguese and Italian communist or left Socialist or Green Parties were included in the newly constituted Group. In the enlargement of 1995, a new entry of Finnish and Swedish parties led the Group to add in its name a reference to the “Nordic Green Left”. In the 1999 election the GUE/NGL obtained new seats in Germany and the Netherlands as well as new members from France, Italy, Greece and Northern countries. In Spain, however, the seats almost halved. Despite exploiting the defections from the EPP, Green and Socialist Groups in 2001 and 2002 to increase its political weight in the Parliament, the Group only obtained 5,8% in the 2004 elections, reducing its overall size. The major losses were in Spain, France and Nordic countries, while in most of new Member States the Group was completely unrepresented. Nevertheless, positive results were observed in the Czech Republic, Italy, Germany, Cyprus, Ireland and Ulster. Especially in Germany, the PDS acquisitioned seven seats, granting it a position as the largest party in the GUE/NGL Group (replacing the Spanish delegation). The enlargement of 2007 was unfavourable for the GUE/NGL since no new Romanian or Bulgarian parties joined. In the new election in 2009, the Group had some ups and downs due to the enrolment of the Latvian Communist party and the important results yielded by its components in Germany, the Czech Republic, France and Portugal. On the downside, no seats were won in Italy and in Finland, and only one seat in Sweden (down from the previous two seats). The outcome of the 2014 elections highlighted the significant impetus that the Group had in a few countries. In Spain, from its previous one seat in 2009, the Group gained eleven seats in total from four different parties (Podemos was the most successful); in Greece, the number of seats increased from five (2009) to six units, thanks to the “Syriza” party; in Italy and in Ireland, three and four members respectively were integrated into the Group. In Germany, the Left Party lost one seat but still preserved the rule of “significant party within the Group”. In the rest of the European Union, a more stable situation was observed because the limited results in French, Latvia, Portugal, and the Czech Republic were counterbalanced by the positive outcomes in Finland and by the new entry of independent MEPs. The singular negative event was the withdrawal of the Greek Communist Party from the Group.101

Group of Green/European Free Alliance (Green/EFA) Between 1984 and 1989, the Green party cooperated with the regionalist parties in the Rainbow Group, but, after the European election in 1989, it was allowed to create a stand-alone Group, thanks to the 29 members in the European Parliament. Germany and France were the two most important delegations within the Group with eight members each, but, in the 1994 election, the France delegation disappeared and the German one increased by twelve units. In the years that followed, the EU enlargement provided the Group with new Green parties from Austria, Finland and Sweden. In 1999, the European election enabled the return of the French delegation (with nine seats) and the increase of three seats in Belgium and three more in the Netherlands. In the same election, the Greens opted to align themselves with the European Free Alliance (EFA) and, for that reason, the name of the Group was changed to the Green/EFA Group. The EFA was originally an aggregation of regionalist and nationalist parties that arose in 1981 with the pro-EU idea but, at the same time, with a deep belief in the regional defence and local autonomy. In 1994, the aggregation developed into a parties federation and, in 2004, it became an authentic European political party. Despite several EFA’s MEPs joining different European Groups, most of them were mainly enrolled in the Rainbow Groups (1989-1994) and European Radical Alliance (1994-1999). As a result of the cooperation between the Greens and the EFA, in the 1999 election, the newly constituted Group grew up as the fourth largest Group with 48 MEPs sitting in the new European Parliament (despite some Members later defecting to the GUE Group). This collaboration also lasted through the 2004 election. The number of Green/EFA MEPs was slightly reduced, but the Group remained in fourth place, due to its strong presence in Germany and, to a minor extent, France.

101 Ibid. However, the Group lost ground compared with the other main parliamentary Groups both in 2005 (because of the growth of the UEN Group) and after the Bulgarian and Romanian accession (since no fresh Romanian or Bulgarian parties joined the Group). In the 2009 election, the Green/EFA Group made an important electoral impact in France (thirteen seats for Greens, one for EFA) and Germany (one more seat bringing the total to fourteen seats). Additional important results were achieved by the Green in Belgium, Finland, Greece, the Netherlands and Sweden, and by the EFA in Denmark and Belgium. Furthermore, the Group recruited a new member from Portugal, Rui Tavares, who had previously belonged to the GUE Group. Amid this success, the Group had to face the unfortunate loss of MEPs in Italy and consequently the absence of an Italian representative within the Group. In the subsequent European election in 2014, positive electoral results in some Member States offset the negative ones in others. In Ireland, for instance, the Group was not able to regain the seat, while eight and three seats were lost in France and Germany respectively. In Portugal and Greece, the seats’ numbers were reduced to zero. Nevertheless, the two new Spanish MEPs, the stable situation in the UK, the fruitful doubling in Sweden and the extra seat gained in Austria ameliorated the electoral scenario.102

