safeguarding democracy inside the eu - Transatlantic Academy

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Safeguarding Democracy inside the EUBrussels and the Future of Liberal OrderTransatlantic Academy Paper SeriesFebruary 2013Jan-Werner Müller 1Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Supranational Democracy-Protection: The Story So Far . . . . . . . . . . . . . . . . . . . 5Four Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Four Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Three Strategies — and their Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Some Modest Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Concluding Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271Jan-Werner Müller is a professor of politics at Princeton University, where he also directs the Project in the History ofPolitical Thought. During the fall of 2012 he was a non-resident fellow at the Transatlantic Academy in Washington, DC;he is currently at the Institute of Advanced Study, Princeton, NJ. His latest book is Contesting Democracy: Political Ideas inTwentieth-Century Europe (Yale, 2011). He is currently writing a book on how Catholic thinkers in 19th and 20th centuryEurope imagined reconciling religion and modern democracy.For discussions on the legitimacy of EU interventions, the author is grateful to Elmar Brok, Giovanni Capoccia, GáborHalmai, Mattias Kumm, Alexander Graf Lambsdorff, Miguel Poiares Maduro, Peter Niesen, Grigore Pop-Eleches, KimLane Scheppele, Wojciech Sadurski, Alexander Somek, Rui Tavares, and Vladimir Tismaneanu. He also wishes to thank hisfellow fellows at the Transatlantic Academy, Washington, DC, during fall 2012; the audience at the Engelsberg seminar on“The Pursuit of Europe,” June 2012; the participants in the workshop “Saving Democracy in Europe,” Princeton University,October 2012; as well as the staff of ARENA, Oslo, for helpful reactions to earlier versions of this essay. Particular thanks tothe director of the Transatlantic Academy, Stephen Szabo.

Executive SummaryRecent illiberal turns in Hungary andRomania have prompted the question what,if anything, the EU could and should do toprotect liberal democracy within member states.This paper discusses four principled concerns aboutdemocracy-saving EU interventions in memberstates: that an institution that is itself largelyundemocratic cannot credibly protect democracy;that there are in fact no common Europeanstandards that could be used to determine whethera member state is departing from a sharedEuropean understanding of democracy; thatinterventions are per se illiberal; and, finally, thatonly small states will be subject to intervention, aform of EU hypocrisy that delegitimizes Brusselsboth in the states concerned and possibly acrossthe EU as a whole. This paper counters all theseconcerns and argues that, ultimately, the problemwith intervention is not to be found on a theoreticalnormative level, but on a practical plane. As ofnow, the EU lacks a tool-kit to intervene effectivelyin member states; whatever it has recently usedby way of sticks and carrots can seem arbitrary oropportunistic. This paper concludes by makinga number of modest proposals as to how thissituation might be remedied. In particular, itsuggests the creation of an expert body, tentativelycalled the “Copenhagen Commission,” whichcontinuously assesses democracy and the rule oflaw within member states. Such an institution oughtto be authorized to conduct its own investigations,to raise the alarm about turns to illiberalism —and to impose a very limited range of sanctions.The existing mechanisms should stay in place, butideally would be complemented with the possibilityof entirely excluding a state from the EU.Safeguarding Democracy inside the EU 1

1IntroductionIn the nightmare of the darkAll the dogs of Europe bark,And the living nations wait,Each sequestered in its hate;Intellectual disgraceStares from every human face,And the seas of pity lieLocked and frozen in each eye.From W. H. Auden, “In Memory of W. B. Yeats”If a people — especially one whose freedom hasnot yet become prescriptive — does not value itsufficiently to fight for it, and maintain it againstany force which can be mustered within the country,even by those who have the command of the publicrevenue, it is only a question in how few years ormonths that people will be enslaved. Either thegovernment which it has given to itself, or somemilitary leader or knot of conspirators who contriveto subvert the government, will speedily put an endto all popular institutions: unless indeed it suits theirconvenience better to leave them standing, and becontent with reducing them to mere forms; for, unlessthe spirit of liberty is strong in a people, those whohave the executive in their hands easily work anyinstitutions to the purposes of despotism.From J. S. Mill, “A Few Words on Non-Intervention”Are there limits to political change within theEuropean Union? Or, put less abstractly,what if a member state appears to be on apath toward a regime that is no longer recognizableas a form of liberal democracy? Put even morebluntly, could there be a dictatorship inside theEU? If such a specter appeared, should Brusselssomehow step in to save or, for that matter, revivedemocracy? Or would this constitute an illegitimateform of meddling in the domestic affairs ofcountries that, after all, have delegated specificpowers to Europe — and not empowered Brusselsto be a policeman safeguarding liberal democracyacross the European continent, or even just tolecture Europeans from Lapland to Lampedusaon how popular rule is correctly understood? Allthese are no longer theoretical questions: recentdevelopments in Hungary and Romania have putsuch challenges squarely on the agenda of Europeanpolitics — even if concerns about a possible slidetoward illiberalism in both countries have beenlargely overshadowed by the euro crisis.I argue that it is legitimate for Brussels to interferein individual member states for the purpose ofprotecting liberal democracy. Four commonconcerns about such interventions are largelymisplaced.• First, the criticism that they are hypocriticalbecause the Union is itself not democratic andtherefore in no position credibly to act as theguardian of democracy on the continent.• Second, the worry that there is no single, fullyagreed model of European liberal democracythat could be used as a template to decidewhether countries are departing from shared“European Standard” (there might often betalk of such standards, but effectively, so criticswould claim, they don’t exist).Safeguarding Democracy inside the EU 3

• Third, the concern that such interventionsthemselves are in and of themselves paternalisticand, ultimately, illiberal.• Finally, the charge that only smaller, relativelypowerless member states would ever be subjectto interference from Brussels (in a sense, then,this criticism also comes down to a suspicion ofhypocrisy).These are not unreasonable concerns. But one cancounter them and, in the process, develop a set ofcriteria as to when and how European interventionis justified. In fact, the real problem arises not ata relatively abstract theoretical level, but when itcomes to policy instruments and concrete politicalstrategies. To say it outright: as of now, the EUhas no convincing tool kit to deal with situationsthat probably not many Eurocrats — or, for thatmatter, European elites more broadly — everforesaw. Brussels, as well as national capitals,seemed to have assumed that the consolidation ofliberal democracies in the run-up to EU accessionwas irreversible. Once inside the club, so therather complacent reasoning seemed to go, youngdemocracies would count their blessings and neverlook back (or, for that matter, sideways and forwardto illiberal forms of statecraft).To be sure, the repertoire of legal and politicalinstruments the EU has at its disposal at themoment to exert pressure on member statesmight occasionally work — but it can also appeararbitrary and opportunistic. I propose extendingthis repertoire as well as the creation of a new kindof democracy watchdog — tentatively called the“Copenhagen Commission” — that can raise aEurope-wide alarm about deteriorations in the ruleof law and democracy. Such a body also ought to beable to trigger a limited set of “smart sanctions.”4Transatlantic Academy

