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Europaudvalget 2014-15 (1. samling), Europarådet 2014-15 (1. samling), Det Udenrigspolitiske Nævn 2014-15 (1. samling)
EUU Alm.del Bilag 429, ERD Alm.del Bilag 7, UPN Alm.del Bilag 165
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Should the EU Protect

Democracy and the Rule of Law Inside Member States?

(a revised version to be published in

European Law Journal,

2015)

Jan-Werner Müller

Demokratie heißt, sich in die eigenen Angelegenheiten einmischen.

[Democracy means to meddle in one’s own affairs.]

Max Frisch

This essay draws extensively on my Transatlantic Academy working paper ‘Safeguarding Democracy inside the

EU: Brussels and the Future of Liberal Order’, as well as ‘Defending Democracy Within the EU’, in:

Journal of

Democracy,

vol. 24 (2013) and ‘The EU as a Militant Democracy, or: Are there Limits to Constitutional Mutations

within EU Member States?’, in:

Revista de Estudios Políticos,

no. 165 (2014). For discussions on EU interventions

for democracy and the rule of law, I am grateful to Elmar Brok, Giovanni Capoccia, Carlos Closa, Gábor Halmai,

Dan Kelemen, Mattias Kumm, Alexander Graf Lambsdorff , Miguel Poiares Maduro, Peter Niesen, Grigore Pop-

Eleches, Kim Lane Scheppele, Wojciech Sadurski, Alexander Somek, Rui Tavares, and Vladimir Tismaneanu. I

also wish to thank my fellow fellows at the Transatlantic Academy, Washington, DC, during fall 2012, the audience

at the Engelsberg seminar on ‘The Pursuit of Europe’, June 2012, the participants in the workshop ‘Saving

Democracy in Europe’, Princeton University, October 2012, the staff of ARENA, Oslo, the participants at the

workshop on Central and Eastern European constitutionalism at the Clough Center, Boston College, October 2013,

as well as the participants at the NYU colloquium on ‘backsliding in Central and Eastern Europe’, November 2013,

and the participants in the Princeton LAPA seminar in September 2014 (especially Lisa Miller). Finally, I am

grateful to

Agustín José Menéndez and the anonymous reviewers of the ELJ for very helpful suggestions.

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Abstract:

Against the background of recent developments in Hungary and, to a much lesser extent,

Romania, the article discusses the question whether the European Union ought to play a role in

protecting liberal democracy in EU Member States. First, it is argued that the EU has the

authority to do so, both in a broad normative sense and in a narrower legal sense (though the

latter is more likely to be disputed), as the entire EU constitutional order is premised on the

Member States being proper liberal democracies. The article then asks whether the EU has the

actual capacity to establish a kind of supranational militant democracy; here it is argued that at

the moment both appropriate legal instruments and plausible political strategies are missing. To

remedy this situation, the article proposes a new democracy watchdog, analogous to, but more

powerful than, the Council of Europe’s Venice Commission. Finally, it is asked whether EU

interventions to safeguard liberal democracy would provoke a nationalist backlash in the

Member States concerned. There is insufficient empirical evidence to decide this question, but

there are reasons to believe that the danger of such a backlash tends to be overestimated.

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Recent developments in Hungary and, to a much lesser extent, Romania have prompted a

question that once would have been considered fanciful at best: could there be a dictatorship

inside the European Union?

In both countries there have been attempts at what I would term

‘constitutional capture’: leaders have sought to gain control of the political system as a whole,

weaken checks and balances, and cap the process with actually writing a new constitution. As of

now, constitutional capture has not been implemented in Romania. But in Hungary the project

seems to be succeeding. There the ruling Fidesz party has diminished the power of the

constitutional court (the major check on governments in a unicameral political system in a highly

centralized country with a largely ceremonial office of president). It has created a ‘Fidesz state’

by staffing offices with loyalists and securing their positions for exceptionally long periods. It is

arguably now proceeding to create a ‘Fidesz people’ in that the last remnants of media freedom

and independent civil society are being attacked (very often with the charge, familiar from

On Hungary, see the special section on Hungary’s illiberal turn in the

Journal of Democracy,

vol. 23, no. 3 (2012)

and the collection edited by Gábor Attila Tóth,

Constitution for a Disunited Nation: On Hungary’s 2011

Fundamental Law

(Budapest: CEU Press, 2012); on Romania, see Vladimir Tismaneanu, ‘Democracy on the Brink:

A Coup Attempt Fails in Romania’, in:

World Affairs

(January/February 2013), 83-87; Venelin I. Ganev, ‘Post-

Accession Hooliganism: Democratic Governance in Bulgaria and Romania after 2007’, in:

East European Politics

and Societies and Cultures,

vol. 27 (2013), 1-19; and Vlad Perju, ‘Constitutional Coup, Interrupted: Tales from a

Romanian Summer’,

I-CON Symposium on Constitutionalism in Central and Eastern Europe,

Newton, MA,

October 2013 (on file with author). There are other examples, to be sure: in actions reminiscent of what happened in

the late Weimar Republic, the Czech Republic’s president Miloš Zeman has attempted to transform a parliamentary

democracy into a presidential system through what was widely described as a constitutional ‘coup’. See ‘Zeman’s

Coup’, Eastern Approaches blog,

The Economist,

July 2013, at:

http://www.economist.com/blogs/easternapproaches/2013/06/czech-politics-2

[last accessed 25 January 2014]. Let

me add that I do not mean to suggest that all these cases can simply be equated. Nobody has gone as far as the

Hungarian government, and nobody has been as openly ideological about it. I would insist, however, that Hungary

does provide a template – and that there are very strong reasons to think that others are studying the template and are

very tempted, given the right conditions, to follow it.

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Putin’s Russia, that civil society activists are really just foreign agents).

It is rather an

understatement to say that a country like Hungary is experiencing what a European

Commissioner has called one of a number of ‘rule of law crises’.

Rather, democracy as such is

under attack.

Clearly, an extended discussion of the relationship between the rule of law and

democracy is beyond the scope of this article. Still, one needs to be precise about what kind of

‘crises’ we are witnessing and what might have to be the object of ‘protection’. So far, EU

officials and politicians concerned about developments in Hungary and Romania have referred

almost exclusively to the rule of law as the thing that’s threatened. One unintended consequence

is that the national governments being criticized can keep claiming democracy for themselves, or

even openly advocate a model of ‘illiberal democracy’ against supposed mainstream European

liberal democracy.

In other words, according to this (rather Schmittian) picture, the EU tries to

safeguard liberalism; national governments, by contrast, assert proper democracy. But that

picture is misleading. One can make this claim without having to argue that democracy and the

rule of law are somehow identical or always fit together seamlessly (or are co-original, in

Habermas’s famous formulation). A political system with regular elections, but clear limits on

media freedom, on election campaigning, and on autonomous activity by civil society is not on

the road to being an illiberal democracy; it is on the road to not being a democracy at all. Unless

At the time of putting the final touches to this text (December 2014) there is evidence of increasing resistance from

parts of civil society.

Viviane Reding, ‘The EU and the Rule of Law – What Next?‘, at:

http://europa.eu/rapid/press-release_SPEECH-

13-677_en.htm

[last accessed 26 January 2014].

See the speech by Viktor Orbán in July 2014, where he declared his intention to build an illiberal, work-based

state, while not abandoning democracy:

http://www.miniszterelnok.hu/beszed/a_munkaalapu_allam_korszaka_kovetkezik

[last accessed 26 December

2014]; an English translation can be found at

http://budapestbeacon.com/public-policy/full-text-of-viktor-orbans-

speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/

[last accessed 26 December 2014].

