This is a guest post by Tom Theuns, Assistant Professor of Political Theory and European Politics at Leiden University (tweeting @TomTheuns). It discusses his recent work on how the EU should handle member states that violate democratic values.
The democracy and rule of law crisis in the EU has now lasted over a decade. One of the problems has been that the main instrument for responding to democratic backsliding in a member state, the infamous Article 7 (A7) of the Treaty on European Union (TEU), is ineffective. Given that the two states most active in dismantling democracy in Europe—Poland and Hungary—have pledged to support one another, A7 is crippled by a unanimity requirement.
A7 is supposed to sanction violations of the fundamental values of the EU listed in Article 2 TEU. These include democracy, the rule of law and equality. The sanction in A7 is the disenfranchisement of a backslidden state in the Council of the EU. In a recent article, I argue that A7 is not only ineffective but also normatively incoherent. Instead of disenfranchisement, I think the final sanction for democratic backsliding should be expulsion from the EU.
First, why do I think Article 7 is incoherent? We need to look at the purpose of A7. As well as a ‘reformative’ and ‘inoculative’ purpose, A7 has an ‘expressive’ purpose—to communicate the importance of EU fundamental values. This expressive purpose requires that the A7 sanction does not itself undermine the EU’s fundamental values.
In my view, disenfranchising a member state in the Council does undermine fundamental values. This is because disenfranchising a member state while continuing to hold it subject to EU law-making (as per the fourth clause of A7) violates the democratic requirement that all those subject to a decision have a stake in it (the all-subjected principle).
So member state disenfranchisement in A7 is anti-democratic. However, we cannot simply get rid of A7 to resolve the normative incoherence. Allowing a frankly autocratic state to continue to participate in supranational law-making would also undermine the democratic legitimacy of EU law. This leads to a paradox. Disenfranchising an autocratic member state as per A7 is normatively incoherent but doing nothing is also deeply problematic.
One body of literature that tries to deal with these sorts of paradoxes is the literature on militant democracy. Militant democracy theorizes conditions under which anti-democratic sanctions are legitimate to respond to existential threats to the democratic order.
So, could militant democracy justify A7? The strongest defenses of militant democratic sanctions stipulate they must: a) respond to an existential threat to democracy and, b) be necessary to combat that threat.
Democratic backsliding in EU member states certainly could (and plausibly does) pose an existential threat to the democratic legitimacy of the EU. However, the necessity condition poses a more serious challenge because, in my view, expulsion from the EU would protect EU democracy without violating fundamental values.
The argument I make here for an EU expulsion mechanism therefore has two parts. First, expelling an autocratic member state would protect EU democracy. Second, expelling an autocratic member state would not violate democratic norms.
By definition, an autocratic member state government lacks democratic legitimacy. The inclusion of such a government in the EU legislative process taints the democratic legitimacy of EU law. Expelling an autocratic member state shows that the EU and remaining member states are committed to democracy and the rule of law.
Expelling an autocratic government also does not violate democratic values. At the national level, I think citizens have an unqualified claim to citizenship (the ‘right to have rights’). We therefore cannot strip people of their citizenship or banish them. But the international and supranational level is dissimilar to the national level in important ways. There is no fundamental claim to supranational association with other states. Such associations are voluntary. Considering these ties insoluble would mean democratic states would be forced to subject themselves to laws co-legislated with an autocrat. This would undermine the civic freedom of their citizens.
Expelling a member state also does not violate EU fundamental values. Some may think that expelling a member state from the EU would violate the rule of law in that there is no current legal mechanism in the Treaties. Backsliding states would never agree to Treaty reform to include such a mechanism.
However, as I have argued in recent work with Merijn Chamon, there is already a legal pathway to disassociating with an autocratic MS. This would use the mechanism for member states to leave the EU (Article 50 TEU, of Brexit fame) in a new and radical way.
Member states committed to democracy and EU fundamental values would collectively trigger A50 and withdraw from the EU. They could use their super majority in the Council to collectively negotiate this withdrawal, transferring the resources of the current EU to a new EU 2.0.
This new EU could incorporate the current body of EU legislation, largely replicate the current EU institutions and continue the business of EU integration amongst member states committed to democracy. The autocratic member(s) would be left with an empty, useless shell. An institutional husk.
That is not to say that there are no democratic costs to the expulsion of an autocratic member state from the EU. The citizens of such a state would lose substantial freedoms. Many of those citizens would have actively opposed their state’s autocratization.
Expelling a member state from the EU should therefore never be considered lightly. Indeed, the costs of expelling an autocratic member state underline the urgency of using all other mechanisms available to try to reverse autocratization! We might think, for example, of economic sanctions, some of which I discuss in recent work.
To quote Jean Monnet, Europe must ‘learn the lessons of its past failures to recognise that progress has become inevitable’. The incessant dithering and inaction of the Commission on the democracy and rule of law crisis must end. But where all else has been tried, an expulsion mechanism is the appropriate, legitimate and coherent final sanction to democratic violations in EU member states. Democratic member states must draw a line in the sand.