European of Freedom and Direct Democracy Group (EFDD) The EFDD is the last sequence of consecutive evolution of anterior Eurosceptic Groups: the EDD (1999-2004), the IND/DEM (2004-2009) and the EFD (2009-2014). The first, the Europe of Democracies and Diversities Group (EDD), was created in 1999, it rallying Eurosceptic parties from Denmark, the Netherlands, France and the UK. Two parties were part of the Danish delegation: the “People’s Movement against the EU” (which principally rejected the Danish accession in the EU) and the “June Movement” (which was against further European integration but favourable to the Danish membership in EU). The Dutch were represented by MEPs of three different hard-liner Calvinist parties (who were religious than, say, nationalist or Eurosceptic). The French parties Chasse, pêche, nature et traditions (CPNT) stood up for the interests of the French rural constituency against specific European directives. After unsuccessful results in 1994,

102 Ibid. it managed to accrue six seats in 1999. The number of French MEPs grew further due to the transfer of French members from the UEN Group to the EDD during the 1999-2004 EP term. The last delegation, the UK Independent Party (UKIP), supported the UK’s withdrawal from the European Union. It was able to win three seats thanks to the change of electoral system that occurred in 1999. In 2004, not all four European parties benefited from the European election: the UKIP took advantage of the notoriety of its candidate, Robert Kilroy-Silk, to win twelve seats, whereas the Danish, French and Dutch parties lost several seats. Nonetheless, new parties (and thus extra seats) joined the Group: the Polish Catholic Conservative League of Polish Families, the Swedish June Movement, the French Mouvement Pour la France, the Greek Popular Orthodox Rally Party and the Italian Lega Nord. After the election, the EDD evolved into the larger Independence and Democracy (IND/DEM) Group with 38 MEPs from ten different Member States. However, during the Parliamentary legislature of 2004-2009, the Group suffered a dual departure: Lega Nord, League of Polish Families and a few members of June List and UKIP, depriving the Group of 16 seats in total (almost half its MEPs). In the 2009 election, only the UK Independent Party, the Greek LAOS, the Dutch Calvinist SGP and the French Movement Por la France won seats in four different Member States. Nevertheless, the dissolution of the UEN Group led the Danish People’s Party and Lega Nord to re-join the Group. Moreover, the True Finns Party, the Slovak National Party and, later, the Lithuanian Order and Justice Party provided the IND/DEM with new MEPs. Despite their common right-wing tendencies, the member parties didn’t share the same position on European Union matters. The UKIP clearly supported the withdrawal of the UK from the EU, whereas the other partner parties rejected any idea of an a “Brexit”, opting instead to defend national sovereignty and take a hard-line position against European integration. Due to the internal double attitude, the Group was co-chaired by Nigel Farage (UKIP) and Francesco Speroni (Lega Nord). The 2014 election granted to the UKIP supremacy within the Group as its largest party. Despite this, it had to face a shortage of MEPs in the EP due to either the missed re-election or departure from the EDD to the ECR Group of several of the Group’s components. In addition, various far- right Eurosceptic parties (including the Front National) were building a new Group that could have rivalled the EDD Group in attracting new parties from different Member States. Nigel Farage, leader of the UKIP, was capable of handling these new challenges. He named the Group EFDD in order to gain favour with the new Italian ally, Movimento 5 Stelle and its seventeen MEPs. Moreover, he was able to recruit the Swedish Democrats, the Lithuanian Order and Justice Party, the Czech Party of Free Citizens, the Latvian Union of Farmers and one dissident member from Front National.103

European of Nations and Freedom (ENF): evolution and potential alliance After the successful results obtained in the 2014 European election, the chief of Front National, Marine Le Pen, and the leader of Party of Freedom, Geert Wilders, expressed in a press conference in Brussels late May 2014 their intention to fund a new far-right group in the European Parliament. Their “European Alliance for Freedom” group would have included, along with the Front National and PVV, the Belgian Vlaams Belang, the Italian Lega Nord and the Austrian FPÖ. In total, the MEP’s members would have occupied 38 seats in Parliament. However, according to European rules, in order to gain the formal status of “political group”, a threshold of 25 MEPs elected in 7 different Member States was required.104 Because they lacked the numbers to reach the threshold by the deadline, the European Alliance for Freedom was not recognized in the European Parliament.105 Nevertheless, the next year Le Pen and Wilders reached the seven-nationality requirement thanks to the Dutch MEP Marcel de Graaff and British MEP Janice Atkinson, who had been excluded from the Eurosceptic UKIP (UK Independence Party) due to an outrageous scandal. The new political group “Europe of Nation and Freedom” allowed the anti-EU and anti- immigration parties to increase their political power within the European Parliament, that is, they were granted more speaking time during Parliamentary sessions, important seats on the committees and larger portion of European funds. 106 Four years later, the ENF group attended the European parliamentary election of 2019 and, despite an obvious absence of any details or proposals, presented its own electoral manifesto of five abstract principles: democracy, sovereignty, identity, specificity, freedom.107 In other words, the

