Abstract
What should the EU do about the fact that some Member States are backsliding on their commitments to democracy, supposedly a fundamental value of the EU? The Treaty provisions under Article 7 TEU are widely criticized for being ineffective in preventing such developments. Are they legitimate? I argue that the ultimate sanction of Article 7 TEU falls into a performative contradiction, which undermines its ability to coherently defend fundamental values. Instead, expulsion from the EU is the appropriate, coherent and legitimate final political sanction for democratic and rule of law backsliding by a Member State. The argument has the following steps: In Part 1, I argue that the current Article 7 framework for responding to democratic and rule of law backsliding in the EU is normatively problematic, in that the mechanism currently in the Treaty undermines the values it purports to defend; in other words, it falls into a performative contradiction. It is undemocratic to deprive Member States of their right to vote in the Council while holding them subject to Council decisions. However, Part 2 studies relevant philosophical arguments from an adjacent literature on criminal disenfranchisement, concluding that allowing backsliding Member States to keep their voting rights in the Council also taints the democratic character of Council decision-making. In Part 3, I consider the resulting paradox in light of the literature on militant democracy. Could militant democracy justify Article 7? I argue not; even if we accept the hypothetical justifiability of militant measures, they are not legitimate here since a democratically acceptable alternative exists that would safeguard the democratic character and legitimacy of Council decision-making: expulsion from the Union. I also address a central objection to an expulsion mechanism—that it would require treaty change and is therefore practically impossible.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
The Article 7 procedure against Poland was initiated when the Commission submitted a reasoned proposal to the Council that there was a clear risk of a serious breach of the rule of law in December 2017. The Article 7 procedure against Hungary was initiated when the European Parliament submitted a reasoned proposal to the Council in September 2018, paying special attention to the values of democracy, the rule of law and human rights.
Such as the use of the new Conditionality Regulation, adopted on 16 December 2020, which permits the EU to cut off funds to member states backsliding on the rule of law when the sound financial management of the EU budget and/or the EU’s financial interests are at stake. Or for instance the use of ‘systemic’ infringement actions brought by the EU Commission under Article 258 TFEU or by member states under Article 259 TFEU (Scheppele et al. 2021).
I use the term ‘purpose’ in contrast to ‘intention’ deliberately as a way of flagging the ‘purposive’ position in jurisprudence whereby legal interpretation seeks to identify the purposes of statutes based on an idealized standard of what reasonable legislators could be supposed to pursue (see e.g. Hart and Sacks 1994; cf. Posner 1985) rather than what a body of legislating persons actually intended—the ‘intentionalist’ view—or what a legal text means ‘objectively’ (for a discussion see Greenberg 2021).
Article 2 reads: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’.
Sadurski was referencing the short-lived unilateral sanctions taken by 14 member states against Austria in January 2000 for the inclusion of the far-right FPÖ in the Austrian government, however, not the Article 7 sanction.
Immanent critique has as an advantage that any observer drawn or committed to the internal values and norms of a particular legal and political environment may feel implicated by the normative analysis. However, this quality also serves to delimit its normative value: where a legal or political environment is abhorrent, an immanent critique of its normative coherence is worthless.
Whereas in national democracies this is ordinarily cast as ‘one person one vote’, that standard does not translate easily to a supranational polity such as the EU, where some member states are much more populous. The current EU Treaties aim to neutrally settle respective voting weights through balancing majorities of Member States and majorities of European citizens. Weighted voting, consensus norms and representation at the EU level all deserve more careful normative scrutiny, but such issues cannot be addressed here.
So, for instance, childless retired persons’ judgements over appropriate standards for governing childcare are legitimately included in a democratic decision-making procedure upholding the all-subjected principle. As are the judgements of blind persons on the appropriate limits to roadside advertising.
‘Ordinarily’ given the possibility in some cases of opt-outs or exemptions, now a field of study in their own right as ‘differentiated integration’; ‘automatically’ given the direct effect of EU law.