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one wants to say that having elections is

all

that’s required for calling a country a democracy,

one should emphasize that limits on media freedom, for instance, is not only a rule of law

problem or a matter of fundamental rights violations, but a threat to democracy itself. Leaving

the ‘d-word’ – democracy -- to proto-authoritarian governments is what one might call an

unforced semantic-normative error.

It would also be a mistake to think of these trends as just an unfortunate ‘Eastern affair’, a

matter for those who have yet fully to internalize the values of liberal democracy: just a bit more

catching-up to do, more or less harshly enforced by the enlightened bureaucrats from Brussels,

and then all will be fine.

Most worryingly, across Southern Europe written and unwritten social

contracts have been coming apart as a result of EU-enforced austerity policies. It remains

entirely possible that the discrediting of old political elites and deep social crises could produce

proposals for moving towards forms of authoritarianism that citizens – even those sincerely

committed to learning the lessons of the European twentieth century – might, in their

desperation, find attractive.

What, if anything, can the EU do in this situation? Without wanting to argue that the

democratic deficit of the Union itself has somehow magically disappeared, I wish to insist that

some of the most urgent democratic deficits in today’s Europe can be found

within

a number of

EU Member States – and that the EU cannot remain indifferent to them.

I shall return to the

question whether these deficits have not in some direct or indirect way been produced by the EU

itself; and I shall also ask whether any kind of enforcement of liberal democratic standards by

It would also be a mistake not to recognize that the developments discussed here are a different phenomenon than

corruption – even if corruption can sometimes driven attempts at constitutional capture, as arguably was the case in

Romania in July 2012.

Thanks to Dan Kelemen on this point.

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Brussels does not fatefully parallel the punitive or at least harshly disciplining approach which

the EU has increasingly pursued in the course of the Eurocrisis. But for now I wish to explore

what kind of case can be made for the Union having a role in defending democracy and the rule

of law – official ‘fundamental values’ of the EU, after all -- within its own Member States.

More particularly, I want first of all to ask whether the EU has the authority to act as a

guardian of liberal democracy -- with authority understood both in a broader normative and a

more narrow legal sense. Secondly, I will examine whether the Union has the capacity to fulfill

such a role, looking closely at a number of existing legal instruments, but also evaluating a range

of more directly political strategies. I shall argue that all existing approaches are problematic for

one reason or another and that a new institution – a ‘democracy watchdog’, tentatively called the

‘Copenhagen Commission’ -- could strengthen the Union’s capacity for liberal democracy

protection (without wishing to claim that such an institution should replace any of the existing

tools; rather, it should complement them). Thirdly, and in a more speculative vein, I shall ask

whether the EU has the required legitimacy – not in a normative, but in a plain empirical sense:

would there not be a tremendous nationalist backlash against Brussels, if the Union started

prescribing ‘correct’ understandings of democracy to its Member States? In this final section I

shall also return to the larger picture, answering the question whether EU democracy and rule of

law protection is not a matter of treating the symptoms of a malady which, ultimately, might

have been caused by the Union itself.

Does the EU have the Authority to protect Liberal Democracy inside Member States?

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The answer to this question is often short-circuited with the argument that an undemocratic

institution like the EU cannot possibly act as a credible defender of democracy. Put differently,

the EU is part of the problem for democracy in Europe today, not part of the solution. Various

responses are possible with regard to such a stance. The minimal one would be to say that

Member States, as

liberal democracies,

have freely delegated specific tasks and powers to the

EU -- and that those tasks include the defense of Member State democracy. Put differently, the

Union derives its legitimacy not from being a continent-wide democracy (at least at this point in

time); rather, it can claim legitimacy, because national parliaments have freely voted to bind

themselves and follow European rules – and, most important, they have freely established certain

sanctions for those not following said rules, with Article 7 TEU being the clearest example.

Article 7 TEU famously provides for the option to suspend the voting rights of a Member

State in the European Council, if that Member State is in persistent breach of fundamental

European values, as specified in Article 2 TEU. Having said that, one needs to emphasize what

precisely Article 7 does: in fact, it does not mandate anything like intervention

within

a Member

State. Rather, the core of Article 7 consists of a mechanism to

insulate

the rest of the Union

from the government of a particular Member State deemed to be in breach of fundamental

values; it enables a kind of

moral quarantine,

not an actual intervention (in the way that actual

intervention by the Commission in national budgetary matters has been envisioned as a result of

the Eurocrisis). The analogy with domestic militant democracy would be something like

banning a party before its actions can have an effect on a liberal democratic political system as a

For an elaboration of this point see Peter L. Lindseth,

Power and Legitimacy: Reconciling Europe and the Nation-

State

(New York: Oxford UP, 2010).

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whole, including its possible destruction. So while clearly political in its intent, Article 7 can

only bring about direct political change in the form of a ‘normative isolationism’ of the EU and

its Member States vis-à-vis one ‘rogue State’. It is, of course, a reasonable hope that a country

will get the message and mend its ways – in that sense, it is about intervention, after all. But, in

the end, this is just a hope.

It is worth emphasizing that Article 7’s moral quarantine has a robust normative

justification in democratic theory more broadly: the principle of all affected interests, sometimes

simply called ‘the all-affected principle’. It has often been argued that this principle cannot be

operationalized, if one has to look for all the effects political decisions and laws could have

beyond the borders of the country where specific laws apply

: any kind of causation – who is

affected by what? -- is simply too hard to specify. In the context of the EU, however, a more

modest claim can be made for a specifically

legal

interpretation of the all-affected principle

EU law applies across national borders, after having been created by individual Member States

acting together. Hence,

every

European citizen has an interest in not being faced with an illiberal

Member State in the EU, since that state will make decisions in the European Council and

therefore, at least in an indirect way, govern the lives of

all

citizens.

Even beyond this concern about what one might call the ‘cross-border output’ of

governments in breach of fundamental values, there is a concern about how actions within a state

For the general problems and dilemmas associated with the all-affected principle, see Robert E. Goodin,

‘Enfranchising All Affected Interests and its Alternatives’, in:

Philosophy and Public Affairs,

vol. 35 (2007), 40-68.

To be sure, effects of the EU and EU Member States do not stop at the borders of the EU – but the fact that the EU

is a clearly demarcated political community does mitigate the problems associated with the all-affected principle

somewhat. Put differently: one can operationalize the concept in the context under consideration here without

having to claim that the principle in general is the answer to the democratic boundary-problem.

Along the lines of Ludvig Beckman, ‘Democratic Inclusion, Law and Causes’, in:

Ratio Juris,

vol. 21 (2008),

348-64.

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can affect those who make use of their right of free movement, for instance (think of the

controversies surrounding the European Arrest Warrant). Combine this with the fact that

Member States cannot, so to speak, retaliate against other Member States directly (along the lines

of: ‘you nationalize our companies, we nationalize yours’), and one can see that a government

going ‘rogue’ puts into jeopardy the entire European edifice – given that the latter depends

crucially on mutual trust among Member States.

If national institutions of democracy and the

rule of law fail, mutual recognition will end.

Put more bluntly, then: as long as a country remains in the EU, it concerns all European

citizens; it is, so to speak, necessarily ‘our (normative) business’. This fact of interdependence

(and the fact that, as of now, the EU seems unable to internalize the externalities of Member

State behavior in important respects) has recently been brought home to Europeans by the

Eurocrisis, but it has mostly been interpreted in financial and economic terms. However, there is

a broader, freely chosen

political

interdependence, too. Countries have given up direct control of

certain areas of political, social and economic life – which is another way of saying: their

capacity to defend their citizens’ interests – because they trust Brussels to live up to the

commitment properly to exercise its delegated powers and agreed tasks.

And precisely because

Brussels can mistrust Member States, Member States can then trust each other.

