13 June 2023

Enforcing Democracy

How the European Commission is Testing out the Legal Waters

On the 8th of June, the Commission announced the opening of an infringement procedure against Poland in relation to the so-called ‘Lex Tusk’ or ‘anti-Tusk’ law. The principle of democracy is the first alleged violation specified by the Commission, based on Articles 2 and 10 TEU. Although proposed back in 2020 by observers of the Rule of Law crisis (see here and here), using this combination of articles to protect democracy is an unprecedented step by the institution.

In a way, this follows the successful actions brought against Poland based on Articles 2 and 19 TEU (with ‘successful’ referring to the Court upholding the Commission’s complaints). It also recalls similarities with the Commission’s decision to invoke Article 2 TEU as a stand-alone provision in the infringement proceedings against Hungary’s ‘anti-LGBTQ’ law. The Commission is now testing out the legal waters to see if Article 10 TEU can be the trigger for ‘democracy’ in the same way Article 19 TEU is the trigger for ‘rule of law’.

Article 19 TEU gives expression to the Rule of Law

To provide some brief context, the CJEU has sided with the Commission in several infringement cases against Poland’s controversial laws concerning the judiciary. The Court has ruled on the lowering of the retirement age of Supreme Court judges (C-619/18), the establishment of different retirement ages for judges based on sex (C-192/18), the disciplinary regime applicable to judges (C-791/19), and the private life of judges (C-204/21).

The Commission brought these cases on the basis of the second subparagraph of Article 19(1) TEU (‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’) in combination with Article 47 of the Charter.

In these rulings, the Court follows the same line of reasoning. It starts by setting out the applicability and scope of Article 19(1) TEU. To do so, it states that the provision gives ‘concrete expression’ to the rule of law as enshrined in Article 2 TEU. Further, it asserts that the principle of effective judicial protection is a principle of EU law, which stems from the Member States’ common constitutional traditions. It recalls that Article 6 (right to a fair trial) and 13 (right to an effective remedy) ECHR enshrine this principle, and that Article 47 of the Charter reaffirms it. This use of Article 19(1) TEU to give expression to Article 2 TEU has been qualified as ‘mutual amplification’ by Spieker. The former provision allows for judicial enforcement because it is more precise and the latter provision extends the scope.

The logic followed by the Court is that national courts are, in fact, EU courts and therefore they should meet the standards of judicial independence. A judge that is not independent when applying national law, cannot all of a sudden comply with standards of independence when ruling on a case when it must apply EU law. Therefore, any national court or tribunal that could potentially apply or interpret  EU law should meet the standards of judicial independence, which the CJEU can uphold.

Article 10 TEU gives expression to Democracy

Given this background, the Commission now seems to be suggesting that Article 10 TEU is a provision which ‘gives expression’ to the value of democracy, as enshrined in Article 2 TEU. The Court itself appears to open the door for this in Conditionality Regulation cases. In these annulment cases, brought by Poland and Hungary against Regulation 2020/2092, the Court states:

“[…] Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which […] are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States.”1)

The Court links values, principles, and legal obligations. It does not limit this to the rule of law, but generalises this approach for any EU value, inviting the exploration for other principles that give expression to them. Democracy, just like the rule of law, is a value laid down in Article 2 TEU. Before the Court can enforce binding obligations that stem from this value, there must be principles that give expression to democracy.

Article 10 TEU, found in Title II ‘Provisions on Democratic Principles’, provides a possibility here. Its first paragraph states ‘The functioning of the Union shall be founded on representative democracy.’ In Junqueras Vies the Court acknowledges that this provision ‘gives concrete form’ to democracy in Article 2 TEU. However, this case concerned a preliminary ruling regarding the election of Mr Junqueras Vies to the European Parliament, a situation more clearly within the scope of EU law.

The second part of Article 10(2) TEU states: ‘Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens’ (emphasis added).

So, where ‘effective judicial protection’ is established as a principle giving expression to the rule of law, democratic accountability as found in Article 10 TEU is proposed as a principle that gives expression to democracy. The underlying argument is that ministers and heads of state or government are also actors at EU level (in a parallel manner to national courts also being EU courts). These politicians at national level cannot be democratically accountable when acting at EU level, if they are not democratically accountable as such. Therefore, the functioning of the EU as a representative democracy is only guaranteed if Member States uphold democratic standards. As outlined by the Court, the EU judicial system relies on the proper functioning of the national judicial systems. In the same vein, democracy at EU level relies on democracy at national level. Article 10 TEU makes this ‘dual structure of democratic legitimacy’ explicit.

