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Jan-Werner Mller

Journal of Democracy, Volume 24, Number 2, April 2013, pp. 138-149

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DOI: 10.1353/jod.2013.0023

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Defending Democracy
Within the EU
Jan-Werner Mller

Jan-Werner Mller is professor of politics at Princeton University,

where he also directs the History of Political Thought Project. Research
for this essay was mostly conducted while he was a nonresident fellow at
the Transatlantic Academy in Washington, D.C. His latest book is Contesting Democracy: Political Ideas in Twentieth-Century Europe (2011).

Could there be a dictatorship in an EU member state? And if such a

specter were to materialize, should Brussels intervene and try to shore

up democracy? Or would such an intervention constitute illegitimate
meddling in the domestic affairs of a country that had delegated only
certain powers to Europenot empowered Brussels to determine how
popular rule should be understood and implemented, let alone given it
authority to enforce liberal democracy across the continent? These are
no longer theoretical questions: Recent political developments in Hungary and Romania have put such dilemmas squarely on the EU agenda,
although concerns of authoritarian drift in both countries have been
largely overshadowed by the crisis of the euro.
I argue that it is legitimate for Brussels to interfere in the domestic
politics of individual member states for the purpose of protecting liberal
democracy. There are four commonly voiced concerns about such interventions: 1) They would be hypocritical because the EU itself is not
democratic and therefore lacks the credibility to act as the continents
democracy watchdog; 2) there is no single, fully agreed-upon model of
European liberal democracy that could serve as a guideline or checklist
for determining whether a country is departing from shared European
standards; 3) such interventions are in and of themselves paternalistic
and, ultimately, illiberal; and 4) only smaller, relatively powerless member states would ever be subject to interference from Brussels.
Although these are reasonable enough concerns, each one can be
countered. In the process of doing so, we can develop a set of criteria
for when and how European intervention would be justified. In fact,
Journal of Democracy Volume 24, Number 2 April 2013
2013 National Endowment for Democracy and The Johns Hopkins University Press

Jan-Werner Mller

139

the real problems arise not at the theoretical level, but rather when it
comes to devising policy instruments and concrete political strategies.
At the moment, the EU lacks an effective and comprehensive toolkit
with which to address situations that few Eurocratsor, for that matter,
European elites more broadlyever foresaw. The EU as well as individual member states seem to have assumed that the consolidation of liberal
democracy in the postcommunist countries run-up to EU accession was
irreversible. Once inside the club, or so the rather complacent reasoning
seemed to go, new democracies would count their blessings and never
look back. To be sure, the repertoire of legal and political instruments
that the EU currently has at its disposal to exert pressure on member
states might occasionally work, but these punitive measures can also
appear arbitrary and opportunistic. I propose broadening this repertoire,
as well as creating a new kind of democracy watchdoglet us call it the
Copenhagen Commission, a hat-tip to the Copenhagen criteria for EU
eligibilitythat can sound a Europe-wide alarm about deteriorations in
the rule of law and democracy.
It is a common clich that identity creation requires an other
that is to say, an enemy, or at the very least a person or group who
clearly is not us. According to this notion, the EUs identity should
have been forged in early 2000, when Europes other appeared (not
for the first time in twentieth-century European history) in the form of a
charismatic Austrian. The inclusion of Jrg Haiders populist Austrian
Freedom Party (FP) in his countrys government prompted the other
fourteen EU member states to impose sanctions on Vienna, minimizing
bilateral relations and vowing, for example, not to promote Austrian
candidates for positions in international organizations.
What came to be known as the Haider Affair deeply traumatized
the EU: The mostly symbolic sanctions looked somewhat ridiculous;
fears of a nationalist backlash in Austria grew; and, in the end, the supranational panel of three wise men appointed by the president of
the European Court of Human Rights certified in an official report that
there was nothing wrong with the Austrian government (even if there
remained concerns about the FP) and recommended an end to the sanctions. Europes activism had backfired, or so many people think today.
Now, more than a decade later, the question of how to protect democracy inside the EU is back on the radar. Two countries in particular have
raised concern in Brussels: Hungary and Romania.1 In Hungary, Fidesz,
the right-wing populist party led by Viktor Orbn, came to power with a
two-thirds majority in parliament in April 2010. The Fidesz government
soon passed a draconian media law that was widely criticizedby the
Organization for Security and Co-operation in Europe, among others.
Then, in the spring of 2011, Fidesz rammed through a new and deeply
nationalist constitution that undermined checks and balances. Like the
media law, the new constitution also drew strong international criticism,

