The Need for an EU Expulsion Mechanism: Democratic Backsliding and the Failure of Article 7

Abstract

What should the EU do about the fact that some Member States are backsliding on their commitments to democracy, supposedly a fundamental value of the EU? The Treaty provisions under Article 7 TEU are widely criticized for being ineffective in preventing such developments. Are they legitimate? I argue that the ultimate sanction of Article 7 TEU falls into a performative contradiction, which undermines its ability to coherently defend fundamental values. Instead, expulsion from the EU is the appropriate, coherent and legitimate final political sanction for democratic and rule of law backsliding by a Member State. The argument has the following steps: In Part 1, I argue that the current Article 7 framework for responding to democratic and rule of law backsliding in the EU is normatively problematic, in that the mechanism currently in the Treaty undermines the values it purports to defend; in other words, it falls into a performative contradiction. It is undemocratic to deprive Member States of their right to vote in the Council while holding them subject to Council decisions. However, Part 2 studies relevant philosophical arguments from an adjacent literature on criminal disenfranchisement, concluding that allowing backsliding Member States to keep their voting rights in the Council also taints the democratic character of Council decision-making. In Part 3, I consider the resulting paradox in light of the literature on militant democracy. Could militant democracy justify Article 7? I argue not; even if we accept the hypothetical justifiability of militant measures, they are not legitimate here since a democratically acceptable alternative exists that would safeguard the democratic character and legitimacy of Council decision-making: expulsion from the Union. I also address a central objection to an expulsion mechanism—that it would require treaty change and is therefore practically impossible.

Saving Popular Sovereignty From a Slow Death in the European Union

“…As a normative concept of authority, this right derives from a principle. Most normative studies assess the democratic legitimacy of EU interventions, such as the Article 7 procedure and expulsion (e.g., Olsen, 2022a;Patberg, 2020Patberg, , 2021Theuns, 2022) or other important procedural considerations of EU democracy protection (Bellamy and Kröger, 2021;Theuns, 2020).…”

“…As a normative concept of authority, this right derives from a principle . Most normative studies assess the democratic legitimacy of EU interventions, such as the Article 7 procedure and expulsion (e.g., Olsen, 2022a; Patberg, 2020, 2021; Theuns, 2022) or other important procedural considerations of EU democracy protection (Bellamy and Kröger, 2021; Theuns, 2020). As far as I am aware, only Olsen (2022b) offers a comprehensive moral framework for assessing EU interventions, although this somewhat surprisingly does not include the legitimacy of expelling an autocratic member state (although he does address this elsewhere, Olsen, 2022a).…”

“…An alternative to the Treaties is the non‐ideal theory of militant democracy. Militant democracy entails stripping antidemocratic forces of their democratic rights if they form an existential threat to democracy (Theuns, 2022). Several scholars argue that militant democracy provides the EU with the political authority to engage in democracy protection (e.g., Müller, 2016; Wagrandl, 2018).…”

“…Secondly, and particularly relevant, several authors submit that the theory is not applicable to EU interventions. They argue, for instance, that disintegration is the more appropriate framework to theorize expulsion (Theuns, 2022; Wolkenstein, 2020). Most importantly, militant democracy requires agreement on the existence of a liberal democratic order (Wagrandl, 2018).…”

An egalitarian fortress? Global distributive justice and the EU

“…5. Without full disintegration, this could occur through a stronger expulsion mechanism (see Theuns 2022) allowing to restrict the union to countries preserving some basic normative orientations. 6.…”