Now, where does this leave any mandate for actual direct intervention in a Member

State? Let me offer two further arguments: first of all, one might claim that de facto an

overarching supranational constitutional order has emerged in the European Union. One might

I am grateful to Jan Komárek on this point. See also Iris Canor, ‘My Brother’s Keeper? Horizontal Solange: “An

ever deeper distrust among the people of Europe”?’, in:

Common Market Law Review,

vol. 50 (2013), 386-421.

I am grateful to Jan Komárek on this point.

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then further argue that, in the absence of any possibility actually to eject a Member State (the

current situation under the TEU), this order implies a right to safeguard this constitutional

settlement through interventions within Member States. Put differently: it does not matter

whether the EU is on the way to becoming something like a federal state or not. What matters is

that every political community (and the EU surely is a political community, one that defines

itself partly on the basis of common ‘fundamental values’) either has instruments for internal

intervention or something like a right to expel one of its parts. At the moment, the EU certainly

lacks the latter, as under the TEU states can only leave voluntarily.

Concretely, such a view of the EU would imply that the European Commission – as the

designated guardian of the treaties – could and should start infringement proceedings on the basis

of Article 2, when fundamental EU vales are being persistently violated. Politically, this seems

hardly feasible at the moment. Moreover, legally, one can have very serious doubts that Article

2 confers any material competence upon the Union, and one might argue further that, just as in

the Charter of Fundamental Rights, declared ‘values’ are simply meant to give some orientation

to the Union and Member States when they implement Union law or policies. In short: values

create no obligations.

But the point is that, on a more abstract plane, accepting the idea of the

EU as a distinct constitutional order -- which is predicated on the Member States being liberal

democracies -- does imply that the EU has the required

authority

to ensure that the Member

States remain liberal democracies; the problem is that this authority has not been translated

appropriately into law yet.

This point could be pushed even further – this is the second argument I wish to pursue –

if one holds that the EU is in fact already a democratically fully legitimate polity (or, put more

I thank Dan Kelemen for discussions on this point.

I thank Bruno De Witte on this point.

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modestly, that EU constitutional law could be reconstructed in a democratic vein). An argument

along these lines has been put forward most prominently by Jürgen Habermas recently, and I do

not want to rehearse here the details of the possible understanding of the Union as a creation of

both European citizens and peoples.

Here the point is that in a system deemed democratic as a

whole, the fact that decisions about militant democracy are made by an institution with no direct

electoral accountability is irrelevant – in fact it should not be otherwise, as elected institutions

would always be tempted to outlaw their electoral competitors.

To be sure, such an argument crucially depends on a theory of the EU as already

conforming to democratic standards being successful – in which case a European institution

analogous to a national constitutional court, while not being directly elected, could still draw on

the democratic legitimacy of the constitutional settlement as a whole (again, analogous to a

national constitutional court which is not ‘directly democratic’, but embedded in a larger and

legitimate democratic structure). I think that such an argument – at this point – probably has

least chance of success, given the widespread sense among European citizens that the EU as a

whole, whatever its advantages and disadvantages, is

not

a proper democracy.

Instead, then, let me add a further justification for democracy protection that can bolster

the EU’s authority (and possibly its empirical legitimacy), but that is not based so much on legal

or political theory. This is the thought of the EU as a kind of political insurance scheme. After

all, one of the explicit goals of European enlargement to the East was to consolidate liberal

democracies (or, in the case of Romania and Bulgaria, complete the transition to liberal

democracy in the first place). The region’s governments sought to lock themselves into Europe

precisely so as to prevent ‘backsliding’; it was like Ulysses letting himself be bound to the mast

Jürgen Habermas,

The Crisis of the European Union: A Response

(Cambridge: Polity, 2013), 1-70.

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in order to resist the siren songs of illiberal and antidemocratic voices in the future.

Hence

neither Hungarian Prime Minister Viktor Orbán nor Romania’s Victor Ponta, for instance, are

right to accuse Brussels of some form of ‘Euro-colonialism’. Orbán, comparing the EU to

former colonial powers who oppressed the Magyars, has complained that ‘they are trying to tell

us how to live’. In fact, ‘they’ are only reminding the Hungarians and Romanians how they

wanted to live when they joined the Union in 2004 and 2007 respectively (which is not to say

that it is never legitimate to criticize the EU because of an initial commitment to Membership – it

is just not reasonable to do so, when Brussels lives up to the very commitments a Member State

population once sought).

Does the EU have the Capacity to Protect Liberal Democracy in Member States?

I have claimed so far that a number of plausible arguments can be marshaled for EU authority in

protecting liberal democracy in Member States – as paternalistic as this might sound. The

question, though, is whether it currently has the capacity to do so. Authority is one thing; having

effective legal instruments and policies at one’s disposal is another. Is is here that the EU at

present comes up short. Let me substantiate this claim by briefly examining existing legal

approaches and more political strategies which have been proposed to rein in ‘rogue

governments’.

Jon Elster

Ulysses and the Sirens: Studies in rationality and irrationality

(Cambridge: Cambridge, 1979).

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First, Article 7. The idea for such an article had in fact been pushed by two paragons of

Western European democracy, Italy and Austria, in the run-up to enlargement, out of fear of

what those uncouth Eastern Europeans might do (the irony being that sanctions – though not

under Article 7 – were of course first applied against Austria in 2000).

But nowadays Article 7

is widely considered a ‘nuclear option’, even by the former President of the European

Commission, José Manuel Barroso. In other words: it is deemed unusable. Countries seem too

scared that sanctions could also be applied against them one day; sometimes regional solidarity

(especially in Central and Eastern Europe) might also play a role.

To be sure, these are all contestable empirical hypotheses. If, let’s say, the Greek

colonels came back tomorrow, would we repeat the mantra that Article 7 is a ‘nuclear option’

that can never be used? Still, from what we know now, there are reasons to be skeptical about

the efficacy of Article 7. After all, if in the cases of Hungary since 2010 and Romania in 2012,

when Ponta attempted a ‘constitutional coup’ (or constitutional capture, in my terminology), the

relevant actors could not even agree that there was a ‘risk of a breach of fundamental values’

(just a risk!), then when would they ever take the first step in the direction of Article 7?

What, then, about the Commission as the (supposedly) impartial guardian of the treaties?

Put simply, the problem is that the instruments the Commission has at its disposal are often not a

good match for the specific

political

challenges to liberal democracy. Infringement proceedings

can, of course, only be based on EU law -- which often does not cover the relevant areas of

democracy and the rule of law. This makes it much harder to address systemic problems, and

efforts to undermine checks and balances in particular.

Wojciech Sadurski, ‘Adding Bite to the Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider’, in:

Columbia Journal of European Law,

vol. 16 (2009), 385-426.

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The most striking example here is the Hungarian government’s 2011 de facto

decapitation of the judicial system by lowering the retirement age of judges from 70 to 62.

Under Article 285 TFEU the Commission eventually took Hungary to the European Court of

Justice for age discrimination – and won its case (meanwhile the Hungarian constitutional court

had also ruled against the government). But the judges were never comprehensively re-instated;

in other words, the new Fidesz government loyalists who were appointed have stayed in place.

Despite its nominal legal success, Europe appeared impotent in getting at the real issue, which

was political and had nothing to do with the discrimination of individuals.

As an alternative to going ‘nuclear’ or to infringement proceedings which can address the

real political challenges only very indirectly at best, some legal scholars have proposed that

national courts, drawing on the jurisprudence of the European Court of Justice, should protect the

fundamental

European

rights of Member State nationals who, after all, also hold the status of EU

citizens (something of which most Europeans are blissfully unaware, alas).

As long as Member

State institutions can perform the function of guaranteeing what these theorists have called ‘the

essence’ of fundamental rights of EU citizens, as set out in the Charter of Fundamental Rights of

the European Union, there is no role for either national courts or the European Court in

protecting the specific status of men and women as

Union citizens.

