The supranationalisation of democracy protection in the EU

Recent work has underlined the intergovernmental character of post-Lisbon integration, emphasizing that the European Council and the Council have become the dominant actors in several policy fields. This paper highlights a reverse trend with respect to the protection of EU values such as democracy and the rule of law. In this field, incremental institutional change during the last decade has resulted in a fundamental supranationalisation of democracy protection, paradoxically facilitated by the illiberal actors themselves. As we will show in our qualitative study, this supranationalisation manifests itself in two ways. First, democracy protection in the EU has been driven by the EU’s major supranational actors, namely the Commission, the Court of Justice and the Parliament. While the Commission – pressured by the Parliament – introduced new instruments to safeguard rule of law and democracy at the national level, the Court of Justice through various rulings created a more robust legal basis for such action. Second, the resulting instruments all have a supranational character as they all make the Commission the central actor in fighting the dismantling of the rule of law in the member states. As a result, we now see a degree of supranationalisation of democracy protection in the EU, which Treaty makers have traditionally refrained from. It will be furthermore shown that ironically it was the Council’s passivity on rule of law and democracy issues (caused by internal divisions on the matter) that allowed the three supranational actors to drive the process of supranationalisation. This reveals a striking paradox: The more the Hungarian and Polish governments – i.e., those actors prominently opposing further transfers of competences to the supranational level – block rule of law-related decisions in the Council and European Council, the more they actually encourage supranationalisation through institutional change without Treaty reform.