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Journal of Democracy

including from the Council of Europes Venice Commission. In addition, Fidesz packed the Hungarian Constitutional Court and repeatedly
appointed loyal supporters to what were meant to be nonpartisan institutions, often for unusually long terms (sometimes for more than two
parliamentary cycles). Observers claimed that Fidesz was pursuing a
strategy of systematically occupying the state, so that while it might
occasionally lose an election, it would never lose power. Critics even
began referring to the Putinization of Hungary and calling Orbns
way of governing Lukashenka-lite.
In Romania, the attack on the rule of law unfolded much more quickly. In mid-2012, just months after Victor Ponta became prime minister,
his government (which is nominally a coalition of social democrats and
liberals) voted to impeach President Traian Bsescu (who is nominally
a conservative liberal) on charges of having overstepped constitutional
limits. A 2007 attempt to oust Bsescu on similar grounds had failed to
pass a popular referendum. Eager to avoid another failure, Pontas government took steps to disempower the Constitutional Court and issued
emergency decrees meant to ensure the success of an impeachment referendum. The most important of these measures lowered the threshold
for removal from a majority of eligible voters to merely a majority of
those actually casting ballots in the referendum. In addition, the government removed the speakers of both houses of Parliament and deposed
the ombudsman, known as the Advocate of the People.
In both Hungary and Romania, the EU intervened in substantial
and controversial ways. The European Commission criticized Hungarys media law, which the government eventually changed. Yet the
law in many ways remains illiberal. In addition, due to concerns about
the declining independence of the Central Bank, the judiciary, and the
data-protection ombudsman, Hungary was also investigated for failing
to implement EU law and was eventually taken to the European Court
of Justice by the European Commission (whose job it is to ensure that
member states abide by EU law).
Again, the results so far have been mixed. For example, although
Budapest complied with some of the demands aimed at ensuring the
Central Banks independence, it did so knowing full well that the Banks
president is set to retire in the first half of 2013, at which point the Fidesz government can appoint someone more to its liking. In late 2012,
the European Court of Justice ruled against Hungary on the drastic lowering of the retirement age for judges (as well as prosecutors and notaries) from 70 to 62, which the Court stated was a violation of European
antidiscrimination laws. But the judges who were already dismissed
have yet to be reinstated.
In July 2012, the European Commission called on Bucharest to repeal
some of the proposed changes to the rules for impeachment referendums. The Ponta government complied, which contributed decisively

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to the failure of the latest attempt to impeach Romanias president. Although around 87 percent of voters cast their ballots on 29 July 2012 to
remove Bsescu, the critical participation threshold (once again at 50
percent of all eligible voters) was not reached. After the Ponta government made several failed attempts to retroactively change the number
of eligible voters in order to get the desired outcome and initially was
reluctant to accept the Constitutional Courts ruling that the referendum
was valid, Bsescu was reinstated.
Ponta won a resounding election victory in December 2012, and has
agreed to a truce with Bsescu, thereby bringing to an end what has
been called the war of the two palaces. At the same time, there have
been reports that Ponta is trying to put together a two-thirds majority
in Parliament in order to change the constitution. If that is indeed his
plan, Ponta may have learned from Orbn that rather than relying on
ad hoc measures, the government should implement long-term institutional changes. Although Pontas party is left-leaning while Orbns
leans to the right, Ponta seems to have studied his Hungarian counterpart well: Entrenching highly controversial partisan preferences in the
constitution would be a much more clever strategy than what observers
of Romanian politics frequently referred to as Pontas parliamentary
putsch.
The EUs interventions in both Hungary and Romania have met with
fierce criticism, and not just from people in those two countries. In fact,
a clear right-left split across Europe emerged among critics of the Commissions actions. British Euroskeptics and German conservatives emphasized the importance of nation-state sovereignty (and the damage to
national pride inflicted by supposedly heavy-handed EU interventions).
On the left, the opposition to interference from Brussels was based less
on broad principles and more on a widespread sense that the Commission ultimately cares only about economicsor, to be more precise,
safeguarding neoliberal conceptions of the role of central banks, the interests of multinational companies, and fiscal austerity.

