Chapter 1: Historic perspectives on the role of civil society in moderen European History

INTRODUCTION In this part we will focus on the historic perspectives on the role of civil society centering on the period from 1989-2004, the historic events taking place in this moment and the shaping of the democratic developments in the EU. Through understanding of the events and developments that shaped the EU of today and the perspective of the role of civil society in the key moments of democratic battles in Europe in recent times, we believe that we can extract important insight for understanding the current issue of democratic decline in some membership countries as well as lessons to be used to combat such trends. The contributor Heather Grabbe, Director of the Open Society European Policy Institute, as well as Søren Keldorff board member at Nyt Europa and Søren Riishøj, professor emeritus examinate the implications of the 2004-enlargement process as well as some of the current challenges that civil society especially in Poland and Hungary face. As the introductory quote demonstrates then perhaps some of these current challenges has root in the very liberal wave at the highlighted timeframe and the victories of the democracy champions of the time. The role and conditions of civil society was, if not taken for granted, then not as much a focus after the democratic transition and entrance to the EU as the democratic institutions themselves, the implications of which was examined in the conference “Civil society in turbulent times – New solutions in the EU inspired by the lessons from the past” taking place November the 24th 2020. The conference was part of a series of initiatives with the aim to mobilize established civil society in the fight against current challenges. During this conferences the partners of the “History of Optimism” project, Nyt Europa, MitOst e.V., Institute of Public Affairs and European Civic Forum, invited scholars, CSO’s, decision-makers and representatives of the EU institutions to partake in a dialog in three segments: Lessons learnt on the democratic transformation and civic engagement in Central-Eastern Europe (CEE); A current assessment of the state of rule of law and democracy in Europe; and finally a debate on how to support civil society as democracy champions going forward with rule of law initiatives. From the conferences many critical points were extracted that will feature throughout the report, nor the least Heather Grabbes keynote speech. We hope that this part will provide an insight in what we believe to be a very critical historic perspective on some of the current democratic challenges facing the EU of today. FAILED EXPECTATIONS AND THE STRUGGLES FOR CIVIL SOCIETY IN EUROPE POST 1989 by Heather Grabbe – Director of the Open Society European Policy Institute - Keynote at the conference “Civil society in turbulent times – New solutions in the EU inspired by the lessons from the past”, 24th of November 2020. We are taking stock of our European history - of how much has changed in the past 30 years and how the challenges to civil society have changed. Back in the early 1990’s, both the European Union and the Open Society Foundations, George Soros, decided to take a big punt on civil society believing that it was going to be important as they put a lot of support of all kinds, infrastructural support, and political support, into civil society organizations in the region. Among us today (at the conference, ed.) are a number of people that have been involved in that process at least at some point over those decades. And among those of us who have been involved for a long time, there is a certain amount of liberal nostalgia for the days when civil society was the effective opposition in quite a lot of countries before the parties had consolidated that also, before the EU membership was a controversial topic. At that point it was universally supported for most of the 1990s, certainly in Poland and Hungary. It was only controversial in the Czech Republic and to a certain extent in Slovenia but at that point there was a big consensus about EU membership and generally a consensus that civil society was a good thing. In fact, the liberalism that was very much in vogue at the time saw civil society as the absolute key actors for being an intermediary between politics and understanding what was going on at the political level, and the population and their daily lives and their concerns. I still believe that that is very much the case, but you hear many conflicting opinions about this subject, and this politicization of civil society and politicization of EU membership are at the heart of many crises that we are seeing right now in Poland, in Hungary, and increasingly at the EU level as well, as these battles have escalated and got right up to the European Council. This is in some ways a critical as it shows how bad things have gotten and how two member states are now prepared to block the whole EU budget and recovery funds on the basis of a rule of law mechanism that should have been put in place a long time ago. But also, it is good news that the whole EU is now paying attention to what is going on in Poland and Hungary. Everybody is much more aware that this is not just about a few local political difficulties; this is something that could threaten the whole European Union.