But if such institutions are

hijacked by an illiberal government, Union citizens can turn to national courts and, ultimately,

the European Court of Justice, to safeguard what the Court itself has called the ‘substance’ of

Union citizenship.

Armin von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, and Maja

Smrkolj, ‘Reverse Solange – Protecting the Essence of Fundamental Rights against EU Member States’, in:

Common Market Law Review,

vol. 49 (2012), 489-520.

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This is a clever thought: the aim of this ‘reverse

Solange’-logic

is not merely to bring in

the European Court, but to strengthen

national

liberal checks and balances in times of political

crisis. Yet one worry is that proto-authoritarian government will not be much impressed by

rulings from Luxembourg. This may or may not be the case: the real problem here, I believe, is

that some of the challenges to liberal democracy cannot be captured –let alone countered -- by

focusing just on fundamental rights violations (serious as these can be). While some of the

attempts to undermine checks and balances or to make genuine turnovers of power very difficult

will eventually result in incidents that can very well be described as fundamental rights

violations, even rulings against a particular government might not in the end result in a

restoration of genuine liberal democracy (as in the age discrimination case just described).

Abolishing Article 51 of the Charter of Fundamental Rights, as has sometimes been proposed,

would do away with the legal contortions required by the reverse

Solange

approach – but it

would not change the fact that the dangers to democracy are not all reducible to fundamental

rights violations.

One is tempted, then, to conclude that plainly political challenges should be met with

plainly political responses. In a sense, Article 7 does fit this requirement – it is a distinctly

political and comprehensive judgment of a national government by EU institutions and a

country’s peers in the EU. But given its seeming ineffectiveness, an alternative would be party

politics outside EU institutions. What does this mean? It has often been said that the Eurocrisis

has brought about the politicization of Europe -- and that it is now time for the Europeanization

of politics: citizens of many Member States – possibly all Member States -- have woken up to

the fact that what happens elsewhere in Europe has a direct impact on their lives; what we need,

then, are ways to internalize these externalities and reach common European policies that can be

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justified on the basis of election outcomes across Europe. Hence the call for a genuine European

party system, with Europe-wide leading candidates in European elections, or

Spitzenkandidaten

(the point is debatable – but I would say that the latter hope was at least partially fulfilled in the

European elections of 2014).

Alas, a less desirable effect of such a Europeanisation of politics might also have become

apparent: the conservative European People’s Party has at various points over the least years

firmly closed ranks around Orbán; on the other side of the political spectrum, Martin Schulz,

President of the European Parliament and one of Orbán’s most outspoken critics, defended his

fellow Social Democrat Ponta in Bucharest, at least initially. To be sure, partisanship might not

always trump all other considerations: Slovakia’s Robert Fico was temporarily ostracized by

European Social Democrats; and it seems that in the European Parliament at least some members

of the European People’s Party did not oppose the Tavares Report that called for continuous

monitoring of Hungary, enabling the adoption of the Report in an assembly in which the center-

right had a majority in July 2013. Yet, quite apart from the normative problems of entrusting

partisan actors with functions that prima facie require as much impartiality as possible, it seems

naïve to think that party politics could be relied on for some kind of guardianship of democracy.

At best, I would argue, it can complement other tools and strategies.

What can be Done?

Let us take a few steps back. What precisely was the problem again? The theoretical challenge,

I submit, is to locate an

agent of credible legal-political judgment

as to whether a country is

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systematically departing from what one might call the European Union’s

normative acquis –

task which is different both from assessing compliance with EU law and from ascertaining belief

in values (whatever the latter might mean concretely anyway: a Committee on UnEuropean

Beliefs and Activities in the European Parliament?). Technical-legal judgment of rule

compliance in and of itself is insufficient; and philosophical consensus about values is simply not

the issue (all governments continue officially to profess faith in democracy and the rule of law);

nor, as I argued in the previous section of this essay, is it all a matter of fundamental rights

violations, or proof of corruption. We are dealing with systemic, mostly constitutional

challenges which will require some understanding of context, some sense of proportion, and, not

least, some meaningful capacity for comparison of what is actually happening within different

political systems. A simple check-list, as so often used in the EU accession process (‘Do the

judiciary’s offices have computers? Check!’), will not do

; somebody needs to see and

understand the whole picture and also the particular

sequencing

of the creation -- and possibly

the dismantling -- of a liberal-democratic system.

As Dimitry Kochenov has shown, we cannot

simply take the Copenhagen criteria of the legal (or perhaps, more accurately, normative) shelf

and pretend, on the basis of the experience with accession processes, that ‘protection of liberal-

democratic values’ ultimately equals compliance with the

acquis.

After all, the criteria were

never sufficiently defined and they were often inconsistently applied.

In addition – and beyond questions of criteria and judgment -- there is a clear challenge

posed by the fact that authority in the EU remains highly diffuse and fragmented; there is not

See also Kalypso Nicolaïdis and Rachel Kleinfeld,

Rethinking Europe’s ‘Rule of Law’ and Enlargement Agenda:

The Fundamental Dilemma,

Sigma Paper 49/2012, and Alina Mungiu-Pippidi, ‘EU Accession is no “End of

History”’, in:

Journal of Democracy,

vol. 18 (2007), 8-16; here 15.

Many thanks to Renata Uitz on this point.

Dimitry Kochenov,

EU Enlargement and the Failure of Conditionality

(The Hague: Kluwer, 2008).

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much by way of a consciousness of common European political space (let alone a shared public

sphere where substantive arguments could be debated seriously across borders); it can be hard to

get (let alone direct) something like common political attention. More particularly, there is as of

now no clear legal or political actor clearly charged with, so to speak, pushing a red button first

in order to alarm others about a potential deterioration in democracy and the rule of law inside a

Member State.

What follows, then, from framing the problem this way? First of all, it seems to me that

Article 7 ought to be left in place -- but it also ought to be extended. There might arise situations

where democracy is not just slowly undermined or partially dismantled – but where the entire

edifice of democratic institutions is blown up or comes crashing down, so to speak (think of a

military coup). However, in such an extreme case, the Union ought actually to have the option

of expelling a Member State completely. As said before, under the TEU, states may decide to

leave voluntarily, but there is no legal mechanism for actually removing a country from the

Union. True, these all might seem remote scenarios. But especially those who insist on the

symbolic value of something like Article 7 – by which they might actually mean something not

just symbolic, namely its importance as a form of

deterrence

– ought to be sympathetic to

including the option of complete removal.

This still does not answer the question of

who

a consistent and credible agent of political

judgment could be. ‘The European Commission’ might still seem the most plausible answer –

especially in light of the fact that the Commission is acquiring new powers in supervising and

potentially changing the budgets of Eurozone Member States. But many proposals to increase

the legitimacy of the Commission (seen as a necessary complement to such newly acquired

authority) contain the suggestion essentially to

politicize

the Commission: ideas to elect the

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President directly or to make the Commissioners into a kind of politically uniform cabinet

government all would render the body more partisan –

on purpose.

And such partisanship makes

the Commission much less credible as an agent of impartial legal-political judgment.

My suggestion, then, is to create an entirely new institution which could credibly act as a

guardian of Europe’s

acquis normatif.

I suggest a ‘Copenhagen Commission’ (as a reminder of

the ‘Copenhagen criteria’, flawed as they might have been), analogous to the Venice

Commission – a body, in other words, with a mandate to offer comprehensive and consistent

political judgments.

Ideally, the the body should be composed of legal experts and statesmen

and stateswomen with a proven track record of political judgment – and the hope is that it would

become sufficiently visible so as effectively to raise an alarm across whatever there is by way of

a common European political space.

However, the real question is of course:

and then what?