2Supranational Democracy-Protection:The Story So FarAcliché of our time holds that “identitycreation”requires an “Other,” that is to say:an enemy, or, at the very least, someonewho clearly is “not us.” If that is correct, the EUshould have found its identity in early 2000, whenEurope’s Other appeared — not for the first timein 20 th century European history — in the form ofa charismatic Austrian: Jörg Haider. The inclusionof Haider’s populist right-wing Freedom Party inthe government prompted the then EU members— minus Austria, obviously — to take “sanctions”against Vienna: for instance, they vowed not topromote Austrian candidates for positions ininternational organizations.Yet what came to be known as the Haider Affairin some ways deeply traumatized European elites:the (for the most part symbolic) sanctions lookedsomewhat ridiculous; fear mounted that theremight be a nationalist backlash in Austria; mostimportant, in the end, a group of three “wise men”chosen by Brussels certified in an official reportthat there was nothing wrong with the Austriangovernment (even if there remained concerns aboutthe FPÖ). 1 Europe had its fingers burnt, or so manypeople think today.More than a decade later, the question of how, if atall, to protect democracies inside the EU is back onthe agenda. Two countries in particular have givenrise to concern in Brussels: Hungary and Romania. 21Martti Ahtisaari, Jochen Frowein, and Marcelino Orejta,“Report on the Austrian Government’s Commitment to theCommon European Values, in particular concerning the Rightsof Minorities, Refugees and Immigrants, and the Evolution ofthe Political Nature of the FPÖ (The Wise Men Report),” inInternational Legal Materials, vol. 40 (2001), 102-23.2On Hungary, see the special section on Hungary’s illiberal turnin the Journal of Democracy, vol. 23, no. 3 (2012), the collectionedited by Gábor Attila Tóth, Constitution for a DisunitedNation: On Hungary’s 2011 Fundamental Law (Budapest: CEUPress, 2012), Pierre Verluise, “UE-Hongrie V. Orban: vers larupture?,” diploweb.com, December 2, 2012, available onlineat http://www.diploweb.com/UE-Hongrie-V-Orban-vers-la-To recap very briefly, in Hungary, a right-wingpopulist party, Fidesz, came to power with a twothirdsmajority in parliament in April 2010. TheFidesz government under Viktor Orbán announceda new “system of national cooperation,” passed adraconian media law that was widely criticized —rupture.html [last accessed January 25, 2013], and, for furtherhistorical background, my “Longing for Greater Hungary,”London Review of Books, vol. 34, no. 12 (2012), as well as PaulLendvai, Hungary: Between Democracy and Authoritarianism(New York: Columbia UP, 2012). On Romania, see VladimirTismaneanu, “Democracy on the Brink: A Coup AttemptFails in Romania,” in World Aaffirs (January/February 2013),83-7, and, for the larger background, Tom Gallagher, Theft ofa Nation: Romania Since Communism (London: Hurst, 2005),but also Daniel Barbu, Die abwesende Republik, trans. LarisaSchippel (Berlin Frank & Timme, 2009). See also the EuropeanCommission’s latest report on Romania at http://static.euractiv.com/sites/all/euractiv/files/CVM%20Romania%20political.pdf [last accessed January 7, 2013], which highlights a rangeof serious problems that have no equivalent in Hungary. Ingeneral, it needs to be pointed out that Hungary by 2010was widely considered a consolidated democracy, whereasRomania continued to suffer from a number of deep problems,from corruption to a tendency to play fast and loose withthe constitutional framework, and easily escalating conflictsamong the political elite (observers have spoken of “triagedemocratization,” where urgent problems are — sometimes —addressed, but where there is little systematic state-building andentrenchment of the rule law. See Ronald F. King and Paul E.Sum (eds.), Romania under Basescu: Aspirations, Achievements,and Frustrations during His First Presidential Term (Lanham:Lexington Books, 2011). Moreover, observers have crediblyshown that accession for Romania meant an immediatedeterioration in elite political practices, as well as efforts atstate-building and the rule of law — a phenomenon VenelinGanev has termed “post-accession political hooliganism” (seeVenelin I. Ganev, “Post-Accession Hooliganism: DemocraticGovernance in Bulgaria and Romania after 2007,” in EastEuropean Politics and Societies and Cultures, vol. 27 [2013],1-19). Nothing similar occurred in Hungary, although there,at least since 2002, one of the major political players deniedthe legitimacy of its main opponents. (After his electionloss in 2002 Orbán declared that the nation itself cannot be inopposition.) In that sense, in both countries the promise of1989 remains unfulfilled: a liberal-democratic political systemthat allows for civilized conflict within a shared constitutionalframework that all major actors regard as legitimate (and wherethe main political actors regard each other as legitimate).Sanctions againstAustria are todayoften seen asa failure.Safeguarding Democracy inside the EU 5