Four Concerns About Intervention

Clearly, there is a need for a more systematic consideration of whether the kinds of interventions that the EU has made in Hungary and Romania are legitimate. Although EU law provides some guidelines, much
of the public debate about intervention by Brussels has been conducted
less in terms of jurisprudence and more in terms of democratic theory.
So what can and cannot be justified in the name of democracy?
As noted above, the first argument against the EU protecting democracy is that the Union itself is not democratichence, Brussels is fundamentally hypocritical in interfering on behalf of values to which it does
not itself adhere. This charge misses the point that the Union derives

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its legitimacy not from being a continent-wide democracy, but from the
free votes of democratically elected national parliaments that commit
their respective countries to European rules. Now, amid the crisis of the
euro, this logic of self-binding is clearly under attackinvestors have
not found this model credible. Yet with the single market, it has worked
well for decades: No one complains about Brussels taking member-state
governments to court for violating rules regarding economic competition, for instance.
Moreover, one of the goals of Europes eastward enlargement was
to help complete or consolidate transitions to liberal democracy in the
postcommunist countries. Those governments in turn sought preemptively to resist the pull of illiberal and antidemocratic demagogues and
the possibility of authoritarian backsliding by binding themselves to
Europe. It was a move akin to that of Ulysses when he ordered himself
bound to the mast so that he could hear the Sirens song without risk of
drowning. Hence both Orbn and Ponta are wrong to accuse Brussels of
engaging in Eurocolonialism. Orbn, for instance, compared the EU to
the Ottomans, Habsburgs, and Russiansformer oppressors of the freedom-loving Magyars. In fact, Brussels is only reminding Hungary and
Romania of the commitment that each made when it joined the Union,
the former in 2004 and the latter three years after that.
Some might still object that the parallel between interventions aimed
at safeguarding the single market and interventions aimed at protecting democracy is false. Is regulating the purity of beer or the length of
cucumbers not something categorically different from determining the
shape and working of national political institutions? Is European integration not predicated on member states remaining both masters of the
treaties and, in many clearly demarcated areas, masters of their own
political fates? After all, the Lisbon Treaty itself enshrines the principle
that the Union ought to respect member states national identities. And
EU leaders regularly trumpet European diversity not just as a fact but
as a distinct European value.

Are There Shared European Standards?

Yet the very diversity for which Europe congratulates itself in fact
bolsters a second major concern about EU interventionsnamely, that
there are no shared European standards of liberal democracy; hence, all
the EUs efforts to protect democracy within its member states are arbitrary. While there is a single European market, there is no single model
of democracy. As a result of the political catastrophes that scarred the
first half of the twentieth century, European political development since
1945 has consistently moved toward delegating more and more power to
unelected institutions, in particular to constitutional courts.2 Rightly or
wrongly, Europeans drew certain lessons from their continents traumat-