What if a country seems

systematically to undermine the rule of law and restrict democracy? My suggestion is that the

Copenhagen Commission ought to be empowered to investigate the situation and then trigger a

mechanism that sends a clear signal (not just words), but far short of the measures envisaged in

Article 7. Following the advice of the Copenhagen Commission, the European Commission

I am indebted to Rui Tavares for discussions on this point. At first sight, it might seem most plausible that such a

body should be legally constituted as an agency. The difficulty here is one that many political science studies of EU

agencies have confirmed: agencies tend to be tightly controlled or even outright captured by Member States. This

would be even more of a danger if a new body were to be set up outside the existing treaties, by intergovernmental

agreement – but, in theory, this could be an option, too. A mere advisory body or high-level working group within

existing EU structures would also be a possibility, as long as the determinations of that body were actually to be

binding for the EU Commission (legally, or as a more informal norm).

As to the question of how members would be selected: my tentative suggestion would be nomination by the

European Commission, with the European Parliament having to approve nominees with a simple majority. But one

might also want to consider the possibility of seconding judges from national constitutional courts.

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should be

required

to cut funds for state capital expenditure, for instance, or impose significant

fines. Especially the former might prove to be effective, if the EU budget as such were to be

significantly increased in future years (a measure included in many proposals to tackle the

Eurocrisis). Moreover, cuts of EU-specific funds would also reinforce the message that a

country undermining the rule of law is doing something that concerns the Union as a whole --

and that the response is a genuinely European one.

At the same time, all the existing tools would remain at the disposal of the relevant

actors: Article 7 could still be invoked; the Commission could take a Member State to the

European Court of Justice; the Court could try to protect the substance of EU citizenship; and

politicians could have a serious word with one of their peers in another Member State, if they

feel that the State in question is leaving the broad European road of liberal democracy.

The Question of Criteria

It is one thing to identify a plausible agent of judgment; it is another to specify criteria on the

basis of which judgments can be made. Especially against the background of the experience

with the Copenhagen criteria and of the experience of the conflicts between Hungary and the

European Commission in 2010-2014 or so, one may well wonder whether Europeans really agree

on how they want to live, politically speaking? The concern here is that there are in fact no

shared European values – let alone norms and standards that could be operationalized to judge

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the shape of a particular democracy and a particular legal system. Yes, there is a single

market,

but no single model of liberal democracy -- and therefore, such a line of criticism would

continue, all efforts to protect democracy and the rule of law in Europe are somewhat arbitrary.

More particularly, even if standards could be specified a little more precisely, there is no

methodology

that could guide judgments about individual cases and help conclusively answer the

question whether an EU Member State is violating these standards.

Let me offer two responses to this concern, which could be rephrased as: who ought to

face a burden of justification vis-à-vis the rest of the EU, when they embark on significant

political changes (and not just commit individual fundamental rights violations, which could be

very serious, of course, but which generally can be dealt with by the Luxembourg and the

Strasbourg courts)? First, from an essentially

historical

perspective, I want to say the following:

I believe it can be shown that the whole direction of political development in post-war Europe

has been towards delegating power to unelected institutions, such as constitutional courts.

And

that development was based on specific lessons that Europeans -- rightly or wrongly -- drew

from the political catastrophes of midcentury: the architects of the post-war West European order

viewed the ideal of popular sovereignty with a great deal of distrust; after all, how could one

trust peoples who had brought fascists to power or extensively collaborated with fascist

occupiers? Less obviously, elites also had deep reservations about the idea of

parliamentary

sovereignty.

After all, had not representative assemblies handed all power over to Hitler and to

Marshal Pétain, the leader of Vichy France, in 1933 and 1940 respectively? Hence parliaments

in post-war Europe were systematically weakened, checks and balances were strengthened, and

I have made this argument at greater length in

Contesting Democracy: Political Ideas in Twentieth-Century

Europe

(London: Yale UP, 2011).

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non-elected institutions (constitutional courts are the prime example) were tasked not just with

defending individual rights, but with defending democracy as a whole.

It is important to

emphasize that constraining democracy in this way served to prevent democratic self-

destruction; this is a very different ambition from a neoliberal one to isolate the economy from

discretionary policy-making. In other words: constraining majorities for the sake of democracy

was, historically

and

conceptually speaking, compatible with increasing democratic control – or

affirming a primacy of politics – as far as the economy was concerned.

Distrust of unrestrained popular sovereignty, and even of unconstrained parliamentary

sovereignty are, then, so to speak, in the very DNA of post-war European politics. And it is fair

to say that these underlying principles of ‘constrained democracy’ were almost always adopted

when countries were able to shake off dictatorships and turned to liberal democracy in the last

third of the twentieth century: first on the Iberian peninsula in the 1970s, and then in Central and

Eastern Europe after 1989.

European integration, it needs to be emphasized, was part and parcel of this

comprehensive attempt to constrain the popular will: it added supranational constraints to

national ones

(which is not to say that this entire process was master-minded by anyone, or

came about seamlessly: of course, the outcomes were contingent and had to do with who

prevailed at which point in particular political struggles). This logic was more evident initially

with institutions like the Council of Europe and the European Convention on Human Rights, but

One might add that dignity – and not freedom – is the master value of post-war constitutions.

One might ask in what way, then, ‘constrained democracy’ differs from ‘guided’ or ‘defective’ democracy. The

answer is that in the former genuine changes in who holds power is possible and that all constraints are ultimately

justified with regard to strengthening democracy. In the latter no real change is allowed.

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the desire to ‘lock in’ liberal-democratic commitments became more pronounced in a specific

EU (or then: EEC) context with the transitions to democracy in Southern Europe in the 1970s.

To be sure, this is a very rough sketch, and any observer will immediately be able to

think of exceptions. Very broadly speaking, those who never experienced totalitarian or fascist

regimes had much less reason to distrust themselves. Consider Britain or Norway (Quisling

notwithstanding) or even Denmark (collaboration notwithstanding), where tendencies towards

‘parliamentary absolutism’, if anything, became stronger after the Second World War (one might

add that it cannot entirely be an accident that all the countries mentioned here are also fairly

Euroskeptic, or, in the case of Norway, decided to stay outside the EU altogether).

It would be absurd, of course, to conclude that any country without a constitutional court,

for instance, must somehow be suspect of not truly respecting fundamental European values.

Rather, the historical, highly schematic account developed above is to serve as a point of

reference and orientation informing judgment; it is not yet another fail-safe check-list of

universal standards or a blue-print which could easily be super-imposed on messy empirical

realities. What I would argue for is a reasonable presumption that radical departures from the

particular post-war (and post-totalitarian) model of politics place a special burden of justification

on Member State governments embarking on such a departure,

when they had previously very

clearly committed to it.

This thought applies to Hungary, for instance, where the constitutional

court and, in general, the non-elected institutions to which Hungary committed after 1989

in the

name of solidifying democracy

are being systematically weakened. But it does not apply to a

country like Britain, where de facto constraints on – in theory unlimited -- parliamentary

sovereignty have had a more informal character, at least up until recently, and where the

I am indebted to Per Øhrgaard for discussions on this point.

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observance of such constraints can generally be expected. Thus, not all countries in the EU will

necessarily converge on constrained democracy, and, in any case, constrained democracy does

not offer a set of uncontested normative, let alone legal, criteria. But in judging individual cases,

overall context, and, in particular, an account of

historical trajectories

and

sequencing

are

crucial.

The whole may well be something quite different than the sum of the parts, which is –

to stress the point again – the main reason why check-lists in judging constitutions or political

systems in their totality will not do. The Venice Commission made this argument very plain in

its opinion on the proposed fourth amendment to the new Hungarian ‘Basic Law’ in 2013:

In constitutional law, perhaps even more than in other legal fields, it is necessary

to take into account not only the face value of a provision, but also to examine its

constitutional context. The mere fact that a provision also exists in the

constitution of another country does not mean that it also ‘fits’ into any other

constitution. Each constitution is the result of balancing various powers. If a

power is given to one state body, other powers need to be able to effectively

control the exercise of this power. The more power an institution has, the tighter

control mechanisms need to be constructed. Comparative constitutional law

cannot be reduced to identifying the existence of a provision the constitution of

another country to justify its democratic credentials in the constitution of one’s

own country. Each constitution is a complex array of checks and balances and

I am indebted to Renata Uitz for making me understand the importance of sequencing.