Fidesz waspursuing astrategy ofsystematicallyoccupying thestate, so that theparty might losean election, butnever lose power.by the OSCE, among others 3 — and, in the springof 2011, rammed through a new constitutionthat was deeply nationalist and underminedchecks and balances (and which was also widelycriticized internationally, for instance by theVenice Commission). 4 In addition, Fidesz packedthe constitutional court and, in general, keptappointing loyal followers to what were meant to benon-partisan institutions, often for unusually longterms (sometimes for more than two parliamentarycycles). Observers held that Fidesz was pursuinga strategy of systematically occupying the state, sothat the party might occasionally lose an election,but never lose power. Critics even began to speak of“Putinization” or “Lukashenko lite.” 5In Romania the attack on the rule of law happenedmuch more quickly. In the summer of 2012, anominally social democratic-liberal coalition(to be sure: these labels have limited meaning3A timeline of the development of the media law as well as anextensive assessment of the Hungarian government’s claims thatall its elements have parallels elsewhere in democracies, canbe found on the website of the Central European University’sCenter for Media and Communications Studies: http://cmcs.ceu.hu/ [last accessed January 7, 2013].4See the criticism of the new constitution by the VeniceCommission: http://www.venice.coe.int/docs/2011/CDL-AD(2011)016-E.pdf [last accessed January 7, 2013].5These rather under-theorized terms (to put it politely)point to a very real difficulty in conceptualizing regimes likePutin’s and Lukashenko’s. “Illiberal democracy” appears tooweak, dictatorship too strong. At the same time, the corecharacteristics of these regimes are not really much disputed:virtually complete centralization of power; abuse of the ruleof law to weaken opposition forces, and also the removal ofall legal checks on centralized power; almost complete controlof the media; a tendency to keep speaking the language ofdemocracy (think of the development of the concept of“sovereign democracy” under Putin). It is debatable whetherthe price of oil should play a role in characterizations ofthese regimes — for surely neither of them could have beenas relatively stable as they have been without the boom in oilprices. See also Ivan Krastev and Stephen Holmes, “An Autopsyof Managed Democracy,” in Journal of Democracy, vol. 23(2012), 33-45in Romanian politics 6 ) sought to impeach thenominally conservative-liberal president, TraianBăsescu (who was accused of overstepping theconstitutional limits to his powers; one attempt toimpeach him, based on similar charges, had alreadyfailed in 2007). To that effect, it disempoweredthe constitutional court in addition to passing anumber of emergency decrees that were clearlyaimed at ensuring only one possible outcome forthe referendum on the president’s impeachment.In particular, the threshold of participationfor a referendum to be valid was lowered. Thegovernment led by Victor Ponta also removed theheads of the two houses of parliament and deposedthe “Advocate of the People” (the ombudsman) —the former initiative insured that one of Ponta’sallies would become acting president while Băsescuwas suspended; the latter helped to get rid of theone actor who could have taken the emergencydecrees to the constitutional court. 7In both Hungary and Romania, the EU intervenedin a substantial (and controversial) manner. TheCommission criticized Hungary’s media law,which was eventually changed — although it isdebatable whether it does not in many ways retainits illiberal character. Hungary was also investigatedfor failing to implement EU law — in particular,there were concerns about the independenceof the central bank, of the judiciary, and of thedata protection ombudsman — and, in the end,the European Commission took Hungary to theEuropean Court of Justice. Again, the results so farhave been somewhat mixed: Budapest compliedwith some of the demands to ensure central bank6 Herta Müller spoke of “die sogenannte sozialdemokratischeRegierung in Bukarest.” See “Ich habe die Sprache gegessen,” inDer Spiegel, August 27, 2012.7 For an account (and an opinion of the legality of themeasures), see the Venice Commission’s Opinion on Romaniafrom August 18, 2012, available online at http://www.venice.coe.int//docs/2012/CDL-AD%282012%29026-e.pdf [lastaccessed January 7, 2013].6Transatlantic Academy

independence (knowing fully that the president ofthe bank is set to retire in April 2013 and can thenbe replaced by someone more to the government’sliking); the European Court ruled on at least oneoccasion against Hungary and held that the drasticlowering of the retirement age for judges to 62violated European law — but the judges have yet tobe reinstated.In July 2012, the Commission called on Romania— once declared “the EU’s true test case” by TonyJudt 8 — to take back some proposed changes tothe rules for referenda on the president, which thegovernment did (and which decisively contributedto the failure of the impeachment process). Eventhough 88.5 percent of voters turned out to be infavor of removing Băsescu, the critical thresholdof participation (50 percent plus one vote), whichPonta had tried to lower, was not reached. 9 Aftersome attempts by the government to change thenumber of eligible voters retroactively in orderto get the desired outcome after all, and somereluctance to accept a ruling by the constitutionalcourt that the referendum was indeed valid,Băsescu was reinstated. Since his resoundingelection victory in December 2012, Ponta on onehand agreed to a truce with a much weakenedBăsescu (thereby seemingly bringing what has oftenbeen called “the war of the two palaces” — that ofpresident and prime minister — to an end). On the8Though only partly because it might prove the ultimatechallenge for Europenization in the sense of democratizationthrough membership, as some might have thought. Rather,Judt argued that “Romania is peripheral, and the rest of Europestands to gain little from its presence in the union. Left outsideit would be an embarrassment, but hardly a threat. But forjust this reason Romania is the EU’s true test case.” Tony Judt,Reappraisals: Reflections on the Forgotten Twentieth Century(New York: Penguin, 2009), 263.9“Der unermüdlich Kampf der Kleptokraten,” in FrankfurterAllgemeine Zeitung, August 28, 2012, available online athttp://www.faz.net/aktuell/politik/ausland/rumaenien-derunermuedliche-kampf-der-kleptokraten-11870946.html[lastaccessed January 24, 2013]other hand, there have been reports of Ponta tryingto put together a two-thirds majority in parliamentin order to change the constitution. If that is indeedthe plan, Ponta might have learnt from his neighborto the west: rather than relying on ad hoc measures,rather than being “impatient” (Ponta on Ponta),the government should implement long-terminstitutional changes. 10 Even if Ponta belongs to adifferent party-political family — he seems to provea good pupil of Orbán: entrenching highly partisanpreferences legally is far smarter than what observersof the Romanian scene sometimes called Ponta’s“parliamentary putsch.” 1110 See “Clear victory, uncertain future,” on The Economist’s“Eastern Approaches” blog, December 10, 2012, available athttp://www.economist.com/blogs/easternapproaches/2012/12/romanian-politics-0 [last accessed January 7, 2013]; Karl-PeterSchwarz, “Doppelzüngig,” in Frankfurter Allgemeine Zeitung,December 10, 2012, available online at http://www.faz.net/aktuell/politik/ausland/victor-ponta-doppelzuengig-11989098.html [last accessed January 7, 2013]. To be sure, Băsescualso violated democratic principles by hinting initially thathe might suggest a prime minister other than Ponta, despitethe latter’s clear victory in the elections. Of course, a semipresidentialsystem like Romania’s is more likely to generateconflicts of this kind in the first place.11 As Müller put it dramatically: “Denen ist das Land scheißegal.Ungarn war ein Lehrstück, die haben sich angesehen, wie mandort die Demokratie aushebelt. Es macht einem Angst, dass esso junge Leute sind. Victor Ponta, der neue Ministerpräsident,ist 39. Aber auch er ist noch von Ceauşescu sozialisiert.Seine Doktorarbeit ist in weiten Teilen ein Plagiat, zudemhat er sich noch mit einem erfundenen Universitätsabschlussgeschmückt. Betrug gehört zum Selbstverständnis.” (“Theydon’t give a shit about the country. Hungary was an instructiveexample, they looked at how democracy was disabled there.It’s frightening that it’s such young people. Victor Ponta, thenew prime minister, is 39 years old. But even he was stillsocialized by Ceauşescu. His doctoral dissertation is in largeparts plagiarized, in addition he has adorned himself withan invented university degree. Fraud belongs to his selfunderstanding.”)See “Ich habe die Sprache gegessen.” Theparallel has been suggested in an interview to Ponta himself.He either failed to get the point or, more likely, decided not toengage with it:“Question: Il y a un point commun entre vous et votrehomologue hongrois Viktor Orban: une façon de brutaliserles institutions..” — “Answer: Ma malchance est que monprénom est Victor. Avec tout le respect que j’ai pour lui, nosPonta might havelearned fromOrbán: ratherthan relying onad hoc measures,rather than being“impatient” (Pontaon Ponta), theparty shouldentrench itspreferences in anew constitution.Safeguarding Democracy inside the EU 7

