A. Introduction
Since investigative reports have shed light on possible plans to “re-migrate” German citizens,Footnote 1 Germany has increasingly debated whether the right-wing Alternative für Deutschland (AfD) should be banned,Footnote 2 culminating in a proposal of 113 members of the German parliament to start proceedings to ban the AfD in late 2024.Footnote 3 While party ban proceedings against the AfD have not been initiated, a ban is made possible by Article 21(2) of the German Basic Law which allows for the dissolution of political parties that seek to undermine or abolish the free democratic basic order—a clear expression of the concept of militant democracy enshrined into the German constitution.
This concept of militant democracy goes back to Karl Loewenstein, who famously described it as fighting fire with fire.Footnote 4 He pointed out that democracies are at risk of being abolished because they cannot, without self-abnegation, “forbid the enemies of [their] very existence the use of democratic instrumentalities.”Footnote 5 Militant Democracy thus legally restricts democratic freedoms such as the rights of political parties “for the purpose of insulating democratic regimes from the threat of being overthrown by legal means.”Footnote 6 By allowing the German Constitutional Court to ban political parties that seek to undermine the free democratic basic order, Article 21 of the German Basic Law thus seeks to protect democracy.
But who oversees whether party bans in the Member States are implemented in such a way as to protect democracy? Over the past years, many scholars have argued that the European Union (EU or Union) should have a role to play in counteracting anti-democratic and illiberal tendencies in its Member States,Footnote 7 and recently, the European Commission has started to enforce the value of democracy against Member States.Footnote 8 Yet, when it comes to the discussion of party bans on the member-state level, such as in Germany, any relevance of EU law seems to be overlooked.Footnote 9
This might be due to an earlier decision of the German Federal Constitutional Court (FCC) which has denied any applicability of EU law to national party ban proceedings. In particular, the German FCC first stated that the Union does not have the competence to regulate national political parties.Footnote 10 Second, the FCC held that although national political parties compete in elections to the European Parliament, and although the ban of a national political party is capable of affecting the composition of the European Parliament, the Member States are not implementing Union Law when banning a political party.Footnote 11 “[R]egardless of reflexive effects on the composition of the European Parliament,” the banning of political parties is carried out exclusively in accordance with national law.Footnote 12 Given that national party bans fall outside the scope of application of the Charter of Fundamental Rights (CFR), and in the absence of specific rules on political parties, the FCC then further stated that general provisions of EU Law, such as the principles of the rule of law and democracy enshrined in Article 2 TEU, do not apply.Footnote 13 Rather, the FCC submitted that “[t]he applicability of these principles presupposes that either the Community itself or a Member State acts within the scope of application of Community law. The Member States are not generally bound by the constitutional provisions of Union and Community law.”Footnote 14
But is what the FCC concluded still convincing today after recent developments in the case law of the Court of Justice of the European Union (CJEU or Court)? The CJEU has held, on the one hand, that Member States are implementing Union law when they are making provisions to exclude certain Union citizens from the electoral roll.Footnote 15 The Court has also confirmed, on the other hand, that political parties are an essential element of the system of representative democracy, fulfilling an essential function in expressing the will of the citizens.Footnote 16 At the same time, EU law recognizes that the right to freedom of association “constitutes one of the essential bases of a democratic and pluralist society, inasmuch as it allows citizens to act collectively in fields of mutual interest and in doing so to contribute to the proper functioning of public life.”Footnote 17 As such, “European citizens should be enabled to use those rights in order to participate fully in the democratic life of the Union.”Footnote 18
If political parties are so essential for the system of representative democracy that the functioning of the Union is founded upon,Footnote 19 and if they contribute so significantly to the effective exercise of the right to vote in elections to the European Parliament, a right guaranteed by EU law, can we really conclude that national party bans do not fall within the remit of EU law? After all, the AfD has gained 15.9% of the votes in the elections to the European Parliament in Germany and is now represented with 15 seats.Footnote 20 Even more so, any party ban under Article 21 of the German Basic Law would not only have the consequence that citizens can no longer be members of or vote for the AfD, it would equally result in all members of the prohibited party losing their seat in the European Parliament.Footnote 21
This Article first argues that EU law is applicable to national party bans insofar as they affect a national political party participating in European elections. This is because national party bans not only have a direct impact upon the composition of the European Parliament, but on the existence of free and democratic elections to the European Parliament more generally. By carrying out national party bans, Member States are thus implementing the requirement for European elections to be free and democratic, as set out in Articles 10(1) and 14(3) TEU. As a result, the provisions of the Charter become applicable and national party bans must be reviewed under Article 12 CFR.
The Article then explores whether EU law equally applies to party bans of political parties that purely partake in the national political process. To answer this question, the Article develops the Member States’ democratic obligations under Articles 10 and 2 TEU. The Article finds that Member States are under an obligation to protect political parties and that the scope of this obligation extends to any party potentially contributing to the democratic life of the Union. It will be shown that any political party, whether it participates in European elections or not, potentially contributes to the democratic life of the Union and hence falls within the scope of Articles 10 and 2 TEU. Although Articles 10 and 2 TEU apply to all party bans, only bans that are sufficiently serious and systemic to call into question a Member State’s commitment to democratic pluralism can violate the standards set out in these articles.
When exploring these questions, this Article will not address whether the AfD should be banned and whether such a ban would comply with EU law. Rather, this Article takes the German discussion as a starting point to unpack the relationship between the Union’s and Member States’ conception(s) of democracy, specifically asking whether EU law allows for, warrants, or limits Member States in the prohibition of political parties. Whereas party bans are usually understood broadly as “all juridical forms that effectively prevent the founding and continued operation of political parties, whether in the form of dissolution, substantive registration requirements, temporary suspension, or prohibition of and prosecution for party formation,”Footnote 22 this Article will take a narrower approach and focus solely on such party bans where the founding or continued operation of a party is prevented due to the political party’s being deemed a risk to the values enshrined in Article 2 TEU.
B. National Party Bans as an Implementation of EU Law?
When asked about the refusal to register the Communist Party in Romania on the list of national political parties,Footnote 23 the European Commission reiterated that “[t]he integrity of democratic processes and elections is part of our common democratic values” so that even though “[t]he organization of free and fair elections, including registration of national political parties,” is a responsibility of the Member States, it requires the full respect of EU law which the Commission is monitoring.Footnote 24 But which provisions of the Treaties do apply to national party bans?
The Court has already recognized that in the system of representative democracy under Article 10(1) TEU, political parties play a fundamental role “in expressing the will of EU citizens” and hence fulfill an “essential function.”Footnote 25 This is especially so given that political parties “field candidates in elections” and thus contribute “significantly to the effective exercise of the right to stand for election” in European elections governed by Article 14(3) TEU.Footnote 26 The role of political parties at European level is further expressly recognized in Articles 10(4) TEU and 12(2) CFR and concretized by Regulation 2025/2445 which lays down the conditions governing the statute and funding of political parties at European level (European Political Parties).
