Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges

Bogdandy, Armin von; Spieker, Luke Dimitrios

doi:10.1017/s1574019619000324

Cited by 15 publications

(9 citation statements)

References 20 publications

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“…Yet, an extensive use of such weakly based judicial rulings, such as some advocate (e.g. Von Bogdandy and Spieker 2019: 393‐405), risk being treated as lacking either legitimate authority or an adequate basis in EU law, and might even help boost support for the elected governments against which they are used (Schlipphak and Treib 2017: 362), a point conceded even by some federalists advocating legal sanctions (Blauberger and Kelemen 2017).…”

Section: Constitutional Pluralism and The Legitimate Limits Of DImentioning

confidence: 99%

“…Much as advocates of the CJEU being able to rule against backsliding states suggest such judgments constitute a form of “reverse‐Solange” (Von Bogdandy and Spieker 2019), so we consider these value DI exclusions as a form of ‘reduced cooperation’. As with enhanced cooperation, its use must be regarded as a last resort, when attempts at persuasion have been tried, and only be adopted when the prospect of the offending MS rolling back from backsliding does not appear likely within a reasonable period of time, defined as an MFF long‐term budgetary round (compare Article 20 TEU).…”

Section: Tackling Democratic Backsliding: Constitutional Pluralism and Value DImentioning

confidence: 99%

“…These scholars advocate a more federal approach, involving a more proactive role for the EU’s supranational institutions, particularly the European Commission and the CJEU, potentially backed by a new ‘Copenhagen Commission’ (Müller 2015), dispute the validity of challenges from national constitutional courts to CJEU judgments (Kelemen et al. 2020, Von Bogdandy and Spieker 2019), and seek to weaken the blocking potential of the Council (Müller 2015, Blauberger and Kelemen 2017). By contrast, we propose a greater role for independent monitoring bodies as well as the opposition and civil society actors within the targeted MS and beyond (Schlipphak and Treib 2017).…”

Section: Introductionmentioning

confidence: 99%

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

Bellamy

Kröger

2021

Swiss Political Sci Review

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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.

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Section: Constitutional Pluralism and The Legitimate Limits Of DImentioning

confidence: 99%

Section: Tackling Democratic Backsliding: Constitutional Pluralism and Value DImentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

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

Bellamy

Kröger

2021

Swiss Political Sci Review

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“…Blauberger and Kelemen, 2017;Bogdanowicz and Schmidt, 2018), judicial bodies in Member States are exploring the possibilities of utilizing the EU law to protect shared values within the sphere of their jurisdiction, especially when it is connected to legal orders of states notorious for their flouting of EU values, as outlined above. This judicial approach was not attempted only by the courts in Poland or Hungary, 16 but even in courts of other Member States, when confronted with protection of human rights or the rule of law outside of their own countries (Canor, 2013;von Bogdandy and Spieker, 2019).…”

Section: Way Forward -Towards a Judicial Enforcement And Empowerment Of Member State Courts?mentioning

confidence: 99%

Torpedoing v. Carpet Bombing: Mutual Trust and the Rule of Law

Máčaj

2021

SYEUL

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The aim of this paper is to assess the most recent developments in the arising threats to the rule of law, in particular from the viewpoint of their impact on the judicial cooperation in light of the principle of mutual trust in the European Union. The paper analyses the development of this principle, the position of the Court of Justice of the European Union on the issue, and its views on recent challenges to the rule of law as a fundamental value of the EU, along with positions of other judicial bodies. The assessment then seeks to establish the impact the arising threats to rule of law in the EU, including judicial independence, may exert on the future application of the principle of mutual trust amongst judicial authorities of the Member States, and outline the implications arising therefrom.

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“…Over the last five or six years, discussions over what reaction the EU ought to have to its Member States backsliding on core democratic and rule of law commitments have taken an increasingly urgent tone (e.g. Kelemen 2017 ; Kochenov and Pech 2016 ; Müller 2015 ; Pech and Scheppele 2017 ; Niklewicz 2017 ; Oliver and Stefanelli 2016 ; Bárd 2018 ; von Bogdandy and Spieker 2019 ; Gora and de Wilde 2020 ; Bellamy and Kröger 2021 ). The legal context for some of these responses are defined in Article 7 of the Treaty on European Union (‘Article 7’).…”

Section: Introductionmentioning

confidence: 99%

The Need for an EU Expulsion Mechanism: Democratic Backsliding and the Failure of Article 7

Theuns

2022

Res Publica

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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.

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Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges

Cited by 15 publications

References 20 publications

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

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

Torpedoing v. Carpet Bombing: Mutual Trust and the Rule of Law

The Need for an EU Expulsion Mechanism: Democratic Backsliding and the Failure of Article 7

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