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each provision needs to be examined in view of its merits for the balance of

powers as a whole.

Let me mention one other way in which a Member State government might reasonably be

expected to face a special burden of justification. Of course all governments try to justify what

they do continuously anyhow – whether anyone calls them from Brussels to do so or not. To

govern is not just to talk; but all governing is accompanied by talk, that is to say: public

argument. If the claims offered by a Member State government are notably inconsistent with

what a government is actually doing, then more pressure should be applied to make that

government explain itself.

To give one example: the current Hungarian government has emphasized that the new

constitution that came into effect at the beginning of 2012 is a thoroughly democratic one – in

light, or so it is claimed, of an entirely legitimate European ideal of parliamentary sovereignty.

Now, whatever one thinks about the ideal of parliamentary sovereignty, the claim that the

constitution conforms to it are hardly credible, when, as the Venice Commission and many

internal and external critics have pointed out, the new Hungarian ‘Fundamental Law’

constitutionalizes many policy areas which in other countries would be subject to the vagaries of

day-to-day, or at least election-to-election, political conflict. Again, whatever one thinks of such

an ‘over-constitutionalization’, it is hard to see how to square it with the ideal that is being

propounded by the defenders of the new Hungarian Basic Law. This kind of inconsistency calls

for more justification and, quite possibly, a process of correction.

http://www.venice.coe.int/Newsletter/NEWSLETTER_2013_03/1_HUN_EN.html

[last accessed 26 January

2014].

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Now, just on the point of ‘overconstitutionalization’, one might object that

‘overconstitutionalization’ precisely characterizes the EU itself – an argument made by Dieter

Grimm and many other observers.

I actually agree with large parts of this critique, but would

insist that it is not fatal to the idea of EU democracy protection as proposed here. The

contemporary developments towards overconstitutionalization are not a continuation of the trend

towards constrained democracy analyzed earlier. The latter was about limiting direct

expressions of the popular will for the sake of strengthening democracy; what we have seen in

the wake of the Eurocrisis does not have the same normative justification. Furthermore, some of

the overconstitutionalization one can witness in Hungary is not just about economic policy, but

about skewing or curtailing the political process itself in ways that cannot be squared with

arguments one could reasonably make for constrained, or generally strongly anti-majoritarian,

democracy. And, lastly, overconstitutionalization is not the only charge against the government

in Budapest: it is the fact of overconstitutionalization combined with the weakening of what was

previously the main check on a Hungarian executive – the constitutional court -- which poses

such an acute threat to democracy. Again, the lesson should be that no focus on a single

institutional variable (such as overconstitutionalization) will do: the entire picture needs to be

seen.

Finally, let me address the question of criteria for

when

to intervene. Many observers

have worried that calls for EU intervention might become the stuff of symbolic politics. In

particular, there has been a concern that only

small

(and

newer)

Member States will ever be

picked on (a concern reinforced, no doubt, by the invocation of ‘Copenhagen’). This is a

common interpretation of what happened when Jörg Haider’s far-right party came to power in

Dieter Grimm, ‘Die Rolle der nationalen Verfassungsgerichte in der europäischen Demokratie‘, in: Claudio

Franzius et al. (eds.),

Grenzen der europäischen Integration: Herausforderungen für Recht und Politik

(Baden-

Baden: Nomos, 2014), 27-47.

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Austria in 2000. Leaders like Jacques Chirac and Gerhard Schröder – unable (or perhaps just

unwilling) to do anything about Jean-Marie Le Pen’s National Front or the neo-Nazi NPD

respectively at home – could moralize about small countries at no cost internationally, or so it

seemed, while also scoring some points against their domestic opponents. Meanwhile, nobody

ever dared to touch Berlusconi’s Italy. Powerful Member States – and especially founding

member States of the EU – appeared to be above European standards.

However, it would be a mistake to conclude from a comparison between the cases of

Italy, Austria, Hungary, and Romania that only weaker and newer Member States get picked on.

For there are important differences here; teasing them out can help to further develop criteria as

to what would make EU interventions legitimate. First, the problem with the ‘Haider Affair’ was

partly that sanctions were imposed

before

the new government had taken any significant actions.

To be sure, one can try to justify sanctions as essentially warning shots. But in the case of

Austria they appeared more like expressions of displeasure with Haider’s past pronouncements

(on Hitler’s employment policies, for instance), or at the most Haider’s election manifesto, rather

than as principled objections to what the new government actually sought to do. This is a

marked contrast with the cases of Hungary and Romania: in both countries governments had a

clear track record of government action; what they were doing also had a

systematic

character

and could not be excused as a matter of one-off mistakes.

Second, there is a significant difference between Berlusconi’s Italy and the two states

further east. True, the

Cavaliere

also tried to weaken checks and balances.

But the opposition,

To be sure, Berlusconi’s style of governing – to the extent that he actually governed – was highly personalistic

and plebiscitarian; it involved less a comprehensive restructuring of the state than the creation of a court of devoted

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despite its generally sorry state, remained just about strong enough to resist major constitutional

re-crafting; throughout his time in office, Berlusconi was constrained by the fact that he headed

coalition (i.e., not single-party) governments; the media was not completely dominated by

Berlusconi’s own empire, contrary to what outside commentators often claimed; crucially, the

judiciary kept putting up a fight; and various Italian presidents – Giorgio Napolitano in

particular, for all his faults

-- would block Berlusconi’s plans (for instance, to appoint allies,

even his personal lawyer, to particular ministries, or to hold new elections when they suited

him).

He also lost popular referenda, especially the 2006 constitutional one, which would have

introduced far-reaching changes (and strengthened the office of the prime minister in particular).

In short: there were reasonable grounds for thinking that the situation would over time self-

correct through internal political struggle. Here outside intervention might easily seem

illegitimate: it could look like Brussels picking a winner in a domestic fight for power; it would

also cut short what one might call a ‘democratic learning process’

through political struggle,

thereby preventing the proper development of a democratic political culture.

followers. See Maurizio Viroli,

The Liberty of Servants: Berlusconi’s Italy,

trans. Anthony Shugaar (Princeton:

Princeton UP, 2011).

I do not wish to be understood as simply lauding Napolitano’s role as guardian of the constitution – many of his

actions are highly debatable.

I am grateful to Giovanni Capoccia and Gianfranco Pasquino for information and views on this matter. See also

‘The Future of Western Liberal Order: The Case of Italy’,

Transatlantic Academy Paper Series,

January 2013,

available at

http://www.transatlanticacademy.org/sites/default/files/publications/PasquinoEtAl_Italy_Jan13_web_Final.pdf

[last

accessed 11 February 2013].

See also Peter Niesen, ‘Anti-Extremism, Negative Republicanism, Civic Society: Three Paradigms for Banning

Political Parties’, in: Shlomo Avineri and Zeev Sternhell (eds.),

Europe’s Century of Discontent: The Legacies of

Fascism, Nazism and Communism,

(Jerusalem: Magnes Press, 2003), 249-68.

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Our discussion, then, yields at least three general criteria that need to be met for an actual

negative opinion by something like the Copenhagen Commission: first, a Member State

government has to have a

track record

of violating liberal-democratic political principles. There

is no case for pre-emptive action. Second, that track record should also show a government’s

general conduct as well as specific policies to have a

systematic

nature: one-off violations might

be deeply problematic, but they can generally be dealt with by courts, and they should be seen in

context (above all, but not only, constitutional context). To be sure, mistakes cannot simply be

excused by context, but they can be explained, and such explanations might also make it

plausible that a particular government, despite mistakes, is fundamentally well-intentioned.