There are thus three possible links between national party bans and EU law. First, national party bans could conflict with Regulation 2025/2445, which establishes rules for an EU party ban. Second, national party bans could constitute an implementation of Union law as they potentially affect the free and democratic character of elections to the European Parliament under Article 14(3) TEU. Third, a national party ban could negate a Member State’s adherence to the democratic values of Article 2 TEU, which are given concrete expression in Article 10 TEU.
I. National Party Bans under Regulation 2025/2445
Regulation 2025/2445 governs the statute and funding of political parties at the European level. At its core, the Regulation makes the registration of European Political Parties subject to their respect of the values enshrined in Article 2 TEU,Footnote 27 and provides for the de-registration of a European Political Party in case of a manifest and serious breach of Article 2 TEU.Footnote 28 Whereas European Political Parties consist of several national member parties, which must represent at least seven different Member States,Footnote 29 the Regulation does not contain any rules on national political parties.
However, Reinke observes that a national party ban can result in the de facto banning of a European Political Party.Footnote 30 This is the case if the banning of a national party causes a European Political Party to lose representation in seven Member States. If that is the case, the European Political Party of which the banned national party was a member no longer meets the representation criteria set out in Article 3(1)(b)(i) of Regulation 2025/2445. This results in its de-registration under Article 21(1)(a)(i) and Article 12 of Regulation 2025/2445. On this basis, Reinke proposes that the Regulation
not only restricts the Member States’ competence in banning national parties if such a measure leads to a de facto termination of a European Political Party, but furthermore explicitly opens up a scope for the deliberative and interpretative authority of a number of key EU institutions over the qualitative exegesis of democratic core values, that is, over the very grounds upon which national party ban proceedings tend to rest.Footnote 31
In other words, if a national party ban leads to the de-registration of a European Political Party, it falls within the scope of application of Regulation 2025/2445.
Yet Reinke overlooked that Regulation 2025/2445, makes a key distinction between two grounds for de-registration: On the one hand, European Political Parties can be de-registered for formal reasons, such as no longer meeting the representation criteria.Footnote 32 On the other hand, European Political Parties can be de-registered for no longer respecting Article 2 TEU.Footnote 33 The two grounds for de-registration have separate procedural requirements. De-registration in the former case is a simple numerical decision which does not require a political assessment and thus can be initiated by the authority itself. De-registration in the latter case, however, is politically salient and thus follows the specific procedure laid down in Article 13. This procedure can only be initiated if requested by the European Parliament, the Council or the Commission. To be successful, it requires not a simple breach of requirements but rather a serious and manifest breach of Article 2 TEU values. Any removal of the European Political Party from the register must take into account the opinion of the committee of independent eminent persons consisting of members appointed by the European Parliament, the Council and the Commission, and must not be objected by the European Parliament and the Council.
By banning a national legal party, a Member State does not make any judgment as to whether a European Political Party respects Article 2 TEU. It might indicate that a European Political Party has failed to ensure that—as required by Article 3(1)(e) of the Regulation—its national member parties observe the values set out in Article 2 TEU. While potentially indicative, the decision to ban a national political party has no direct or de facto bearing on the procedure set out in Article 13 of the Regulation. Rather, in Reinke’s example, the termination of the European Political Party’s legal personality would still be due to a failure to comply with minimum representation requirements and follow the procedure set out in Article 12. Even if we follow Reinke’s argument, a national party ban thus is not a de facto ban of a European Political Party due to its no longer respecting the democratic values of Article 2 TEU. As such, a Member State’s decision to ban a national party neither directly nor indirectly interferes with the EU institution’s “deliberative and interpretative authority”Footnote 34 over democratic values.
More importantly, the solution proposed by Reinke is neither supported by the competence norms in the Treaties nor by the Regulation itself. Rather, Reinke disregards the merely supplementary structure of the Regulation. The Regulation strictly separates the supranational European Political Party and the national member parties. For example, there is no rule providing that if a European Political Party is de-registered due to a breach of Article 2 TEU values, the national member parties also shall be dissolved. Equally, Article 21(4) of the Regulation provides that a de-registered European Political Party which lost European legal personality does—subject to the applicable national law—acquire national legal personality. This demonstrates that decisions on the de-registration of European Political Parties under the Regulation do not have any impact on the competence or discretion of Member States to ban national political parties. To the contrary, the Regulation makes clear that once a party has national legal personality—as opposed the European legal personality acquired by a European Political Party—it is solely governed by national rules. Conversely, national party bans do not fall within the scope of Regulation 2025/2445.
It is for these reasons that a Member State retains the competence to ban political parties, even in cases where this has the effect of a European Political Party’s losing legal status. However, matters of positive competence have to be distinguished from matters of negative competence. Whereas Member States retain the right to regulate national political parties and retain the competence to ban them, the next section will argue that they are bound to respect EU law when exercising that competence.
II. National Party Bans Under Article 14(3) TEU
The German FCC held that although national party bans affect the composition of the European Parliament, they are governed solely by national law.Footnote 35 In light of the Court’s judgment in Delvigne v. Commune de Lesparre-Médoc & Préfet de la Gironde (Delvigne or the Delvigne case), this section will question the FCC’s conclusion. It will be argued that when carrying out national party bans, Member States are implementing the requirement that under Article 14(3) TEU and 10(1) TEU elections to the European Parliament must be free and democratic. As a result, a national party ban falls within the scope of Union law, so that the provisions of the Charter become applicable. National party bans thus need to comply with Article 12 CFR and can, under certain circumstances, constitute a violation of EU law.