This is not to say that EU law does not constrain the choices of non-EU Member States. Think for instance of those EEA non-EU Member States that are, in the parlance that has become popular in light of the Brexit debate, ‘rule takers’. Or of those states in the EU’s ‘neighbourhood’ who are encouraged to adopt large swathes of the EU acquis communautaire in order to enter into privileged trading relationships with the EU (Theuns 2019). Yet, while such dependencies may violate a pro-democratic ethos, they do not in themselves violate the EU’s internal commitment to equality and democracy.
For a contrasting analysis of EU fundamental values that emphasizes their inherent ambiguity see Mos (2020).
I thank Nikolas Kirby and an anonymous reviewer for raising this objection. See also Schertz (2021).
Again, there is a boundary-setting problem here over when states fall below the relevant democratic standards: ‘States that are sufficiently democratic ought… to have an equal stake in democratic rule-making and rule-authorization (in this context, an equal vote in the Council) while states that are insufficiently democratic cannot legitimately be bound to the Council’s decisions’ (Theuns 2020, p. 147).
Determining that threshold will be complicated both in principle and practice (Theuns 2020, pp. 147–148).
The ideal/non-ideal theory distinction comes from the work of John Rawls. For an overview of its use, see Zala et al. (2020, pp. 37–43).
In other words, I am not endorsing the militant democratic position. Rather, the aim is to show that even if militant democracy is correct, and anti-democratic measures are justifiable under ‘existential’ circumstances, Article 7 is still illegitimate.
I will not address here whether the threat must be to the system as a whole, or to the (more limited) enjoyment of democratic civil and political rights for some, as nothing in my argument turns on whether we read the existential threat condition strictly or loosely. For an interesting discussion see Kirshner (2014, pp. 50–55).
Militant democratic theory takes democratic legitimacy and democratic equality as fundamental pro tanto values that can only be thwarted for their own sake—to ensure that a polity maintains its character as democratic in light of an existential threat. Theorists who prioritize a different fundamental value such as, for instance, egalitarian distributive justice or republican non-domination, might balk at the normative costs of expelling an autocratic member state. I cannot resolve disagreement on such bedrock normative principles here, but note that my key claim—that guaranteeing the democratic legitimacy of the EU requires the possibility of recourse to an expulsion mechanism—is not vulnerable to such disagreements.
‘Wir können nicht akzeptieren, dass die Grundwerte der Europäischen Union massiv verletzt werden. Wer wie Ungarn Zäune gegen Kriegsflüchtlinge baut oder wer die Pressefreiheit und die Unabhängigkeit der Justiz verletzt, der sollte vorübergehend oder notfalls für immer aus der EU ausgeschlossen werden’ (my translation):
www.welt.de/politik/ausland/article158094135/Asselborn-fordert-Ausschluss-Ungarns-aus-der-EU. Accessed 22 September 2021.
‘Kun je een begroting maken via een intergouvernementeel verdrag of kun je nu een Europese Unie oprichten zonder Hongarije en Polen?’ (my translation):
https://www.tweedekamer.nl/kamerstukken/plenaire_verslagen/detail/2019-2020/99. Accessed 22 September 2021.
This view presupposes a vision of the EU polity focused more on the voluntarism of Articles 49 and 50 regarding, respectively, accession to and withdrawal from the Union, than on the EU as an ‘ever closer union’ from the preamble to the TEU and Article 1. In other words, it presupposes a rather more inter-governmental Union than a federalist or post-national one (Bellamy 2019, pp. 83–89).
If expulsion would undermine Article 2 values anyway then there would be no reason to posit it as a better (qua non-militant) measure vis-à-vis disenfranchisement in the Council.
One might also hope that acknowledging eventual recourse to an expulsion mechanism may make its use unnecessary, given widespread support for EU membership in, for instance, Poland and Hungary.
Given this view of the EU it could be asked whether Member States could not legitimately volunteer to be subjected without representation. One may wonder whether a Member State sanctioned under Article 7 but deciding not to trigger Article 50 does not ‘voluntarily’ remain subject to the Treaties given their option to withdraw. However, the voluntarism of the EU as an association (i.e. Member States are members voluntarily and can leave) does not mean they could legitimately disenfranchise themselves, or accept their subjection. Just as vote-selling may be voluntary but cannot be democratic, so too for subjection to EU law without the right to vote in the Council.