103 Ibid. 104 Cynthia Kroet, Far-right group looks for two more allies, Politico, 2014. https://www.politico.eu/article/far-right- group-still-looking-for-two-more-allies/ 105 Cynthia Kroet, Le Pen and Wilders fail to form far-right group, Politico, 2014. https://www.politico.eu/article/le- pen-and-wilders-fail-to-form-far-right-group/ 106 Maïa De La Baume And Nicholas Vinocur, How Le Pen did it, Politico, 2015. https://www.politico.eu/article/how-le-pen-did-it-fn-enf/ 107 European of Nation and Freedom homepage, https://www.enf.eu manifesto is based on the idea of sovereign nation-states which reject the European identity and the transfer of sovereignty in favour of national identity and a stringent national migration policy.108 Concurrent to the ENF campaign, the leader of Lega Nord, Matteo Salvini, affirmed in a press conference the creation of a new pan-European far-right group, named “European Alliance of People and Nations” that would include those Eurosceptic Populist parties both inside and outside the ENF group (of which Lega was already a member). Salvini’s new coalition gained the support of not only the ENF’s partners but also other Eurosceptic right-wing parties such as the Danish People party, Alternative für Deutschland and the Finns party. Similarly to the ENF, the EAPN promoted national sovereignty, limited immigration, attacks against the inefficiency of undemocratic European institutions, national borders, national identity and Islamophobia. Unlike the ENF, however, Salvini pushed the idea of European identity and the fight against not the EU in general but specifically its bureaucrats (which were almost members of EPP or S&D).109 The huge demonstration of support from most of the European far-right took place on May 18th, 2019 in Milan one week before the elections: Salvini organized a far-right rally in which parties from eleven countries took part, among which were the Front National, the AfD and the PVV.110 Notwithstanding Salvini is popularity and his desire for a European “League of Leagues” that would gain substantial political power in the European Parliament, he found it particularly difficult to form a partnership with the Polish PiS and the Hungarian Fidesz.111 In January 2019 the Italian Interior Minister met Jarosław Kaczyński, leader of the PiS, in Warsaw to discuss future cooperation in the European Parliament and to "counter the Franco-German axis with the Italo-Polish axis" after the European Parliamentary elections. Albeit the “good atmosphere” and the discussion about “a joint action plan that will feed Europe with new blood, new strength, new energy”, both parties emerged with opposing goals.

108 Nicolas Bechter, “Europe of Nations” A Study on Extreme Right Parties and the EU integration, Transform Europe, Brussel, 2019. https://www.transform-network.net/fileadmin/user_upload/2019-05- studie_extreme_rechte_und_europa-end3.pdf 109 Ibid. 110 Crispian Balmer , Cheers and jeers as Europe's far-right rallies in Milan, Reuters, 2019, https://www.reuters.com/article/us-eu-election-italy-salvini/cheers-and-jeers-as-europes-far-right-rallies-in-milan- idUSKCN1SO0ED 111 Transform Europe, Salvini and the Right-Wing “European Alliance of Peoples and Nations”, Transform Europe, 2019, https://www.transform-network.net/focus/overview/article//salvini-and-the-right-wing-european-alliance-of- peoples-and-nations/ Salvini, on one hand, pushed Europe to accept the immigrants reaching the Italian coasts and refused a further increase of European cohesion funds (mostly benefiting Eastern countries). Kaczynski, on the other hand, was opposed to the asylum seekers’ relocation system, although he supported the increase in cohesion funds since Poland was (and still remains) its main net recipient. Even if the realization of the Rome-Warsaw axis appeared complicated, Salvini still had a second “ally” to rely on: the Hungarian Prime Minister Victor Orbán and his party Fidesz. The Hungarian Prime Minister had previously expressed affinity to the Italian Interior Minister during a press conference in Milan in August 2018. During the meeting, they discussed the actual situation and the future of the European Union as well as the evergreen complaint on the interference of Brussels in Hungarian and Italian national matters. Orbán thanked Salvini on behalf of the Hungarian citizens for his support in the European Parliament on the amendment of the Hungarian Constitution (which was highly criticized by Brussels). Moreover, Orbán praised Salvini’s efforts to control immigration, allowing the Interior Minister to gain a great reputation in Hungary.112 The liaison between Orbán and Salvini grew even tighter when the political relationship between Orbán and his coalition partners in the European People’s Party spoiled (a direct consequence of the Hungarian national information campaign against Jean-Claude Junker, President of the European Commission). In fact, before the European Parliament election, Fidesz had started to publicly affix posters showing the Commission’s President alongside George Soros (Hungarian-American philanthropist) with the following slogan: “You have the right to know what Brussels is planning to do”. The Hungarian government’s purpose was to inform the population about Brussel’s migration plan that threatened the security of Hungary and its people. Actually, Budapest’s move was the apex of an intensification of the strategy against the EU, which started already in 2017 with the “Stop Brussels” campaign.113