1. National Party Bans as an Implementation of Article 14(3) TEU
Per Article 14(3) TEU, elections to the European Parliament must be free and secret. As such, Article 14(3) TEU implements the principle of representative democracyFootnote 36 which requires that “the composition of the Parliament [reflect] faithfully and completely the free expression of choices made by the citizens of the European Union.”Footnote 37 Even though elections to the European Parliament are organized by the Member States, the Court’s judgment in Delvigne has underlined that Member States are under an obligation to ensure that the requirements of Article 14(3) TEU are complied with.Footnote 38
The subject of the Delvigne case was a French Law which provided that the sentence for a serious criminal offence entailed the loss of the right to vote and stand for election, including elections to the European Parliament.Footnote 39 Mister Delvigne, who as a result of that law was removed from the electoral roll, argued inter alia that the French Law infringes upon his right to vote in elections to the European Parliament.Footnote 40 In response, the Court clarified that although the electoral procedure for elections to the European Parliament shall be governed in each Member State by its national provisions, the Member States must “ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret.”Footnote 41 In other words, Member States are implementing EU law, so that the provisions of the Charter are applicable.Footnote 42
The Delvigne case has thus established that EU law exercises “control over limitations of civic rights imposed on Union citizens—as long as these limitations also affect their right to participate in the European elections.”Footnote 43 As argued by Lenaerts and Gutiérrez-Fons, the Delvigne case has clarified that Member States are under an obligation to ensure that European elections take place in accordance with Article 14(3) TEU, meaning that “[t]hose provisions impose on the Member States obligations whose objective is to ensure that the basic principles inherent in a democratic electoral system are applied at EU level.”Footnote 44 As a result, Platon thinks it possible that “the Court will probably, on the basis of the requirement that the elections be ‘free and secret,’ be able to fully assess whether the Member States meet fundamental democratic standards.”Footnote 45
Against this backdrop, it is necessary to consider whether Member States are implementing Union law when they ban a political party participating in European elections. It follows from the Delvigne case that Member States, when exercising their retained competences, must “ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret.”Footnote 46 The Court has held that Article 14(3), read in light of the principle of representative democracy, requires that “the composition of the Parliament reflects faithfully and completely the free expression of choices made by the citizens of the European Union.”Footnote 47 “Free” elections in particular require that “citizens should be free to participate and exercise their right to vote as they wish.”Footnote 48 According to the European Court of Human Rights (ECHR), which cannot render an authoritative interpretation of EU law but nonetheless can provide guidance on the interpretation of common principles, “the words ‘free expression of the opinion of the people’ mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another” so that “no form of compulsion must be brought to bear on voters as regards their choice of candidates or parties.”Footnote 49
When Member States ban national political parties competing in European elections, they directly make decisions as to whether the European Parliament reflects faithfully and completely the free choices made by the citizens of the Union. Every ban of a political party limits the EU citizens’ choices of candidates or parties during elections to the European Parliament. Although it is true that it falls within the Member State’s competence to decide which parties may participate in the European elections,Footnote 50 the Member States are implementing the requirements of a “free” election under Article 14(3) TEU when making such a decision. Nothing else follows from the Delvigne case where a Member State was found to implement the requirement of “universal” suffrage under Article 14(3) TEU when determining whether criminals convicted of a serious crime retain their right to vote in EU elections.Footnote 51
However, reflecting upon the German FCC’s finding that party bans merely have “reflexive effects on the composition of the European Parliament,”Footnote 52 one could wonder whether the link between the banning of a political party and the organization of free elections to the European Parliament is too thin. After all, some limit the scope of application of this principle “to the period prior to an election and to the voting procedure itself.”Footnote 53 As long as the banning of a political party is not carried out within the direct context of elections to the European Parliament, or with the intention to remove a political party from the ballot, one could thus follow the FCC’s argument and conclude that the reflexive effect of party bans on free elections and the composition of the European Parliament is too remote to bring them within the scope of application of EU law.
Such a reading of Article 14(3) TEU would however ignore the broader context and the objective of elections to the European Parliament. As we have seen above, Article 14(3) implements the principle of representative democracy laid down in Article 10(1) TEU.Footnote 54 Further, it follows from Article 10(2) TEU that elections to the European Parliament supplement the European Union with democratic legitimacy.Footnote 55 Elections to the European Parliament must thus not only be free and secret. Rather, Article 14(3) TEU, read in light of Articles 10(1) and 10(2) TEU, also requires elections to the European Parliament to be democratic. Applying the Delvigne judgment by analogy, Member States are thus not only under an obligation to “ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret,”Footnote 56 but also to ensure that these elections are democratic. Democratic elections, however, are rendered meaningless if a Member State has dismantled the very core components of liberal democracy such as the civil and political rights intrinsic to a democratic process. Footnote 57 The Court has held that the freedom of expression enshrined in Article 11 CFR is “one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded.” Footnote 58 Further, the CJEU and Commission both confirmed that “the right to freedom of association constitutes one of the essential bases of a democratic and pluralist society, inasmuch as it allows citizens to act collectively in fields of mutual interest and in doing so to contribute to the proper functioning of public life.” Footnote 59 More precisely, the CJEU has recognized the essential role that political parties play in a system of representative democracy under Articles 14(3) and 10(1) TEU. The Court has held that membership of a political party “contributes significantly to the effective exercise of the right to stand for election”Footnote 60 and that political parties generally perform “an essential function in the system of representative democracy.”Footnote 61 The Court thus seems to prescribe to the position put forward in scholarly literature and the case law of the European Court of Human Rights (ECtHR) that representative democracy “requires a competitive multi-party system”Footnote 62 where the freedom of political parties is guaranteed because “[e]xpression of the opinion of the people is inconceivable without the assistance of a plurality of political parties representing the currents of opinion flowing through a country’s population.”Footnote 63
The banning of a political party constitutes a restriction of the freedom of association,Footnote 64 and is at least potentially able to affect the democratic character of elections to the European Parliament. After all, party bans enable those in power “to make the relevant decisions to arbitrarily exclude an indeterminately expansive range of political competitors from the democratic game, thereby restricting the democratic nature of the regime.”Footnote 65 When carrying out national party bans, Member States are thus implementing Article 14(3), read in light of Article 10(1) TEU, insofar as they are implementing the requirement of “democratic” elections to the European Parliament.
Admittedly, this represents a far-reaching reading of Article 14(3). However, this reading is further supported by the provisions of the 1976 European Electoral Act: Although Article 13(3) of the European Electoral Act acknowledges the possibility that the mandate of a member of the European Parliament is withdrawn pursuant to national law, Article 13(2) foresees that the vacant seats are filled according to appropriate procedures. By contrast, a national party ban—at least in Germany—causes all the seats belonging to the banned party to remain vacant.Footnote 66 On a granular level, this shows that at the very least, a national party ban is implementing Article 13(2) of the European Electoral Act.Footnote 67 From a broader perspective, this however confirms that “[i]f MEPs are not elected freely and fairly in all Member States, or are removed from office unduly, the EU might face a legitimacy problem.”Footnote 68 Therefore, the broader democratic standards that lead to the election or the loss of a mandate “should be a concern to the EU as a whole in order to keep up with the democratic promise of Article 2 TEU.”Footnote 69
As a result, it seems at least arguable that the ban of a national political party competing in elections to the European Parliament falls within the scope of Article 14(3) TEU. This means not only that EU law is applicable to such party bans but also that they fall within the scope of application of the Charter under Article 51(1) CFR.Footnote 70
2. National Party Bans as a Violation of Article 12 CFR
As the CFR is applicable, national party bans must be compatible with the freedom of association under Article 12 CFR. The freedom of association under Article 12 CFR corresponds to Article 11 ECHR and hence enables us to draw from the ECtHR’s case lawFootnote 71 on party bans. Given that the ECHR standards cannot prevent the Union from providing a more extensive protection than the ECHR, further guidelines can also be derived from Regulation 2025/2445 setting rules on the de-registration of European Political Parties. Although the Regulation is not directly applicable to national party bans, it nevertheless provides interpretative guidelines to determine in what circumstances the Union deems the banning of political parties necessary.Footnote 72
Under the case law of the ECtHR, ex anteFootnote 73 as well as ex postFootnote 74 party bans can be legitimate. However, it becomes clear from Regulation 2025/2445 that ex ante party bans are subject to stricter conditions than ex post party bans. Whereas Regulation 2025/2445 makes the respect of Article 2 TEU values a necessary condition for party registration, Article 3(1)(d) and (e) of Regulation 2025/2445 makes clear that value compliance is to be presumed as long as the political party signs a declaration stating the respect for Article 2 TEU values. While these rules cannot apply by analogy to national party ban proceedings, they make clear that a refusal to register a political party—an ex ante ban—can only be legitimate if it is clear from the outset that a political party will not comply with liberal democratic values. In this respect, one could for example think of PortugueseFootnote 75 and AustrianFootnote 76 rules prohibiting the founding of a fascist or national-socialist organization of political parties.