Before the launch of the infringement action last week, legal scholars had already advocated for, as well as criticised, the potential use of Article 10 TEU. Cotter proposes direct and indirect actions based on this provision to exclude non-democratically accountable representatives from the Council and European Council. Verellen discusses the possibilities in light of Hungary’s questionable changes to its electoral law. Spieker and Bogdandy explore how the Court can rely on a combination of Article 2 and 10 TEU to support democratic transitions. Notably, many of those in support of Article 10 TEU advocate action in light of Hungary’s electoral system (see also here).

These scholars all acknowledge the difficulty of defining democratic accountability, stemming from Member States’ differing interpretations of democracy. This difficulty in establishing the content presents itself also in the infringement procedure launched by the Commission.

Determining the content of democracy

If this case ends up before the Court, it will first decide whether it accepts this combined reading of Articles 2 and 10 TEU. Then, it needs to assess the merits of the case. To do so, it must determine the obligations stemming from the principle of ‘democratic accountability’. Without delving into the details of the Polish law (for a more detailed account see Sadurski’s blog here), the main controversy concerns the state committee that has the power to investigate individuals for acting under Russian influence, which can result in the committee barring them from holding public office. In its press release, the Commission claims that these investigations could cause reputational damage to election candidates.

Therefore, what this case actually concerns is the democratic principle of passive suffrage, the right to stand for election. To rule on this, the Court will have to further flesh out the content of the value of democracy, which it can do by relying on relevant provisions in the Charter, as well as the ECHR provisions and related case law.2)

The Charter articles raised by the Commission do not specifically concern citizens’ rights in relation to elections. Instead, the Commission raises Articles 49, 47, 7 and 8 of the Charter in relation to principles of legality, effective judicial protection, private life and data protection.

These articles, however, do not go to the heart of the issue, which is the undermining of free and fair elections.3) The challenge faced by the EU institutions is that the only Charter provision that really addresses free elections is Article 39. However, it focuses specifically on the European Parliament elections. It states that MEPs ‘shall be elected by direct universal suffrage in a free and secret ballot.’ This is clearly a narrower scope than Article 47 regarding the right to an effective remedy.

Moreover, the ECtHR case law on Article 3 Protocol No. 1 (right to free elections) shows that the Strasbourg Court is hesitant in its assessments on restrictions of the right to stand for election.4) It allows for a broader margin of appreciation for the states to put limits on the right to stand for election. The proportionality test is also more flexible when ruling on violations of passive suffrage. This means that the ECtHR leaves states some discretion for justifying laws that restrict the right to stand for election.

This raises the question whether there is enough of a common EU core of democracy for the Court to side with the Commission on this case. Even if the CJEU allows Article 10 TEU to serve as a link to enforce principles of democracy, how will it establish concrete legal obligations? Is there enough substance to be found in the common constitutional traditions of Member States for the Court to find the Polish law in violation with EU law?

Tread cautiously when putting values in the spotlight

It seems that the EU institutions are putting Article 2 TEU more and more prominently in the spotlight. The Commission’s action against Hungary referred to in the beginning, where it invokes Article 2 TEU as a stand-alone provision, is demonstrative for this approach. Kaiser qualified this as a ‘new chapter in the saga of the European rule of law crisis’, with the warning that the approach should be ‘handled with great care’. The same call for a cautious approach can be heard from other scholars in this area, especially when it comes to infringement actions to tackle violations of a constitutional nature.5)

The CJEU’s involvement does not magically solve the issue of democratic backsliding, especially when there is limited legal substance. Therefore, it will be especially crucial that, if this case ends up before the Court, the Commission frames its democracy claim well. It should make concrete exactly the legal obligations that stem from Article 10 TEU, which is a demanding exercise. The Commission seems to be testing out the waters here, but the democracy waters are (at least for the moment) shallower than those underlying Article 19 TEU.


1 Hungary v Parliament and Council [2022] CJEU C-156/21 [232]; Poland v Parliament and Council [2022] CJEU C-157/21 [264].
2 On defining the content of values, see Tom L Boekestein, ‘Making Do With What We Have: On the Interpretation and Enforcement of the EU’s Founding Values’ (2022) 23 German Law Journal 431.
3 Also recognised by the US State Department in its Press Release (May 29, 2023) Concerns Over Potential use of New Polish Legislation to Target Opposition – United States Department of State
4 See the ECHR’s Guide on Article 3 of Protocol No. 1, and relevant case law cited under ‘III. Passive aspect: the right to stand for election’ https://www.echr.coe.int/Documents/Guide_Art_3_Protocol_1_ENG.pdf
5 See Matteo Bonelli, ‘Infringement Actions 2.0: How to Protect EU Values before the Court of Justice’ (2022) 18 European Constitutional Law Review 30.