EU democracy is militant

3.1 A brief note on the militant democracy

In its original conception, militant democracy is a concept of legally restrained democracy aimed at preventing the exploitation of democratic opportunities to

in EU Administrative Law: Towards an Integrated Administration, Cheltenham, Edward Elgar, 2009, pp.257-287.

42 Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963] ECR 1.

43 Ibid., p.12.

44 See Case 29/69, Stauder v. Ulm, [1969] ECR 419; Case 11/70, Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle fur Getreide und Futtermittel, [1970] ECR 1125; Case 4/73, Nold v. Commission, [1974] ECR 491.

45 See, eg, J. Kuhling, ‘Fundamental Rights’, in A. Bogdandy and J. Bast (eds.), Prin­ciples of European Constitutional Law, Oxford, Oxford University Press, 2011, pp.479-514.

Thinking outside the politics box 83 destroy the democracy itself. In view of its first promoter, Karl Loewenstein, who coined the term and introduced the notion into constitutional law, militant democracy was a missing feature of many post-World War I constitutions.⁴ Loe­wenstein claimed that the lack of the lawfully entrenched militancy, in particular restrictions of political rights and freedoms (freedom of speech, freedom of assembly and freedom to form political parties) or its inefficient use, allowed the fascist movement to rise, legally acquire power and eventually kill democracy in Europe and some other parts of the world.^[194] [195] Loewenstein suggested that democ­racy should have gone militant and adopt rights-restrictive legislation and ban subversive movements to prevent such a scenario.^[196]

The tragedy of World War II inspired many countries to follow Loewenstein. Militancy of constitutional democracies includes restricting free speech, outlawing hate speech, banning political parties and associations, disqualifying parties from electoral lists, or employing militant language in the emergency powers clause.^[197] Thus, notwithstanding different protective techniques that lead to varieties of militancy, contemporary democracies are by default legally structured as more or less militant democracies.^[198] Moreover, in contemporary Europe, militant democ­racy is internationally promoted by the European Court of Human Rights, whose jurisprudence serves as the principal guide on permissible legal obstacles to democracy-endangering actions.^[199]

However, because it allows excluding some citizens and their voices from poli­tical life, i.e., it departs from a fundamental premise of liberal democracy under which all citizens and all voices should be accorded free expression and participa­tion, from the moment of its conceptualisation, militant democracy has been subject to various critics.

it address itself to curtailing these without destroying the very basis of its existence and justification?’^[200] Accordingly, the fundamental question is how to synchronise autonomy, lying in the heart of political rights and freedoms, and measures aimed at restricting that autonomy, without turning democracy against itself. Or in the words of Dyzenhaus, ‘how far can a democracy go in protecting itself without comprising its democratic nature?’^[201]

Now, this is not a place for a substantive discussion on whether it is possible or not to pacify the inherent arbitrariness of militant democracy and prevent democracies from turning abusive in the long run.^[202] Here, it is sufficient to say that, today, most scholars agree that a constitution is not a suicidal pact, and therefore are ready to accept that protective measures to preserve democracy, although undesirable, are legitimate.^[203] Rawls, for example, claims that ‘[...] just citizens should strive to pre­serve the constitution with all its equal liberties as long as liberty itself in their own freedom is not in danger’; otherwise, ‘they can properly force the intolerant to respect the liberty of others’.^[204] The European Court of Human Rights confirmed this approach by concluding that ‘where the presence of such a danger has been estab­lished by the national courts [. ] a State may reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime’.^[205] It should be clear, however, that the basic convergence on the idea that democracies have the right to defend themselves does not remove militant democracy from its inherent controversies and arbitrariness, which continue to be the subject of vivid academic arguments.^[206]

3.2 EU militant democracy

The EU democracy, despite all its deficiencies, is antagonistic to its enemies.

Thinking outside the politics box 85 amendments were inspired by the sanctions imposed on Austria in 2000 due to the formation of the coalition government that included the far-right Haider’s Freedom Party, coupled with the National Socialist past.^[207] However, the Austrian case did not involve the EU action, but the 14 EU Member States’ joint action.^[208] Recall here that the transnational militant democracy mechanism as a response to democratic backsliding in the Member States was for the first time activated only in 2017 against Poland, and soon after, against Hungary in 2018.

The key EU militant democracy tool, the sanction mechanism, is entrenched in Article 7 TEU. Its pronouncements provide a special EU competence to defend democracy insofar as it is one of the EU identity values referred to in Article 2 TEU. EU transnational militant democracy rests on the political rather than the legal tools. The EU political institutions, the Commission, the Council and the European Council, with the European Parliament’s involvement, dominate in the democracy defending proceedings. This does not mean that Member States play no role in this context; on the contrary, they also may initiate the proceedings under Article 7 TEU. The proceedings, which may end up in political sanctions, are divided into two stages, the preventive and the remedial. A possible scenario to anchor democracy ‘from above’ entails the following.

It all begins with recognising the threat to democracy in a Member State. A transnational protective mechanism can be activated by the proposal of one-third of the Member States (acting together), the European Parliament or the European Commission. Upon the proposal, after obtaining the European Parliament’s consent, the Council determines whether a clear risk of a serious breach by a Member State of Article 2 values (the democracy) exists.