When it comes to ex post bans of political parties, the ECtHR as well as Regulation 2025/2445 permits the banning of a political party in a relatively wide number of cases. As such, the ECtHR has held—contrary to an Opinion of the Venice Commission which deemed the dissolution of a political party admissible only if it used or advocated for violenceFootnote 77 —that the dissolution of a political party can be justified on the basis of their ideology or actions. As such, the dissolution of a political party can be justified if it “fails to respect democracy or … is aimed at the destruction of democracy and the flouting of the rights and freedoms recognized in a democracy.”Footnote 78
Regulation 2025/2445 can be used to further fill in when a political party can be considered to flout the rights and freedoms recognized in a democracy. This is because the Regulation allows for dissolution in case of a manifest and serious breach of any Article 2 TEU value.Footnote 79 This is an important clarification and add-on to the ECtHR standards, as Article 2 TEU protects specific and core elements of liberal democracy. As such, the Regulation underlines that parties advocating for illiberal democracy could potentially be subject to a party ban. Importantly though, mere EU-skepticism or a hostile stance on EU integration does not constitute a legitimate reason for banning a political party.Footnote 80
Moreover, the ECtHR has clarified that whereas states cannot be “required to wait, before intervening, until a political party has seized power and begun to take concrete steps,” a party ban can however only be justified where the danger for democracy is sufficiently imminent.Footnote 81 In light of Regulation 2025/2445, which requires a “manifest and serious”Footnote 82 breach of Article 2 TEU values, an imminent danger for democracy could be judged not by the size of the party and its potential to seize powerFootnote 83 but by the seriousness of its attack on Article 2 TEU values. In light of this, party ban proceedings are not in principle subsidiary to other, less restrictive measures, nor do they require that a party yield specific governing or voting power. Rather, the danger for democracy can be considered sufficiently imminent if the breach of Article 2 TEU principles is grave in its substance.
3. The Limits of EU Oversight Under Article 14(3) TEU
If a Member State decides to ban a political party which competes in elections to the European Parliament, the party ban can thus be measured by the standards of Article 12 CFR. As such, a party ban is only compliant with EU law if the political party “fails to respect democracy or … is aimed at the destruction of democracy and the flouting of the rights and freedoms”Footnote 84 recognized in a constitutional democracy based upon Article 2 TEU.
However, as we have seen above, the applicability of the Charter hinges upon the Member States’ implementing Union law within the meaning of Article 51(1) CFR. In the present case, it has been argued that Member States implement Article 14(3) TEU, or more specifically the requirement of free and democratic elections to the European Parliament. As a result, Article 12 CFR is only applicable if the political party subject to the ban participates in elections to the European Parliament. But does that mean that Member States could avoid any EU oversight or control as long as they enabled the banned parties to continue to participate in elections to the European Parliament? Or does the EU law requirement for Member States to be democratic mean that EU law applies to national party bans even in purely internal situations, where a national political party exclusively competes in national elections?
III. National Party Bans Under Articles 10 and 2 TEU
Article 2 TEU defines the values that the Union is founded on and that are, at the same time, common to the Member States. Amongst those values figures the principle of democracy, which is given concrete expression in Article 10 TEU.Footnote 85 This section will first demonstrate that Articles 10 and 2 TEU impose upon Member States a justiciable legal obligation to protect political parties, so that national party bans fall within the subject matter of Articles 10 and 2 TEU. This Member State obligation to protect political parties applies whenever political parties potentially contribute to the democratic life of the Union. As such, any ban of a national political party, even if it only operates on the national level, falls within the scope of Articles 10 and 2 TEU. However, Articles 10 and 2 TEU are not automatically triggered by national party bans. Rather, the threshold of these provisions is activated only if the national party ban constitutes a serious and systemic violation of democratic standards.
1. The Member State Obligation to Guarantee a Pluralistic Multi-party System
In Portuguese Judges, the Court established that Member State courts must comply with standards of judicial independence stemming from Article 19(1)(2) TEU and Article 2 TEU.Footnote 86 These provisions were found to be applicable due to the vital role national courts play in guaranteeing effective judicial protection in the EU legal space.Footnote 87 Because national courts ensure “that in the interpretation and application of the Treaties the law is observed,” they share the responsibility to ensure judicial review in the EU legal system with the CJEU.Footnote 88 As such, national courts are an institutional structure fulfilling both national and EU functions; a structure where national and EU systems of governance interlock.Footnote 89 It is this very function that results in national courts being protected as a matter of EU law, by standards emanating from Articles 19(1)(2) and 2 TEU. This then leads to the question:
[I]f there now exist[] other institutional structures in relation to which the interlocking of EU and national systems of governance is so strong, that the relevant national organs ought to comply with the values enshrined in Article 2 TEU, in similar ways as Articles 2 and 19 TEU interact in the “EU shared judicial space?”Footnote 90
Several authors have now pointed towards a democratic space shared amongst the Member States and the Union,Footnote 91 which is given concrete expression by Article 10 TEU.Footnote 92
Specifically, this intertwinement between Union and Member State democracy finds expression in Article 10(2) TEU which recognizes that the Union’s democratic legitimacy rests on a dual basis:Footnote 93 Input legitimacy is derived directly from elections to the European Parliament by the European citizensFootnote 94 and indirectly through the representation of the peoples of the Member States in the European Council and Council.Footnote 95 The European Council’s and Council’s legitimacy hence flows from the Member State’s representatives,Footnote 96 who in turn, as stated by Article 10(2) subparagraph 2 TEU, must be legitimated and accountable in a democratic way at the national level in order to supply these European institutions with the legitimacy derived by the peoples of the Member States.Footnote 97 It follows from this dual structure of democratic legitimation that “[t]he European Union can only be democratic if its Member States are.”Footnote 98
But is this sufficient to derive from Articles 10 and 2 TEU a Member State obligation to adhere to democratic standards? Whereas the wording of Article 19(1)(2) TEU, which the Court operationalized in the Portuguese Judges case to enforce the rule of law, clearly stipulates a legal obligation, namely that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law,”Footnote 99 Article 10 TEU is not explicitly phrased as an obligation. However, the Court’s recent judgments on party membership and the ability to stand for election have shed further light on the provision.Footnote 100 In these judgments, the Court has held the following:
[U]nder Article 10(1) TEU, the functioning of the European Union is to be founded on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the European Union is founded …. Article 10(2) and (3) TEU confers on EU citizens the right to be directly represented in the European Parliament and to participate in the democratic life of the European Union. Footnote 101
In its judgments, the Court clearly connects the citizens’ right to democratic participation enshrined in Article 10(3) TEU with the Union’s system of representative democracy outlined in Articles 10(1) and 10(2) TEU. In other words, the citizen has the right to participate in the democratic life of the Union, and that democratic life must meet the requirements of Article 10(1)–(2) TEU. It thus appears as though the CJEU uses the citizens’ right directly enshrined in Article 10(3) TEU to transform Article 10(1) and (2) TEU into legal obligations.