112 Andrea Lattanzi, Migranti, la stretta di Orbán: "Ungheria dimostra che fermare l'immigrazione è possibile", la Repubblica, 28 August 2018, https://video.repubblica.it/dossier/immigrati-2015/migranti-la-stretta-di-orb-aacuten- ungheria-dimostra-che-fermare-l-immigrazione-e-possibile/313207/313834?ref=search 113 Jennifer Rankin, Brussels accuses Orbán of peddling conspiracy theory with Juncker poster, The Guardian, 2019, https://www.theguardian.com/world/2019/feb/19/brussels-orban-jean-claude-juncker-poster-george-soros-hungary On April 2017 the government initiated a national consultation titled “Let’s Stop Brussels” that consisted of a questionnaire concerning European policies on immigration and economy.114 As the Prime Minister wrote in a letter, the main aim of the questionnaire was “to support the Government’s efforts in combatting mistaken proposals on the part of Brussels”. 115 The Hungarian attacks towards the main figure of the EPP led party members to request either an apology and clarification of the situation or even, in some cases, the exclusion of Fidesz from the EPP. The latter option, however, was highly unlikely due to the protection of Orbán by the EPP president, Joseph Daul. The President expressed the importance of the twelve seats held by Fidesz in the European Parliament for the EPP and for the next European election outcomes. Moreover, if Fidesz were excluded from the party, it could join the Eurosceptic strengthening the right.116 In an interview to the German newspaper “die Welt”, Orbán reacted against internal critics and against members of the EPP’s who wanted the Fidesz ousted from the group. He stated: “Not everyone understands this but in the academic literature they were referred to by Lenin as 'useful idiots […] While they think they're waging an intellectual fight, they're actually serving the power interests of our opponents.”117 On the ground of Orbán’s ill-natured behaviour and aforementioned issues raised towards the Central European University, Manfred Weber, the European People’s Party candidate for the rule of European Commission president, sent a letter to Daul proposing the exclusion of Fidesz from the group until the Hungarian Prime Minister ceased his anti-Junker campaign, recognized its detrimental consequences and resolved the matter regarding the CEU. As Weber wrote: “FIDESZ must take concrete steps and demonstrate the desire to remain a Member of the EPP. […] If FIDESZ, led by Viktor Orbán, fails to meet the above-mentioned requirements, the only option would be to exclude the Party from the EPP.”118

114 Cabinet Office of the Prime Minister, The national consultation has begun, Website of the Hungarian Government, 2017. https://www.kormany.hu/en/cabinet-office-of-the-prime-minister/news/the-national-consultation- has-begun 115 Cabinet Office of the Prime Minister, The national consultation packages are already being delivered, including a letter from the Prime Minister, Website of the Hungarian Government, 2017. https://www.kormany.hu/en/cabinet- office-of-the-prime-minister/news/the-national-consultation-packages-are-already-being-delivered-including-a-letter- from-the-prime-minister 116 D. M. Herszenhorn, M. De La Baume, L. Bayer And F. Eder, Orbán faces backlash after attack on Juncker, Politico, 2019. https://www.politico.eu/article/orban-faces-backlash-after-attack-on-juncker/ 117 Welt, Orbán bezeichnet EVP-Kritiker als „nützliche Idioten“ der Linken, Welt, 2019. https://www.welt.de/politik/ausland/article189686639/Ungarns-Ministerpraesident-Orban-bezeichnet-EVP-Kritiker- als-nuetzliche-Idioten-der-Linken.html 118 Weber, Manfred: Letter to Joseph Daul, European People’s Party, 5 March 2019, https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/2019/03/MANFRED-WEBER- LETTER-TO-JOSEPH-DAUL-Courtesy-EN-translation.pdf Daul also changed attitudes towards Orbán and, in an interview released by the newspaper “die Welt”, he expressed that the Hungarian political campaign was “impermissible” and that Orbán “overstepped the redline”.119 The internal pressure to expel Fidesz and the overall opposition within the European People’s Party led Orbán to apologize to his critics for his “useful idiots” comment, adding: “Yet I do not consider it reasonable to solve such disagreements by expelling a party from our political family. I would therefore respectfully like to ask you to reconsider your proposal for expulsion, if it is possible.”.120 Nevertheless, on 20 March 2019, the EPP political assembly voted with 190 in favour and 3 against on the suspension of Fidesz’s membership within the EPP, on the ground of the Hungarian party’s violation of EPP base values. In other words, FIDESZ was banned from attending the party meeting and it was denied the speaking time, the right to vote and the right to propose candidates. Additionally, an Evaluation Committee would check on Fidesz’s compliance to the conditions agreed upon in the political assembly (the same proposed by Weber in his letter to Daul).121 While Orbán dealt with his party’s membership suspension, he continued to strengthen his relationship with Salvini. In May 2019, in an interview with the Italian newspaper “la Stampa”, Orbán praised Salvini labelling him a “hero” because of Italy’s successful seaside immigration-flow management. The Hungarians managed a similar border control on land. Moreover, the Hungarian Prime Minister disapproved on a possible alliance between the EPP and the S&D on the grounds of the negligible seats they would gain in the European Parliament election and the fact that most of the European Prime Ministers did not belong to the EPP. He suggested, instead, that the European People’s Party should cooperate with the European Right, since Salvini’s European coalition probably would increase its political power after the election (strongly wished by Orbán).122 The day after the interview, Orbán received Salvini in Budapest. The meeting was not only an official visit between two ministers but also an occasion to discuss immigration issues, border

