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

Abstract

Constitutional pluralism (CP) and differentiated integration (DI) have been criticised as potentially legitimising democratic backsliding within the EU. Critics contend that effective measures require strengthening the legal authority of the Court of Justice of the European Union and the political authority of the European Commission. We dispute this criticism, which rests on a federal conception of the EU at odds with its confederal features. We argue that the value of democracy for the EU derives from pluralism between as well as within states, thereby justifying CP and DI. While both prove incompatible with democratic backsliding, they challenge the legitimacy of the strong assertions of federal authority some advocate to tackle it. Drawing on CP, we propose four criteria for EU action against backsliding regimes, and suggest processes and penalties that meet them. We liken the latter to ‘value’ DI, whereby backsliding states can be excluded from EU funding and voting rights.

Differentiated Integration in the European Union: Its Role for Cooperating with Nonmembers and for the EU’s Future as Perceived by Academic Experts

“…Finally, between 12.9 per cent and 21.4 per cent point towards foreign policy, home affairs and social policy as areas in which DI should not be allowed. That a high number of our experts would oppose DI in areas pertaining to the Rule of Law is perhaps not surprising, not least after years of continued political debate around this issue between EU actors and Hungary and Poland, as well as increasing academic attention to the topic (Kelemen, 2019;Bellamy and Kröger, 2021). What is more striking is that roughly half of our experts considered that the Single Market could be an object of DI.…”

Why and How Should the European Union Defend its Values?

“…The independent body to make the evaluation and decision should be one that is part of the European framework. Here, the ECJ might be the obvious choice and one preferred by adherents of the legal approach, but in principle, it could be left to a specialised body with a more broad recruitment base to give it higher empirical legitimacy (see Müller 2017 ; Bellamy and Kröger 2021 ). The main point is that it should operate on the basis of a discourse of application of pre-existing norms; not on a discourse of justification, nor on an ad hoc provision of evaluation criteria.…”

“…Very recently we have seen more good attempts at addressing the EU question from the viewpoint of normative political theory (e.g. Bellamy and Kröger 2021 ; Theuns 2020 ). However, few if any offer the same comprehensive framework for discussing the defence of EU values as the one laid out here.…”

Illiberal challenges to the European Union’s legitimacy from within and without: the rule of law and refugee crises

“…Both the Hungarian and Turkish cases demonstrate the pressing need for an effective EU approach to the illiberal challengers seeking not only concessions and benefits from the EU but also higher international status and populist regime survival along with domestic political popularity. The failure of the EU's sanctioning mechanisms against Hungary and Turkey reflect the need for a 'value differentiated integration' (Bellamy and Kröger 2021). For the EU, this implies more concern about normative and cognitive legitimacy than pragmatic legitimacy.…”