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Talking about European Democracy*

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The text of this editorial comment was finalised on 18 April 2017.

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2 Media attention to each other’s national elections is more intense than ever before, to the point of both tabloids and serious media rapidly copying half understood and outright fake news. A Reuter’s correspondent posted a message on an allegedly unanimous resolution in the Dutch Parliament to hold an investigation into the Euro; the Daily Telegraph’s Europe correspondent turned this into a resolution to hold a ‘parliamentary enquiry’, <www.telegraph.co.uk/news/2017/02/25/netherlands-holds-inquiry-whether-could-ditch-euro/>; The Sun turned it into a Wilders inspired ‘full parliamentary enquiry’, <www.thesun.co.uk/news/2952587/dutch-vote-over-euro-axe/>; the Frankfurter Allgemeine thought there was an unanimous parliamentary vote asking to consider the options for the Netherlands to leave the Euro. In fact, a resolution, supported by Wilders, to hold a parliamentary enquiry was rejected. The resolution that was passed with contrary votes of Wilders and the anti-European parties, asked for an advisory opinion of the Netherlands Council of State primarily on improved enforcement of the rules governing the Euro, the last thing Wilders would want, see <zoek.officielebekendmakingen.nl/dossier/34387/h-tk-20162017-49-15?resultIndex=0&sorttype=1&sortorder=4>, visited 20 April 2017.

3 Vice-President Timmermans, LIBE Committee meeting 21 March 2017, On the Rule of Law in Poland: state of play <www.europarl.europa.eu/ep-live/en/committees/video?event=20170322-1500-COMMITTEE-LIBE> at 9 minutes, 17 seconds and 58 minutes, 8 seconds. In nearly identical terms, repeating the argument as to the importance of judicial independence for the functioning of the internal market three times over, in the EP plenary debate of 14 December 2016, <www.europarl.europa.eu/ep-live/en/plenary/video?debate=1481728381101>, at 16:18’:01”.

4 Art. F(1) TEU (Maastricht).

5 Art. 6(1) TEU (Amsterdam); the duty to respect the national identities of Member States was contained in Art. 6(3) TEU (Amsterdam).

6 Art. 10(2), second sentence TEU.

7 Art. 10(2) first sentence, 10(3) and 11 TEU.

9 Soundclip from an interview with Peter Vermaas, March 2017, <static.nrc.nl/2017/lepen/marine.mp3>, visited 20 March 2017. She has also indicated she will first renegotiate France’s territorial, monetary, economic and legislative sovereignty, and at any rate return to the monetary system from before Maastricht.

10 The locus classicus in the German constitutional literature is Böckenförde Ernst-Wolfgang, ‘Demokratie als Verfassungsprinzip’ (§ 24), in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland (CF Muller 2004) Bd. II, 3. Auflage.

11 For a fuller discussion, see Rosanvallon Pierre, La légitimité démocratique: impartialité, réflexivité, proximité (Editions du Seuil 2008) part IV, ‘La légitimité de proximité’.

12 A central point in the work of Chantal Mouffe.

13 This convenient reduction to three political institutions is, of course, not a very precise representation of the sites of political power within the order of a democratic state; powers are distributed among the bureaucracy, agencies, and certain authors have included also institutions of civil society such as the media, etc.; for an elaboration see e.g. Rosanvallon, supra n. 11.

14 BVerfG 30 June 2009, 2 BvE 2/08, Lisbon, para. 272; the reference is to Art. 11 TEU. That these ways are considered to be novel gives pause for thought on the social quality that the Court associates with democracy within Member States.

15 Art. 17(7), first sentence, TEU.

16 Editorial, ‘Between the Constitutional Document and the Constitutional Settlement’, 10 EuConst (2014) p. 375 at p. 376–377. The Spitzenkandidaten practice has a certain parallel in the electoral practice in for instance Italy, where the designate prime minister has to be on the ballot paper, and in the Netherlands, where in practice parties by indicating their ‘candidate prime minister’ indicate who should be allowed to make the first attempt at forming a cabinet, a rule that in the 1960s was thought to require a constitutional amendment (that was not adopted at the time).

