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.
Agence France Presse (2015), ‘Polish ex-PM Kaczyński Slams Top Court at Pro-Government Rally’, 13 December.
A. Benton (2012), ‘Bottom-Up Challenges to National Democracy’, Comparative Politics, 44(3): 253–271.
N. Bermeo (2016), ‘On Democratic Backsliding’, Journal of Democracy, 27(1): 5–19.
M. Blauberger and R.D. Kelemen (2016), ‘Can Courts Rescue National Democracy? Judicial Safeguards Against Democratic Backsliding in the EU’, Journal of European Public Policy, published early online, September, http://dx.doi.org/10.1080/13501763.2016.1229357.
N. Buckley and H. Foy (2016), ‘Poland’s New Government Finds a Model in Orbán’s Hungary’, Financial Times, 6 January.
B. Bugarič (2015), ‘A Crisis of Constitutional Democracy in Post-Communist Europe: “Lands In-Between” Democracy and Authoritarianism’, International Journal of Constitutional Law, 13: 219–245.
R.B. Chavez (2003), ‘The Construction of the Rule of Law in Argentina’, Comparative Politics, 35(4): 417–437.
C. Closa , D. Kochenov and J.H.H. Weiler (2014), ‘Reinforcing Rule of Law Oversight in the European Union’, EUI Working Papers RSCAS 2014/25, Florence.
European Commission (2016), ‘Commission Recommendation Regarding the Rule of Law in Poland’, 27 July 2016, C(2016)5703 final.
European Parliament (2013), ‘Resolution of 3 July 2013 on the Situation of Fundamental Rights: Standards and Practices in Hungary (Pursuant to the European Parliament Resolution of 16 February 2012)’, 2012/2130(INI), P7_TA(2013)0315, A7-0229/2013 [‘Tavares Report’].
European Parliament (2015), ‘Hungary: No Systemic Threat to Democracy, Says Commission, But Concerns Remain’, press release, 2 December.
European Parliament (2016), ‘Resolution of 13 April 2016 on the Situation in Poland’, 2015/3031(RSP), P8_TA(2016)0123.
A. Føllesdal and S. Hix (2006), ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’, Journal of Common Market Studies, 44: 533.
J. Fox (1994), ‘Latin America’s Emerging Local Politics’, Journal of Democracy, 5(2): 105–116.
H. Foy (2016), ‘Jarsoław Kaczyński: Poland’s Kingmaker’, Financial Times, 26 February.
V. Gera (2016), ‘Polish Constitutional Court Strikes Down New Rules on Court’, Associated Press, 9 March.
E. Gibson (2005), ‘Boundary Control: Subnational Authoritarianism in Democratic Countries’, World Politics, 58: 101–132.
E. Gibson (2012), Boundary Control (New York: Cambridge University Press).
A. Giraudy (2010), ‘The Politics of Subnational Undemocratic Regime Reproduction in Argentina and Mexico’, Journal of Politics in Latin America, 2: 53–84.
A. Giraudy (2015), Democrats and Autocrats: Pathways of Subnational Undemocratic Regime Continuity within Democratic Countries (Oxford: Oxford University Press).
C. Gervasoni (2010), ‘A Rentier Theory of Subnational Regimes’, World Politics, 62(2): 302–340.
D. Grimm (1995), ‘Does Europe Need a Constitution?’, European Law Journal, 1(3): 282–302.
J. Habermas (1995), ‘Remarks on Dieter Grimm’s “Does Europe Need a Constitution?”’, European Law Journal, 1(3): 303–307.
D. Kochenov (2015), ‘Biting Intergovernmentalism’, The Hague Journal of the Rule of Law, 7: 153–174.
D. Kochenov and L. Pech (2016), ‘Better Late than Never? On the Commission’s Rule of Law Framework and its First Activation’, Journal of Common Market Studies, 54(5): 1062–1074.
P. Levitz and G. Pop-Eleches (2010), ‘Why No Backsliding? The European Union’s Impact on Democracy and Governance Before and After Accession’, Comparative Political Studies, 43(4): 457–485.
