A full review of this voluminous literature is beyond the scope of this article. For perhaps the leading article asserting the existence of a democratic deficit at the EU level, see Føllesdal and Hix (2006). On the debate over the lack of a common public sphere and demos, see Grimm (1995), Habermas (1995), Nicolaides (2013) and Weiler (1995).
Critiques of the EU’s democratic deficit are often exaggerated because the EU is held up for comparison against an unrealistic ideal rather than real existing democracies. As Zweifel (2002) noted, the EU compares favourably to leading federations on many major measures of democracy.
Article 7 of the Treaty on European Union, the first version of which was introduced in the 1997 Treaty of Amsterdam, provides that the EU may suspend the voting rights of a state deemed by the European Council to be in serious and persistent breach of values enshrined in Article 2 of the Treaty – namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. See Closa et al. (2014) and Sadursky (2010).
Bermeo (2016: 5) succinctly defines democratic backsliding as ‘the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy’.
This article does not offer a detailed review of the deterioration of democracy and the rule of law in various EU member states. While existing studies have not detected a pervasive pattern of backsliding across new (or old) EU member states, they have identified a number of threatening cases. Early studies (see for instance Levitz and Pop-Eleches 2010; Pridham 2008; Spendzharova and Vachudova 2012) tended to find a slowdown in democratic reforms rather than backsliding, whereas more recent studies (see for instance Bugarič 2015, Sedelmeier 2014, Von Bogdandy and Sonnevend 2015) detect clear instances of backsliding in Hungary, Romania and Slovenia.
Gibson (2005) terms this coexistence of contrasting regime types at the national and subnational level ‘regime juxtaposition’.
For a review of the EP’s efforts to increase its control gradually over the selection of the Commission president and to increase voter participation through the Spitzenkandidat process, see Kelemen (2014).
See Article 7 of Regulation (EC) No. 2004/2003 of the European Parliament and of the Council of 4 November 2003.
For instance, this scholarship has emphasized that routine infringement procedures for violations of EU law cannot address the systemic character of democratic backsliding while the Article 7 ‘nuclear option’ procedure is nearly impossible to deploy because it requires unanimous agreement amongst member states (Blauberger and Kelemen 2016). See, for instance, Scheppele (2015a) for an innovative proposal for a new legal instrument that would strengthen the EU’s hand in combatting democratic backsliding.
Considering a different context, the experience of the US reminds us that parties of the left sometimes do protect local autocrats – as the national Democratic Party supported the anti-democratic practices of its co-partisans in the ‘Solid South’ for decades.
I thank Kim Scheppele and an anonymous reviewer for emphasizing this point to me.
Article 83(1c) and 83(1m) of Act CLXXXV.
Case C-286/12, European Commission v Hungary; See the Commission’s press release IP/12/24 of 17 January 2012.
Communication from the Commission to the European Parliament and the Council, ‘A New EU Framework to Strengthen the Rule of Law’, 3 November 2014, COM (2014) 158 final.
See the Tavares Report (European Parliament 2013), prepared by the Parliament’s Committee on Civil Liberties, Justice and Home Affairs and endorsed by the plenary in July 2014.
Communication from the Commission to the European Parliament and the Council, ‘A New EU Framework to Strengthen the Rule of Law’, 19 March 2014, COM (2014) 158 final/2.
One EPP member who clearly had taken a tough line on the Orbán government was Justice Commissioner Viviane Reding. Under her leadership, from 2010 to 2014 the Commission launched a series of legal enforcement actions (so-called infringement procedures) targeting specific actions the Orbán government took as part of its effort to undermine the rule of law and democratic values. This approach alone proved inadequate to resist Orbán’s drive to roll back democracy, yet at the same time both she and Commission President Barroso argued that the more threatening Article 7 procedure was in practice a ‘nuclear option’ (Barroso 2012) and ‘almost impossible to use’ (Reding 2013). Therefore, they pushed for the establishment of a new framework specifically designed to address emerging threats to the rule of law.
The Commission insisted that though the situation in Hungary raised concerns, there was no systemic threat to the rule of law, democracy and fundamental rights (European Parliament 2015).
The crisis was sparked by an illegal move by the previous government, led by the Civic Platform Party, which had sought to pack the Constitutional Court with its preferred judges before leaving office. The outgoing government had the authority to appoint replacements for three Constitutional Court judges who retired in November before it left office, but in addition it also sought to appoint replacements for two judges who were set to retire in December, by which point the new government would be in office. On 3 December, the Constitutional Court struck out the latter two appointments, but held that the three judges appointed in November should take their seats on the Court. The government has refused to publish or implement the ruling. See Kelemen (2016).
However, one might argue, equally, that the greater size and strategic significance of Poland should have made it less likely that the EU would challenge the PiS government. Critics often suggest that the EU takes a laxer approach to enforcing EU norms when large, powerful governments violate them than when small, weak ones do.
With Brexit now on the horizon, PiS is likely to become even more isolated as it will lose its most powerful ally in the ECR group.
See Scheppele (2016), however, for discussion of an approach that might circumvent such a veto.
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