See, centrally, Article 20 of the Treaty on the Functioning of the European Union which makes EU citizenship derivative from the citizenship of a Member State. For discussion see van den Brink and Kochenov (2019).
In, for example, the Kaur, Grzelczyk and Zambrano decisions of the Court of Justice of the European Union (see ibid., pp. 1372–1373).
Notwithstanding Christophe Hillion’s controversial suggestion that the ‘continued and deliberate defiance of the core principles of [EU] membership’ by backsliding states amounts to those states notifying the Council of their intention to withdraw from the EU under Article 50 TEU (Hillion 2020; cf. Scholtes 2020; Hofmann 2021).
This extends beyond Council law-making to, for instance, the appointment of European Commissioners (though the fact that these must be approved by the EP acts as a check, as we recently saw with the rejection of Hungarian nominee Laszlo Trocsanyi in September 2019).
References
Arendt, Hannah. 1951. The burden of our time [later title: The origins of totalitarianism]. London: Secker & Warburg.
Athanassiou, Phoebus. 2009. Withdrawal and expulsion from the EU and EMU: Some reflections. ECB Legal Working Paper 10: 3–48. http://ssrn.com/abstract_id=1517760. Accessed 22 Sept 2021.
Bárd, Petra. 2018. The rule of law and academic freedom or the lack of it in Hungary. European Political Science 19: 1–10.
Beckman, Ludvig. 2009. The frontiers of democracy: The right to vote and its limits. Cham: Springer.
Beckman, Ludvig. 2014. The subjects of collectively binding decisions: Democratic inclusion and extraterritorial law. Ratio Juris 27 (2): 252–270.
Bellamy, Richard. 2019. A republican Europe of states: Cosmopolitanism, intergovernmentalism and democracy in the EU. Oxford: Oxford University Press.
Bellamy, Richard, and Sandra Kröger. 2021. Countering democratic backsliding by EU Member States: Constitutional pluralism and ‘value’ differentiated integration. Swiss Political Science Review (early view).
Bennett, Christopher. 2016. Penal disenfranchisement. Criminal Law and Philosophy 10 (3): 411–425.
Blauberger, Michael, and R. Daniel Kelemen. 2017. Can courts rescue national democracy? Judicial safeguards against democratic backsliding in the EU. Journal of European Public Policy 24 (3): 321–336.
Chamon, Merijn. 2020. Re-establishing the EU: Dissolution, withdrawal or succession. EU Law Live 32: 2–6.
Chamon, Merijn, and Tom Theuns. 2021. Resisting membership fatalism: Dissociation through enhanced cooperation or collective withdrawal. Verfassungsblog. https://verfassungsblog.de/resisting-membership-fatalism/ Accessed 11 Oct 2021.
Cholbi, Michael J. 2002. A Felon’s right to vote. Law and Philosophy 21 (4/5): 543–565.
Christiano, Thomas. 2008. The constitution of equality. Oxford: Oxford University Press.
Ewald, Alec. 2002. Civil death: The ideological paradox of criminal disenfranchisement law in the United States. Wisconsin Law Review 5: 1045–1132.
Gora, Anna, and Pieter de Wilde. 2020. The essence of democratic backsliding in the European Union: Deliberation and rule of law. Journal of European Public Policy 1–21 (online first).
Greenberg, Mark. 2021. Legal interpretation. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/fall2021/entries/legal-interpretation. Accessed 11 Oct 2021.
Hart, Henry M., and Albert M. Sacks. 1994. The legal process: Basic problems in the making and application of law. Foundation Press.
Hausteiner, Eva Marlene. 2020. Can federations expel member states? On the political theory of expulsion. Journal of International Political Theory 16 (1): 47–67.
Hillion, Christophe. 2020. Poland and Hungary are withdrawing from the EU. Verfassungsblog. https://verfassungsblog.de/poland-and-hungary-are-withdrawing-from-the-eu/. Accessed 22 Sept 2021.
Hintikka, Jakko. 1962. Cogito, ergo sum: Inference or performance? Philosophical Review 71 (1): 3–32.