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ic experiences of world war and totalitarian dictatorship. Among these

lessons was the notion that a parliament must never again be in a position to hand power to a Hitler or a Marshal Ptain, the leader of authoritarian Vichy France. Distrust of unrestrained popular sovereigntyand
even the unconstrained parliamentary sovereignty that a German constitutional lawyer once called parliamentary absolutismis in the very
DNA of postwar European politics.
Of course, history is not destiny, and its purported lessons do not
automatically convey legitimacy. But it seems reasonable to assume
that sudden radical departures from this largely antimajoritarian model
require special justification. This assumption would apply to Hungary,
for instance, where the government has been systematically weakening
the Constitutional Court and other independent institutions to which the
country committed itself after 1989. Less straightforward is the case of
Great Britain, where de facto constraints on parliamentary sovereignty
(which is, in theory, unlimited) have by and large had a more informal
character.
Still, one might point out that, while European nation-states arrived
at similar templates for what I have elsewhere called constrained democracy, they ultimately did so themselves, and attempts by Brussels
to preserve these arrangements for them are illiberal and paternalistic.
Put simply, we should not help peoples who choose not to help themselves, and, except in extreme circumstances (above all, genocide), we
should not protect peoples from their own governments. This concern,
reasonable and classically liberal though it may sound, overlooks two
important points: First, for EU bodies, remaining neutral is not in fact
a neutral act. Both the European Commission and the European Court
of Justice are, after all, tasked with being guardians of the treaties.
Therefore, effectively condoning (via neutrality) the violation of the
treaties or, more generally, a significant deterioration in domestic political institutions is likely to have effects beyond the individual member
state in question. It would set a precedent and could lead to an antidemocratic contagion. Thus it is in the interest of all member states for the
Commission to enforce the commitments that they voluntarily made in
the past.
There is also a more principled argument here, quite apart from concerns about illiberal contagions: Because each EU member state takes
part in the European Councils decision making and therefore, at least
indirectly, in governing the lives of all Europeans, it is in the interest
of every European citizen that member states remain democratic and
liberal. Strictly speaking, there are no purely domestic affairs within EU
member states. As long as a countrys executive remains in the Council
and votes on European law, then all EU citizens will be affected by developments within that particular member state. The crisis of the euro
has helped to impress upon Europeans the fact of this interdependence,

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though it has mostly been interpreted in financial and economic terms.

Yet there is political interdependence too.
So we cannot apply to the EU the intuitively plausible classicalliberal notion that Brussels should not intervene in member states to
defend political principles that local people appear to have no interest
in or seem willing to abandon. Of course, if a member state wishes to
disentangle itself from the affairs of other member states (and thus other
European citizens), so be it. But that decision in itself has to be made
in some sort of recognizably democratic way. While a full-fledged dictatorship should leave the EU no matter what, a democratic state that
wants out still has an interest in keeping democratic institutions intact
and therefore in Brussels reinforcing such institutions, even in cases
where the ultimate democratic decision is in favor of exit.

Picking on the Little Guys?

This is all very well in theory, critics might say, but what about the
looming danger that such calls for intervention could become weapons
of symbolic politics or that only small member states would ever be targeted? Is this not exactly what came to pass during the Haider Affair in
2000? Leaders such as thenFrench president Jacques Chiracwho had
been unable to do much about Jean-Marie Le Pens extreme-right National Front at homecould moralize about political developments in a
small state at no cost internationally while attacking domestic opponents
at the same time. Meanwhile, nobody ever dared to reproach the Italian
government under Prime Minister Silvio Berlusconi, regardless of how
much political bunga-bunga was going on. Powerful member states
and especially the founding member statesappear to the newer and
smaller members to be above the law. This is a serious concern, though
not about the justification of EU interventions as such, but rather about
the possibility that in practice there will always be a double standard.
Undeniably, considerations of power might well be decisive factors
in determining whether and how EU interventions happen: Some European states carry more weight than others; the Commission has its own
political interests; and domestic politics cannot neatly be kept out of
supranational decision making. Still, it would be a mistake, after comparing the case of Italy with those of Austria, Hungary, and Romania, to
conclude that only weaker and newer member states get picked on. For
there are important differences in each case that will help us to devise a
set of coherent criteria for legitimate EU interventions.
A key issue with the Haider Affair was that the EU imposed sanctions before the new government had actually done anything significantly wrong. Perhaps the sanctions could be justified as a warning.
But to Austrians, they seemed more like expressions of displeasure with
Haiders past pronouncements (lauding Hitlers employment policies,

