In the last decade the Court of Justice of the EU has rapidly developed its case-law on the enforcement of EU values. Following multiple cases in which the Court enforced provisions that instrumentalize the Rule of Law in actions involving the ‘backsliding’ Member States of Poland and Hungary, the question now arises as to whether EU action may be justified to protect the co-foundational value of democracy during national elections in the EU’s Member States. The upcoming elections in the Federal Republic of Germany in February will bring these issues into sharp relief.
In the latest RevDem Rule of Law podcast, Oliver Garner discusses these themes with Miriam Schuler (King’s College London), whose PhD research analyzes the protection of values within the European Union.
The Current State of Play
While Article 2 of the Treaty on European Union (TEU) outlines a broad set of foundational values, Schuler argues that, over the past decade, EU actions have primarily centered on upholding the rule of law—particularly in response to measures taken by the governments of Poland and Hungary. However, in the last two years, Schuler observes a shift toward addressing other Article 2 TEU values, such as democracy and human rights, in enforcement proceedings. In the ongoing “Valeurs de l’Union” case against Hungary, the European Commission (EC) has, for the first time, invoked Article 2 TEU as a standalone provision, accusing Hungary of violating the human rights of the LGBTIQ+ community. Additionally, the EC has initiated infringement proceedings against the Hungarian and Polish governments based on the value of democracy. According to Schuler, this development raises a critical question: how far can—and should—jurisprudence based on the Union’s fundamental values extend?
National Elections, Democratic Accountability and EU Values
Infringement actions related to national elections raise fundamental questions about the autonomy and sovereignty of Member States. A key issue is whether the EU has the authority to monitor national elections. Schuler explains that recent case law from the European Court of Justice (ECJ) may pave the way for such oversight. Notably, the court’s evolving interpretation of Article 10 TEU—a provision gaining increasing significance—suggests that EU citizens have a right to democratic representation not only in the European Parliament but also in the European Council and the Council of the EU through their national governments. As the guardian of the treaties, the EC may assess whether democratic standards are upheld in national elections to ensure the legitimate representation of EU citizens in the Union’s institutions. Two relevant judgments addressed cases in Czechia and Poland, where authorities barred ‘mobile’ EU citizens—those residing in a Member State without its nationality—from joining national political parties. Schuler explains that because political parties play an essential role in democratic systems and party membership significantly enhances a citizen’s chances of being elected, the European Court of Justice (ECJ) ruled that such restrictions violate EU citizens’ rights. Specifically, the court found that preventing mobile EU citizens from joining political parties infringes on their right to stand for municipal and European Parliament elections under the same conditions as nationals of their host state, as protected by Article 22(1) of the Treaty on the Functioning of the European Union (TFEU) and Article 39 of the Charter of Fundamental Rights of the EU. If Article 10 TEU were interpreted as granting citizens the right to participate in national elections as a means of engaging in the EU’s democratic life through their governments, Schuler argues that the logic applied in the Polish and Czech cases could also extend to this right. Since certain national standards are essential for citizens to effectively exercise their (potential) right to vote, EU institutions might assess which standards are fundamental and whether they are upheld in national elections.
The conversation delves into the nature of representation of Member State citizens through their governments at the Union level, questioning whether it follows a logic of parliamentary representation or one of diplomatic delegation. Schuler then highlights that, in addition to the concept of representation, Article 10 TEU introduces another key element: the democratic accountability of governments to their national parliaments or citizens. This aspect of the provision stresses the need for an “uninterrupted chain of democratic legitimacy” extending from the citizens of a Member State to their representatives in the European Council and the Council of the EU. Schuler concludes by arguing that, in her view, such a chain of democratic legitimacy can only exist if national elections adhere to certain standards.
The AfD Debate: Could EU Law Justify a Party Ban in Germany?
The conversation then explores the potential effects of EU law on national party ban procedures. With the upcoming German elections, discussions regarding the initiation of such a procedure against the right-wing populist AfD have gained momentum. While EU law permits the deregistration of European political groups that violate the foundational values outlined in Article 2 TEU, and scholars have argued for such actions in specific cases, this applies only to European political groups, not national ones. However, Schuler explains that EU law could still play a role in national party ban procedures. In the most recent German party ban procedure before the Federal Constitutional Court (FCC) against the far-right National Democratic Party (NPD), which ultimately failed, the party invoked EU law in its defense. The NPD argued that the FCC had a duty to request a preliminary ruling from the ECJ on whether banning a political party is compatible with the EU’s value of democracy. In response, the FCC stated that EU law was irrelevant to its decision. However, Schuler contends that, given the recent case law from the ECJ discussed earlier, such an interpretation would now be much harder to justify. Should a party ban procedure against the AfD be initiated, it could lead to a new conflict between the FCC and the ECJ. The conversation concludes by exploring whether such future clashes between national constitutional identities and the European Court of Justice might be resolved by recognizing that the national constitutional identities of Member States and the supranational constitutional identity of the EU are not contradictory but rather overlap.
The interview was conducted by Oliver Garner. Lilit Hakobyan edited the audio file.