119 Christoph B. Schiltz, Orbán hat die rote Linie überschritten, die Welt, 2019. https://www.welt.de/politik/ausland/plus189762395/EVP-Chef-Daul-Orban-hat-die-rote-Linie-ueberschritten.html 120 Eline Schaart & Lili Bayer, Orbán offers ‘useful idiots’ apology, seeks to keep his party in EPP, Politico, 2019, https://www.politico.eu/article/orban-offers-useful-idiots-apology-seeks-to-keep-his-party-in-epp/ 121 FIDESZ membership suspended after EPP Political Assembly, Press Release, 20 March 2019. https://www.epp.eu/press-releases/fidesz-membership-suspended-after-epp-political-assembly/ 122 Alberto Simoni, Victor Orban: “Denaro, sicurezza, mercato. Oggi ci sono già tre Europe, ma fingiamo sia soltanto una”, La Stampa, 01 May 2019, https://www.lastampa.it/topnews/primo-piano/2019/05/01/news/victor-orban- denaro-sicurezza-mercato-oggi-ci-sono-gia-tre-europe-ma-fingiamo-sia-soltanto-una-1.33698927 control, cooperation between the two countries and finally to show Salvini the Hungarian border fence in the village of Röszke. During the press conference, in response to a question regarding a possible absorption of Fidesz into Salvini’s alliance or future cooperation between the two, Orbán declared that Hungarian citizens would have decided on this matter as well as he was unable to precisely answer the question.123

III. European Parliamentary Election outcomes

Despite the self-confidence Salvini displayed during the electoral victory of his right-wing coalitions in the European Parliament election in May 2019 as well as his assertation: “I think lots of things will change in Europe”,124 the real effect of the elections on the political parties had to be analysed in light of the general electoral result (total and average) in the whole European Union. Secondly, one must take into account the real number of seats that each political group obtained in the Parliament after the election. The seating assignment is indeed crucial for the next parliamentary political equilibria and parties’ strategy concerning the appointment of pivotal positions in the European Union (President of Commission, of the European Parliament and of the European Council).

Electoral results Considering the Pro-EU groups, it incontrovertible that the two main political groups (the EPP and S&D) suffered a major downfall. In the parliamentary election in 2014, EPP and S&D groups combined took 48,9% of the overall votes, but in 2019, the percentage decreased to 38,9%. In fact, the EPP lost a total of 3,2 (on average 2,8) percentage points, while the S&D lost 6,8 percent (on average 1,5 percent). On one hand, the results gathered by the EPP can be explained by the political decline in 17 of 28 European Union Member States (including electoral failures experienced in major European Union