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for example) than principled objections to what the new government

actually sought to do. By contrast, in both Hungary and Romania, the
governments had clear track records, and what they were doing had a
systematically illiberal character and could not be excused as merely a
matter of loose talk or one-off mistakes.
Second, there is a crucial difference between Berlusconis Italy and
the two postcommunist states. True, the Cavaliere (as Berlusconi is
known) also tried to remove checks and balances and hoped to stay in
power (and thereby out of prison) more or less permanently. But the
Italian opposition, despite its generally sorry state, remained just strong
enough to resist a comprehensive refashioning of the political system,
and the media were not completely dominated by the prime ministers
own media empire. Berlusconi actually lost popular referendumsin
particular, a 2006 vote on constitutional changes. Most important, the
judiciary kept putting up a fight, while successive Italian presidents
most notably current incumbent Giorgio Napolitano, who took office
in 2006were willing to interfere with at least some of Berlusconis
plans. In short, there were reasonable grounds for thinking that the situation would over time correct itself through the normal course of internal
political (and legal) contentions. Thus outside intervention in this case
could easily have appeared illegitimate, as if Brussels were taking one
side of a domestic power struggle. All this, of course, proves a point
long familiar to proponents of democracy: Ideally, it is the people themselves who fight for freedom and work to create and preserve democracy. As John Stuart Mill wrote in 1859, The only test . . . of a peoples
having become fit for popular institutions is that they . . . are willing to
brave labour and danger for their liberation.3
In the process of countering the four key concerns discussed above
each of which is reasonable enougha set of three main criteria for
legitimate EU interventions emerges. First, a member-state government
must have a track record of violating liberal-democratic principles. An
intervention should never be preemptive. Moreover, the violations must
be systematic. A lone transgression might be deeply problematic, but
should be taken in context. In other words, there is a placein fact, a
needfor political judgment. Second, intervention is about enforcing
commitments that were entered into voluntarily in the past. If there is
sufficient reason to believe that such commitments can for the most part
be enforced internally, then intervention should wait. Third, while there
is no single rigid template for democracy in the European context, there
are shared understandings that have evolved historically. Sudden radical
departures from these understandings must be justified by the governments making those decisions.
Something less tangible matters as well: the tone and nuances of
political language and leaders rhetoric. This point applies equally to
the EU and its member states. Criticism from the EU is no less valid

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just because it comes from the outside. As I have been arguing, EU

citizens share one political space, and it is their business what others in
that space do. At the same time, Brussels should refrain from treating
member states like children who are a bit too slow in getting liberal
democracy: The actual experience of the EUs postcommunist members
has been very different from textbook democratic transitions, which
promise peace, prosperity, and eternal political happiness. In Hungary,
for instance, accession in 2004 was accompanied by an economic bust
after the boom, as companies kept moving farther east in search of tax
breaks and cheap labor.

The Missing Toolkit

Even if all three criteria for legitimate intervention are present, for
such an intervention to be meaningful the EU needs to have appropriate policy instruments at its disposal. At present, there is Article 7 of
the Lisbon Treaty, which allows for the suspension of the membership
rights of states that persistently violate basic European values. Ironically, it was Austria and Italytwo West European democracies with a
history of having faced threats of illiberalism coming from withinthat
during the run-up to EU enlargement pressed for the inclusion of such
an article as a bulwark against future transgressions by the new postcommunist members.4 But nowadays Article 7 is widely considered a
nuclear option. In other words, the fear among individual member
states that it could one day be turned against them has made it all but
unusable. In any case, the very idea of such sanctions goes against the
EU ethos of respectful compromise, mutual accommodation, and deference to national understandings of political values.
As an alternative to going nuclear, legal scholars have proposed
that national courts, drawing on the jurisprudence of the European Court
of Justice, should protect the fundamental European rights of memberstate nationals, who also hold the status of EU citizens (something of
which most Europeans are sadly unaware).5 As long as member-state institutions guarantee what these scholars have called the essence of EU
citizenshipthe civil, political, economic, and social rights enumerated
in the Charter of Fundamental Rights of the European Unionthere will
be no reason for either national or European courts to intervene. But if
national institutions are hijacked by an illiberal government, EU citizens
can turn to national courts and, ultimately, the European Court of Justice
for the protection of their rights.
This is a clever idea. It aims not only to develop a protocol for involving the European Court, but also to strengthen national-level liberal
checks and balances in times of political crisis. Yet some worry that the
plan is too clever by halfthey fear that such a protocol would open the
door to a comprehensive review of all aspects of national legal systems

