Department of Political Science Master’s Degree in International Relations – European Studies Chair in Comparative Public Law POPULISM IN THE FRAMEWORK OF THE EUROPEAN UNION: A COMPARATIVE CONSTITUTIONAL ANALYSIS BETWEEN ITALY AND HUNGARY SUPERVISOR CANDIDATE Professor Cristina Fasone Claudia Mattei 635892 CO-SUPERVISOR Professor Giovanni Orsina Academic Year 2018/2019 1 Table of contents Introduction 6 1 CHAPTER – POPULISM 9 1.1 What is populism? A definition for a highly contested phenomenon 10 1.2 Understanding populism 14 1.2.1 Who are the people? 14 1.2.2 Who are the elites? 18 1.2.3 The real meaning of the volonté générale 19 1.2.4 The people and the general will: populism vs. democracy 20 1.3 Historical birth of populism 24 1.3.1 The American People’s Party 24 1.3.2 The Russian narodnichestvo 26 1.4 Marriage between populism and ‘host’ ideologies: different families 29 1.4.1 Right-wing populism 30 1.4.2 Left-wing populism 31 1.4.3 Populist constitutionalism 33 1.5 Why does populism develop? 36 1.5.1 The causes behind the populist rise 37 1.5.2 The cause of the cause: the auto-destruction of politics as origin of populism 39 1.5.3 Technocracy replaces politics: the case of the European Union 41 1.6 Populism in the world 44 2 CHAPTER – POPULISM IN EUROPE 48 2.1 Genesis of populism in Europe: Boulangism 48 2.2 Populism in Western Europe 51 2.2.1 Post-WW2 populist experiences in Western Europe 51 2.2.2 The rise of modern populism in Western Europe 53 2 2.3 Populism in Eastern Europe 58 2.3.1 Interwar populism in Eastern Europe 58 2.3.2 Modern populism in Eastern Europe 60 2.4 Map of contemporary populist parties in the member states of the European Union 64 3 CHAPTER – POPULISM IN ITALY 73 3.1 Genesis of the populist phenomenon in Italy: the Fronte dell’Uomo Qualunque 73 3.2 Contemporary populist parties in Italy 75 3.2.1 Tele-populism: Berlusconi’s Forza Italia 76 3.2.2 Regional populism turned national: the Lega (Nord) 79 3.2.3 Web-populism: the MoVimento Cinque Stelle 81 3.2.4 Marginal populism: Meloni’s Fratelli d’Italia 87 3.3 Populism’s first time in power: the Berlusconi cabinets 89 3.3.1 Berlusconi’s conflictual relationship with the judiciary 90 3.3.2 The media issue: Berlusconi’s conflict of interest 94 3.3.3 A partisan electoral system: the porcellum 97 3.3.4 The 2016 attempted constitutional reform 99 3.3.4.1 A premiership with no limitations 99 3.3.4.2 The end of the Italian legislative chambers’ perfect symmetry 100 3.3.4.3 A Constitutional Court at risk of politicization and the President of the Republic 101 as a symbolic figure 3.3.4.4 The decline of the system of checks and balances 102 3.3.5 Assessing the impact of populism in government: the experience of the Berlusconi’s 103 coalition 3.4 Populism’s second time in power: the M5S’s and Lega’s ‘government of change’ 104 3.4.1 Not only migration: the so-called ‘decreto sicurezza’ 106 3.4.2 Not only migration pt.2: the so-called ‘decreto sicurezza bis’ 114 3.4.2.1 The decreto sicurezza bis applied 118 3 3.4.3 Parliament’s constitutional composition reduction 120 3.4.4 Assessing the impact of populism in government: the M5S-Lega cabinet 121 3.5 Italy’s many populisms: is there a common core? 122 4 CHAPTER – POPULISM IN HUNGARY 125 4.1 Rise and development of the populist phenomenon in Hungary 125 4.1.1 Interwar populism: the népi movement 125 4.1.2 Post-democratic transition populism: the MIÉP 129 4.1.3 Contemporary populism: Jobbik and Fidesz 131 4.2 Contemporary populism in power: Fidesz 135 4.2.1 Constitutional change and retrogression: Fidesz second cabinet 136 4.2.1.1 Overview of the constitution-making process: toward a new Fundamental Law 136 4.2.1.2 The new Fundamental Law: a constitution in the name of the real Hungarian 139 community 4.2.1.3 The Hungarian judicial system’s independence decline 142 4.2.1.4 From four specialized ombudspersons to one Commissioner for Fundamental Rights 146 4.2.1.5 With due regard to public morals: the reform of the media 146 4.2.1.6 A new electoral system 149 4.2.1.7 A constitution dependent on cardinal laws 150 4.2.1.8 The politicization of independent institutions 151 4.2.2 Anti-immigration focus and ‘Stop-Soros’ policies: Fidesz third and fourth cabinets 152 4.2.2.1 Opposition to refugee-seekers and to the EU allocation system 152 4.2.2.2 Fighting migration-related NGOs: the so-called ‘Stop-Soros legislative package’ 153 4.2.3 Assessing Fidesz: what is left of Hungary? 156 4.3 Hungarian populisms: is there a common denominator? 159 4 5 CHAPTER – POPULISM AS A THREAT TO THE RULE OF LAW IN THE 161 EUROPEAN UNION? 