The European Union and the Rule of Law Crisis: Towards a (Neo)Militant Democracy?

Since the governments of Hungary and Poland have started dismantling the rule of law and democracy, EU research has been dealing with the question of what instruments the EU can use to counter such developments. One question that is repeatedly raised in this discussion - but usually is not systematically answered - is whether the EU could become a militant democracy (e.g. Müller 2014; Scheppele et al. 2021), i.e. a polity resorting to extraordinary measures to protect democracy and the rule of law at the national level. Despite being a federal entity, the EU is not a state with coercive powers, meaning the member states’ compliance with values and rules is always voluntary. The lacking coercive powers pose a challenge for the EU in its potential reactions to backsliding at the national level. Hence, limited by the lack of coercive powers, the EU has developed several predominantly neo-militant measures against member state governments. Neo-militant measures are less radical, neutral with regard to individual rights and reactive, i.e. activated only after actual breaches of the law have occurred. This paper argues that despite the less radical character of these measures, their implications for the EU as a polity are far-reaching. Through these, the EU contributes to its own federalisation by successively expanding its competences in rule of law matters at the nation-state level without revision of the treaties.