May 2025 marks 75 years since the Schuman Declaration that paved the way for the European Union. But while the Declaration succeeded in establishing the first democratic union of democratic states, it is now failing to protect its democracies. Jaap Hoeksma considers how we can stop Viktor Orbán and his cronies from undermining the Union
If the EU wants to defend its constitutional attainments, it must first answer the question of what it is. At 75 years old, we might imagine the Union would be mature enough to do so. Reality, however, shows otherwise.
The European Parliament is at odds with itself over the question. President Ursula Von der Leyen, meanwhile, does not seem to care that she is persistently contradicting herself. Von der Leyen emphasises her commitment to defend European democracy, yet continues to present the EU as an ordinary union of states. Astonishingly, it eludes the President that the concepts of international organisations and democracy are incompatible.
In view of the increasing external and internal threats, however, answering the question of precisely what it is has become an indispensable condition for the EU’s survival. Fortunately, the Court of Justice has solved the problem.
Taking the Treaties as its point of departure, the Court established in a number of verdicts confirming that the EU has evolved from a union of democratic states to a European democracy. That is, it has become a union of democratic states which also constitutes a democracy of its own. These findings solve the conundrum concerning the nature of the beast. They also create conditions for the EU to defend itself against threats from within and from abroad.
Consequently, we can reformulate the quintessential question for the EU as follows: can the EU continue to function as a democratic union of democratic states if a member state ceases to be democratic? Has the EU the means for defending its democratic identity against autocrats wishing to transform the polity back to an undemocratic union of illiberal states?
Can the EU defend its democratic identity against autocrats wishing to transform the polity back to an undemocratic union of illiberal states?
The threat is real. After a decade of successfully challenging the values of the EU at home, Hungary's Prime Minister Viktor Orbán has gone continental, launching a multinational party under the misleading name Patriots for Europe. He wants to destroy EU democracy, and to dismantle the European Parliament.
At present, the EU’s toolbox contains two instruments. The twin procedures of Article 7 of the Treaty on the European Union (TEU) aim to address serious breaches of the values of the Union by its member states.
The EU has also introduced a conditionality mechanism linking the disbursement of EU funds to respect for the values of the Union. While the procedures of Article 7 have hardly yielded tangible results, the withholding of funds appears to be biting. It is not biting, sufficiently, however, to convince Orbán to restore democracy in Hungary.
The EU's withholding of funds to Hungary does not appear to be biting hard enough to convince Prime Minister Orbán to restore democracy in the country
So, what strategy for the EU at 75? The institutions should stop sending contradictory signals about the nature of the beast and instead start to embrace the democratic identity of their polity as a democratic union of democratic states.
Member states should accentuate that their Union is built on trust. They are entrusting each other to the extent that they share the exercise of sovereignty in a transnational organisation. Now, to preserve the democratic identity of the EU as a whole, we must address the question of how to deal with disloyalty or outright betrayal.
Unlike the Statute of the Council of Europe (CoE), the TEUs do not permit the EU and its constituent parts to forcibly expel from the polity a member state violating its values. In addition, the Court of Justice of the European Union established that accession to and withdrawal from the Union are both expressions of the sovereign will of its member states. As Article 7 TEU and the conditionality mechanism demonstrate, however, this does not preclude the EU from defending its values against erosion by backsliding member states. Yet faced with an unforeseen challenge, the EU needs a new instrument for the protection of the polity.
The EU’s strategy should thus aim to deprive disloyal member states of the fruits of membership
Orbán’s policy is to enjoy the benefits of the Union without bearing its burdens. The EU’s strategy should thus aim to deprive disloyal member states of the fruits of membership. It can do this by broadening the scope of the conditionality mechanism to all EU payments to dissident member states – as the recent German coalition agreement suggests – in combination with introducing a formal ‘advice to leave’.
The CoE initiated this procedure firstly in the case of Greece after the coup d’état of 1967, and then for Russia after its invasion of Ukraine. Both examples indicate that the addressed state prefers to draw consequences of its own rather than risk public humiliation. Learning from the experience of its sister organisation, the EU should combine the freeze on payments to a backsliding member state and the suspension of its voting rights with a consilium abeundi. Dependent on the effectiveness of the new tool, the next treaty may indeed include advice to leave.
So, Article 7 TEU envisages restoring the values of the Union in a member state. Yet the current proposal's rationale is to preserve the identity of the EU as a democratic polity of democratic states.
Obviously, it will not achieve results overnight. The practice of European integration shows that initiatives outside the treaties have triggered important innovations. The message of the proposed initiative is that moral hazard will not pay off, and that abuse will meet with punishment.
Jaap started his career in human rights with UNHCR, and published about refugee law.
He is based in Amsterdam.
At the time of the Maastricht Treaty, he published the board game Eurocracy with a view to demonstrating that the Westphalian system is not ‘the eternal foundation of international relations’.
Jaap's book The Democratisation of the European Union (eleven, 2023) reveals that the EU has indeed replaced the Westphalian system with the European model of transnational governance.
