Lex Tusk as a catalyst for EU democracy

The European Commission's intervention in the Polish crisis concerning the so-called 'Lex Tusk' is most welcome, writes Jaap Hoeksma. To be credible, however, the EU must also have its own democratic house in order

This year, the Polish government proclaimed a law enabling it to silence and/or eliminate political opponents, under the pretext of combatting Russian influence in elections. As the law especially targeted opposition leader Donald Tusk, it instantly became known as the Lex Tusk.

Meanwhile, in February 2022, the EU Court of Justice delivered a verdict on the rule of law, endorsing the authority of the Commission to defend the values of the Union, as enshrined in article 2 TEU. In the wake of this event, the European Commission has stepped up its efforts to protect democracy and the rule of law in the member states. Notably, it has issued a legal probe into the Lex Tusk. But the EU has its own problems to reckon with.

The self-presentation of the Union symbolises these shortcomings in its democratic functioning, including the outdated electoral system. The EU describes itself in printed and digital publications as ‘a unique economic and political union between 27 European countries’.

Poland's Lex Tusk would allow the government to eliminate political opponents under the pretext of combatting foreign interference, but the European Commission has launched a legal probe into its enactment

Shockingly, this definition does not contain any reference to the citizens of the Union, or to its Parliament, or to its values. In theoretical terms, it still refers to the European Communities, which were established in the middle of the previous century as a more or less regular association of states. It overlooks entirely the developments since the identification of the Communities as a Union of Democratic States in 1973. As a result, it should be immediately updated.

A democratic international organisation

Fifty years later, the EU has evolved into a European democracy. In particular, the Lisbon Treaty identifies it in democratic terms as ‘a democratic Union of democratic States, which works at the global stage as a Democratic International Organisation’. A major part of the international community also recognises these qualities. The EU is the only regional organisation to participate in the ongoing Summits for Democracy. These summits are a Biden administration initiative to highlight the vitality of the democratic model.

And yet the official EU communicators do not seem to acknowledge this development. (Perhaps a short historical survey could freshen up their memories?)

The roots of legitimacy

In the aftermath of the 1973 Declaration on European Identity, government leaders decided to give their union democratic legitimacy of its own. They transformed the existing parliamentary assembly into a directly elected parliament. The 1976 Electoral Act established that this was to consist of ‘representatives of the peoples of the States brought together in the Community’. The first elections for the European Parliament took place in 1979.

The conceptual aim of the European Union, founded in 1992, is to transform an internal market into a democratic polity. The Maastricht Treaty established EU citizenship. The 1997 Treaty of Amsterdam introduced the values of the Union. And the 2000 Charter of Fundamental Rights of the EU gave the new citizens their bill of rights. Finally, the Lisbon Treaty completed the metamorphosis by constructing the EU as a democracy without turning the Union into a state.

The Lisbon Treaty

The Lisbon Treaty's intent to do this is epitomised by its provisions regarding the democratic principles of the Union. Without citizens, no democracy! Therefore, according to Article 10, EU citizens shall have the right to participate in the political life of the Union. They are no longer treated as ‘nationals of the Member States’. Instead, they form a constitutive element in the construction of the EU polity.

Without citizens, there is no democracy, but the EU falls short of its obligation to allow its citizens to participate fully in the political life of the Union

In line with this concept, the Lisbon Treaty also stipulates in Article 223 that the European Parliament shall draw up a proposal for the adaptation of the electoral system to the new architecture of the Union. In addition, it stipulates that the Council shall lay down the necessary provisions for this to occur. Given the jurisprudence of the EU Court of Justice, ‘Lisbon’ allows the EU in its present form to be identified as a democratic Union of democratic States.

The European Parliament has submitted several serious proposals to update the EU’s electoral system. These would further the transformation of the EU from an internal market to a European democracy. The latest, by Ruiz Devesa on 4 May 2022, was scheduled for discussion by the European Council in the December 2022 meeting, but remains on hold.

Dealing with democratic backsliding

Since the Lisbon Treaty came into force in 2009, democratic backsliding has become a worldwide phenomenon. As a result, the EU’s evolution into the first-ever democratic international organisation in the world has gone largely unnoticed.

This is the European Commission's first intervention to protect the democracy of a member state, but to speak authoritatively, it must also act regarding the EU's own democratic structures

Fortunately, the judgements of the ECJ on the EU’s values have encouraged the Commission to take its role as guardian of the Treaties more seriously. It intervened immediately in the Polish case. This is its first intervention to protect the democracy of a member state, and we should take note of it and discuss it for that reason.

But it also raises a question concerning the credibility of the Commission. If the Commission wants to speak with an authoritative voice, it must put its own house in order too! It must take three steps without delay:

  1. The Commission must bring the Union’s self-presentation in line with its evolution from union of democratic states to European democracy.
  2. The Council must implement Article 223, preferably on the basis of the current proposal, before the 2024 European Parliament elections.
  3. The EU should convene a new Convention immediately after these elections.

Finally, it would be appropriate for the EU to make a gesture of goodwill by involving the Venice Commission of the Council of Europe. It should call on this commission, experts on democratic governance, to make an assessment of the state of European democracy as it is fifteen years after the Lisbon Treaty took effect. Under the present circumstances, the EU must do whatever it takes to avoid giving the impression of arrogance or pedantry in relation to democracy and democratic governance.

This article presents the views of the author(s) and not necessarily those of the ECPR or the Editors of The Loop.


photograph of Jaap Hoeksma
Jaap Hoeksma
Independent Philosopher of Law

Jaap started his career in human rights with UNHCR, and published about refugee law.

He is based in Amsterdam.

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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’.

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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.

He tweets @EUSpokesman 

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