EU intervention in both Hungary and Romaniahas met with fierce criticism — and not just in thetwo countries concerned. In fact, a clear left-rightsplit across Europe emerged among critics of theactions of the Commission: British Euroscepticsvues sont totalement différentes. Je suis le premier leaderroumain à ne pas avoir de passé dans le communisme. J’espèrereprésenter la fin de la période de transition postcommuniste.Je veux rendre les institutions au contrôle populaire, et pasles brutaliser.” (“Question: You and your pendant ViktorOrban have something in common: a way of brutalizing theinstitutions. Answer: It is my misfortune that my first nameis Victor. With all the respect I have for him, our views arecompletely different. I am the first Romanian leader withoutany past under communism. I hope to represent the endof the postcommunist transition period. I want to put theinstitutions under popular control, not to brutalize them.”) See“L’agressivité de nos luttes politiques a surpris la Commissionet les Européens,” in Le Monde, September 18, 2012, availableonline at http://www.lemonde.fr/europe/article/2012/09/18/roumanie-l-agressivite-de-nos-luttes-politiques-a-surpris-leseuropeens_1761835_3214.html[last accessed January 7, 2013].no less than German conservatives emphasizedthe importance of nation-state sovereignty (andthe harm done to national pride by supposedlyheavy-handed EU interventions); on the left, therewas less principled opposition to interferencefrom Brussels as such, but a widespread sensethat the Commission ultimately cares only abouteconomics, or, put more precisely, safeguardingneoliberal understandings of the role of centralbanks, the interests of multinational companies,and fiscal austerity.Clearly, there is a need for more systematic thoughtabout the legitimacy of such interventions. EUlaw provides some guidelines, of course, but it isnoticeable that much of the public argument aboutintervention from Brussels has been conducted lessin the idiom of jurisprudence than in the languageof democratic theory. So what can and what cannotbe justified here in the name of democracy?8Transatlantic Academy

3Four ConcernsThe first standard charge against the EUprotecting democracy is that the Unionitself is not democratic — hence Brussels isfundamentally hypocritical in speaking out for andin the name of values to which it does not adhereitself. 12 This charge misses the point that the Unionderives its legitimacy not from being a continentwidedemocracy (at least at this point in time).Rather, it is legitimate because national parliamentshave freely voted to bind themselves and followEuropean rules. 13 In the euro crisis, this logic ofself-binding is clearly under attack — marketshave not found the model of rules and sanctionscredible. But with the single market, it has workedwell for decades. Nobody is complaining thatBrussels is taking member state governments tocourt for violating competition rules, for instance. 14One might still object that the parallel betweeninterventions to safeguard the single market andinterventions to protect democracy is misplaced.Are the purity of beer and the length of cucumbersnot a categorically different matter than the shapeand form of national political institutions? IsEuropean integration not predicated on the factthat member states remain both “masters of thetreaties” and, in many clearly demarcated areas,masters of their own political fate? Or, taking adifferent line of attack: is the European Union notmeant to be irreducibly pluralist in character? Isthe spirit of its laws, so to speak, not something12To be sure, this is not a claim one hears from many EUspecialists — but it is one that is almost immediately airedin public discussions and, for what it’s worth, in onlinecommentary.13For an elaboration of this point see Peter L. Lindseth, Powerand Legitimacy: Reconciling Europe and the Nation-State (NewYork: Oxford UP, 2010).14To be sure, self-binding is not the only source of legitimacy.This is not the moment to enter into a debate about the“democratic deficit,” but even the most hardened critics of theEU would concede that democratically elected governments,national parliaments, and the European Parliament all havemeaningful roles in European decision-making.that can best be described as a matter of mutualrecognition and mutual accommodation, whereconflicts are resolved by trying to normativelyrelativize oneself and open oneself to the point ofview of the other, to find higher common groundand shared terms to address disputes — and neverthrough just bowing to commands from above, soto speak? Less abstractly, does not the Lisbon Treaty(which is now simply the Treaty on EuropeanUnion) itself enshrine the very principle that theUnion ought to respect the national identities ofthe member states? And, on a less legalistic noteagain, did not Europe’s most powerful politicianonce appear in front of the European Parliament todeclare that the “soul of Europe” was “tolerance”? 15In response, a more specific argument about themeanings (and legitimacy) of European integrationas a political project to safeguard democracyneeds to be advanced. After all, one of the explicitgoals of European enlargement to the East was toconsolidate liberal democracies (or, in the caseof Romania, complete the transition to liberaldemocracy in the first place). Governments inturn sought to lock themselves into Europe so as toprevent “backsliding” 16 ; it was like Ulysses bindinghimself to the mast in order to resist the sirensongs of illiberal and antidemocratic demagoguesin the future. 17 Hence neither Hungarian Prime15 http://www.eu2007.de/en/News/Speeches_Interviews/January/Rede_Bundeskanzlerin2.html (last accessedSeptember 24, 2007).16 This has become a widespread term, without its usersnecessarily being aware of its origins in religious contexts. Ishall avoid it for the remainder of this paper.17 This thought has come under much criticism recently —including by Jon Elster who made it influential in the firstplace. While one can indeed question the notion of “selfbinding,”the case under discussion here is actually a matterof “wanting to be bound by others” — and clearly renouncingthe power to unbind oneself, short of jumping the (EU) shipaltogether. See the chapter “Ulysses Unbound: Constitutionsas Constraints,” in Ulysses Unbound: Studies in Rationality,Precommitment, and Constraints (New York: CambridgeThe Union derivesits legitimacynot from beinga continent-widedemocracy.Safeguarding Democracy inside the EU 9