To go back to what has happened over the past three decades: The Open Society Foundations and George Soros saw early on that civil society organizations were the effective opposition in many countries. That they were also the liberalizing tendency in the organization. And his philosophy of philanthropy in the beginning was to find a good set of local people who believe in an open society and want to see civil liberties flourish in a thriving democracy where governments are accountable to their people. Once you have found a good group of people in that country you give them money and tell them to decide what to do with it while also giving them a governing board which makes sure that the money is not misspent, but fundamentally the local people in local civil society should decide where support should go. The fundamental philosophy of the open society foundations is still in operation today which makes it a rather unique philanthropic enterprise, and it is now the largest funder of civil society globally from private sources. Of course, there’s also government funding of civil society, but in terms of private sources they are still the biggest. In addition, Soros was significant in the sense that they were giving hundreds of thousands of scholarships to people in Central and Eastern Europe, emerging from a system where they could not study abroad, certainly not like in the West, to one where they could. Further, he also supported controversial issues at the time - among these the abortion laws of 1993, now so very prominently discussed in Poland. He gave scholarships to everybody who seemed to be bright and interested in moving towards liberal democracy - including a certain Viktor Orban who went to Oxford as a Soros scholar in the 1990s. In the following years these local foundations grew and funded all kinds of civil society organizations across the whole country, and then over time the foundations moved into other regions and countries. Expectations and demonstrations The expectations of the time were that civil society would help to have the bridging function and be an independent intermediary between these big changes that were going on in society and people’s daily lives. There was a belief at the time that an increase in freedoms in civil liberties - in freedom of expression, freedom of association, the fundamental freedoms that you find in the charter of fundamental rights for the EU - that these freedoms went hand in hand with economic prosperity. There were lots of studies published at the time about how democracies tend to have much more thriving economies, standard of living is higher in democracies - all these things were and still are true. But there was also a more fundamental belief on the part of the population that if you open to the world, you will become wealthier, you will become better off. And the Western model was both the liberal model in terms of liberal democracy, and it was the market economy - or certainly the social market economy model. They were almost synonymous - the idea of freedoms with economic and political freedoms. And as a fundamental political philosophy it still holds up, but, for many people in Central Europe, their living standards took quite a long time to improve. They did ultimately, and Poland is a clear example of turbo capitalism where living standards improved greatly. But there is still a lasting resentment from a lot of people that inequality also brew, and that was an issue that was severely neglected during the transition, even though civil society groups raised it quite often. What is interesting now when you look at the public opinion poll surveys is that people are still very interested in their economic wellbeing. They are much less interested than they used to be in their political and civil rights.

Mainly because once you have them you sort of take them for granted and you forget about how things were when there was an era where you did not have them. Although of course we see that young people in Poland today who never lived under socialism are out there in the streets, with strajk kobiet (Polish women strike, red.), arguing for their rights. But nevertheless, there has been a change in terms of how the population see these things. And in fact, within the research that I mentioned, the Voices on Values project, the report that Filip Pazderski authored on Poland is extremely interesting in looking at how particularly young Poles tend to consider living standards as being more important than democratic values. And they are an outlier - the younger generation in Poland thought that more than the younger generation in other European countries that we studied, so this is quite interesting. There is still overwhelming support in most surveys for values, particularly freedom of expression, freedom of religion and media freedom. And what we found in this survey that we did from 2017 to 2019 was that there was very strong support in Poland and Hungary for the role of groups that are critical of government i.e., the role of civil society. This capacity to criticize the government, not just the freedom to criticize it but the capacity to do so, somebody who is able to do so because they have the arguments, they have the evidence, they have the intellectual knowledge, and they have the funding that they are able to operate as an organization rather than as an individual voice, there’s still strong support for this. But of course, we can also see massive pushback going on. In 2019 for the first time since 2001, the Varieties of Democracy Institute recorded that there are more autocracies than democracies in the world. We also see more pro-democracy mass mobilization, more protests, that has also reached an all-time high. It is as though the two clearly go together, there is a correlation. The share of countries with pro-democracy mass protests rose from 27% in 2009 to 44% in 2019. But it does mean still that nearly half of the world population is living in an autocracy, and that is 30 years after the major change that brought both economic prosperity and freedoms to a very large amount of people in Europe. New realities, hopes and pessimism Now in 2020 the Covid-19 crisis has increased pressures on civil society. It has increased demand because civil society groups provide many of the essential services to vulnerable groups, rural areas, to many parts of the population, where there is a demand for services. But there is also increasing political pressures - we can see that emergency measures in many countries are used to suppress dissent and activism to violate rights, to weaken checks and balances. This has been the case in the United States as well as in a lot of other countries around the world. A pandemic is an opportunity for the state to take control, for good reasons but it can also be for bad reasons. 2020 has also shown some absolutely incredible mobilization. In the United States the Black Lives Matter movement has really come to the fore, and Covid and its terrible impact on the African American population is an important catalyst there too. Access to healthcare as an issue for minorities and for vulnerable groups around the world is very much in the spotlight in 2020. We have also seen protests against the mismanagement of the Covid-19 crisis in a lot of countries. Some of these protests have been in the name of the right not to wear a mask, the liberty not to undertake public health measures, which I would not agree with. But there have also been a lot of protests against mismanagement, in terms of wasting of funds - if you think about Hungary and the contracts to supply personal protective equipment and several other issues. So there has been a lot of political mobilization around it and of course in Poland, because amid a health.

