Introduction

The current global wave of populism did not miss certain Member States of the European Union, most notably Hungary and Poland, now perceived as the first non-democratic Member States in the history of the European Union (the EU).² There is a growing concern that the populist governments in both countries have been persistently and successfully eroding what Rosalyn Dixon and David Landau call ‘democratic minimum core’: commitments to free and fair elections, the separation of powers, fundamental rights and governmental accountability.

1 Professor of Law, Union University Law School Belgrade. S.J.D. Central European University. This paper was written as part of the 2021 Research Program of the Institute of Social Sciences with the support of the Ministry of Education, Science, and Technological Development of the Republic of Serbia.

2 Freedom House describes Hungary as a hybrid rather than a democratic regime and anticipates that Poland will soon join the hybrid regimes. See Freedom House, Nations in Transition 2020, available at https://freedomhouse.org/sites/default/ files/2020-04/05062020_FH_NIT2020_vfinal.pdf.

3 See D. Landau and R. Dixon, ‘Abusive Judicial Review: Courts against Democracy’,

U. C. Davis Law Review, Vol.53, No.3, 2020, p.1323. For scholarly works analysing the situation in Hungary and Poland, see, e.g. A. Bozoki, ‘Beyond “Illiberal Democ­racy”: The Case of Hungary’, in V. Besirevic (ed.) New Politics of Decisionism, The Hague, Eleven International Publishing, 2019, pp.93-105; M. Matczak, ‘Poland: From Paradigm to Pariah? Facts and Interpretations of Polish Constitutional Crisis’, in

V. Besirevic (ed.) New Politics of Decisionism, The Hague, Eleven International Pub­lishing, 2019, pp. 141-160; W. Sadurski, Poland's Constitutional Breakdown, Oxford, OUP, 2019; L.

DOI: 10.4324/9781003200666-7

European Union’s intervention, which would make democracy in Hungary and Poland work, soon appeared necessary. But necessity does not equal legitimacy. Apart from the ruling populists, some sceptics have doubted whether such an intervention makes sense from the standpoint of the EU obligation to respect Member States’ national identities (which implies diversity) under Article 4 of the Treaty on European Union (TEU).⁴ Others claim that moral or political wisdom speaks against the EU interventions because the EU itself is not democratic.⁵

What I will urge here is that democracy, as the EU’s fundamental value, pro­tected under Article 2 TEU, is not just declarative but legally operative value, shared by all Member States.⁶ An argument from intervention should not surprise anyone as the obligation of the Union to defend domestic democracy is already fixed in Article 7 TEU. Therefore, the EU defence of domestic democracy, within the limits of EU law, is normatively justified, despite the European Union’s own troubling democracy deficit.⁷

Although normatively justified, the issue is whether it is effective. Until now, the EU political responses to populists’ erosion of democratic values in Hungary and Poland, either activated as the initiatives to strengthen the rule of law, protect fundamental rights or defend the EU identity values under Article 7 TEU sanction procedure, have not been very effective.⁸ Consider, for example, the most recent

4 A.

5 Weiler, for example, finds the democratic deficit, from which the Union suffers, to be a moral obstacle for the Union to employ militant measures and warns that before ‘throwing stones’, the EU should first ‘put its own democratic house in order’. J.H.H. Weiler, ‘Epilogue: Living in a Glass House: Europe, Democracy and the Rule of Law’, in C. Closa and D. Kochenov (eds.), Reinforcing the Rule of Law Oversight in the European Union, Cambridge, CUP, 2016, p.326.

6 The various values common to the Member States, including human dignity, freedom, democracy, equality, the rule of law and human rights, including the minority rights, constitute the Union’s identity and are protected in Article 2 TEU.

7 The recent scholarship has identified three key principles that normatively justify the EU interventions: the all-affected principle, the supranational federal nature of the EU, and the principle of congruence. These principles, in my view, mutatis mutandis justify the Union’s measures to confront threats to democracy in the Member States. For a substantive discussion, see C. Closa, D. Kochenov and J.H.H. Weiler, ‘Rein­forcing Rule of Law Oversight in the European Union’, European University Insti­tute, Working Paper RSCAS 2014/25, pp.3-7.