fight for power. It would also cut short what onemight call a “democratic learning process,” therebypreventing the proper development of a democraticpolitical culture (though one could of coursereasonably ask whether Italians should not havefigured out by the end of Berlusconi’ second stint inoffice at the very latest that the Cavaliere’s statecraftwas somewhat deficient). 33in the middle of the 19 th century. Ideally peoplesstruggle for freedom and democracies (andpreserve their democracies) themselves. 34 As Millput it in his A Few Words on Non-Intervention,“the only test … of a people’s having become fitfor popular institutions is that they, or a sufficientportion of them to prevail in the contest, are willingto brave labor and danger for their liberation.” 35All this is no more than restating an old point,a point familiar from John Stuart Mill’s writings33See also Peter Niesen, “Anti-Extremism, NegativeRepublicanism, Civic Society: Three Paradigms for BanningPolitical Parties,” in Shlomo Avineri and Zeev Sternhell(eds.), Europe’s Century of Discontent: The Legacies of Fascism,Nazism, and Communism, (Jerusalem: Magnes Press, 2003),249-68.34 Certainly, this argument could be reformulated with referenceto the concept of subsidiarity.35 Quoted by Michael Walzer, Just and Unjust Wars (New YorkBasic Books, 1992), 88.14Transatlantic Academy

5Three Strategies — and their LimitsLegitimacy and having appropriate policyinstruments at hand is not the same thing. Inthis section, I would like briefly to inspect theEU’s existing tool-kit, when the challenge consistsin safeguarding democracy in member states. I shallconclude that even where the tools seem to fit thetask, so to speak, they are either unusable becauseof political reasons (something that, to be sure,could change over time) or have other drawbacks(mostly to do with the time it might take to applythem).The Politics of Article 7As is well known, Article 7 of the Treaty on theEuropean Union allows for the suspension ofmembership rights for states persistently violatingbasic European values. The idea for such anarticle had in fact been pushed by two paragons ofWestern European democracy, Italy and Austria,in the run-up to enlargement, clearly out of a fearof what those uncouth Eastern Europeans mightdo (the irony being that sanctions — thoughnot under Article 7 — were first applied againstAustria in 2000). 37 After the Haider Affair, anintermediate step was introduced to allow the EUto send a strong signal that there exists a “clearrisk of a serious breach by a member state of thevalues referred to in Article 2” (that is, “respect forhuman dignity, freedom, democracy, equality, therule of law, and respect for human rights, includingthe rights of persons belonging to minorities”). Inother words, the Union opted for a strategy thatallowed for step-by-step escalation, instead ofhaving only the choice of immediately confrontinga government with the charge that it is, in fact, inviolation of shared European values.However, even with this differentiated approach,there is today a sense that Article 7 as a whole37Wojciech Sadurski, “Adding Bite to the Bark: The Story ofArticle 7, E.U. Enlargement, and Jörg Haider,” in ColumbiaJournal of European Law, vol. 16 (2009), 385-426.somehow constitutes a “nuclear option,” as thepresident of the European Commission recentlyput it. 38 In other words, it is unusable, 39 and isnothing more than what a British legal scholar hascalled an “empty gesture.” 40 Countries, it seems, aresimply too concerned that sanctions might also beapplied against them one day. And since Article 7is obviously a political, not a judicial, process thatmakes national executives the decisive actors, thereis no reason to think that their inherent “sensitivityabout sovereignty” (Mattias Kumm) will not alwaysmake them extremely reluctant to take sanctionsagainst one of their own. 41 In fact, the very idea ofsanctions goes against what might be called a wholeEU ethos of compromise, mutual accommodation,and mutual trust, as well as deference towardnational understandings of political values — thekind of EU self-understanding that celebrates38 This sense was echoed by the German foreign minister, whocalled Article 7 “die große Keule” [the big cudgel]. See GuidoWesterwelle, “Europas Werte verteidigen!,” in FrankfurterAllgemeine Zeitung, September 5, 2012.39 The point was explicitly conceded by the president of theEuropean Commission in his 2012 State of the Union address.As Barroso put it, “in recent months we have seen threatsto the legal and democratic fabric in some of our Europeanstates. The European Parliament and the Commission werethe first to raise the alarm and played the decisive role inseeing these worrying developments brought into check.” Hewent on to claim that “these situations also revealed limits ofour institutional arrangements. We need a better developedset of instruments— not just the alternative between the ‘softpower’ of political persuasion and the ‘nuclear option’ of article7 of the Treaty.” At the time of writing no “better developedset of instruments” had been presented by the EuropeanCommission.40 Andrew Williams, “The indifferent gesture: Article 7 TEU, theFundamental Rights Agency, and the U.K.’s invasion of Iraq,” inEuropean Law Review, vol. 31 (2006), 3-27.41 Of course, this problem has been even further exacerbatedby the rise of what Jürgen Habermas, following Stefan Oeter,has called “executive federalism” in the EU — the process thathas systematically sidelined the European Commission, theEuropean Parliament, and the national legislatures. See JürgenHabermas, Zur Verfassung Europas (Berlin Suhrkamp, 2011).Article 7 is widelyconsideredunusable.Safeguarding Democracy inside the EU 17

