Unveiling Democracy
Will the Court develop the EU’s core value?
On 11 January, Advocate General Richard de la Tour delivered his Opinions in two cases, against the Czech Republic and Poland, which cautiously uncover part of the core of the EU value of democracy. The Commission launched these infringement cases against the two Member States back in November 2012 and April 2013 respectively. They were part of the Commission’s push to remove obstacles in EU citizens’ exercise of their electoral rights guaranteed by the Treaties. The action, against eleven Member States initially, sought to ensure that EU citizens living in another Member State could join or establish a political party. Whereas the Commission found solutions with most of the Member States, as they clarified or adjusted their laws, it continued the procedures against the Czech Republic and Poland. After reasoned opinions issued in 2014, it shelved these cases for a long time, only to restart them in 2021.
Infringement procedures are normally lengthy, but it is rare for them to span over a decade between the initial letter of formal notice and the Court procedure. Perhaps the Commission sees these cases as an opportunity to strengthen the understanding of democracy within the EU legal order. Now that the rule of law is a well-established principle of EU law, these cases present themselves as a chance to focus on a less explored value enshrined in Article 2 TEU. They allow the Court to construct a foundation to address prospective questions regarding democratic principles.
Political Parties as Fundamental to Democratic Life
The cases concern the Czech and Polish national legislation on political parties. Both laws still stipulate that only nationals can join a political party. The Commission argues that this violates EU law. Articles 20(2)(b) and 22 TFEU guarantee EU citizens active and passive suffrage in European Parliament and municipal elections ‘under the same conditions as nationals of that state’. Therefore, national legislation limiting political party membership to nationals conflicts with their right to stand for election. The Member States contend that a non-national can still stand as a candidate for these elections, something not impeded by their preclusion from political parties. Moreover, the relevant Directives detailing the arrangements for ‘mobile’ Union citizens to participate in European and municipal elections do not impose obligations to permit political party membership.
In his Opinions, AG de la Tour sides with the Commission’s broader reading of Article 22 TFEU, by acknowledging the fundamental role played by political parties in the exercise of political rights. The AG and Commission refer to the Venice Commission and ECHR case law recognising this role of political parties. Key to one’s electoral prospects is the possibility of engagement in democratic life in the relevant Member State. Political parties have the resources to promote this engagement. In response to the narrower reading of the EU legislation, AG de la Tour maintains that the Directives do not set out the only conditions to ensure the electoral rights of European citizens. In fact, Article 22 TFEU prohibits ‘any barrier to the exercise of electoral rights […] on the basis of nationality’.
Linking Democracy to Citizenship
The Commission limits its argumentation to the citizenship articles found in the TFEU as well as the right to freedom of expression and assembly as guaranteed in Articles 11 and 12 of the Charter. By contrast, AG de la Tour steers this case towards the fundamental value of democracy. His assessment brings to the fore Articles 39 and 40 of the Charter, provisions that enshrine European citizens’ right to vote and stand for election. These rights link to the principle of representative democracy, which provides the foundation of the Union’s functioning, as stipulated in Article 10 TEU. This principle, in turn, relates to the EU’s founding value of democracy stipulated in Article 2 TEU.
Although Krappitz rightly points out that the Opinions fail to comprehensively integrate Article 2 and 10 TEU (see here), there is some attempt made by AG de la Tour to do so. The Court of Justice, in its judgement on this case, could provide for a more thorough analysis in this regard. However, the link established between citizenship and electoral rights, as well as the link between political parties and electoral rights, are steps to expose a common understanding of democracy.
Adding Another Stone
The importance of this case might lie beyond simply allowing non-nationals in the Czech Republic and Poland to join political parties. It has been suggested (see for example here, here and here) that the Court could use Article 10 TEU to prevent or tackle violations of democratic principles in Member States. The Court already established that Article 10 TEU gives ‘concrete form to the value of democracy referred to in Article 2 TEU.’ Beyond this, the provision seems too vague to be justiciable.
As I have argued previously here, there is limited legal substance when it comes to the value of democracy. If the EU wants to intervene and prevent the erosion of democracy within Member States, there needs to be a more solid understanding of what this value entails. Moreover, addressing questions that touch upon fundamental values in a constitutional context poses a challenge for the EU Court. Cases of a constitutional nature are politically sensitive. Yet, the CJEU has a tactic for dealing with these types of complex cases.
The Court builds up its reasoning in a progressive fashion. This ‘stone-by-stone’ approach allows it to tackle issues of constitutional importance gradually. Instead of drawing unexpected conclusions on a delicate topic, ground-breaking cases are therefore preceded by case law that provide a foundation for the answer. Von Bogdandy and Spieker show here that the Court took this same approach to operationalising a different Article 2 value: the rule of law. The Court incrementally builds up relevant rule of law principles; Koncewicz traces this process here. In this manner, the Court operationalised the EU value, turning it into enforceable principles.
Possible future developments
These cases on political party membership are suitable to contribute to an incremental approach in operationalising democracy. They have a discernible European dimension, but also entail broader national implications. They are not likely to trigger backlash from other Member States, as the vast majority of them allow non-nationals to join political parties. As AG de la Tour shows, the cases allow for making links between legal concepts, which can deepen the value of democracy. These links could be relevant in possible future cases that might not fall within the scope of Article 22 TFEU.
By recognising the work of the Venice Commission and the ECtHR case law, the Opinions further consolidate the connection between the EU’s value of democracy and the contributions of these institutions. Although the Strasbourg Court often affords a broad margin of appreciation when it comes to electoral matters, it is vigilant in protecting individual electoral rights. The ECtHR imposes a stringent proportionality test if a signatory state deprives individuals or groups from the right to vote, for instance in cases of citizens under guardianship or convicted prisoners. Moreover, the Venice Commission has long been developing a common core of European democracy. In its Code of Good Practice in Electoral Matters it emphasises fundamental principles of universal, equal, free, secret and direct suffrage.
The link drawn between European citizenship and the exercise of democratic rights can justify the Union’s involvement in other aspects of electoral matters. For instance, one can imagine that if there are indications that municipal or European Parliament elections are not free in a certain Member State, this also affects ‘mobile’ European citizens from exercising their democratic rights in that Member State. If the forthcoming judgements follow the AG Opinions, these cases would confirm that the national provisions relevant to municipal and/or European Parliament elections fall within the scrutiny of the Court of Justice.
Another conceivable possibility is that the CJEU could eventually be asked to rule on political party bans. If the CJEU sticks to the reasoning that political parties serve an essential function to guarantee electoral rights, a party ban at the national level would also affect the electoral rights guaranteed by EU law. Political parties often operate at local, regional, national and European levels (as European political parties are typically composed of national parties). Therefore, a party ban would prohibit them from engaging in local and European Parliament elections.
An Open-Ended Story…
Aside from the cases discussed, where the Member States in question are arguably not undermining the very essence of democracy, the EU is facing a complex challenge with Member States backsliding on the Union’s values. Through an incremental approach, the CJEU has developed a way to address violations of the rule of law. However, the line of reasoning used in those cases cannot apply to all aspects of constitutional regression. Therefore, the Court needs to lay new foundations to deal with cases that fall within the scope of democracy. To see how the Court will further develop this EU value, keep an eye out on its judgements in these cases against the Czech Republic and Poland.
