My new article 'The Need for an EU Expulsion Mechanism: Democratic Backsliding and the Failure of Article 7' was just published in Res Publica.

I argue that expulsion from the EU should be the final sanction for democratic and rule of law backsliding

🧵 Image
The first part of the paper tackles the main existing legal framework for responding to democracy & rule of law violations: Article 7.

Many have argued convincingly that the Article 7 framework is crippled by the unanimity requirement in A7.2 (eg @ProfPech @rdanielkelemen)

Building on earlier work (…) I develop a new critique of A7 focusing not on its *inefficacy* but on its *normative incoherence*

Specifically, I argue A7 falls into a performative contradiction that undermines its ability to express EU fundamental values

As well as a 'reformative' & 'inoculative' purpose, A7 has an 'expressive' purpose.

As @WojSadurski writes (in a dif. context) such a sanction 'should be seen as a general ideological declaration setting the limits of what is politically acceptable within the Union' (2010)

This expressive purpose requires that the A7 sanction does not undermine the fundamental values that A7 is geared to protect: democracy, equality, the rule of law...

I argue that the sanction in A7.3 - disenfranchisement of a MS in the Council - does undermines these values

This is because disenfranchising a MS *while continuing to hold it subject to EU law-making* (as per A7.4) violates democratic norms.

Democracy requires minimally that all those subject to a decision have a stake in it (the all-subjected principle in democratic theory).

So MS disenfranchisement in A7.3 is anti-democratic.

However, we cannot simply get rid of A7 to resolve the normative incoherence.

Allowing a frankly autocratic state to continue to participate in supranational law-making would undermine the democratic legitimacy of EU law.

This leads to a paradox.

Disenfranchising an autocratic MS while continued to subject them to EU law is anti-democratic.

But doing nothing and allowing an autocratic MS to co-legislate at the supra-national level is also unacceptable.

One body of literature that tries to deal with such trade-offs is the literature on militant democracy (MD).

MD theorizes conditions under which anti-democratic sanctions are legitimate to respond to existential threats to the democratic order.

So, could MD justify A7?

I argue militant democratic theory cannot justify the disenfranchisement of a backsliding MS in the Council.

The strongest defenses of MD sanctions stipulate they must:

a) respond to an existential threat to democracy
b) be necessary to combat that threat

Democratic backsliding in EU MS certainly *could* (& plausibly does) pose an existential threat to the democratic legitimacy of the EU.

However, I argue A7 is not necessary, because expulsion from the EU would protect EU democracy without violating fundamental values.

The argument I make here for an EU expulsion mechanism therefore has two parts.

First, expelling an autocratic member state would protect EU democracy.

Second, expelling an autocratic member state would not violate democratic norms.

By definition, an autocratic MS government lacks democratic legitimacy.

The inclusion of such a gov. in the EU legislative process taints the democratic legitimacy of EU law.

Expelling an autocratic MS shows that the EU and remaining MS are committed to democracy & the RoL

Expelling an autocratic gov. also does not violate democratic values.

At the national level, citizens have an unqualified claim to citizenship (the 'right to have rights').

But there is no fundamental claim to supranational association with other states, this is voluntary.

Expelling a MS also does not violate EU fundamental values.

Many think that expulsion would violate the Rule of Law in that there is no current legal mechanism in the Treaties.

Backsliding states would never agree to Treaty reform to include such a mechanism.

However, building on work with @ChamonMerijn (…) I argue that there is *already* a legal pathway to disassociating with an autocratic MS.

This would use the A50 mechanism in a new and radical way.

MS committed to democracy and EU fundamental values would collectively trigger A50 and withdraw from the EU.

They could use their qualified majority to collectively negotiate this withdrawal, transferring the resources of the current EU to a new EU 2.0.

This new EU could incorporate the current body of EU legislation, replicate the current EU institutions and continue the business of EU integration amongst MS committed to democracy.

The autocratic member(s) would be left with an empty, useless shell. An institutional husk.

MS committed to EU fundamental values cannot be forced to continue to associate with an autocratic MS.

Indeed, the converse position would mean democratic MS being forced to subject themselves to laws co-legislated with an autocrat.

That is not to say that there are no democratic costs to the expulsion of an autocratic MS from the EU.

The citizens of such a state would lose substantial freedoms.

Many of those citizens would have actively opposed their state's autocratization.

Expelling a MS from the EU should therefore never be considered lightly.

Indeed, ❗️the costs of expelling an autocratic MS underline the urgency of using all other mechanisms available (like infringement actions) to try to reverse autocratization❗️

To quote Jean Monnet, Europe must 'learn the lessons of its past failures to recognise that progress has become inevitable'.

The incessant dithering and inaction of the Commission on the democracy and rule of law crisis must end.

But where all else has been tried, an expulsion mechanism is the appropriate, legitimate and coherent final sanction to democratic violations in EU member states.

Democratic MS must draw a line in the sand.

Discussion under the original post has already been stimulating: @John_Cotter @ProfKochenov @StevePeers @markus_patberg @FerencLaczo

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More from @TomTheuns

13 Jan
In this new article in Res Publica, I argue that the EU needs an expulsion mechanism in case of flagrant violations of democratic values.

I also show MS already have the power to exclude autocratic states from EU integration.

🧵will follow!
Read 5 tweets

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