Saving the European Union from its Illiberal Member States

Abstract In the last decade, at least two EU MSs have deteriorated from (fragile) liberal democracies to illiberal regimes. Not only key elements of the rule of law, but also mechanisms of democratic accountability have been eroded. While the cause is an unfortunate combination of factors, post-socialist EU MSs are particularly likely to be problematic cases. We show that inherited cultural patterns from socialism (and even earlier) in the form of informal elements (practices and narratives) are a largely underestimated source of illiberalism. We also diagnose an unfortunate dynamic of mutual poisoning: existing vulnerabilities and weaknesses of democracy and the rule of law at the level of EU law are exacerbated by illiberal MSs, and vice versa. The crisis of illiberal regimes is thus also a symptom of the EU’s own constitutional malaise. We offer antidotes to the mutual poisoning, shining a spotlight on those areas of EU law that have been somewhat neglected. First, we need an epistemological tool to identify illiberal elements, and we believe that the EU Justice Scoreboard could be adapted for this purpose. Second, we need to strengthen the protection of fundamental rights, and so we argue for the completion of the European Fundamental Rights Union. Third, the Spitzenkandidaten-system needs to be further strengthened and stabilized for the long term—not only to ensure the democratic accountability of the Commission, but also because this has the potential to bring the Commission’s hitherto undecided and hesitant stance closer to that of the European Parliament.