Hofmann, Herwig. 2021. Sealed, stamped and delivered the publication of the Polish Constitutional Court’s judgment on EU law primacy as notification of intent to withdraw under art. 50 TEU? Verfassungsblog. https://verfassungsblog.de/sealed-stamped-and-delivered/ Accessed 20 Oct 2021.
Invernizzi Accetti, Carlo, and Ian Zuckerman. 2017. What’s wrong with militant democracy? Political Studies 65 (1): 182–199.
Kelemen, R. Daniel. 2017. Europe’s other democratic deficit: National authoritarianism in Europe’s Democratic Union. Government and Opposition 52 (2): 211–238.
Kirshner, Alexander. 2014. A theory of militant democracy: The ethics of combatting political extremism. New Haven: Yale University Press.
Kochenov, Dimitry, and Laurent Pech. 2016. Better late than never? On the European Commission’s rule of law framework and its first activation. JCMS: Journal of Common Market Studies 54 (5): 1062–1074.
Kochenov, Dimitry. 2017. Busting the myths nuclear: A commentary on article 7 TEU, EUI Working Paper No. LAW 2017/10. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2965087. Accessed 22 Sept 2021.
Kovács, Kriszta, and Kim Lane Scheppele. 2018. The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union. Communist and Post-Communist Studies 51 (3): 189–200.
Loewenstein, Karl. 1937. Militant democracy and fundamental rights, I. American Political Science Review 31 (3): 417–432.
López-Guerra, Claudio. 2014. Democracy and disenfranchisement: The morality of electoral exclusions. Oxford: Oxford University Press.
Manfredi, Christopher P. 1998. Judicial review and criminal disenfranchisement in the United States and Canada. The Review of Politics 60 (2): 277–306.
Mos, Martijn. 2020. Ambiguity and interpretive politics in the crisis of European values: Evidence from Hungary. East European Politics 36 (2): 267–287.
Müller, Jan-Werner. 2015. Should the EU protect democracy and the rule of law inside member states? European Law Journal 21 (2): 141–160.
Nicolaïdis, Kalypso. 2013. European democracy and its crisis. Journal of Common Market Studies 51 (2): 351–369.
Niklewicz, Konrad. 2017. Safeguarding the rule of law within the EU: Lessons from the Polish experience. European View 16 (2): 281–291.
Oliver, Peter, and Justine Stefanelli. 2016. Strengthening the rule of law in the EU: The Council’s inaction. JCMS: Journal of Common Market Studies 54 (5): 1075–1084.
Olsen, Tore Vincents, and Christian F. Rostbøll. 2017. Why withdrawal from the European Union is undemocratic. International Theory 9 (3): 436–465.
Olsen, Tore Vincents. 2019. Liberal democratic sanctions in the EU. In Militant democracy and its critics: Populism, parties, extremism, eds. Anthoula Malkopoulou and Alexander Kirshner. Edinburgh: Edinburgh University Press.
Patberg, Markus. 2019. Can disintegration be democratic? The European Union between legitimate change and regression. Political Studies 68 (3): 582–599.
Patberg, Markus. 2021. The democratic ambivalence of EU disintegration: A mapping of costs and benefits. Swiss Political Science Review (early view).
Pech, Laurent, and Kim Lane Scheppele. 2017. Illiberalism within: Rule of law backsliding in the EU. Cambridge Yearbook of European Legal Studies 19: 3–47.
Poama, Andrei, and Tom Theuns. 2019. Making offenders vote: Democratic expressivism and compulsory criminal voting. American Political Science Review 113 (3): 796–809.
Posner, Richard A. 1985. The federal courts: Crisis and reform. Cambridge, MA: Harvard University Press.
Reiman, Jeffrey. 2005. Liberal and republican arguments against the disenfranchisement of Felons. Criminal Justice Ethics 24 (1): 3–18.
Sadurski, Wojceich. 2010. Adding bite to a bark: The story of article 7, EU enlargement, and Jorg Haider. Columbia Journal of European Law 16 (3): 385–426.
Schall, Jason. 2006. The consistency of felon disenfranchisement with citizenship theory. Harvard Black Letter Law Journal 22: 53–93.