123 Cabinet Office of the Prime Minister, We agree with Matteo Salvini that Europe’s borders must be defended against the migrant invasion, Website of the Hungarian Government, 03 May 2019, https://www.kormany.hu/en/the- prime-minister/news/viktor-orban-we-agree-with-matteo-salvini-that-europe-s-borders-must-be-defended-against- the-migrant-invasion 124 Sara Rossi, Crispian Balmer, Italy's Salvini says EU vote will lead to big changes in Europe, Reuters, 2019. https://www.reuters.com/article/us-eu-election-salvini/italys-salvini-says-eu-vote-will-lead-to-big-changes-in- europe-idUSKCN1SN25D countries: France, Germany, Italy and Spain). Nonetheless, the critical situation in these countries was counterbalanced by the EPP’s stability in North, East and Western Europe (Austria, Greece, Hungary, Ireland, Lithuania, Poland, Portugal, Slovakia, Slovenia and Sweden). Moreover, votes for the EPP were homogeneous across Europe. On the other hand, the S&D experienced a general electoral downturn in 15 of 28 Member States, especially in Western and Eastern Europe. The most emblematic losses occurred in Italy, the UK, Germany and France, although the defeat of the left parties in those countries also had several domestic causes. The electoral defeats, however, didn’t at all damage the strength of the socialist group, which benefited from its electoral victories in Portugal, Spain, Denmark and Netherlands. Notwithstanding the electoral losses of the EPP and S&D groups, the Pro-EU side was supported by the successes of ALDE and Greens-EFA. ALDE obtained 12,8 percent and Greens-EFA 10,2 percent of the general European vote (compared with the electoral results of 2014), increasing their electoral results to 3,6 percent and 2,8 percent respectively. The ALDE essentially exploited the victories of Emmanuelle Macron and his party’s “La République En Marche” (EM) in France and of the British Liberal Democrats in the UK. Positive victories were achieved, furthermore, in Croatia, the Czech Republic, Hungary, Luxembourg, Romania, Slovenia and Spain. Some issues were raised, however, about the two main group’s winners (and, main political actors). Firstly, Brexit would deprive ALDE of substantial electoral and political power. Secondly, the EM party deeply relies on the fate of ever-politically instable Emmanuelle Macron. Thus in the case of eventual changes in the balance of power in France, ALDE would be directly implicated. The other Pro-EU group, the Greens-EFA, took advantage of the Post-materialistic division characterizing Western and North European countries in order to strengthen its electoral and political status within these countries. The Green-EFA parties were indeed successful in Denmark, Finland, France, Germany, Ireland, Luxembourg, the Netherlands and the UK. Additionally, the second-order nature of the European election had constantly enabled the small parties belonging to the Green-EFA group to gain positive electoral results in these European regions. Nevertheless, the Green-EFA electoral weight was still negligible in Southern and Eastern Europe. As within the Pro-EU groups, heterogeneous outcomes were also observed in the Eurosceptic block. Among four Eurosceptic groups, only the ENF ended up with an increase of its share of votes while the GUE-NGL, EFDD and ECR obtained insignificant electoral results. The GUE-NGL had been one of the challengers and opposers of the austerity policies established by the EU (granting it the victory in the EP 2014). Unfortunately, in 2019, due to the fall of main South-Western countries such as Greece, France and Spain, its parties reached 5,4 percent, losing 2,4 percent of votes. The EFDD was the main winner in UK with the Brexit Party led by Nigel Farage, but in the rest of the EU the results were minimal, especially after the ill-fated electoral result of Italy’s 5 Stars Movement (M5S). The group decreased its share of the vote by 1,4 percentage points. The ECR experienced defections within the group thanks to its low level of cohesion: the German AfD, the Danish DF and the Finnish “True Finns” shifted to the EFN group. Additionally, the political and electoral decline of the British Conservative party and the forthcoming Brexit repelled other Eurosceptic parties across Europe. The ECR was, however, able to build up more of a consensus in Croatia, the Czech Republic, Italy, the Netherlands, Poland and Sweden. Nevertheless, the ECR decreased its overall share of votes by 1,8 percent. The ENF had a better fate compared with the other Eurosceptic Groups. The positive performance of the ENF’s parties in many countries (e.g. Italy and France, with the exclusion of the defeat of PVV in the Netherlands) were combined with the efforts of the Italian Lega and its chief, Matteo Salvini, who attracted not only other Eurosceptic parties to the ENF but also right-wing Eurosceptic constituency’s votes. As result, the ENF increased by 5,8 percent its electoral vote share, obtaining fourth place as EP group. 125

New composition of European Parliament The electoral outcome resulting from the EP 2019 election needed to be “translated” into the balance of power within the European Parliament, considering that its new arrangement was based on a different electoral system, assignment of seats and national electoral evolutions between respective Member States. As regarding to the number of seats, the elections highlighted the diminution of the EPP and S&D within the new Parliament.

125 Davide Angelucci, Luca Carrieri, and Mark N. Franklin, “Much Ado About Nothing? The EP Elections in Comparative Perspective”, in Lorenzo De Sio, Mark N. Franklin, and Luana Russo, eds., The European Parliamentary Elections of 2019 (Rome: LUISS University Press, 2019). The EPP’s seats decreased from 221 (in 2014) to 180 (in 2019), a loss of 41 seats. Similar to the electoral results, the contraction in seats’ numbers occurred in a homogeneous way among the different regional areas (minus 14 seats in Northern and Eastern Europe and 13 seats in Southern Europe). However, the EPP enhanced its political position in relation to the number of the seats in six Member States (fewer than the 11 Member States where the EPP obtained electoral success). The S&D lost 38 seats across the EU, receiving, in the end, 153 seats. The decline was mainly noted in Northern Europe (- 29 seats), while a moderate decline occurred in Eastern Europe (-3 seats) and Southern countries: the defeat in Italy (-12 seats) was compensated by the rise of the socialist party in Spain (+6 seats) and in Portugal (+1 seat). As mentioned, not the whole Pro-EU block suffered from the crisis affecting the EPP and S&D. Considering the 32 seats gained in the North and 10 in the East, ALDE increased its total parliamentary seats by 40 units compared to 2014 (from 67 to 107). The Greens, at the same time, placed 23 additional members within the new Parliamentary framework. However, support for the group was localised within the Northern Member States where the “Green wave” discovered fertile soil (except for Austria and Sweden). Indeed, it was hard for the group to replicate the same success achieved in Northern Europe (24 seats gained, while in Austria the group lost 1 seat and in Sweden 2 seats). In Southern and Eastern Europe, it obtained just 4 and 1 seat respectively. Regarding the Eurosceptic groups, the assignment of the seats mirrored the critical electoral losses previously described. As a consequence of the overall decline in support (especially in the South), the GUE lost 13 seats (from 52 to 39). Apart from the increase of 5 seats in the UK, the EFDD group was subjected to a uniform decline, provoking an overall loss of 5 seats. The same unsuccessful results were attained by the ECR (lost 11 seats due to a negative performance in Northern Europe), despite the rather favourable situation in the East and in the South. The ENF increased its seats by 31 units, thanks to Lega’s notable victory in Italy and the emergence of the AfD in Germany. This offset its losses in Austria, France, the Netherlands and Poland.126