crisis the government decided to remove incredibly important reproductive rights from Polish women, there have been the biggest mass protests since the fall of communism. There are reasons for pessimism. The pressures on civil society are unprecedented. But there are also reasons for optimism. That people are prepared to go out on the streets and talk about issues that they really do care about. Climate action has also of course brought the younger generation in particular out on the streets, and we have seen some responses to this mobilization at EU level. There has been the European Green Deal and Ursula von der Leyen, the Commission President, said quite openly that if it had not been for Greta Thunberg and the youth climate activists, the EU would probably not have the European Green Deal. Similarly, we have the first EU anti-racism action plan that came out in September, and that’s because of protests and because of people seeing what is happening in the US and people protesting in Europe - a real concern about the terrible effect that racism has on our societies. We also see the way that support for would-be authoritarian governments like the ruling coalition in Poland have given the protests extra impetus by the need to defend rights and liberties. So there is good news and there is bad news. What is interesting is the way that this crisis is catalyzing new forms of civic mobilization. I would recommend an interesting paper by Tom Carothers from the Carnegie Endowment for International Peace - he is of course well known especially in the US as an expert in democracy support and civil society. He notes that civil society actors in many countries are rising to the pandemic challenge in new ways, filling the gaps left by governments to provide essential services (think about all of the new mutual aid initiatives that there are in Poland). They have also been partnering with businesses, they are spreading information about the virus, protecting marginalized groups, and forging new coalitions, to hold stumbling governments to account. This is an important set of points about how civil society also has to adapt and has to evolve, as the crisis goes on. Adaptions and recognition of civil society


"What is interesting is the way that this crisis is catalyzing new forms of civic mobilization"

On the whole civil society actors are very adaptable provided that they have the resources and the capacity to do so. This brings me to my next major point, which is about the role that civil society plays, and then the importance of support to civil society and to make sure that that happens. What is very clear from the current crisis in the EU over the budget and the recovery funds is that a thriving civil society is essential to the rule of law. Most of the EU countries would not know about what has been going on in Hungary or Poland in terms of damage to the rule of law and to the potential impact on the rest of Europe if it were not for civil society.

It is because of the reports that have been put out by groups like the Hungarian Helsinki Committee, the Stefan Batory Foundation, Political Capital in Hungary (a think tank), ISP and others, that people are aware of this. If there had not been civil society organizations in the countries spelling out what is happening and the implications of that, then it would be quite a lot simpler for the large member states and for the governments of the EU to simply continue turning a blind eye and pretending that everything is fine, and that this is just a little local political problem that does not affect the EU. It is only because of all of the reports and the way that civil societies have amplified the voice for example of the Polish judges and encouraged their voices to be heard that people are aware of this and that this has become enough of an issue to create a rule of law mechanism at the EU level - and to finally tie EU funding and its appropriate use to checks and monitoring of expenditures in the country. What we hope for now in the outcome is that it is not just an anti-corruption mechanism. It is important that taxpayers’ money should not be wasted, especially if it is taxpayers in one country giving money to other countries - it is very important to have that. But this is also about the rule of law, which is a fundamental public good and is the foundation of the European Union. If the EU did not have its community of law it would have as much power as ASEAN or Mercosur does, which is much less than the EU does. It’s the community of law that allows the single market, and it’s the community of law that allows civil society to do its job well, because there is a mutual recognition of court decisions, because there are not arbitrary arrests, because countries across the EU can say “actually I do not want to send my citizen to be put on trial in Poland”, as Ireland did because of the risk of there not being a fair trial. The rule of law is a vital principle, but it is not just a principle - it is a system, it is a community of law that can only function if all the member states obey it, and that needs to be a fundamental issue for the whole EU. And it is so now, people have recognized this issue because of the work of civil society. Catalyzing the voices and ensuring the denunciation of the abuses and the violations has been fundamental to ensuring that the founding values of Art. 2 are given life, and that there have been reactions, finally, at the EU level. The key thing is that it is the monitoring, the reporting, the strategic litigation, and the advocacy conducted by civil society that has brought it to the boiling point now. And it was a decision of certain ruling parties to hold the whole of the EU to ransom over it but nobody would know why that mattered and why the rule of law mechanism should not simply be sacrificed on the altar for getting money out faster to the countries that need it - this is only because of the way that civil society mobilized around the issue over many years.