8 See, e.g., Communication from the Commission to the European Parliament and the Council, ‘A new EU Framework to Strengthen the Rule of Law’, COM/2014/0158 final; European Parliament, Resolution of 3 July 2013 on the Situation of Funda­mental Rights: Standards and Practices in Hungary (2012/2130(INI)); European Parliament, Resolution of 25 October 2016 with Recommendations to the Commis­sion on the Establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (2015/2254(INL)); European Parliament, Resolution of 12 September 2018 on a Proposal Calling on the Council to Determine, Pursuant to Article 7(1) of the Treaty on European Union, the Existence of a Clear Risk of a Serious Breach by Hungary of the Values on which the Union is Founded (2017/ 2131(INL)); European Commission, Reasoned Proposal in Accordance with Article 7 EU action, the 2020 European Commission’s annual Rule of Law Report.⁹ The subject of the Commission’s inquiry was the rule of law situation in each of the 27 Member States, but the most critical findings the Commission expressed on the rule of law situation in Hungary and Poland.^[169] However, the Report, introduced as a preventive tool to complement the Article 7 TEU sanction procedure, does not contain any recommendations regarding the identified problematic issues, and therefore its effects are questionable.

To respond to threats to domestic democracy, for the first time in its history, the EU activated the sanction mechanism as well: for breaching the EU founda­tional values, in 2017, the Commission initiated Article 7 TEU proceedings against Poland,¹² and then, in 2018, the European Parliament triggered Article 7 TEU mechanism against Hungary. ³ For Hungary, the subject of EU concerns was the judicial independence, freedom of expression, corruption, rights of mino­rities, and migrants and refugees’ situation, while the EU institutions found the rule of law to be at risk in Poland.¹⁴ Both proceedings are still pending and could, eventually, end up with the suspension of Hungary’s and Poland’s voting rights assigned under the Treaties and EU secondary legislation. But the road to sus­pension is quite long and the very idea of sanctions appears not to work due to the Article 7 TEU dialogical approach to the threshold for sanctioning breaches of the EU fundamental values.¹⁵ Moreover, for non-compliance with the EU values, no

Thinking outside the politics box 77 expulsion of a Member State from the European Union is envisaged under the Treaties. Accordingly, as the most draconic political tool, this option cannot be acti­vated in cases of democratic backsliding in the Member States. What follows, then, is that the Article 7 TEU option, once called ‘nuclear’, is anything but nuclear.¹

There is a good reason to believe that framing the EU responses in legal as additional to political terms would make the Union a proper democracy guardian. Recall here that defending democracy, or turning it into ‘militant democracy’, is not just political but also a judicial task. Very briefly, ‘militant democracy is a political or legal structure aimed at preserving democracy against those who want to overturn it from within or who openly want to destroy it from outside by uti­lizing democratic institutions as well as support within the population’.^[171] [172] [173] Recall also that the Court of Justice of the European Union (CJEU) is a bold and revolutionary adjudicator that managed to ground the European integrations in democracy at a time when that was unthinkable under the Treaties.

In this chapter, I will argue that the CJEU can be a robust mechanism for declar­ing the limits of lawfulness in the Union and confronting democratic backsliding in the Member States. To meet the aims, in section 2, I shortly present the EU demo­cratic credentials and the CJEU’s politics on turning democracy into the only accep­table form of governance in the Union. In section 3, the notion of militant democracy and its application in a democratic backsliding cases will be explained. In section 4, the excerption from the CJEU’s case law serves to frame a more decisive judicial role in shaping militant democracy in the European Union. In conclusion, I advocate for deploying legal techniques that will allow the CJEU to prevent the Member States from reducing democracy only to the election of leaders.

A general objection to the EU protecting domestic democracy derives from the Union’s democratic deficit. This article starts with some reflections on the EU’s democratic credentials and the judicial efforts to tie the Union with democracy.

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