Author: Awareness News

In periods of economic distress, politicians who find scapegoats for the current situation are usually acclaimed by citizens that once might have felt discouraged to vote. However, the rhetoric used works as an attempt of dividing the population in native members and non-native members and minorities (cultural populism); honest members of the working class and big business owners (socio-economic populism) and victims of corruption and politicians (anti-establishment populism). Given that these arguments exploit societal concerns, they may pose a threat to democracy, by claiming that their opponents do not have people’s best interests in consideration and by excluding from “the people” each and every person whose support is not guaranteed.

In the past three decades, this trend has risen exponentially, even in countries with the most solid economies. According to Tony Blair’s global institute, in 2018, there were 20 countries with presidents or prime ministers that were considered populists, as shown in the graph below. Besides this, 40% of Asia’s population is governed by Populists.

Will populism thrive in the pandemic?

Before the global health crisis, the forecasts for 2020 were the continuous bet in dealing with inequalities and environmental issues. Although companies are increasingly investing in Environment, Social and Governance (ESG), that is not governments’ main concern anymore. The world leaders are trying to prevent the spread of the virus while attempting to reduce the economic implications that will arise. It is difficult to measure populists’ responses to this crisis as each country is adopting different policies and their role depends on whether they are in the office or in the opposition.

The graph presented above illustrates the idea that the rise in populism was hastened by the 2008 financial crisis. Research conveys that there is a significant correlation between the level of unemployment and the popularity of these parties. The virus has also helped uncover structural problems, such as an inefficient health care system or a dysfunctional government, which are likely to sustain populists’ arguments.

Hungary’s Prime Minister, Viktor Orban, is an example of a politician that is availing the pandemic to reinforce its position. After declaring a state of emergency, the government started to attribute the blame to illegal migration and eventually arrested students that were legally studying in the country, just for protesting. By taking immediate measures, Mr. Orban gained trust from the population, which allowed him to extend his mandate to an indefinite period to deal with the current crisis.

Another politician who has climbed in polls is Angela Merkel, for imposing mass testing and effective lockdown restrictions, thus controlling the death toll. Jair Bolsonaro, on the other hand, has made declarations underestimating the threat of the virus, just like Donald Trump, and has not taken any protective measures to ensure its civilian’s health, making him lose supporters.

In times of uncertainty, people look for the answers in their leaders. They prefer someone that actually deals with the situations and takes action from the beginning, whether he is populist or not, given that both populist (Victor Orban) and non-populist (Angela Merkel) politicians have surged in approval ratings.

Another factor that might influence the polls is data manipulation that misrepresents the hard times that the country is facing, or even the control of media pluralism. Besides the fact that populists’ arguments dismantle their opponents with ad hominem fallacies, some of these politicians live in countries with a low level of democracy, allowing them to promote their ideals even further, as it is depicted in the graph below.

Will populism stay in lockdown?

Despite the ability that populism has of growing and marching to brand new territories during economic and political setbacks, there are also some particularities in the pandemic that may constrain it.

Firstly, the strategy that most non-populists are using is the inclusion of messages of union in their speeches. The virus affects all social classes, races, ethnicities and orientations and there is no benefit in exclusion as everyone is working towards the same goal.

Secondly, the only way of tackling a problem is by not ignoring its existence. It comes as no surprise that the electorate demands experienced leadership with concrete goals and actions instead of mere comments, when faced with a recession. The anti-intellectualism promoted by some populists may also be in danger as it is not that appreciated when the entire world is waiting for the creation of a new vaccine and relying on doctors and governments to reduce the potential aftermath.

Lastly, with the increase in the level of unemployment and the decrease in aggregate demand, countries will not be able to survive by themselves. In the case of EU members, they will need financial aid from the European Union to combat this crisis, trying to fight the economic fallout. Thus, the nationalism nurtured by populists may no longer be welcome.

What can we expect?

There could be a significant decrease in populism in Europe if European citizens recognize EU’s assistance and realize the importance of inclusion and union, disregarding the priorly felt nationalist sentiments.

There is also the possibility of a second wave of infections. The sudden increase in cases would prove that the previously taken measures were inefficient and would decrease population’s support of their leaders. As the majority of the politicians haven’t got a secure spot in the office, some current populists might lose its power. However, they usually last longer in the government than the rest of the people and this might be an opportunity for a new brand of populists to arrive with an improved rhetoric that meets the new economic challenges.

In 2015 the German Constitutional Court received a request from a group of 1750 german citizens, raising some doubts about the public debt purchase program undertaken by the ECB near its member states, claiming this to violate article 123 of the Treaty on the Functioning of the European Union. The article states that the ECB does not have the power to directly finance its member states, either through credit concessions or direct purchase of public debt. At the time, the ECB argued the validity of their operations given the legal support from the European Court of Justice.

