EU Democratic Backsliding and ‘Democratic’ Differentiation

The ideal of European Union integration was once something like ‘living apart together’ - a group of fairly heterogeneous states deciding to work together, mutualizing certain costs, and collectivizing certain decisions. Differentiated integration (DI) has put pressure to this ideal. Increasingly, the EU is becoming a Union of opt-outs and exceptions - a ‘multi-speed Europe’. Brexit led to the first EU breakup, and while other member states are still dating, they are also seeing other people. The federalist dream of eventually moving in together (‘ever closer integration’) seems further away than ever. Some political theorists have defended the idea that some differentiation is good for EU democracy (Bellamy 2019, Bellamy and Kroger forthcoming) or at least must be on the table given a commitment to open-ended democratic politics (Patberg 2019). So far though these arguments have paid insufficient attention to democratic backsliding in the EU. Differentiation should not be understood purely in terms of democratic sovereign peoples (or ‘demoi’) deciding to backtrack from certain collaborative ventures or to collaborate more with a subset of other members. It also needs to be understood in the light of the increasing dissimilitude of member states’ constitutional politics. Arguably, for instance, Hungary and Poland no longer meet minimal democratic criteria. This article argues that such developments not only tarnish the democratic credentials of backslidden states’ opt-outs and exceptions, but also the possibility of democratic differentiation in the EU more generally. Finally, this article considers the possibilities of democratic exits from the Union of backsliding states - the most radical form of differentiation. I highlight a paradox here: maintaining backslidden states participation in EU legislative politics undermines the democratic credentials of EU policy and law, while such states can neither legitimately leave (via article 50) nor be pushed out in the current legal framework.