Conclusion
This chapter concerns strategic techniques to confront democratic backsliding in the EU Member States. The increasing rise of populism in Hungary and Poland testifies that a politically structured EU militant democracy response is not necessarily thriving.
On the contrary, as the Union significantly delayed activation of the sanction mechanism envisaged in the Treaties, the ruling populists in Hungary and Poland have progressed in transforming their political system into illiberal democracy. Moreover, instead of returning to the core democratic values, they started accusing the Union of being a threat to domestic democracy and Europe itself.13 When the EU finally went militant and activated the sanction mechanism against Poland and Hungary, it became evident that difficulties in using the Article 7 disciplinary arm made EU democracy more vulnerable than it had been previously thought. The problem here to stay is its efficacy - obtaining the political will for Article 7 implementation - as imposing sanctions requires a rather dialogical approach and can be vetoed by any Member State.As some comparative examples show, judges might compensate for political failures in defending democracy. For example, the US lower courts that blocked US President Donald Trump’s travel ban,[287] the UK Supreme Court, which made UK politicians go back to parliament to implement the Brexit vote,[288] 0 and the Israeli Supreme Court, which rescued the legislature’s review over an annual budget[289] managed to resist the populism and defend the separation of powers on which constitutional democracies rest.[290]
As shown in this chapter, the CJEU’s militant approach to court-packing in Poland sheds light on how judicial avenues, like the infringement proceedings and a preliminary ruling, if rightly and timely articulated, and accompanied by interim measures and the EU integration saving doctrines, may help defend EU democracy. But the court-packing cases are just a good start. A proposed militant approach, i.e., novel use of the existing judicial toolkit, may prove effective in confronting other democratic backsliding modalities, including ‘unconstitutional constitutional amendments’ or weakening of the fundamental rights. This is not to say that the CJEU alone can save the EU democracy, but to suggest that judicial intervention is also consistent with its militant defence. However, the bottom line here is the problem of mindset: without the democrats, there is no democracy.