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by the European Court, thereby upsetting the delicate balance between

the European Court and national constitutional courts, and effectively
transforming the EU into a federal state. Other critics contend that such
a legalistic response to an essentially political challenge will not suffice.
But what would a proper political response look like? It has often
been said that the crisis of the euro has brought about the politicization
of Europe, and that it is now time for the Europeanization of politics:
People are finally realizing that what happens elsewhere in Europe has a
direct impact on their lives. Brussels should not be viewed as some technocratic machine that churns out beneficent decisions; what is needed
is a European party system, so that different options for the EUs future
can be debated across the continent. Did we not already see signs of
such a truly democratic future when Orbn appeared before the European Parliament in Strasbourg on 18 January 2012 and openly debated
his governments record?
Alas, a less desirable effect of such a Europeanization of politics is
becoming apparent, as alignments at the EU level mirror national-level
political orientations. For example, the conservative European Peoples
Party has firmly closed ranks around Orbn. And on the other side of
the political spectrum, Martin Schulzpresident of the European Parliament and one of Orbns most outspoken criticsdefended Ponta, a
fellow Social Democrat, at least initially. So it appears that Europe has
already succumbed at least somewhat to partisan politics at the expense
of the impartial protection of European standards.
How can the EU deal more effectively with challenges to liberal democracy? First, Article 7 should not only be left in place but extended.
If a situation arises in which democratic institutions are not merely being eroded or partly dismantled but rather blown to bits (in a military
coup, for example), the EU ought to have the option of expelling a member state completely. Under the Lisbon Treaty, states may choose to
leave voluntarily. There is, however, no legal mechanism for actually
removing a country from the Union, only for suspending its membership
rights. True, these may seem like remote scenarios. But advocates of
the symbolic value of something like Article 7 should be equally sympathetic to including the option of complete removalin other words, a
measure that goes beyond symbolism to serve as a form of deterrence.
A difficulty with the Article 7 sanctions, however, is that they require
agreement among all member states. Thus the EU ought to have tools
available to exert pressure on member states experiencing deteriorating
rule of law and democracytools that do not require the agreement of
all EU members (and therefore a lengthy process of reaching consensus).
One suggestion is that the European Commission begin to monitor the
state of the rule of lawessentially the quality of the justice systemin
all member states. It is critical that such monitoring be done uniformly
and in all countries. While there are precedents for singling out indi-

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vidual members for surveillance (Romania and Bulgaria), targeting only

