Containing Populism at the Cost of Democracy? Political vs. Economic Responses to Democratic Backsliding in the EU

Abstract

This paper critically engages the legal and political framework for responding to democracy and rule of law backsliding in the EU. I develop a new and original critique of Article 7 TEU based on it being democratically illegitimate and normatively incoherent qua itself in conflict with EU fundamental values. Other more incremental and scaleable responses are desirable, and the paper moves on to assess the legitimacy of economic sanctions such as tying access to EU funds to performance on democratic and rule of law indicators or imposing fines on backsliding states. I hold such sanctions to be a priori legitimate, and argue that in some cases economic sanctions are even normatively required, given that EU material support of backsliding member states can amount to material complicity in their backsliding. However, an economic conditionality mechanism would need to be designed to minimize unjust and counterproductive effects. One way to pursue this could be to complement sanctions against the backsliding government with investment for prodemocratic actors in that state.

Countering Democratic Backsliding by EU Member States: Constitutional Pluralism and ‘Value’ Differentiated Integration

“…As a result, the involvement of backsliding states adds to the notorious democratic deficit of the EU (Müller 2015: 143; Kelemen 2017). Moreover, this is a deficiency the EU itself is complicit with so long as it tolerates and even funds such governments (Theuns 2020: 149‐150).…”

“…How one conceives of the EU – as a federal and supranational, system of governance, or a confederal and demoicratic political and legal order – also influences the type of action scholars recommend to counter democratic backsliding, mirroring an academic debate on new forms of governance and the benefits of hard law vs. soft law in the late 1990s and early 2000s (Kröger 2009). On the one hand, more federal minded commentators are inclined to revert to hard law and, accordingly, put the CJEU and more stringent sanctions centre‐stage in their reform proposals (Blauberger and Kelemen 2017; Müller 2015; Theuns 2020). As regards action by the CJEU, Michael Blauberger and Daniel Kelemen propose that secondary legislation be developed to put Article 2 TEU into effect (2017: 326), not least by operationalizing fundamental values more and providing a clear definition of the ‘rule of law’.…”

“…Rather, the process should gain authority from a body that can credibly represent the pluralism of the MS and be ultimately accountable to the Council. It should also involve actors from civil society and the opposition within the targeted MS. Second, the identification of any democratic failings needs to be undertaken in an impartial manner, which applies equally and consistently to all MS (Theuns 2020: 151‐152). To meet this condition, the monitoring should come from an independent body (Schlipphak and Treib 2017: 361‐362; Blauberger and van Hüllen 2020: 9‐10, 11‐12).…”

“…Such financial penalties would be capable of being exacted in a proportionate and targeted way. They can be reduced on a sliding scale, with minor infractions attracting small and temporary limits to accessing structural and investment funds, and graver infractions more severe and longer‐lasting economic sanctions, including fines and restricted access to the EU single market (Theuns 2020: 149). In certain instances, funding can also be given directly to end users rather than via government agencies (EP 2019: Amendment 23; Theuns 2020: 156).…”

Introduction: Democratic Challenges of Differentiated (Dis)Integration

“…By now, the democratic backsliding of certain member states is widely seen as the EU’s “other democratic deficit” (Kelemen 2017). For the EU, the challenge is not only to take measures to uphold the democratic principles it is committed to, but to do so in a way that does not itself raise democratic concerns (Müller 2015; Schlipphak and Treib 2017; Theuns 2020).…”