On the 5th of May of the present year, the German Constitutional Court analyzed once more the 2018 response from the Court of Justice of the European Union in relation to the doubts raised in 2015 by a group of German citizens, and demanded that the ECB deliver, within a 3 months deadline, an analysis of the proportionality of its monetary policies. That is, the German Court does not question whether the monetary policy undertaken by the ECB violates article 123 of the TFUE, it rather wants to infer whether the public debt buy program complies with the principle of proportionality to which the ECB is obliged to stick. The German judges consider that the monetary policies led by the ECB are followed with disregard towards the consequences that those policies may have, and that this approach constitutes a violation of the principle of proportionality. Until the report is delivered, the German Constitutional Court  has used its power to prohibit the Bundesbank (the German central bank) from buying any more foreign debt and it has even allowed the Bundesbank to sell the securities it is holding, if it wishes to do so.

Germany being the strongest economy of the European Union, the decision taken by the German Constitutional Court represents a serious drawback in the monetary goals established by the ECB. The decision gets even more preoccupying given that currently all Europe is combining efforts in trying to tackle the major economic crisis striking European economies.

While the German Constitutional Court claims to have power over national institutions, the CJUE already condemned the Court`s decision claiming this to seriously affect the European monetary policy strategy and the latter not to have the right to jeopardize or to contradict ECB measures that are backed by the CJUE, given that the principle of proportionality was always taken into account. CJUE also claims precedence in matters that involve the European Union and, therefore, does not acknowledge the legitimacy of the decision taken by the German Constitutional Court. Isabel Schnabel, member of the executive committee of the ECB, said that the public debt buy program will continue to happen, “regardless of the decision of the German Constitutional Court, given that CJUE has exclusive jurisdiction over BCE and its actions”. The fact that European legislation is above national legislations was not a part of treaties, it merely came into play in 1964 when the European Court of Justice (ECJ) decided so.

Is this the first time that a member state clashes with EU justice?

This is not the first time there is a clash between national courts and European law. A few countries have sought to mitigate this by enshrining the primacy of EU law in their constitutions. And most national constitutional courts have, at some point, declared that, based on article 6(3) of the Treaty on European Union, EU law takes primacy over national law as long as it doesn’t violate the human rights protected by their national constitutions. Constitutional courts have addressed these conflicts in different ways.

One alternative is to interpret constitutional law more broadly, so as to accommodate European law. For example, in 2011, the Greek Council of State recalibrated its interpretation of article 14(9) of the Greek Constitution. This article had previously been understood to prohibit owners of media corporations from applying for government contracts in other areas. But the Council of State decided that, according to the European principle of proportionality, this interpretation was doing more than what was necessary to ensure the objective of the law: transparency in public contracts.

The second alternative national judges have is to interpret European law in accordance with their national constitutional law, assuming the former cannot contradict the latter. This is based on the idea that the national constitution protects certain rights and freedoms that cannot be violated by any law, local, national or European. Few cases like this have appeared so far, but several national supreme courts, namely in Germany, Italy and Spain, have asserted that they have the power to review European law in this way and check if it complies with their constitutions.

A third possible alternative is for national judges to convince the Court of Justice of the European Union to change its interpretation of European law, so that the new interpretation is compatible with their national constitution. For example, in Taricco I, the CJEU held that the statutes of limitations in the Italian penal code violated European law, because they harmed EU financial interests (1). The Italian Constitutional Court then asked the CJEU for an opinion, arguing that complying with their decision would force the Italian penal code to contradict the Italian constitution. The CJEU granted their point and clarified their decision in Taricco I in a more relaxed way.

The fourth alternative national judges have is disobedience, or non-compliance with European law as the CJEU interprets it. This is, of course, an option of last resort. It occurred, for example, when the CJEU declared that a Social Security rule in the Czech Republic that gave an old age benefit only to Czech nationals in Czech territory violated the rights of EU nationals from other member states living there. The Czech Constitutional Court decided it would not apply the CJEU decision and would allow the rule to remain unchanged. The arguments were that the CJEU had exceeded its powers and that the CJEU had failed to take into account the historical fact that that rule was related with the dissolution of Czechoslovakia.

While in many cases national and European justice reach a consensus, it is unavoidable that other cases, like the German Constitutional Court one, will continue to happen. Some consider that these persistent challenges towards European Law from national courts undermine the strength and credibility of the European institutions. Others say that the preference from European Law over National one was a severe and non-democratic imposition over its member states. Nonetheless, this is an important question that urges to be answered in order to better define the future of the European Union: What are the limits, if any, that Europe wants to impose over National Courts in their interference on European policies?

(1) The European Union is partly financed by a share of member states’ VAT. The statutes of limitations for fiscal fraud in the Italian penal code, in the CJEU’s opinion, did not give people enough incentives to not commit fiscal fraud, and therefore harmed the EU’s financial interests.

Sources: Euronews, Expresso, Observador, Renascença, EUR-LEX