Whereas the democratic life of the Union takes place on both Union and Member State level,Footnote 102 the Court has only explicitly recognized the citizens’ right to be directly represented in the European Parliament.Footnote 103 This then leads to the following question: If the Court has already recognized the right of EU citizens to participate in the democratic life of the Union by being directly represented in the European Parliament, why shouldn’t there also be a right of the Union citizen to participate in the democratic life of the Union by being represented in the European Council and Council?
Just as Article 10(2)(1) TEU determines that citizens are directly represented in the European Parliament, Article 10(2)(2) TEU states that the Member States are “represented” in the European Council and Council.Footnote 104 Although Article 10(2)(2) TEU does not directly refer to the citizens of a Member State but rather to the Member State as such, it is clear that it is the nationals of a Member State who must be represented. This is because Article 10(2)(2) TEU clarifies that the Member State representatives in the European Council and Council must be democratically accountable either to their national parliaments or their citizens. As such, Article 10(2)(2) TEU necessitates “an uninterrupted chain of democratic legitimacy between the people”Footnote 105 of a Member State and the European Council and Council, thus clarifying that the citizens of a Member State are being represented in these bodies.
The representative function of the European Parliament, on the one hand, and the European Council and Council, on the other hand, has been emphasized by the Court:
Secondly, Article 10(1) TEU states that “the functioning of the Union shall be founded on representative democracy.” Paragraph 2 of that article states, first, that citizens are to be directly represented, at EU level, in the Parliament and, secondly, that the Member States are to be represented in the European Council by their Head of State or Government and in the Council by their governments, who are themselves democratically accountable, either to their national parliaments or to their citizens. However, that article does not confer a democratic representation function on the [European Economic and Social Committee (EESC)] and the [European Committee of the Regions (CoR)].Footnote 106
By stating that the EESC and the CoR do not fulfil a representative function, the Court also conversely recognizes that the Council and the European Council do fulfil a representative function. Consequently, the principle of representative democracy in Article 10(1) TEU applies to both the European Parliament and the European Council and Council.
According to the Court, the principle of representative democracy requires that “the composition of the Parliament reflects faithfully and completely the free expression of choices made by the citizens of the European Union.”Footnote 107 It has further emphasized the European Parliament’s function of serving as an “intermediary” between the people and the exercise of power.Footnote 108 As such, democratic representation “places emphasis on the need for institutions to channel the popular will”Footnote 109 and requires that institutions be composed in a way to reflect the free choices made by citizens.
Applied to the European Council and Council, the principle of representative democracy must then equally demand that the government representatives in the European Council and Council effectively represent the people of the Member States and be appointed in a process that reflects faithfully and completely the free expression of choices made by the people of a Member State. Just as European citizens have a right under Article 10(2) and (3) TEU to be directly represented in the European Parliament,Footnote 110 the citizens of a Member State have the right to be effectively and adequately represented in the European Council and Council.
However, the representative of a Member State in the Council and European Council is representative of the governing majority of that Member State but cannot represent the pluralism of different views and opinions present in a Member State. This is why Article 10(2)(2) TEU adds the requirement of democratic accountability. The Member State representatives in the Council and European Council can be considered representative of the citizens of a Member State, because the citizens of a given Member State have options to hold their government accountable. As such, Article 10(2)(2) TEU adds on to the rights of EU citizens under Articles 10(1) and (3). Following the Court’s approach in judgments C-808/21 and C-814/21, one could argue that the citizen’s right to participation in the democratic life of the Union anchored in Article 10(3) TEU is only effectively fulfilled if Member States guarantee the democratic accountability of their government representatives in the Council and European Council.
Indeed, scholars have argued that Article 10(2)(2) TEU obliges Member States to guarantee “a democratically accountable government in order to guarantee democratic legitimacy.”Footnote 111 According to the Union’s “dual structure of democratic legitimation,”Footnote 112 input legitimacy is derived directly from elections to the European Parliament by the European citizensFootnote 113 and indirectly through the representation of the peoples of the Member States in the European Council and Council.Footnote 114 The European Council’s and Council’s legitimacy hence flows from the Member State’s representatives, who in turn, must be legitimated and accountable in a democratic way, at the national level, in order to supply these European institutions with the legitimacy derived by the peoples of the Member States.Footnote 115 This means “[t]here must be an uninterrupted chain of democratic legitimacy between the people, exercising their democratic rights in an election, via their national Parliament through to the national government; in presidential systems, the legitimacy is directly provided by the people to the president.”Footnote 116
As such, two concrete legal obligations giving effect to the value of democracy can be identified on the part of the Member States: Under Article 10(1), they must ensure effective representation, and under Article 10(2), they must ensure that their government is democratically accountable.
More precisely, citizens can only effectively exercise their right to participate in the democratic life of the European Union if they are represented in the institutions that shape this democratic life in the name of the citizens. These institutions are, according to Article 10(2) TEU, the European Parliament as well as the European Council and Council.Footnote 117 There is thus an obligation not just of the European Parliament to be representative of the European citizens as a whole, but also an obligation of the Member State representatives in the Council to be representative of the citizens of a Member State.
In addition to representation, Article 10(2)(2) TEU adds the requirement of democratic accountability. Adding on to the idea of citizens having to be represented in the European institutions, Article 10(2)(2) TEU, read in light of Article 10(3) TEU, requires that for citizens to be effectively represented in the Council, they must be able to hold their Member State’s government accountable.
The Member State obligations under Articles 10 and 2 TEU must be interpreted in the context of the second sentence of Article 2 TEUFootnote 118 as well as the Copenhagen Declaration of DemocracyFootnote 119 which both emphasize that Member States need to be pluralist democracies. Because political parties play a fundamental role “in expressing the will of EU citizens” and fulfill an essential function in the system of representative democracy,Footnote 120 the “pluralism of political parties”Footnote 121 contributes to democratic representation and accountability in pluralist democracies. The effective fulfillment of Member State obligations under Articles 10 and 2 TEU—that is to guarantee democratic representation and accountability—thus presupposes that Member States actively guarantee the freedom of political parties and the pluralism of their party system.