126 Davide Angelucci, Luca Carrieri, and Mark N. Franklin. Ibid. The revolutionary breakthrough of the Eurosceptical right-wing Groups heralded in the months before the election proved minimal, although it had certain far-reaching effects. The EFDD and ENF Groups were able to pull together 115 seats, with an increase of 26 units compared with 2014. The total sum of seats could potentially reach 174 units, in the event of an alliance with the ECR Group. Certain party members therein, like Fratelli d’Italia, are extremely Eurosceptic. Unfortunately, neither 115 nor 174 seats are enough for those Groups to play a key role in the formation of a new majority in the EP. In fact, the small number of seats will hamper any chance of coalition between the right-wing Groups and the only feasible big political partner in the EP, the EPP Group, since the sum of EPP and the ENF+EFDD+ECR coalition doesn’t add up to majority in Parliament (376 seats). Moreover, only a limited number of Populars would be in favour of opening a dialogue with the right-wing Groups. Also, this small faction would prefer to cooperate exclusively with particular Eurosceptic parties. However, a potential liaison with Eurosceptic right-wing Groups could erode the relationship between the EPP and S&D or ALDE, two main Groups in the EP that are crucial 127 to the construction of the eventual majority.

127 Davide Angelucci, Luca Carrieri, and Mark N. Franklin. Ibid.

Sources: De Sio, L., Franklin, M., & Russo, L. (2019). The European Parliament Elections of 2019.

Sources: De Sio, L., Franklin, M., & Russo, L. (2019). The European Parliament Elections of 2019.

Sources: De Sio, L., Franklin, M., & Russo, L. (2019). The European Parliament Elections of 2019.

Sources: De Sio, L., Franklin, M., & Russo, L. (2019). The European Parliament Elections of 2019. CONCLUSION

As mentioned in the first chapter, the thesis attempts to confirm or disprove the following hypotheses: H1) The authority and the legislation of European Union is able to deal partially with the Eurosceptic right-wing parties. H2) The second-order nature typical of the European Parliament election doesn’t favour overall the Eurosceptic right-wing Groups.

As regards the first hypothesis, the evidence yielded by the four different cases have outlined that the European Union and its institutions dealt differently with the right-wing parties in question. In the case of Italy and France, it was clearly demonstrate that the economic aspects are exclusively regulated by European legislation. Politics does not at all influence this area. Therefore, the European Union had strong and valid legal basis to directly block French misuse of European funds or to handle the non-compliant Italian Draft Budgetary Plan without the interference of political votes coming from the European Parliament or the EU Council. In the Hungarian or Polish case, the same methods unfortunately did not work. Though European legislation allowed for several legal instruments or mechanisms, the resulting aggression towards the Constitutional and secondary national courts was ineffectively tackled by the European Union. On one hand, the infringement procedure and the financial penalties proved ineffective and, on the other, key mechanisms (the “Rule of Law Framework” and the Article 7 procedure) were hindered by the unanimity vote in the EU Council, that was (and still is) the biggest obstacle to overcome. Basically, once the majority of MEPs voted in favour of the activation of Article 7, Poland and Hungary could support each other during the unanimous voting in the EU Council. By doing so, they could completely frustrate the prior phases and, in the end, block the whole procedure. The thesis tried to provide on appropriate analysis of these two different circumstances and outcomes through the employment of historical institutionalism theory and its calculus approach. In the French and Italian cases, it is evident that the maximisation of benefits by Lega and Front National depended mainly on a combination of their own priorities and objectives based on the information provided by the European Union and its institutions’ reaction. Therefore, both Italian and French right-wing parties were obliged to shape their own behaviour and make rational decisions in order to abide by the existing rules or correct deviant behaviour. Additionally, any withdrawal from that framework (the EU and its legal system) would mean highly disadvantageous exclusion costs. Opposing final considerations, however, could be observed in the case of Hungary and Poland. Obviously, the arrangement is the same: Fidesz and PiS were trying to optimize their benefits based on information offered by the EU while evaluating the potential reactions of other actors within that environment. Although, their national political activities were not in line with the values upheld by the European Union, they were confident in reaching their personal objectives without any detrimental consequences while preserving their vital membership within the Union. For these reasons, they are following the “path” even without observing the values outlined by the EU regarding the independence of national Courts, since they are continuing to maximize their benefits without jeopardizing their membership in the EU.

