An effective judiciary is key to hedge against democratic backsliding – clogged courts deck democracy

Faced with rising autocracy at the state level, policy-makers may turn to avariety of tools in an effort to defend liberal democracy. This article assessesthe capacity, and the limitations, of one particular set of tools – judicial tools –that the EU may use to defend democracy at the national level. We assessexisting judicial mechanisms that can be used to defend democracy andthe rule of law in EU member states, as well as proposals for the introduction of new tools designed to strengthen the EU’s capacity in this respect. We find that more can be done to maximize the effectiveness of existing judicial mech-anisms, i.e., infringement proceedings and litigation in national courts. At thes ame time, we warn of general risks associated with relying excessively on the judiciary to defend democracy, and discuss the specific risks posed by thenovel judicial instruments that have been proposed recently as means to strengthen the EU’s ability to combat democratic backsliding. We emphasize,first, that relying too much on courts to defend democracy risks unduly poli-ticizing the EU judiciary, and, second, that this approach may encourage pol-itical leaders to shirk their responsibility to stand up against democratic backsliding. Ultimately, judicial safeguards alone are unlikely to succeed against a determined autocratic member state government. If European leaders want to defend democracy in a member state where it is underthreat, they will have to intervene politically as well. 1The remainder of this article is divided into three sections. The next section explores traditional judicial tools for upholding EU norms and discusses waysto overcome their limitations in confronting challenges to the rule of law anddemocracy. We then review innovative proposals made in recent years to strengthen the EU’s judicial tools for tackling democratic backsliding, high-lighting their potential unintended consequences. The final sectionconcludes.Existing legal safeguards: making the most of a limited toolkitIn ‘normal’ times, enforcement of EU norms draws on two well-established judicial mechanisms: centralized monitoring and enforcement by the Euro-pean Commission, which can refer infringement cases to the EuropeanCourt of Justice (ECJ), and decentralized litigation by private parties beforenational courts, potentially involving preliminary references from nationalcourts to the ECJ. Scholars have noted a number of reasons why these tra-ditional judicial instruments seem ill-suited to tackle member state violationsof fundamental EU values such as democracy and rule of law (Müller 2015:147–9). For instance, the politicized nature of the Commission may limit itsuse of the infringement process, restricted access to justice at the nationallevel (particularly during periods of democratic backsliding) may limit decen-tralized enforcement by private parties, the fact that many of the Treaty pro-visions on fundamental values do not meet the legal criteria for ‘direct effect’322 M. BLAUBERGER AND R. D. KELEMENmeans they cannot be directly invoked by private parties before nationalcourts, and, perhaps most importantly, the incremental, yet cumulatively sys-temic process of democratic backsliding may prove elusive to existingmethods of case-by-case enforcement. Yet, while it is important to recognizethe limitations of these approaches, the literatures on compliance and judicia-lization also remind us that the strategic use of these techniques can some-times prove effective in promoting major policy changes (Stone Sweet2010). Therefore, rather than simply giving up on these traditional judicialtools, we should consider how their effectiveness in defending democraticvalues can be maximized.Infringement proceedingsFrom the dawn of the EU legal order, the infringement procedure – whichempowers the European Commission to bring legal proceedings against amember state government for infringement of EU Treaty requirements or sec-ondary legislation – has been a pillar of the enforcement architecture. Overthe years, the Commission has brought thousands of successful infringementactions, pressing states to come into compliance with EU legal norms evenwhere doing so proved very costly. The infringement procedure was strength-ened in the Maastricht Treaty, when the ECJ was empowered (at the requestof the Commission) to impose penalty payments on member state govern-ments for failure to comply with ECJ rulings in infringement cases. Yet,despite the strengths of this procedure, a number of observers have also high-lighted general weaknesses and its particular limitations as a tool to enforcefundamental rights and other core EU values enshrined in Article 2 of theLisbon Treaty.A general finding of EU compliance research is that the Commission prose-cutes infringements selectively (Hartlapp and Falkner 2009: 292). The Commis-sion enjoys great discretion as to whether to initiate or to settle infringementproceedings, and critics note that the Commission often postpones politicallysensitive conflicts and launches cases only when it seems most likely they willprevail (Conant 2002: 75). This practice of selective enforcement may helpexplain why the Commission has not pursued more infringements againstthe Hungarian government in recent years. And yet, recognizing that strategicconsiderations come into play in the infringement procedure also suggeststhat the Commission might still increase the volume and effectiveness of itsenforcement actions.The past five years have seen the European Commission and other EU insti-tutions preoccupied with managing the eurozone crisis. Strikingly, thenumber of infringement cases referred to the ECJ decreased by over 72 percent since the outbreak of the financial crisis in 2008. 2 This decline is likelyowing to both the fact that the Commission’s limited resources were beingJOURNAL OF EUROPEAN PUBLIC POLICY 323concentrated on addressing the eurozone crisis and the fact that the Commis-sion was wary of offending member state governments whose co-operationthey needed to address the crisis.While the decrease in infringement proceedings during the eurozone crisisprovides worrying evidence about the Commission’s ability to safeguard therule of law during times of economic crisis, it simultaneously provides groundsto believe that as the eurozone stabilizes, the Commission may return to usingthe infringement procedure more aggressively. Moreover, the line-up of theJuncker Commission that took office in late 2014 has increased the likelihoodof credible enforcement action in the area of EU fundamental values. The firstVice-President, Frans Timmermans, is entrusted with co-ordinating the Com-mission’s activities in the areas of rule of law and fundamental rights. In hisprevious position as Dutch Minister of Foreign Affairs, Timmermans hadbeen one of the signatories of a letter to President Barroso, calling for agreater role of the Commission in safeguarding EU fundamental values atthe member state level. 3 In a possible recent sign of the rejuvenation of theinfringement procedure, the Commission countered member state govern-ments’ attempts to shift the blame to ‘the EU’ for the refugee crisis by initiat-ing 40 strategically timed infringement proceedings against member statesfor their violations of EU asylum and immigration policies. 4 Moving forward,one measure to strengthen the Commission’s use of infringements, whichcould be easily implemented, would be to increase personnel devoted tomonitoring and prosecuting infringements against EU fundamental values(Kochenov and Pech 2015: 11). Moreover, even without labelling them ‘sys-temic infringement actions’ against fundamental values in Article 2 TEU (seethe discussion of this proposal below, Scheppele [2014]), the Commissioncan do more to co-ordinate its enforcement activities 5 across different direc-torates and bundle them in order to emphasize the systemic character of ruleof law issues.