K. McMann (2006), Economic Autonomy and Democracy (New York: Cambridge University Press).
J.W. Müller (2013a), ‘Defending Democracy Within the EU’, Journal of Democracy, 24(2): 138–49.
J.W. Müller (2013b), ‘What, if Anything, is Wrong with a Copenhagen Commission?’, Transatlantic Academy Working Paper, 24 July.
K. Nicolaides (2013), ‘European Democracy and Its Crisis’, Journal of Common Market Studies, 51(2): 351–369.
G. O’Donnell (1993), ‘On the State, Democratization and Some Conceptual Problems’, World Development, 21(8): 1355–1369.
Parliamentary Assembly of the Council of Europe. (2013), ‘Request for the Opening of a Monitoring Procedure in Respect of Hungary’, Resolution 1941, 25 June.
V. Perju (2015), ‘The Romanian Double Executive and the 2012 Constitutional Crisis’, International Journal of Constitutional Law, 13(1): 246–278.
G. Pridham (2008), ‘The EU’s Political Conditionality and Post-Accession Tendencies: Comparisons from Slovakia and Latvia’, Journal of Common Market Studies, 46(2): 365–387.
J. Rankin (2016a), ‘Brussels Launches Unprecedented Inquiry into Rule of Law in Poland’, The Guardian, 13 January.
J. Rankin (2016b), ‘Poland’s Rule of Law Under Systemic Threat, Says EU Executive’, The Guardian, 27 July.
W. Sadursky (2010), ‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement and Jörg Haider’, Columbia Journal of European Law, 16: 385.
K.L. Scheppele (2013a), ‘Guest Post: Constitutional Revenge’, blog, The Conscience of a Liberal, New York Times, 1 March.
K.L. Scheppele (2013b), ‘Not Your Father’s Authoritarianism: The Creation of the “Frankenstate”, Newsletter of the European Politics and Society Section of the American Political Science Association, Winter, pp. 5–9.
K.L. Scheppele (2015a), ‘Systemic Infringement Actions: How to Enforce EU Values without Treaty Change’, paper presented at the Council of European Studies Conference, 8–10 July 2015, Paris.
K.L. Scheppele (2015b), ‘Understanding Hungary’s Constitutional Revolution’, in A. Von Bogdandy and P. Sonnevend (eds), Constitutional Crisis in the European Constitutional Area (Oxford: Hart Publishing): 111–24.
U. Sedelmeier (2014), ‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania After Accession’, Journal of Common Market Studies, 52(1): 105–121.
R. Snyder (1999), ‘After the States Withdraws’, in W. Cornelius, T. Eisenstadt and J. Hindley (eds), Subnational Politics and Democratization in Mexico (La Jolla: Center for US-Mexican Studies, UCSD).
A.B. Spendzharova and M.A. Vachudova (2012), ‘Catching Up? Consolidating Liberal Democracy in Bulgaria and Romania after EU Accession’, West European Politics, 35(1): 39–58.
Venice Commission (2011), ‘Opinion on the New Constitution of Hungary’, Adopted by the Venice Commission at its 87th Plenary Session, 17–18 June, Opinion 621/2011, CDL-AD(2011)016.
Venice Commission (2013), ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary’, 14–15 June. Opinion 720/2013. CDL-AD(2013) 012 at para. 144.1.
Venice Commission (2016), ‘Opinion on the Amendments to the Act of 25 June on the Constitutional Tribunal of Poland’, 11–12 March, Opinion 833/2015, CDL-AD(2016) at para. 137.
A. Von Bogdandy and P. Sonnevend (2015) (eds), Constitutional Crisis in the European Constitutional Area (Oxford: Hart Publishing).
J. Weiler (1995), ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’, European Law Journal, 1(3): 219–258.
T. Zweifel (2002), ‘... Who is Without Sin Cast the First Stone: The EU’s Democratic Deficit in Comparison’, Journal of European Public Policy, 9(5): 812–840.