Strengthening resilience from above? The supranationalisation of democracy protection in the EU

Democratic backsliding in EU member states induced countertrends of democratic resilience at the national and at the European level. This paper focuses on the European level by looking at the paradox relationship between backsliding and supranationalisation and its potential long-term effects on democratic resilience. Democratic backsliding at the national level has triggered an incremental institutional change process at EU level during the last decade. As we show in our qualitative study, this has resulted in a substantial supranationalisation of democracy protection, which manifests itself in two ways. First, democracy protection in the EU has been driven by the EU’s major supranational actors, namely the Commission, the Court of Justice and the Parliament. While the Commission – pressured by the Parliament – introduced new instruments to safeguard the rule of law and democracy at the national level, the Court of Justice through various rulings created a more robust legal basis for such action. Second, the resulting instruments have a supranational character as they all make the Commission the central actor in fighting the dismantling of the rule of law in the member states. As a result, we now see a degree of supranationalisation of democracy protection in the EU, which Treaty makers have traditionally refrained from. Ironically it was the Council’s passivity on rule of law and democracy issues (caused by internal divisions on the issue) that allowed the three supranational actors to drive the process of supranationalisation. This development reveals a striking paradox and raises questions about the potential long-term implications for democratic resilience: The more the Hungarian and Polish governments – i.e., those actors prominently stressing national sovereignty and opposing further transfers of competences to the supranational level – block rule of law-related decisions in the Council and European Council, the more they actually encourage supranationalisation and attempts at strengthening democratic resilience form above. As we discuss, it is questionable whether this provides a solid foundation for democratic resilience or an obstacle because it plays into the illiberal actors' hands, providing them with new arguments against the uncontrolled power of Brussels.