"The rule of law is a principle, but it is not vital just a principle - it is a system, it is a community of law that can only function if all the member states obey it"

I want to highlight the recognition of civil society success at the EU level, just to mention a few specific things that have happened in recent year. And then I will finish with a few points about what else the EU should be doing, which I hope will be interesting for the discussion because this is where the EU needs more pressure from civil society in the member states. Just to give a few successes to cheer us up, to think about how far we have got amid all the difficulties and the pushback. One thing is that most recently there is an increase in the budget for the Justice, Rights and Values program, and this is a real historic victory after a long year of advocacy and transnational campaigning initiated by the Stefan Batory foundation and taken up by many of you in the audience today (at the conference, red.). The successful campaign shows how NGOs working on values can work together across countries which is also exciting. And the budget support at the EU level remains particularly important to ensure that civil society is not only dependent on national funding, especially if that becomes more controlled by a particular ruling party or ruling coalition. There has also been the historic ruling last summer, another important success, where the Court of Justice of the European Union ruled that the Hungarian law stigmatizing NGOs that receive foreign funds was not in fact in line with EU law. It was the court affirming for the first time that the right to freedom of association is protected by EU law and it affirms the role of civil society arguing that the right to freedom of association ‘constitutes one of the essential bases of a democratic and pluralistic society’ - that is really something for the Court of Justice, to rule about the role of civil society. In the Commission itself, the scope of vice-president Vera Jourova’s mandate includes freedom of expression and freedom of association, which are vital to civil society and very much pushed by civil society. To conclude what the EU need to do now, what kinds of pressure does it need to make sure that civil society can continue to thrive in what is in many member states becoming an increasingly hostile environment. I have been speaking a lot about Hungary and Poland because of the subject of this project (History of Optimism and the role of civil society, red.), but of course there are threats in other countries too. In Ireland there are real worries about the freedom of civil society organizations to operate. The UK has made changes to its charities law which have had a massive chilling effect on any NGO doing political activity that could fall in the period of an election - that has had a big chilling effect and made many charities pull in their horns. And of course, in France the most recent measures are genuinely concerning, and even in Germany there is the whole question about the law on foundations and civil society groups. So, things are not great elsewhere either, but things are especially bad in Hungary and Poland. So, what can the EU do? Well one thing is of course actually to include civic space as part of the monitoring of the rule of law in the annual rule of law report the Commission is putting out. The first one put out four pillars in September this year, but it really needs to do regular and comprehensive monitoring on the space for civil society to operate. Then there is the law - civil society still needs legal protection from attacks, from harassment, prosecution, and violence, which we have seen extraordinarily in the EU itself. The judgement on the foreign funding law in Hungary is a very important step, but it needs to be implemented now and of course it took a lot of time to come, and a lot of harm was done to civil society in that time period. There is now a case of an NGO that was refused Erasmus funding by a Hungarian foundation, for example, because they did not comply with the requirement to identify as a foreign funded organization - which of course has now been declared as a breach of the EU law, so there is a concrete case of a harm caused by a noncompliance with the Court of Justice judgment.

What is important now is that the Commission takes action with more infringements where there are clear violations of EU law and gives the concrete example of what work should be replicated to limit the damage done by some of the national governments. And I will just finish by mentioning the link to the funding. So, we have now got a huge row going on about the EU budget but of course the Commission did take action earlier this year when it blocked EU funding to the LGBT+-free zones that were declared by certain local authorities in Poland, and the Commission froze EU funding for twinning programs with cities. So, it is a small thing but this linking of conditionality of money with the freedom for civil society organizations to act and offer the rule of law is vital to give teeth to EU conditionality. If it is just a slap on the wrist for government or a few difficult words in Brussels it is not going to do very much. Money remains vital both as a funding source for civil society but also as a leverage to ensure that EU values and the contribution of civil society are respected in all the member states.

THE ROLE OF CIVIL SOCIETY IN EASTERN EUROPE Before, During, and After the Transition to Democracy By Søren Keldorff, board member at Nyt Europa and Søren Riishøj, professor emeritus The Role of Civil Society Civil Society before 1989 played a key role in the breakup