Third, intervention is about enforcing commitments which were entered into voluntarily in the

past. If there is reasonable hope that such commitments can, in the end, mostly be enforced

internally, intervention should wait.

Self-correction

remains the best outcome, but whether it

will actually happen, is, again, a matter of political judgment.

Objections

There are legitimate worries about the kind of new body I am proposing here. As Jan Komárek

has put it, when Europe cannot solve a problem, it invents a new institution instead.

And

indeed: if the political will is lacking that would be needed for an Article 7 procedure, or, say, for

a revised and more robust mandate for the European Fundamental Rights Agency – what hope is

Jan Komárek, ‘The EU is More than a Constraint on Populist Democracy’, at:

www.verfassungsblog.de/en/the-

eu-is-more-than-a-constraint-on-populist-democracy/

[last accessed 26 January 2014].

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there that a Copenhagen Commission would fulfill the task of democracy and rule of law

protection?

First of all, some support has in fact been building for a new ‘mechanism’ that would

send an early warning signal – witness the Tavares Report, which explicitly calls for a

Copenhagen Commission-style institution, the March 2013 letter to the then President of the

European Commission signed by four EU foreign ministers which stressed the need for

mechanisms short of Article 7, and the European Commission’s own attempt to devise an early-

warning mechanism, the results of which were first communicated in March 2014.

Second,

In March 2014 the European Commission issued a Communication about a new framework for protecting the rule

of law within EU Member States. The Commission explicitly makes the point that there can be systematic threats to

the rule of law within Member States and that Article 2 TEU gives the Commission the mandate to intervene. The

Commission also stresses the basic legal and normative argument that is crucial to counter the claim that such an

intervention somehow constitutes an illegitimate meddling in internal affairs: the EU relies on the mutual trust of the

Member States in each others’ legal systems; if a kind of ‘horizontal Solange’ were to replace this trust, the EU as

we know it would be at an end. Hence the Commission is right to say that ‘the confidence of all EU citizens and

national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU’.

As for the concrete content of the new framework, the Commission envisages a ‘structured exchange’ with

a Member State that appears to be undermining the rule of law. This would start with an assessment of the situation

in a particular country, which could result in a ‘rule of law opinion’ expressing the concerns of the Commission vis-

à-vis the national government in question. If the government fails to respond appropriately, Brussels will issue a

‘rule of law recommendation’; if the state still fails to comply, ‘the Commission will assess the possibility of

activating one of the mechanisms set out in Article 7 TEU’.

Three aspects are notable here: first, the Commission gives itself leeway to draw on whatever sources it

chooses for its assessment: the Venice Commission, the Fundamental Rights Agency, but also other, as yet unnamed

sources. This gives it a fair amount of power to come up with a comprehensive judgment – as opposed to

mechanically working through checklists. Second, the Commission emphasizes the ‘duty of sincere cooperation’ as

set out in Article 4(3) TEU. This clearly reflects lessons learnt from the Orbán government’s rush to go ahead with

the fourth amendment to the new Hungarian Fundamental Law, when the Commission had asked it to take a pause

and talk. A government acting in bad faith or defiance is presumably now more likely to be faced with a

Commission ‘rule of law recommendation’ and, ultimately, an attempt to get the European Council to vote for

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irrespective of what is politically possible, it has to be remembered that Article 7 is not

particularly good for issuing early warning signals. Building support for Article 7 is likely to

take too long, and the FRA, at this point, simply does not have the appropriate mandate and is

unlikely to acquire it. A properly designed Copenhagen Commission would have the right

mandate and, above all, it would concentrate minds in a highly fragmented political space and in

a weak, some would say non-existent, public sphere.

One might still object that the EU would just be duplicating existing institutions. Have

the Venice Commission and the European Court of Human Rights not done relatively well in

addressing the situation created by the Hungarian government, for instance? My answer is that,

first of all, the EU has reached a depth and density of integration that finds no equivalent in the

Council of Europe. EU law is also much more specific in areas such as data protection – and,

arguably, the Council and the Venice Commission could not really comment on them. Second, it

deserves mention that the Council of Europe is an even more fragmented political space (with no

Article 7. Third, the Commission seems to hope for the effects of a kind of naming and shaming. The fact of an

assessment and a rule of law opinion will be publicly known, but the content won’t be; in the next step of escalation,

the recommendation as such would be made public. Clearly, the Commission itself has drawn the conclusion that its

very public conflicts with the Hungarian and Romanian governments helped to prevent the worst.

In the end, however, no new sanctions are envisaged, and the hurdles for Article 7 ultimately remain as

high as before. To be sure, the Commission might be making a bet that creating a public record of rule of law

abuses – certified by everyone from the Venice Commission to prestigious judicial networks in the EU – and thus

pushing the European Council on the basis of a ‘reasoned proposal’ (as the Treaty puts it), would actually shame the

European Council into getting serious about Article 7. Still, because everything will come down to Article 7 in the

end, it would be a mistake to think that the democracy and rule of law challenge could be solved by this new

framework.

To be sure, there is a potential problem here: how would the Commission gain a high public profile if it is only to

raise the alarm in truly serious cases? The best answer might be to inaugurate the Commission with as much pomp

and circumstance as possible.

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shared public sphere at all). Third, the Council also contains members who probably would have

a hard time meeting even the fuzziest or most consciously relaxed Copenhagen criteria. The

problem of double standards – charges of hypocrisy abound in virtually any discussion of

democracy-protecting interventions – would be exacerbated further.

Finally, the European Court of Human Rights can only properly address individual rights

violations, whereas the Copenhagen Commission should take a more holistic view; the Venice

Commission cannot be proactive, whereas the Copenhagen Commission could routinely monitor

the situation in Member States and raise an alarm without having to be prompted. It would thus

also build up an institutional memory that would make it easier to prevent double standards both

in assessing an individual country over time and in comparing different countries.

In sum:

without wanting in any way to fault the Venice Commission, I insist that, ultimately, there is no

good principled argument for the Union permanently to ‘contract out’ core normative concerns.

To be sure, there might be a

pragmatic

worry among some Member States that the EU is

likely to deepen its own legitimacy crisis if it were to pass judgment not just on budget numbers

(and to sanction financial offenders), but also on liberal democracy (and to sanction political

offenders). To deflect the blame, some Member State governments might think, the Union

should delegate the unpopular work to the Council of Europe – just as some of the blame for

austerity could be laid at the doors of the IMF, once the troika had been formed. But if one is

serious about sanctions – and one ought to be – then it would still in the end have to be the EU

who does the sanctioning. So one might as well accept the responsibility for forming judgments

(and not just for implementing them), since, after all, there are also enough EU citizens who

precisely placed their trust in the Union as a strong guardian of liberal democratic order (as

Thanks to Kim Lane Scheppele for this point.

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opposed to the Council of Europe which can hardly be said to have any ‘normative power’ at

all).

That leaves two important normative concerns: first, the idea that what is distinctive (and

valuable) about the EU is, in the end,

pluralism:

tolerance instead of homogenization; mutual

opening and respectful peer review instead of a centralized institution defining and defending

democracy and the rule of law, and thereby destroying the precious heterarchy of norms and

institutions that has emerged in the Union.

We ought to have a longer argument about

pluralism, which, after all, is not a first-order value such as liberty and equality, but which, to

gain any normative traction, has to be justified with reference to another value or broader

political principles: cultural diversity perhaps, or democratic autonomy, or the beneficial moral-

psychological effects of living with differences.

For my purposes here it suffices to say that the

EU has always been about

pluralism within common political parameters.