This is because national political parties help to form opinions and lead discourse not just on national matters but also on matters falling within the fields of Union law. They are the main vehicle for enabling political participation and representation in the Member States as well as in the Union. In many Member States, internal processes within national parties determine either the running order on party lists or even the individual candidate who gets to stand for election in a particular constituency.Footnote 122 As such, political parties play a main role in filtering through potential candidates who will get to represent their people and citizens in municipal and national but also European institutions. As seen above, this role is so vital that even the Court has recognized that “membership of a political party contributes significantly to the effective exercise of the right to stand for election.”Footnote 123
Further, political “parties provide important venues for popular discussion of political issues and the formation of public opinion, as well as structures through which the politically engaged citizenry can communicate effectively with their elected representatives.”Footnote 124 Either as members of the government or as part of the opposition, national political parties control their governments’ actions in the Council and European Council, serving as an important check on and venue for discussion on European policies and legislation.Footnote 125
Moreover, one could argue that the more political parties exist and stand for elections, the more options there are to accurately represent the different opinions in society and transpose them into politics.Footnote 126 This means that in a Member State different political groups must compete in and outside of elections and must be allowed to function as an intermediaryFootnote 127 between the views of the people and the views represented in parliament. In other words, “[a] functioning democracy presupposes that no political party, by law, is given the power to monopolise Government.”Footnote 128 “This, in turn, entails the freedom to form political parties and the freedom of those parties to carry out their activities.”Footnote 129
The Court has already stated that the freedom of association allows citizens to act “collectively in fields of mutual interest and in doing so to contribute to the proper functioning of public life.”Footnote 130 It follows from this that “[i|n order for citizens of the Union to be able to participate fully in the democratic life of the Union, measures should be taken to ensure that they are able to use those rights.”Footnote 131 As emphasized by AG Ćapeta, Member State obligations under Article 2 TEU imply that Member States “maintain and … promote actively the values enumerated in Article 2 TEU”Footnote 132 and “take the necessary measures to remove any existing obstacles impeding the full respect of those values in their societies.”Footnote 133 Just as Member States are under a positive obligation under Articles 19(1)(2), 4(3), and 2 TEU to protect the independence of national courts, Articles 10, 4(3), and 2 TEU oblige Member States to actively guarantee the freedom of political parties and a pluralistic party system.Footnote 134 National party bans thus fall within the subject matter of Articles 10 and 2 TEU—but do they equally fall within the scope of these provisions?
2. Scope of Application: The Democratic Life of the Union and its Limitations
To recall, the German FCC held that the applicability of the principle of democracy presupposes that the Member States act within the scope of Union law.Footnote 135 Article 10(3) stipulates that European citizens have a right to participate in the democratic life of the Union.Footnote 136 As such, Article 10(3) TEU seems to determine the scope of the Member State obligations under Article 10 TEU.Footnote 137 It is thus necessary to determine whether a national party ban only falls within the scope of Articles 10 and 2 TEU once it affects the democratic life of the Union, and when such an effect on the democratic life of the Union can be found.
2.1. A Direct and Causal Impact on the Citizen Right to Participate at Union Level
Ceurremans and David submit that for a measure to fall within the scope of Article 10 TEU, there must be a “sufficiently direct causal relation” between the breach of democratic requirements and “the impact on citizens’ rights to democratic participation at Union level.”Footnote 138 They contend that “not every national situation of democratic backsliding has a bearing on the right of EU citizens to participate in the ‘Union’s democratic life.’”Footnote 139 This raises the question how far the democratic life of the Union, and with it the citizens’ right to participate, goes.
Interpreted extremely narrowly, one could maintain that the citizens’ political rights to participate in the democratic life of the Union are exclusively defined in Articles 11, 22, and 24 TFEU and Articles 10–13 and 39–40 CFR. On this basis, one could argue that Article 10 TEU applies only if these rights to participate in the democratic life of the Union are impacted. Then, however, the independent meaning of Article 10 TEU would be hollowed out. The Court has clarified in the Golden Passports judgment that Articles 20, 22, and 24 TFEU merely give concrete expression to the political rights referred to in Articles 10 and 11 TEU.Footnote 140 This means that the political rights under Article 10 TEU are not exhaustively defined by Articles 20, 22, and 24 TFEU which more concretely spell out citizen rights in cross-border situations. If Article 10(3) TEU does indeed have a separate and independent meaning, its scope cannot be reduced to other Treaty provisions.
Interpreted more narrowly still, one could contend that according to Article 10(2) TEU the democratic life of the Union happens in two arenas: the European Parliament, on the one hand, and the European Council and Council, on the other hand. For the ban of a political party to fall within the scope of Article 10(3) TEU, one could consequently demand that a national measure must in some way have a direct and causal impact on the citizens’ right to be represented in the European Parliament and Council. The requirement of a direct and causal impact on Union-level democracy, however, seems to be at odds with the Portuguese Judges case where the potential of courts to come within the fields of Union law was deemed sufficient for Article 19(1)(2) TEU to apply.
2.2. A Potential Impact on the Citizen Right to Participate at Union Level
The Court has held in Portuguese Judges that any Member State court potentially applying EU law must meet the standards of judicial independence under Article 19(1)(2) TEU.Footnote 141 This is an “extremely far-reaching” interpretation of the scope of Article 19(1)(2) TEU “because most courts, if not all, may rule … on questions concerning the application or interpretation of EU law.”Footnote 142
Does it follow from this that Member State courts are bound by EU standards of judicial independence at all times?Footnote 143 The Court specified that Member State Courts are bound by EU standards of independence under Article 19(1)(2) TEU only “to the extent” that they may rule on questions concerning the application of EU law.Footnote 144 However, the obligation laid down in Article 19(1)(2) TEU is “area-based, not case-dependent.”Footnote 145 Because it is area based, and applies to all fields covered by Union law, and because the fields of Union law are far-reaching, it is in practice impossible to distinguish between Member State courts potentially applying Union law and Member State courts potentially not applying Union law.Footnote 146 Pech and Platon point out that, even if Member States tried “to limit the independence of judges only when they rule on questions which do not concern the application or interpretation of EU law,” “it would be a hard task to pinpoint exactly which areas of national law are unaffected by EU law.”Footnote 147 Rather, “it is often impossible to identify, at the beginning of a procedure, whether or not a provision or principle of EU law may turn out to be applicable in the course of a given procedure.”Footnote 148
The fact that virtually all Member State courts are bound by EU standards of judicial independence at all times is thus due to two factors: Article 19(1)(2) TEU applies in all fields covered by Union law and Union law is so extensive and far-reaching that it is nearly impossible to identify if and when it will become relevant. Because of this, the activity of Member State courts cannot be separated into two clear spheres—there is simply no “judicial independence within the scope of EU law” as opposed to “judicial independence in purely national cases.”Footnote 149 It is due to this inseparability that “a minimum of guarantees of judicial independence must be ensured, as a matter of principle, for all courts and as regards all their activities.”Footnote 150
Applying the potentiality criterion to Article 10 TEU equally suggests that Member States are obliged to comply with the democratic standards derived from Article 10 TEU at all times. This is because a citizen—or a political party—can potentially use their political rights to contribute to the democratic life of the Union at all times; any opinion or assembly can potentially relate to matters of Union law and EU democracy at all times. Equally, potentially any parliamentary debate can touch upon matters of EU law and democracy. Just as “it is often impossible to identify, at the beginning of a procedure, whether or not a provision or principle of EU law may turn out to be applicable in the course of a given procedure,”Footnote 151 it is impossible to identify whether a democratic debate—whether between individuals, within political parties, or in the course of a parliamentary debate—will bring up matters of EU law and politics, thus contributing to the democratic life of the Union.