17 For a detailed overview see L. Besselink, et al., National Constitutional Avenues for Further EU Integration, Study, European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights And Constitutional Affairs, Legal Affairs Committee, Constitutional Affairs Committee, PE 493.046 EN, (March 2014), available at <www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493046/IPOL-JURI_ET%282014%29493046_EN.pdf>, visited 20 April 2017.

18 See <english.eu.dk/en/faq/faq/referendums>, visited 20 April 2017.

19 Auer A., ‘The people have spoken: Abide? A critical view of the EU’s dramatic referendum (in)experience’, 12(3) EuConst (2016) p. 397 .

20 ECJ 3 September 2008, C-402/05 P, Kadi, paras. 303–304: ‘Those provisions cannot, however, be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union. Article 307 EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights.’

21 See Besselink L.F.M., ‘The Bite, the Bark and the Howl: Article 7 TEU and the Rule of Law Initiatives’, in A. Jakab and D. Kochenov (eds.), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press 2017) p. 128 .

22 The EU and its Member States’ particular interest in the democratic quality of Turkey resides in the latter’s association with the EU since 1963 and its official status as a candidate Member State since 1987.

23 See<www.kormany.hu/hu/a-miniszterelnok/hirek/a-munkaalapu-allam-korszaka-kovetkezik>, visited 20 April 2017: ‘A liberális társadalomszervezési elvekkel, módszerekkel szakítani kell’.

24 For an overview, see for instance Hungary: Democracy under Threat (Fédération internationale des ligues des droits de l’Homme, November 2016).

25 Government paper nr T/14686 CCIV bill amending the national higher education Act of 2011, <www.parlament.hu/irom40/14686/14686.pdf>, adopted on 4 April 2017 with 123 against 38 votes; for a negative response of the US Department of State, see <www.state.gov/r/pa/prs/ps/2017/03/269343.htm#.WN5L8Lh0hL0.twitter>, visited 20 April 2017; for a discussion at the press conference of CEU rector Michail Ignatieff, see <youtu.be/0XIkvfu2inc>, visited 20 April 2017.

26 For an analysis see Piotr Mikuli, ‘An Explicit Constitutional Change by Means of an Ordinary Statute? On a Bill Concerning the Reform of the National Council of the Judiciary in Poland’, VerfassungsBlog, 23 February 2017, <verfassungsblog.de/an-explicit-constitutional-change-by-means-of-an-ordinary-statute-on-a-bill-concerning-the-reform-of-the-national-council-of-the-judiciary-in-poland/>; for a comparative perspective see A. Sanders and L. von Danwitz, ‘The Polish Judiciary Reform: Problematic under European standards and a Challenge for Germany’, VerfassungsBlog, 28 March 2017, <verfassungsblog.de/the-polish-judiciary-reform-problematic-under-european-standards-and-a-challenge-for-germany/>, visited 20 April 2017.

27 Declaration Commission vice-president Timmermans in a hearing of the LIBE Committee of the EP, <www.europarl.europa.eu/ep-live/en/committees/video?event=20170322-1500-COMMITTEE-LIBE>, visited 20 April 2017.

28 Art. 7(1) TEU: ‘On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure’.

29 Yet another well-intended institutional proposal that further distracts from the procedures provided for in the TEU is the European Parliament’s proposal for an inter-institutional agreement: European Union Pact on Democracy, the Rule of Law and Fundamental Rights, A8-2016-0283_EN-1.

30 State of the Union Address 2012, <europa.eu/rapid/press-release_SPEECH-12-596_en.htm>, repeated in the State of the Union Address 2013, <europa.eu/rapid/pressrelease_SPEECH-13-684_en.htm>, visited 20 April 2017.

31 E.g. Reding Viviane, Vice-President of the European Commission, Safeguarding the rule of law and solving the ‘Copenhagen dilemma’: Towards a new EU-mechanism (General Affairs Council/Luxembourg, 22 April 2013); Communication from the Commission to the European Parliament and the Council, Brussels, 11.3.2014 COM(2014) 158 final, p. 2.

32 The Vice-President in charge, Timmermans seems more careful, but one may wonder whether it is helpful to call its invocation ‘self-defeating’, Timmermans, supra n. 3 at 1:00:45.

33 Fides was central to the status of subjected peoples in the Roman empire, and was the basis of feudal society in the Middle Ages.

* The text of this editorial comment was finalised on 18 April 2017.

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