Nowadays,attempts tounderminedemocracy andthe rule of law arenot likely to beundertaken withreference to thegreat advantagesof authoritariangovernance,or by invokingprecedents ofauthoritarian, letalone totalitarian,regimes in the20 th century.diversity and pluralism and that is summed up indeclarations that the soul of Europe is tolerance.True, some of the constraints on Article 7 mightbe very contingent. They could change over time,especially if democracy and the rule of law wereattacked both more swiftly and more openlythan they have been in the cases of Hungary andRomania (imagine a scenario where Victor Pontahad not — at least officially — backed down soquickly over the summer of 2012). Still, a clear-eyedassessment of the limits of Article 7 has to reckonwith the fact that nowadays attempts to underminedemocracy and the rule of law are not likely to beundertaken with reference to the great advantagesof authoritarian governance, or by invokingprecedents of authoritarian, let alone totalitarian,regimes in the 20 th century. This is a problemfamiliar from debates about “militant democracy”within democratic states. Just think of thecontroversial (and difficult to prove requirement)for party bans in what is undoubtedly the mostfamous example of militant democracy in postwarEurope, the German wehrhafte or streitbareDemokratie: parties have not only to indicatesome general hostility to the liberal democraticorder, they also have to exhibit what the GermanConstitutional Court has called an “actively fighting,aggressive attitude.” 42 Member state governments, itseems reasonable to assume, would always seek toclaim that they are engaged in a legitimate politicalstruggle within the parameters of liberal democracy,and that they are simply pursuing somewhat differentvalues than other member states (or that they are infact close to some member states in terms of valuesand simply the victim of a partisan or ideologicalcampaign of some other member states). This42For an extended discussion of the dilemmas associated withmilitant democracy, see my “Militant Democracy,” in MichelRosenfeld and András Sajó (eds.), The Oxford Handbook ofComparative Constitutional Law (New York: Oxford UP, 2012),1253-69.was clearly Orbán’s strategy, when he explainedto a German newspaper in March 2012 that theproblem consisted simply of the fact that the WesternEuropean Left did not like his advocacy of nationalpride, Christianity and family values. 43 In otherwords, this was not about institutions and norms,it was a European-wide Kulturkampf, where oneside was pretending to speak in the name of Europeand malign the other side as undemocratic. Thereferences to “values” in Article 7 and in Europeandebates more widely can in fact encourage such areading. After all, one ought to be able to ascertainwhether law has been broken or not and whethercommon principles are adhered to. Whether weultimately really “share values” seems a much moresubjective matter to verify. 44 It doesn’t help that thepost-war understanding of democracy I discussedfurther above is not in any way legally codified. Itsinvocation could certainly serve to make a case forthe use of Article 7, but it is not in any clear sensecontained in Article 7 itself — or in Article 2, for that43 “Viktor Orbán im Gespräch: ‘Es gibt ein verborgenes Europa’,”in Frankfurter Allgemeine Zeitung, March 4, 2012, at http://www.faz.net/aktuell/politik/europaeische-union/viktor-orbanim-gespraech-es-gibt-ein-verborgenes-europa-11671291.html [last accessed October 1, 2012]. A basic insight of thedemocratization literature is that subnational authoritarianismin a democracy is threatened by a nationalization of politicalconflict (see Edward L. Gibson, “Boundary Control:Subnational Authoritarianism in Democratic Countries,” inWorld Politics, vil. 58 [2005], 101-32). At the same time, weakerparties to a conflict generally have an interest in “socializing”or, in this case, Europeanizing a conflict — an argument goingall the way back to Schattschneider. Hence Orbán‘s calculationmight be that going mano-a-mano with the Commission inisolation is in fact a losing proposition, whereas igniting aEuropean Kulturkampf — which reframes the conflict as oneof moral and cultural, not legal and political, values — is veryrisky, but could turn out to be a winning strategy (Not leastbecause it calls the impartiality of official guardians of thetreaties into question. After all, they might just be strongholdsof radical, secular European left-wingers).44 For critiques along these lines see also Robert Spaemann,“Europa ist kein Werteverbund,” in Cicero (April 2004) andCarl Schmitt, Die Tyrannei der Werte (Berlin Duncker &Humblot 2011).18Transatlantic Academy

A governmentdeterminedto underminedemocracy andthe rule of lawmight not bemuch impressedby rulings fromLuxembourg.European norms, as expressed in individual rightsfor European citizens. 48As said above, this is a clever thought. Yet thethought is too clever by half in the eyes of criticswho think that all member state governmentswould be very reluctant to even come close tothe possibility of the Court empowering itselfsystematically to review the rule of law withinmember states. After all, there had been extensivediscussions of involving the European Court indeciding on sanctions against member states,when the idea of Article 7 was debated in the late1990s and early 2000s — and such a role was in theend clearly rejected by member states (which, notsurprisingly, sought to make the Council the centralactor). 49There is also a more fundamental question of howmuch political weight EU citizenship can bear.After all, EU citizenship has not been the resultof a political process or, put more dramatically,it has not been the outcome of a real struggle forcitizenship rights. Citizenship was granted fromabove and extended by the European Court inway that could well be labeled “constitutionalpaternalism.” 50 One also has to wonder whether48Think of the Commission taking Hungary to the Courtfor age discrimination, after the Hungarian governmentdrastically lowered the retirement age for judges. Of course,age discrimination is at issue — but here infringementproceedings are at best a very indirect way of getting at the realthreat, a systematic undermining of the independence of thejudiciary, since Fidesz can now staff the judiciary with its ownappointees.49Sadurski, “Adding Bite to the Bark,” 394.50See also the comments on the “Heidelberg proposal” byAnna Katharina Mangold, “Rescue package for fundamentalrights,” online available at http://www.verfassungsblog.de/en/rescue-package-for-fundamental-rights-comments-by-annakatharina-mangold/#.UKZVllLSzxsand Michaela Hailbronner,“Rescue package for fundamental rights,” available onlineat http://www.verfassungsblog.de/rescue-package-forfundamental-rights-comments-by-michaela-hailbronner/#.UKZeJlLSzxs. I borrow the term “constitutional paternalism”concepts like “the substance” of EU citizenship canbe sufficiently (and consensually) specified: thevagueness of value talk might just be replicated onanother level.Then there is also the banal fact that, whether ona national or European level, judicial proceedingstake a fair amount of time (and the related concernthat, like the ECHR, the Court might soon beoverwhelmed with case load). And realisticallyspeaking, a government determined to underminedemocracy and the rule of law might not be muchimpressed by rulings from Luxembourg anyway.Finally, there is the worry that a legal response toan essentially political challenge will not do; thatone should not rely on legalism — single citizensenforcing European norms through court cases —instead of invoking a common, public Europeanpurpose; that at issue are whole political systems(and, in Montesquieu’s language, their “spirit”), notjust isolated individual rights; that we need moreEuropolitics instead of yet more Eurolegalism. 51The Politicization of Europe, theEuropeanization of PoliticsBut then what would a properly political responselook like? It has often been said that the euro crisishas brought about the politicization of Europe,and that it is now time for the Europeanization ofpolitics. People across the continent have woken upto the fact that what happens elsewhere in Europehas a direct impact on their lives, Brussels is notjust some technocratic machine that producesdecisions best for all. What we need is a Europeanparty system, so that different options for Europe’sfrom Paulina Ochoa Espejo, The Time of the PopularSovereignty: Process and the Democratic State (University Park,PA: Penn State University Press, 2011)51 R. Daniel Kelemen, Eurolegalism: The Transformation of Lawand Regulation in the European Union (Cambridge, Mass.:Harvard UP, 2011)20Transatlantic Academy