Especially with regards to the principle of democracy, the application of the potentiality criterion is justified. After all, democracy specifically is about protecting potential future majorities, that is to say democracy is about guaranteeing a present minority the options and opportunities to become a majority in the future.Footnote 152 This is probably best explained with an example: Imagine a Member State decides to prohibit any new political party that forms on the national level in order to avoid that any such party ever threatens the power of the established parties. Imagine a Member State decides to ban a political party that has gained political momentum and has become the main opposition power. Admittedly, by doing so, that Member State wouldn’t ban a party that is governing the Member State and that hence has the power to send government representatives to the European Council and Council. Yet by doing so, the Member State restricts which opinions are represented internally and used to hold the government accountable. By doing so, the Member State also effectively limits which opinions can gain governing power in the future and, as a result, which opinions can at one point be represented as government positions at the EU level.
As aptly described by Article 10(2) TEU, “the democratic life of the Union presupposes” democracy in the Member States.Footnote 153 Broadly conceived, the democratic life of the Union in Article 10 TEU thus governs not only situations at the EU level but also at the Member State level.Footnote 154 As such, one can envisage Article 10 TEU applying at all times, including to situations that fall beyond the scope of EU law—also referred to as purely internal situations.Footnote 155 Contrary to the German FCC’s finding, the Member States are thus generally bound by the constitutional provisions of Union law. As such, any ban of a national political party, no matter how small, has a potential effect on the democratic life in the Union and falls within the scope of Article 10(1) and (2).
3. Threshold of Activation: Systemic and Serious Deficiencies
While the democratic standards under Articles 10 and 2 TEU have an unlimited scope of application, not every ban of a political party constitutes a violation of Articles 10 and 2 TEU. Articles 10 and 2 TEU contain merely structural minimum standards, so that only serious and systemic breaches of the Member States’ democratic obligations constitute a violation. These two criteria allow one to take into account the Member State’s reasons for banning a party as well as the effects of the party ban on the pluralism of political parties in the Member State.
3.1. Articles 10 and 2 TEU Contain Merely Structural Minimum Standards
The key to understanding the high threshold of Articles 10 and 2 TEU is to understand them as norms that merely impose structural minimum standards.Footnote 156
This follows from their interplay with Article 4(2) TEU, the provision protecting national identity. While a Member State’s national identity does not exempt a Member State from complying with the obligations arising from Articles 10 and 2 TEU,Footnote 157 Article 4(2) TEU protects the Member States’ fundamental constitutional and political structures and as such guarantees a diversity of constitutional models amongst the Member States. As such, the democratic standards under EU law must be an umbrella model for a plethora of different constitutional models in the Member States ranging from constitutional democracies over presidential democracies to constitutional monarchies. Accordingly, to guarantee diversity amongst the Member States and respect their national identities, the standards under Articles 10 and 2 TEU can only be minimum structural standards broad enough to govern 27 different constitutional models.Footnote 158 Consequently, the Court has classified Member State obligations under Articles 2 TEU as obligations as to the result to be achieved.Footnote 159 While both the Union and the Member States must respect Article 2 TEU, they can choose the form and the method to achieve the level of protection required by Article 2 TEU.Footnote 160
The same applies to Article 10 TEU. On the one hand, this is because the democratic standards under Article 10 TEU give concrete expression to Article 2 TEU, thus having to respect the nature of these standards as merely structural. On the other hand, Article 10 TEU is of structural nature itself. While other provisions contain more specific descriptions of the Union’s institutions, Article 10 TEU outlines only the most basic democratic structure of the Union. Its objective is to ensure the EU’s democratic legitimacy through the system of dual legitimation.Footnote 161 As such, Article 10 TEU describes democracy from a systemic and structural point of view.
Because the standards are merely structural, a situation only triggers Articles 10 and 2 TEU if it constitutes a systemic and generalized deficiency. This is because only systemic deficiencies are capable of breaching structural standards, whereas individual violations leave the structural standards—that is, the state system guaranteeing the principle of democracy in law and in society—untouched. This is best demonstrated by way of an example: If a Member State decides to prohibit a specific public protest, it potentially breaches the freedom of assembly, but still generally adheres to democratic principles. If, however, a Member State decides to ban all public protests or to specifically target public protests of the opposition, then the issue transcends from an issue of individual fundamental rights to a systemic issue of adherence to democratic principles.
Support for this can be found in Article 7(2) TEU, which requires a “serious and persistent breach” of Article 2 TEU and where “[t]he breach identified must … go beyond specific situations and concern a more systematic problem.”Footnote 162 Given the Article 7 TEU procedure is the only explicit mechanism for the enforcement of Article 2 TEU, it provides important insight and orientation as to what can constitute a breach of the standards contained in Article 2 TEU and given expression to in other Treaty provisions.Footnote 163
This is further confirmed by a closer look at the Court’s judgment in Repubblika, which established the principle of non-regression, prohibiting any reduction in the protection of Article 2 TEU values.Footnote 164 “Value regression, however, implies that the situation in question is of sufficient gravity, or of a systemic nature, to lead to a regression in the protection of Article 2 TEU values.”Footnote 165
The high threshold also finds normative support in the fact that Article 2 TEU “is not only a duty of each Member State towards the Union and the other EU countries, it is also a duty towards the EU citizens and all other individuals falling in the scope of EU law”Footnote 166 so that the principle of democracy must be concretely implemented in Member State society.Footnote 167 This, however, also suggests that to establish a breach of the principle of democracy the effects of the breach must go beyond the individual and must have an effect on societyFootnote 168 —in other words, be systemic and affect not only an individual case.
3.2. National Party Bans as a Serious and Systemic Deficiency?
As seen above, only sufficiently serious and systemic breaches of democratic principles amount to a violation of Articles 10 and 2 TEU. On the one hand, a situation in a Member State can be considered systemic when individual breaches “either occur on a regular basis, are widespread or deep-rooted, or can be traced back to high authorities that use them to express a political stance.”Footnote 199 As such, a systemic deficiency appears not as an “isolated case[], but rather as [a] characteristic[] of a system.”Footnote 170 What differentiates a systemic deficiency from a normal one is the fact that it cannot “be processed as a matter of routine.”Footnote 171 Rather, systemic deficiencies are “challenges to an existing order without a safe remedy”Footnote 172 —that is, situations where the national system does not offer “sufficient structural guarantees to self-correct the problem once identified.”Footnote 173 The seriousness of a breach, on the other hand, is determined considering a variety of criteria, “including the purpose and the result of the breach.”Footnote 174
In light of AG Ćapeta’s recent opinion on Article 2 TEU, one might first wonder whether a national party ban must have an effect on the functioning of the EU legal order for it to be considered a serious violation of Articles 10 and 2 TEU.Footnote 175 This is because, when finding that Hungary had deviated from the values of Article 2 TEU, AG Ćapeta specified that “[t]he effect of deviation from values is not internal to a Member State, but affects the functioning of the EU legal order.”Footnote 176 According to her, “[t]his justifies the Court’s intervention through infringement proceedings.”Footnote 177 Other authors, however, do not seem to support such a strict requirement of effects on the functioning of the EU legal order. Spieker, for example, proposes a sliding scale: “The more the situation departs from the scope of Union law and comes solely under Article 2 TEU, the greater is the need for a violation to reach the substantive thresholds of Article 7 TEU.”Footnote 178 Under such a sliding scale, the need for an effect on the functioning of the EU legal order seems to be replaced by the high threshold of activation, demanding serious and systemic deficiencies.