certain countries and not others sends the wrong signalnamely, one of
prejudice and discrimination.
Yet one might question whether the Commission can really be a
credible agent of legal-political judgment. To be sure, the Commission
has recently been acquiring increased
supervisory and budgetary-oversight
authority vis-`a-vis Eurozone memAs one political combers. But many proposals to bolster
munity, the EU has both
the Commissions legitimacy (seen as
outer and inner bounda necessary complement to these new
aries: Where liberal
powers) explicitly aim at politicizing
democracy and the rule
the Commission. For example, electof law cease to function,
ing the president directly or turning
there Europe ends.
the commissioners into a kind of politically uniform cabinet government
would render the body more partisan.
And such partisanship would make the Commission far less credible as
an agent of legal-political judgment.6
An alternative to the Commission monitoring the rule of law within
member states would be to delegate the task to an institution such as
the Vienna-based Fundamental Rights Agency or perhaps to a new institution that could credibly act as a guardian of what could be called
Europes acquis normatif. I proposed at the outset calling such an institution the Copenhagen Commission, because it would act as a safeguard and reminder of the criteria adopted in 1993 for judging whether
a country was democratic enough to begin the EU accession process.
Such a body would be analogous to the Council of Europes Venice
Commission, though with an even stronger emphasis on democracy and
the overall quality of member states political systemsin other words,
an agency with a mandate to offer comprehensive and consistent political judgments.7
But the real question is, and then what? What if a country appears to
be systematically undermining the rule of law and restricting democratic
rights? I suggest that the proposed Copenhagen Commission should be
empowered to investigate the situation and then, if need be, to trigger
a mechanism that will send a clear signalmore than words but far
less than Article 7 sanctionsthat democratic backsliding will not be
tolerated. If the Copenhagen Commission so advises, then the European
Commission should, for example, cut subsidies for infrastructure projects (which are crucial, particularly to the poorer member states) or impose heavy fines.8 The former might prove to be especially effective if
the EU budget is significantly increased in future years (a measure also
included in many proposals to tackle the euro crisis). At the same time,
all the existing tools should remain available: Member states would be

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able to vote on Article 7; the Commission could still take a member state
to the European Court for treaty infringement; the Court would continue
to protect EU citizenship rights; and politicians could express their concerns directly to their peers in a member state that they fear is straying
from the liberal-democratic path.
None of this means that the EUs pluralist principles and practicesupheld by diversity advocates as key European valueshave become irrelevant (or were merely myth in the first place). All the main
democracy-protection bodies would be able, up to a point, to take into
account national idiosyncrasies. As a first step, they might suggest to an
offending government that it seriously consider agreeing to an informal
peer review and to negotiating the way forward. But pluralism cannot
reign supreme. As one political community, the EU has both outer and
inner boundaries: Where liberal democracy and the rule of law cease to
function, there Europe ends.
27 February 2013
NOTES
1. See the cluster Hungarys Illiberal Turn, Journal of Democracy 23 (July 2012):
13255; and Gbor Attila Tth, ed., Constitution for a Disunited Nation: On Hungarys
2011 Fundamental Law (Budapest: CEU Press, 2012). For further historical background,
see Jan-Werner Mller, Longing for Greater Hungary, London Review of Books 34 (June
2012).
2. I have made this argument at greater length in Contesting Democracy: Political
Ideas in Twentieth-Century Europe (London: Yale University Press, 2011).
3. Quoted by Michael Walzer, Just and Unjust Wars (New York: Basic, 1992), 88.
4. Wojciech Sadurski, Adding Bite to the Bark: The Story of Article 7, E.U. Enlargement, and Jrg Haider, Columbia Journal of European Law 16 (Summer 2010): 385426.
5. Armin von Bogdandy et al., Reverse SolangeProtecting the Essence of Fundamental Rights Against EU Member States, Common Market Law Review 49 (April 2012):
489519.
6. There is also the less obvious point that every harsh criticism of a newer member
state can be seen to fall back on the Commission itselfdid they fail to look more carefully before giving the green light for admission? In this context, see also Tom Gallagher,
Romania and the European Union: How the Weak Vanquished the Strong (Manchester:
Manchester University Press, 2009).
7. I am indebted to Rui Tavares for discussions on this point.
8. Of course this brings up a perennial problem with sanctions: They are more likely
to hurt ordinary people than governing elites. This danger is acute if one thinks of cutting
EU cohesion funds; such cuts would clearly affect mostly those who are already poor. Less
obviously, countries suffering from deficiencies in the rule of law already cannot absorb
much in the way of such funding, so this kind of sanction might not hurt as much as one
might think by just looking at the gross numbers.