6Some Modest ProposalsHow could the EU deal with challenges toliberal democracy more effectively whilealso not overstepping the limits of itslegitimacy? Two temptations ought to be resistedin answering this question. On one hand, it willdo no good to let the institutional imagination runwild, so to speak; on the other hand, it would alsobe a mistake to think entirely within what one takesto be the constraints of political feasibility at anygiven moment in time. A plausible answer here isneither one that gets highest marks in ingeniousinstitutional engineering nor one that has thegreatest chance of being acceptable to memberstates. Rather, we ought to ask again, with a bitmore distance, what the theoretical and practicalchallenges are precisely. A plausible answer is onethat best addresses these challenges.The theoretical challenge, I would submit, is tolocate an agent of credible legal-political judgment.Technical-legal judgment in and of itself (supposingone could successfully isolate such a thing), isinsufficient, for reasons mentioned a number oftimes in this paper. We are dealing with challengesthat will require some understanding of context,some sense of proportion, and, not least, somemeaningful capacity for comparison of whatis actually happening within different politicalsystems (as opposed to the claims about what ishappening within these systems by local elites). 55A simple check-list, as so often used in the EUaccession process (“Do the judiciary’s offices havecomputers? Check.”), will not do. Somebody needsto see and understand the whole picture. 56 On the55Cf. Ronald Beiner, Political Judgment (New York: Routledge,2010).56See also Kalypso Nicolaïdis and Rachel Kleinfeld, RethinkingEurope’s “Rule of Law” and Enlargement Agenda: TheFundamental Dilemma, Sigma Paper 49/2012, and the acerbic,but entirely justified comment by Alina Mungiu-Pippidi onthe Commission’s elaborate monitoring procedures dependingupon an “overall ‘prescription mechanism’ according towhich countries are evaluated by the number of measuresadopted from detailed Commission ‘roadmaps’ rather thanother hand, judgments cannot be — and certainlycannot be seen as — partisan.On a practical level, a clear challenge has beenthat authority in the EU remains highly diffuseand fragmented; there is not much by way of aconsciousness of common European political space(let alone a shared public sphere where substantivearguments could be debated seriously acrossborders); it can be hard to get and direct somethinglike common political attention. More particularly,there is as of now no clear legal or political actorcharged with pushing a red button first, so tospeak, in order to alarm others about a potentialdeterioration in democracy and the rule of lawinside a member state.What follows, then, from framing the problemthis way? First of all, it seems to me that Article7 ought to be left in place, but it also ought tobe extended. There might arise situations wheredemocracy is not just slowly undermined orpartially dismantled, but where the entire edificeof democratic institutions is blown up or comescrashing down, so to speak (think of a militarycoup). However, in such an extreme case, the Unionought actually to have the option of expelling amember state completely. As is well known, underthe Treaty on European Union as it exists now,states may decide to leave voluntarily — but thereis no legal mechanism for actually removing acountry from the Union (and even voluntary exitwould in all likelihood be a very drawn-out affair).True, these all might seem remote scenarios. Butespecially those who insist on the symbolic valueby indicators measuring real changes on the ground. This isas if a doctor evaluated a patient by the number of prescribedmedicines taken, rather than by measuring the patient’s feverto check on the effect of the medicines. Both the adequacy andthe impact of such measures in each country were presumedrather than demonstrated.” See Alina Mungiu-Pippidi, “EUAccession is no ‘End of History’,” in Journal of Democracy, vol.18 (2007), 8-16; here 15.A simple checklist,as so oftenused in the EUaccession process,will not do.Safeguarding Democracy inside the EU 23

The Commissionmight begin tomonitor the stateof the rule of lawin all memberstates consistentlyand continuously.of something like Article 7 — by which they mightactually mean something not just symbolic at all,namely its importance as a form of deterrence —ought to be sympathetic to including the option ofcomplete removal. 57A difficulty with the existing harsher sanctionsenvisaged in Article 7 is, of course, that it requiresagreement among all member states (and even thepreventive option still requires four-fifths of themembers of the Council). So short of extremelydramatic deteriorations in the rule of law anddemocracy, the EU ought to have tools availablethat exert pressure on member states, but whoseemployment does not require a lengthy process offinding agreement among all or a large majorityof member states. One suggestion would be thatthe Commission begins to monitor the state of therule of law (essentially, the quality of the systemsof justice) in all member states consistently andcontinuously. 58 It is important that such monitoringbe done uniformly in all countries. While thereare of course precedents in singling out individualcountries for surveillance (Romania, Bulgaria),it simply sends the wrong signal to target onlysome countries, if there is no evidence for singlingthem out. Such a “universalist” surveillance, aninstitutionalized blanket suspicion, if you wish, alsoeffectively counters the rhetoric — amply used bymember of the current Hungarian governing party— that some Europeans are treated as “second-class57It is not that the possibility of complete exclusion has neverbeen discussed in the preparation of various treaty revisions.But the option of exclusion has been rejected because, asthe report of a Reflection Group appointed by the EuropeanCouncil put it, “this would call into question the irreversibilityof membership [in] the Union.” See Sadurski, “Adding Bite tothe Bark,” 390.58A suggestion that has in fact been made by CommissionerViviane Reding recently. See “EU keen to rank justice inmember states, in EU Observer, September 13, 2012, at http://euobserver.com/justice/117535 [last accessed September 27,2012]. Others have launched the idea of an annual democraticaudit of the member states (and perhaps of the EU as a whole).citizens,” or that there is a two-tier Europe, wheresome are trusted and some are not.However, one might question whether theCommission can really be what I called above acredible agent of legal-political judgment. To besure, the Commission is acquiring new powers insupervising and potentially changing the budgetsof eurozone member states. But many — possiblyall — proposals to increase the legitimacy of theCommission (seen as a necessary complementto such newly acquired authority) contain thesuggestion essentially to politicize the Commission:ideas to elect the president directly or to makethe Commissioners into a kind of politicallyuniform cabinet government all would render thebody more partisan — on purpose. 59 And suchpartisanship makes the Commission much lesscredible as an agent of legal-political judgment. 60An alternative to the Commission undertakingsuch a task itself would be to delegate it to anotherinstitution, such as the Fundamental RightsAgency, 61 or perhaps an entirely new institution59 Not that the Commission today is truly “apolitical” — butthe fiction that Commissioners upon taking office lose theirparty-political identities does have some disciplining effect,I would submit. In the scenario envisaged by proponents ofthe Commission as de facto (and possibly even in name) aEuropean government, the whole point is that the body wouldbe — and ought to be — visibly partisan.60 There is also the less obvious point that every harsh criticismof a newer member state can be seen to fall back on theCommission itself — did they not do the proper work beforerecommending admission? See in this context also TomGallagher, Romania and the European Union: How the WeakVanquished the Strong (Manchester: Manchester UP, 2009).61 As suggested by the liberal MEP Alexander Graf Lambsdorffin his piece “Zwei Premiers führen die EU an der Nase herum,”available online at http://www.cicero.de/weltbuehne/ungarnrumaenien-ponta-orban-zwei-premiers-fuehren-die-eu-dernase-herum/52076.As Lambsdorff rightly points out, themandate of the FRA would have to be significantly amended— as, one might add, would have to be its culture. At least forthe moment it has gained a reputation of being over-sensitiveto member state executives.24Transatlantic Academy