After all, the

accession process itself has not had as its goal something like maximizing difference, but in fact

has officially been meant to ensure sameness in certain regards (democracy, rule of law, state

capacity, etc.). And as long as it has been taking in new members, the EU has been in the

business of making definitive judgments on whether a country really is a liberal democracy or

not (even if the Copenhagen criteria might have given a false sense of certainty about these

judgments), and, more broadly, judgments on where the limits of pluralism are to be located. In

that sense, mandating a distinct and highly visible body with keeping an eye on whether

Daniel Halberstam, ‘Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United

States’, in: Jeffrey L. Dunoff and Joel P. Trachtman (eds.),

Ruling the World? Constitutionalism, International Law,

and Global Governance

(New York: Cambridge UP, 2009), 326-55.

See also Turkuler Isiksel, ‘Global legal pluralism as fact and norm’, in:

Global Constitutionalism,

2 (2013), 160-

195.

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everyone is remaining a liberal democracy does not constitute a fundamental break with EU

principles and practices at all.

The second worry is this: if supposedly technocratic ‘new constitutionalism’ is partly to

blame for ‘backsliding’ (as Paul Blokker has forcefully argued), then is some form of

‘democracy oversight’ from on high not just adding to the problem?

If constitutionalism never

becomes part of lived political experience in newer Member States in particular, but is instead

created and enforced by distant bodies of experts, then will more paternalistic ‘guardianship’ by

Brussels not reinforce the lesson that constitutionalism is something that a particular ‘we’ does

not do autonomously, is incapable of internalizing, etc.? My – perhaps too flippant – answer is

this: nothing prevents one from starting a European Citizens’ Initiative to express concern about

democracy and the rule of law in a Member State (and also search for allies within the national

‘we’ in question); nothing prevents a transnational European civil society from what

governments will always condemn as ‘meddling in internal affairs’. The alleged ‘technocracy’

of the Copenhagen Commission and ‘grassroots initiatives’ are not mutually exclusive; it makes

little sense here to play popular democracy off against ‘liberal technocracy’.

On this note, I also wish to stress that democracy protection in the EU is not analogous

with the ‘authoritarian liberalism’ which some critics have seen emerge as a result of the

Eurocrisis.

To be sure, it can look like both are punitive approaches which result in

disciplining national democracies and which effectively limit the diversity of expressions of the

Paul Blokker,

New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary,

Michael Wilkinson, ‘The Specter of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the

Poland, Romania, and Slovakia

(New York: Routledge, 2013)

European Union’, in: German

Law Journal,

vol. 14 (2013), 527-560. But see also Damjan Kukovec, ‘Law and the

Periphery’, in this issue of the

ELJ.

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popular will across Europe; both can look like a project to make the economy and the rule of law

respectively safe from popular democracy; both seem to rely on an ideal image of a thoroughly

depoliticized Europe, or a politics-proof (or post-political)

Rechtsstaat

policed by economic

experts and judges. Put less polemically: both are ultimately about dealing with externalities,

whether normative or economic, through new assurance and enforcement mechanisms across

national borders.

Yet such a simple equation is ultimately implausible, for two reasons: first, uniform

austerity policies and surveillance of national budgets by the European Commission -- as well as

economic prescriptions that are not even logical (not all countries can become ‘more

competitive’ at the same time) – these are all about making Member States converge on one

highly specific economic model, down to exact numbers in terms of national debt (which have

no real justification in the dismal science – even mainstream economists simply do not agree on

such numbers). This kind of specificity is absent from proposals for democracy protection.

Having such specificity would amount to an insistence, for instance, that every country must

have a particular kind of constitutional court. But nobody is proposing such constitutional

micro-management or an undue narrowing of ‘pluralist constitutionalism’

; democracy and rule

of law protection is about guarding boundaries to pluralism, not about reducing, let alone

abolishing pluralism.

Marco Dani, ‘The “Partisan Constitution” and the corrosion of European constitutional culture’,

LEQS Paper,

no.

A larger argument would have to address the question whether ‘Political Union’ as currently envisaged by at least

68/2013.

some European elites would amount to an illegitimate reduction in constitutional pluralism. I am sympathetic to this

argument, but it would not be sufficient to claim that democracy protection is automatically hypocritical. See also

Alexander Somek, ‘What is Political Union?’, in:

German Law Journal,

vol. 14 (2013),

available at

http://www.germanlawjournal.com/index.php?pageID=11&artID=1522

[last accessed 27 January 204].

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Second, ‘austerianism’ and neoliberal prescriptions for a Europe under the surveillance of

a European Commission enforcing budget discipline have clearly been adopted under duress.

But it is a stretch to say that Member States adopted the values mentioned in Article 2 TEU

under pressure from the most powerful actors inside the EU (the initial political decision to join

the Union is a different matter than pre-accession strategies and the conditionality imposed by

the Commission as a result of that initial decision). Along the same lines, I would also reject the

argument that challenges to liberal democracy have been directly caused by the EU itself –

which is not to say that the EU is blameless or that the single market has not de facto led to clear

injustices in the newer Member States in particular. At least from a purely economic point of

view, the impact of the EU has been positive – even if the abrupt end of the post-accession boom

in 2007 undoubtedly exacerbated underlying political weaknesses in the newest Member

States.

Would Democracy and Rule of Law Protection by the EU seen as Legitimate?

The very last section of this essay is necessarily more speculative. We have some record of the

conflicts between the European Commission and Hungary and Romania respectively. But, in a

more systematic empirical way, we simply do not know whether financial sanctions, for instance,

Wade Jacoby, ‘The EU Factor in Fat Times and in Lean: Did the EU Amplify the Boom and Soften the Bust?’, in:

Journal of Common Market Studies,

vol. 52 (2014), 52-70.

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would create a great nationalist backlash, as is often asserted, turning entire counties from being

Euro-enthusiastic to Euro-scepticism. I would just offer two thoughts:

First, for Europe to try to ‘hold back’ or try to be ‘neutral’ in highly charged domestic

conflicts is not costless and, in the end, actually also not really ‘neutral’. A reluctance to try to

protect liberal democracy in a Member State will betray the hopes of all those citizens of the

country in question who did put their trust in the Union as some sort of guarantor against new

forms of authoritarianism. Moreover, any government eager to dismantle checks and balances,

for instance, will on some level know that it is heading for a conflict with European institutions –

hence it has every incentive to whip up Eurosceptic sentiments, whether the EU actually does

very much or not. In other words, pre-emptive nationalism is likely to appear -- quite

irrespective of any particular approach the Union adopts.

Second, there is little evidence that any of these nationalist campaigns have worked, or,

for that matter, that strong exercises of EU leverage in general have produced any severe

backlashes. Orbán’s self-declared ‘war of independence’, or so polls suggest, has not proven

popular

; and even very heavy-handed forms of conditionality by the EU in the past (think of

Slovakia in the late 1990s) have not obviously rendered the EU illegitimate in the eyes of the

populations of a Member State subject to conditionality.

To be sure, serious sanctions would always go against the very EU ethos of consensus

finding, mutual accommodation, and even mutual normative self-relativization which has

worked so well so often and which, to put it simply, is predicated on a shared willingness not to

‘Hungarian public opinion on Viktor Orbán’s “war of independence”’, in:

Hungarian Spectrum,

http://hungarianspectrum.wordpress.com/2013/07/11/hungarian-public-opinion-on-viktor-orbans-war-of-

independence

[last accessed 26 January 2014]

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push things to the limit.

They would also, prima facie, go against notions of constitutional

tolerance and ideals of European demoi-cracy which valorize particular national understandings

of political values. But the actual choice might not be between upholding these ideals on the one

hand and serious sanctions on the other. The choice is more likely to be between accepting the

(inevitable) risks of sanctions and a cowardly, creeping cynicism that would slowly erode the

Union as a whole from within.

I am indebted to Alexander Somek on this point.