After determining the real ability of the EU to deal with Eurosceptic right-wing parties, the thesis shifts its attention to the European election in 2019 and, therefore, the second hypothesis. In addition, the Second-order election theory has been employed in order to adequately explain the electoral results achieved by the European parties or coalition. Summarily, the theory listed several characteristics that would characterize a secondary election: low level of electorate turnout and scarce media coverage; small or anti-system parties benefit while mainstream parties suffer electoral losses provoked by growing discontentment with government policies and, as a result, the rise of the “protest” vote among the national constituency. However, the electoral outcomes observed in 2019 only correspond in part to what the second- order theory points out. The difficulties encountered can probably be identified as the consequence of possible growing relevance of the European context and electoral turnout or, in addition, the transformation of those right-wing parties from marginal to principal actors and their transition from the periphery of political context to the main core of politics, i.e. the government. In fact, it is quite clear that although Lega, Fidesz and PiS were initially characterized as anti- system parties (against the mainstream elite), they progressively expanded their electorate until they rose to power, won the national election and became mainstream parties themselves. Nonetheless, they didn’t lose their own ideology along the way, continuing to behave politically and to employ political campaigns as if they were outside that framework or system. The Front National, specifically, had an exceptional political fate because while it increased its political and electoral influence, it was not enough to win any national elections. The domestic successes experienced by the four right-wing parties spread on a European level as well, as illustrated by Tab. 1. In Italy, the percentage of votes obtained by ENF moved from 6,2% to 34,3%, with a change of 28,2 percentage points; in Poland Kaczyński’s party reached 35,8% in the 2014 European election and a number increase of 9.6 percentage points in 2019, reaching a total of 45,4%; in Hungary Orbán was able to gain +1,1 percentage point in the European elections, moving from 51,6% to 52,6%. Instead of being subjected to an electoral and political downturn, the Italian, Polish and Hungarian right-wing parties experienced electoral victories. The French Front National also gained as high a share of votes as the other right-wing parties, albeit with an important difference. Although it remained the main political rival for Macron and his party (La République En Marche), making it the main recipient of “protest” votes, it suffered a soft electoral decrease. In 2014 le Pen and its party achieved an important 24,9%, but in 2014 the number shifted slightly to 23,3%, a loss of 1,5 percentage points. Conversely, La République En Marche and its Group (ALDE) managed to obtain 24,9% of the French votes, 15 percentage points more compared to their 9,9% in 2014. As previously cited, one cannot deny that the transformation of Lega, PiS and Fidesz into mainstream parties and their national political results diverge clearly with the features pointed out by the Second-order theory. Nevertheless, one important aspect could be in line with the theory: the votes in favour of the right-wing parties in all of these four countries would be considered “protest” votes. In France, the Front National managed to continue to represent the main opposition to Macron’s government thanks to the “protest” votes. In relation to Italy, Hungary and Poland the protest was not addressed towards the actual government but against those parties which had previously ruled the country and later became opposition in the national parliament. On the basis of the aforementioned analysis, Eurosceptic right-wing parties appear to have gained a strong presence in the EP thanks to the positive results achieved in the 2019 European election. Consequently, the second hypothesis would be disproven. However, it is important to examine and separate two different data, both of consequence to a final assessment. On one hand, the electoral results obtained by each EP Group in the different Member States, show clearly that Eurosceptic parties increased their vote sharing in general. On the other hand, seat distribution in the new European Parliament reveals a different result. The ENF (the most prominent Eurosceptic Group) managed to gain 72 seats, the ECR 59 seats, and the EFDD 43 seats. Even if those seats were added together, they would still not be enough to create a majority in the EP. In other words, the EP has a total 751 seats. A majority would require more than 375 seats. These three Groups have 174 seats between them: not even close to the minimum required. Another possible alternative would be an alliance with one of the most important Groups: the EPP. Historically, the EPP and the S&D settled their discrepancies and formed a “consensual” coalition, with the additional support of the ALDE. European Groups, in general, tend to opt for consensual behaviour rather than to compete with one another, in order to reach a majority in the European Parliament. The unique character of the EP (as compared with national parliaments) is the cause of this. (Settembri, P. 2006). In the event that the EPP (centre-right) decided to distance itself from its historical allies and shift towards the right-wing parties and their Groups, the relationship between the EPP and the S&D and ALDE could definitely be demolished. Moreover, the total number of seats of EPP, ENF, ECR and EFDD would not reach the majority required (354 seats in total). Thereby, the conservatives would never agree to a coalition with the socialist and liberals over a weak alternative alliance with Eurosceptical right-wing Groups. In conclusion, the analysis and the framework provided confirm that the European Union elections held in 2014 didn’t considerably favour the Eurosceptic right-wing front, which will continue as a minor actor within the European political framework.

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- Weber, Manfred: Letter to Joseph Daul, European People’s Party, 5 March 2019, https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/2019/03/MANFRED- WEBER-LETTER-TO-JOSEPH-DAUL-Courtesy-EN-translation.pdf - Welt, Orbán bezeichnet EVP-Kritiker als „nützliche Idioten“ der Linken, Welt, 2019. https://www.welt.de/politik/ausland/article189686639/Ungarns-Ministerpraesident-Orban-bezeichnet-EVP- Kritiker-als-nuetzliche-Idioten-der-Linken.html