In the case of party bans, the above question can be left open. This is because a party ban, if it constitutes a serious and systemic violation of Articles 10 and 2 TEU, also has an effect on the functioning of the EU legal order. This is because Article 10 TEU gives concrete expression to the Article 2 TEU value of democracy.Footnote 179 The values and principles enshrined in Article 2 TEU “legitimize the EU, simplify coordination between its members, and safeguard the Union’s effective functioning.”Footnote 180 The principle of democracy specifically plays a great role in legitimizing the EU’s action and, although according to Article 10(2) TEU democratic legitimacy in the Union rests on two strands,Footnote 181 “[b]oth … eventually lead to the individual[—in other words,] the citizen of the Union and simultaneously of one or several Member States.”Footnote 182 That individual, however, does not exist within a sphere of EU law and outside a sphere of EU law. Although the Treaties do differentiate between the Union citizens and the citizens of a Member State, such a differentiation is practically impossible: A Union citizen is a citizen of a Member State and vice versa. Only if that citizen lives in a democracy can the EU can be properly supplied with legitimacy. Arguably, this input legitimacy is not only needed for the exercise of the Union’s current competences. Rather, if Member States transfer more of their competences to the Union, such a transfer of competences must be legitimized by a democratic process in the Member State. Conversely then, for any future transfer of power to the Union level to be democratically legitimate, democracy in the Member States must exist at all times. Otherwise, any potential transfer of powers to the European Union by the Member States would not be legitimized by a democratic discourse in the Member States. By the same token, the Court has held in Wightman and Others that the principle of democracy means that the people of a Member State cannot be forced to withdraw from the Union if they decide “to revoke the notification of that intention through a democratic process.”Footnote 183 If the revocation of withdrawal requires a democratic process, then conversely the people of a Member State can only be forced to be a member of the Union if there is a democratic process that continues to support this membership. If a party ban puts the Member States’ adherence to core democratic principles into question, it thus also affects the functioning of the EU legal order. This is because the EU legal order is dependent on legitimacy derived from democracy on the Member State level.
At the same time, this answers the question of when a party ban can be considered sufficiently serious and systemic to constitute a violation of Articles 10 and 2 TEU. The seriousness of a violationFootnote 184 enables us to take into account the goal a Member State pursues when banning a party. The systemic character of a violation permits us to look at the effects the banning of a political party has on the pluralistic multi-party system in a Member State.
Member State approaches to political party bans vary from controls before acquiring legal status or being registered—ex ante mechanismsFootnote 185 —to restrictions once political parties violate democratic or constitutional requirements—ex post mechanisms.Footnote 186 Equally, Member State approaches vary from Weimar-style party bans, where parties are prohibited because they “seek to abolish democracy wholesale,”Footnote 187 to “legitimacy”Footnote 188 party bans, where prohibitions are founded on the fact that parties “threaten certain elements within the liberal constitutional order, such as the commitment to equality and nondiscrimination, the absolute commitment to a nonviolent resolution of disputes, or secularism.”Footnote 189 Without engaging in a detailed analysis of the respective Member State law, all these approaches seem to serve the protection of Article 2 TEU and hence present themselves as being compatible with EU law.Footnote 190 In other words, if a Member State bans a political party for the very reason of preventing the values of Article 2 TEU from being abolished, the purpose of the party ban does not constitute a serious threat to democratic values and does not fall within the threshold of Articles 10 and 2 TEU.
This, however, does not mean that party bans at the Member State level can never trigger Articles 10 and 2 TEU. Rather, the danger inherent in the banning of political parties is that those in power are provided with a means “to make the relevant decisions to arbitrarily exclude an indeterminately expansive range of political competitors from the democratic game, thereby restricting the democratic nature of the regime.”Footnote 191
National party bans can thus violate Articles 10 and 2 TEU where they are used as a means to suppress the voices of the opposition or of political competitors and when these competitors themselves respect the values of Article 2 TEU. As such, a single party ban can violate Articles 10 and 2 TEU if it is serious enough to put into question the pluralism of the party system in a Member State. This can be the case if the governing party bans its main competitor or all opposition parties.
C. Conclusion
Although the European Union has recently started to enforce the principle of democracy against Member States, its significance is still mainly overlooked. If the principle of democracy can be applied against a national committee investigating any activities influencing democratic debate,Footnote 192 if it can be applied against a national commission with the power of barring public officials found to be under Russian influence from holding public office,Footnote 193 and if it can be applied against national rules that bar mobile EU citizens from joining political parties,Footnote 194 why should it not be applicable to national party bans?
Whereas the German FCC concluded that national party bans fall outside the scope of EU law, this Article has evaluated the FCC’s perspective in light of recent developments and has presented arguments as to why the FCC’s view might have to be reconsidered. In light of Delvigne, it is possible to view national party bans as an implementation of the requirement under Articles 14(3) and 10(1) TEU that elections to the European Parliament must be free and democratic. On the basis of the growing literature and case law pertaining to Articles 10 and 2 TEU, it is equally possible to conclude that national party bans fall within the scope of these provisions.
The ban of a national political party is thus illustrative for the questions surrounding the application and enforcement of democratic standards against the Member States and for the interplay of different democratic standards with each other. On the one hand, Article 14(3) TEU, which triggers the application of the Charter, is only applicable to European elections and hence only provides for EU oversight if a political party participates in EU elections. On the other hand, the standards of Articles 10 and 2 TEU apply at virtually all times—that is, whenever a national political party potentially contributes to the democratic life of the Union. While the Charter allows for a full review of national party bans and their justifications, national party bans only trigger the threshold of Articles 10 and 2 TEU if they represent a serious and systemic case.
The picture that emerges is thus similar to the sliding scaleFootnote 195 proposed by Spieker: When there is a clear link between a national party ban and EU law through the participation of the political party in EU elections, any individual party ban can be reviewed according to the standards of Article 12 CFR. When there is no clear link between a national party ban and EU law because the national party does not compete in EU elections, the intensity of the review is reduced: Articles 10 and 2 TEU are only triggered in exceptional cases which are serious and systemic.
While the intensity of review fluctuates depending on the party ban’s link to EU law, this Article has also aimed to show that national party bans do not generally escape the scope of EU law. Rather, the fundamental democratic principles to which the Member States are bound under Articles 10 and 2 TEU apply to party bans at all times and in all circumstances.
Acknowledgements
A first version of this Article was presented in May 2024 at a workshop on “Values in EU Law and Policy” organized by the Europa Institute, University of Edinburgh. I am grateful to Professor Neil Walker and all the participants for their insightful comments. This Article has also benefited from the insightful feedback of Dr. Darren Harvey, Dr. Thomas Verellen, and Dr. Oliver Garner on earlier versions of this Article.
Competing Interests
The author declares none.
Funding Statement
This Article is part of my doctoral research which was funded by an AHRC London Arts and Humanities Partnership Research Studentship.
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