Scheppele, Kim Lane, Dimitry Kochenov, and Barbara Grabowska-Moroz. 2021. EU values are law, after all: Enforcing EU values through systemic infringement actions by the European Commission and the Member States of the European Union. Yearbook of European Law 39: 3–121.
Scherz, Antoinette. 2021. How should the EU respond to democratic backsliding? A normative assessment of expulsion and suspension of voting rights from the perspective of multilateral democracy [Paper Presentation]. ECPR early career workshop on democratic backsliding. Rome, Italy.
Scholtes, Julian. 2020. On doctrinal contortions and legal fetishes: A sceptical response to Christophe Hillion, Verfassungsblog. https://verfassungsblog.de/on-doctrinal-contortions-and-legal-fetishes/. Accessed 22 Sept 2021.
Sedelmeier, Ulrich. 2017. Political safeguards against democratic backsliding in the EU: The limits of material sanctions and the scope of social pressure. Journal of European Public Policy 24 (3): 337–351.
Sigler, Mary. 2014. Defensible disenfranchisement. Iowa Law Review 99: 1725–1744.
Theuns, Tom. 2017. Promoting democracy through economic conditionality in the ENP: A normative critique. Journal of European Integration 39 (3): 287–302.
Theuns, Tom. 2019. The legitimacy of free trade agreements as tools of EU democracy promotion. Cambridge Review of International Affairs 32 (1): 3–21.
Theuns, Tom. 2020. Containing populism at the cost of democracy? Political vs. economic responses to democratic backsliding in the EU. Global Justice: Theory, Practice, Rhetoric 12 (2): 141–160.
Theuns, Tom. 2021. Pluralist democracy and non-ideal democratic legitimacy: Against functional and global solutions to the boundary problem in democratic theory. Democratic Theory 8 (1): 23–49.
van den Brink, Martijn, and Dimitry Kochenov. 2019. Against Associate EU citizenship. JCMS Journal of Common Market Studies 57 (6): 1366–1382.
von Bogdandy, Armin, and Luke Dimitrios Spieker. 2019. Countering the judicial silencing of critics: Article 2 TEU values, reverse Solange, and the responsibilities of National Judges. European Constitutional Law Review 15 (3): 391–426.
Zala, Miklos, Simon Rippon, Tom Theuns, Sem de Maagt, and Bert van den Brink. 2020. From political philosophy to messy empirical reality. In Justice and vulnerability in Europe, ed. Trudie Knijn and Dorota Lepianka. Cheltenham Glos: Edward Elgar Publishing.
Acknowledgements
This article has been a fairly long time in the making and contains ideas salvaged from abandoned papers as well as things written initially for other papers (especially Theuns 2020). As such, my list of debts is long. I would like to thank the participants of the GJN/TPR/MWP Global Justice and Populism workshop held at the EUI in June 2019, those at Injustice and Illegitimacy in Europe panel of the 2019 CES conference, the 2021 ECPR Political Theory Seminar and the 2021 ECPR Joint Sessions workshop on militant democracy. I would particularly like to thank Gabriele Badano, Ludvig Beckman, Jan Pieter Beetz, Jelena Belic, Richard Bellamy, Angela Bourne, Dimitrios Efthymiou, Franca Feisel, Maurits de Jongh, Nikolas Kirby, Sandra Kröger, Glyn Morgan, Alasia Nuti, Tore Vincents Olsen, Andrei Poama, Andrea Sangiovanni, Antoinette Scherz, Nicole Scicluna, Martijn van den Brink, Frank Vandenbroucke, Philippe Van Parijs, Fabio Wolkenstein and Miklos Zala, as well as the editors and anonymous reviewers at Res Publica. Few of them endorse my position here—mistakes that remain are made in spite of their generous interventions. I also gratefully acknowledge support from the NWO Veni grant VI.Veni.201R.061 since February 2021.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Theuns, T. The Need for an EU Expulsion Mechanism: Democratic Backsliding and the Failure of Article 7. Res Publica 28, 693–713 (2022). https://doi.org/10.1007/s11158-021-09537-w
Accepted:
Published:
Version of record:
Issue date:
DOI: https://doi.org/10.1007/s11158-021-09537-w