that could credibly act as a guardian of whatone might call Europe’s acquis normatif. 62 Onecould think of something like a “CopenhagenCommission” (as a reminder of the “Copenhagencriteria” 63 ), analogous to the Venice Commission,though with an even stronger emphasis ondemocracy and the overall quality of a politicalsystem — an agency, in other words, with amandate to offer comprehensive and consistentpolitical judgments. 64 The hope is also that suchan agency can become sufficiently visible so as toeffectively raise an alarm across whatever there isby way of a common European political space.However, the real question is of course: and thenwhat? What if a country seems systematically toundermine the rule of law and restrict democracy?My suggestion is that an agency ought to beempowered to investigate the situation and thentrigger a mechanism that sends a clear signal(not just words), but far short of the measuresenvisaged in Article 7. Following the advice ofthe Copenhagen Commission, the EuropeanCommission should be required to cut funds forstate capital expenditure, for instance, or imposesignificant fines. 65 Especially the former might62One might be tempted to think of decentralizing such anagency: having ombudsmen or something analogous todiscrimination agencies in each country — the obviouscounter-argument being that such actors and agencies wouldlikely be subject to national capture.63The Copenhagen criteria can be found here: http://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_de.htm64I am indebted to Rui Tavares for discussions on this point.65A major problem here is of course that such measures tendto punish populations, and not governments. The presentHungarian government has already made it clear that fineswill be passed on to all citizens, clearly hoping that such“democracy taxes” will increase resentment vis-à-vis Brussels.This danger is also acute if one thinks of cutting EU cohesionfunds — such cuts would clearly hurt those who are alreadypoor. Less obviously, countries suffering from deficiencies inthe rule of law already cannot absorb much of such funds — sothis kind of sanction might not hurt as much as one mightprove to be effective, if the EU budget as suchwere to be significantly increased in future years(a measure also included in many proposals totackle the euro crisis). 66 Moreover, cuts of EUspecificfunds would also reinforce the messagethat a country undermining the rule of law is doingsomething that concerns the Union as a whole— and that the response is a genuinely Europeanone. Surely, the Haider Affair taught the lessonthat sanctions should not give the impression thatindividual nation-states are lining up against —or, put more drastically, ganging up on — an EUmember state. Action of this kind — whether bythe European Commission or the CopenhagenCommission as envisaged here — would makeit impossible for a country to try to divide othermember states, or play them off against eachother, or peel off more powerful countries from acoalition of the sanctioning, so to speak.At the same time, all the existing tools remain atthe disposal of the relevant actors. Member statescould vote on Article 7; the Commission could takea member state to the European Court of Justice;the Court can try to protect the substance of EUcitizenship; and politicians can have a serious wordwith one of their peers in another member state,if they feel that the State in question is leaving thebroad European road of liberal democracy.think by just looking at the gross numbers. I am particularlyindebted to Kim Scheppele for discussions on this point.66 The recent final report of the “Future of Europe Group” alsodemanded a “new, lighter mechanism” for the Commission,but did not propose to empower the Commission itself toimpose sanctions. It claimed, “The possibilities to ensurerespect for the fundamental values under Article 2 of the TEUshould be strengthened. To this end, a new, light mechanismshould be introduced enabling the Commission to drawup a report in the case of concrete evidence of violationsof the values under Article 2 of the TEU and to makerecommendations or refer the matter to the Council. It shouldonly be triggered by an apparent breach in a member state offundamental values or principles, like the rule of law.”The hope is thatsuch a democracysafeguardingagency canbecomesufficiently visibleso as effectivelyto raise an alarmacross whateverthere is by wayof a commonEuropeanpolitical space.Safeguarding Democracy inside the EU 25

Now, none of the above means that some of thepluralist principles and practices in the EU havebecome irrelevant (or were a fiction all along). Allthe relevant actors can also retain something likea margin of appreciation to account for nationalidiosyncrasies. They can in the first instancesuggest to an offending government to takeseriously the idea of informal peer review and tryto negotiate disputes away, etc. However, what theabove also suggests is that it cannot be pluralismall the way down. As one political community, theEU has outer and inner boundaries. Where liberaldemocracy and the rule of law cease to function,there Europe ends.26Transatlantic Academy

6Concluding ThoughtsAs Wojciech Sadurski has pointed out,sanctions against member states and,ultimately, the possibility of excludinga member state from the Union touch on thequestion of the finality of the EU and the questionwhether it is in fact a complete and coherentlegal order. 67 They also — yet again — force us toconfront the issue of whether there is such a thingas final authority at all in the Union, and, in an evenmore Schmittian vein, the question of whether anongoing “project” whose institutions translate allconflicts into matters of economics or ethics canultimately even be called “political.” 6867Sadurski, “Adding Bite to the Bark.”68Questions that are not exclusive to the EU, of course:see Daniel Halberstam, “Constitutional Heterarchy: TheCentrality of Conflict in the European Union and the UnitedStates,” in Jeffrey L. Dunoff and Joel P. Trachtman (eds.),Ruling the World? Constitutionalism, International Law, andGlobal Governance (New York: Cambridge UP, 2009), 326-55.Schmitt’s thought on liberalism translating all conflicts intoquestions of ethics (which can reasonably be discussed andadjudicated by courts) or questions of economics (which canbe subject to bargaining and negotiations among organizedinterests) can be found in Carl Schmitt, The Concept of theThis essay has not even begun to engage with theselarger questions. It has, however, made the casefor the legitimacy of EU sanctions from the pointof view of democratic theory. It has also arguedthat — as of now — the EU has no coherent set oflegal and policy instruments to address challengesto democracy and the rule of law within memberstates. Given how much member states haveresisted the idea of empowering the Commissionor the Court to form comprehensive judgmentson the quality of democracy and the rule of lawwithin member states, it is of course by no meansclear whether the proposals suggested in this essayhave any chance of being adopted. But arguably, inthe wake of Brussels’ conflicts with Budapest andBucharest, there is now at least a consciousness ofwhat these challenges might mean, in the way thatthere wasn’t during the times when everybody — orso it seemed — was fond of telling a fairy tale thatended with accession, and political happiness everafter.Political, trans. George Schwab (Chicago: The University ofChicago Press, 2007).Safeguarding Democracy inside the EU 27

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