If this preventive mechanism fails, another EU political institution, the Eur­opean Council, is empowered to take further democracy protective steps: after inviting the Member State in question to submit its observations, acting by unanimity on a proposal by one-third of the Member States or by the Commis­sion, and after obtaining the consent of the European Parliament, it may establish that a serious and persistent breach by a Member State of democracy values exists.^[210] If it determines so, the Council, acting alone, may impose sanctions, which are reduced to the suspension of the rights deriving from the application of the Treaties to the Member State in question, including its voting rights in the

Council and the rights derived from secondary EU law.^[211] As said before, the sanction which is missing is the termination of EU membership.

This purely political mechanism includes a rather limited CJEU role: it has jur­isdiction to supervise the conformity of the EU political institutions’ actions with Article 7 TEU procedural rules, solely at the request of the Member State concerned.^[212]

3.3 The limits ofEU militancy

Those who favour the militant democracy model to fight democratic backsliding in the Members State may face two objections. The first objection is general: militant democracy is not applicable in cases of democracy erosion. The second objection is based on the fact that Member States are bound to respect EU law only when they implement it, which does not extend to the functioning of domestic democracy.

As to the first objection, Ginsburg and Huq, for example, argue that militant democracy techniques are not capable to prevent and stop the erosion of democ- racy.^[213] This might be valid, particularly having in mind that traditional militant democracy measures, like banning political parties and associations or disqualifying parties from electoral lists, are not applicable at the Union level.

Arguments of this kind require broader responses beyond the purpose of this chapter. But to underline my key arguments, I deal with them briefly here. The basic response is that the Union is already structured as militant democracy: its obligation to defend European values, including democracy, even from the threats that come within the Member States, is specified in Article 7 TEU. But, as the Union is not a state, the EU militant democracy is reasonably different from its form in the democratic states.^[215] Transnational EU militant democracy is not

Thinking outside the politics box 87 individualistic, targeting an individual’s political rights and freedoms for putting democracy at risk. At present, it is about preventing a Member State’s right to participate in the EU decision-making due to its ‘illiberal’ turn, which endangers democracy established within the Union. Ultimately, EU militant democracy protects the common democracy from populist capture. At the same time, it pre­serves the European citizens’ sovereignty, as it entails the suspension of the Member State’s voting rights and not its people’s voting rights in the European Parliament.^[216] Accordingly, the EU and militant democracy are not at odds. As to Weiler’s approach, his argument that ‘the aggression against EU values is often done in the name of domestic democracy’^[217] and that therefore EU militant responses conflict with the basis of democratic theory, is acceptable only if one treats Hungary and Poland as democratic states (which is no longer the case), and accepts a rather Schmittian picture of democracy.^[218]

The second objection that makes the EU militant democracy mechanism con­troversial beyond its traditional paradoxes is the scope of its application from the perspective of EU law.

One possible and conventional answer is that the EU cannot override its Member States on matters not connected to the EU law application, or, more precisely, on a subject matter for which the EU has no competence deriving from the Treaties.^[219] The opposite answer, offered by the Council Legal Service, implies ‘Union competence to supervise the application of the Rule of Law, as a value of the Union, in the context that is not related to a specific material competence or that exceeds its scope’.^[220] This answer is more rooted in the philosophy of EU integrations and the fact that the Member States and the Union share the same identity values.^[221] From the perspective of public power exercised by the Member States, I agree with Besselink, who claims that it would be untenable that a

Member State is obliged to respect democracy, human dignity, human rights, the rule of law and other Article 2 TEU values only when they act within the confines of EU law and not when their actions fall beyond the scope of EU law.^[222] More­over, if respect for democracy is a prerequisite for a new Member State’s Union membership, it must also be a condition for the continued Union membership because, as stated in Article 2 TEU, the EU existence is predicated on the respect for democracy. Accordingly, it can be claimed that Article 7 TEU presents a toolkit for the Union to protect democracy within the Member States even when its violation is not related to the application of EU law.

Accordingly, the problem with the application of militant democracy principles in cases of democratic backsliding within the Member States does not reside in their practical inapplicability, incompatibility with democratic theory or EU law, but in the fact that the political structure of EU militancy proved ineffective enough to confront anti-democratic risk in the Member States. Thus, it has already been noted that the Article 7 TEU sanction mechanism is a much weaker threat to a Member State than the EU threat of withholding EU membership during the pre-accession stage.^[223] The Polish and Hungarian cases testify about enormous difficulties in activating Article 7 TEU as no fact-finding and assessment stages are available under the Treaties. Moreover, while the Union was occupied with filling this gap and establishing a ‘pre­Article 7 TEU procedure’, the ruling governments managed to damage the demo­cratic fabric in Poland and Hungary.^[224] For this discussion, it is not relevant that the EU institutions’ autonomy in imposing sanctions on a Member State is more limited than the jurisdiction of the CJEU in the infringement cases.^[225] Therefore, what might seem to be the missing feature of the present EU militant democracy is judicial remedies for breaches of Article 2 TEU values, including breaches amounting to democracy erosion.^[226] However, in the rest of the chapter, I will show emerging evi­dence that some judicial avenues to confront democratic backsliding in the Member States are already at the CJEU’s disposal.

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