5.1 A common modus operandi? Italian and Hungarian populisms in legal comparative 161 perspective 5.2 Is populism compatible with the European Union’s values? 166 5.2.1 Art.2 and art. 7 TEU: the union’s core values and constitutional identity 167 5.2.2 The EU’s very late invocation of art.7 TEU against Hungary 169 5.2.2.1 The Commission’s Rule of Law Initiative and the Council’s Rule of Law Dialogue: 171 two inefficient mechanisms to solve rule of law backsliding in the union 5.2.2.2 Hungary’s infringement procedures 172 5.2.2.3 The Sargentini report: art. 7 TEU is finally invoked 173 5.2.2.4 Fidesz’s late suspension from the European People’s Party 175 5.3 Rule of law and populism in the EU 176 Conclusion 178 References 181 Summary 214 5 Introduction From Europe to the Americas, from the Philippines to New Zealand, a common reality seems to be characterizing the political life of the entire globe: populism1. One could even speak of a populist Zeitgeist (Mudde 2004) persuading the world. It is no coincidence that The Washington Post summed up 2016 as the ‘’year of populism’’2 (Heinisch, Holtz-Bacha, and Mazzoleni 2017). But if 2016 was probably the capstone of such a phenomenon in Northern America – with Trump being elected at the presidency of the USA – the following years (and actually also the preceding ones) have seen many populist parties gaining momentum in an unimaginable way in Europe, with no distinction between East and West. The populist label, one has to notice, is rarely used in a self-referential way, being rather attributed by third parties to indicate subjects and realities regarded in a pretty negative fashion. It is sufficient to give a look at newspapers’ headlines to realize that such a phenomenon is more often than not stigmatized and discredited. Just to give a couple of examples: ‘The populist drift [is] a danger for Europe3’, ‘The European Union claims to be more popular than ever, but it is being slowly destroyed by populism4’,‘All dangers of populism5’, ‘Intellectuals’ appeal to save Europe: ″It is time to move so as to stop populists″6’, ‘How populist uprisings could bring down liberal democracy7’, ‘Populisms: the dark side of democracy8’ – and the list could continue. 1 The phenomenon of populism is not, as we shall see, a new one. In the case of Latin America, for example, it is a consolidated feature of the political system. This notwithstanding, its recent success in the Old Continent has raised much concern, for according to many populism would threaten the very values upon which European democracies are grounded. 2 See Adam Taylor, ‘The global wave of populism that turned 2016 upside down’, The Washington Post, 19 December 2016, https://www.washingtonpost.com/news/worldviews/wp/2016/12/19/the-global-wave-of-populism-that-turned- 2016-upside-down/. 3 See Adriana Cerretelli, ‘La deriva populista pericolo per l’Europa’, Il Sole 24 Ore, 17 June 2015, https://st.ilsole24ore.com/art/commenti-e-idee/2015-06-17/la-deriva-populista-pericolo-l-europa-072058.shtml? uuid=ACmL51B. Translation by me. 4 See Matthew Goodwin, ‘The European Union claims to be more popular than ever, but is being slowly destroyed by populism, The Telegraph, 28 October 2018, https://www.telegraph.co.uk/politics/2018/10/28/eu-claims-popular-ever- slowly-destroyed-populism/. 5 See Jordan Kyle and Yascha Mounk, ‘Tutti i pericoli del populismo’, Il Foglio, 20 January 2019, https://www.ilfoglio.it/ esteri/2019/01/20/news/tutti-i-pericoli-del-populismo-233461/. Translation by me. 6 See ‘L’appello degli intellettuali per salvare l’Europa: ″É tempo di mobilitarsi per fermare i populisti″’, La Repubblica, 18 November 2016, https://www.repubblica.it/esteri/2016/11/18/news/appello_degli_intellettuali_per_salvare_l_europa_e_tempo_di_mobili tarsi_per_fermare_i_populisti_-152242198/. Translation by me. 7 See Yascha Mounk, ‘How populist uprisings could bring down liberal democracy’, The Guardian, 4 March 2018, https://www.theguardian.com/commentisfree/2018/mar/04/shock-system-liberal-democracy-populism. 8 See Renée Fregosi, ‘Les populismes: côté obsqure de la démocratie’, Le Figaro, 28 February 2017, https://www.lefigaro.fr/vox/societe/2017/02/28/31003-20170228ARTFIG00274-les-populismes-cote-obscur-de-la- democratie.php. Translation by me. 6 Because of the extent it has come to have in Europe, and because of the oftentimes alerting comments expressed about it, it is my opinion that populism needs to be analyzed in a proper way so as to understand what it really is and what it does imply.