The lecture opened with introductions from Lord Sales, UK Supreme Court, and Professor Oana Stefan, Director of the Centre of European Law and Chair of European Law. This post reflects on several key aspects of President Lenaert’s remarks, and the full text of his lecture is available here.
Defining democracy in the EU legal order
President Lenaerts opened his remarks with an overview of the Court of Justice’s approach to democracy as part of EU law, namely as enshrined in article 2 TEU. In the President’s view, democracy in the EU reflects a vision of an inclusive society that respects and supports the adherence to and implementation of the other values listed in article 2 TEU, including respect for human dignity, pluralism, and tolerance. Moreover, for the EU and its unique legal structure, this demands protection of ‘demoicracy,’ a term coined by Professor Kalypso Nicolaïdis to reflect that the EU demos is made up of citizens and States who govern together. Put another way, the state of democracy at the EU-level and in the Member States complement and affect each other.
Further, as the President’s remarks highlighted, democracy often suffers if the values of article 2 TEU are not respected. Preserving these values requires sufficiently strong counter-majoritarian norms and institutions to enforce them, as also argued by Professors Steven Levitsky and Daniel Ziblatt in How Democracies Die. However, as Levitsky and Ziblatt also note, calibrating these norms can prove difficult in practise, and if too strong, can instead enable a ‘tyranny of the minority.’ And it is against this backdrop that the EU and other jurisdictions have struggled to decide how to best defend and protect their democracies, with some advocating, for instance, for ‘militant democracy’ and others for ‘strategic democracy.’
The role of courts in protecting democracy in the EU
Once establishing the value of democracy in the EU, President Lenaerts then turned to the role of the courts in protecting it. In remarks reminiscent of Beetham’s Democracy & Human Rights and EU pioneer Simone Veil, he emphasised especially the necessity of human rights protection for achieving a healthy, functioning democracy. His lecture emphasised first the need to protect civil and political rights related to the functioning of democratic institutions. Further, as a means of enabling citizens and civil society to engage in efforts to promote and protect democracy, President Lenaerts focused on three factors essential to democracy that courts can help to promote: transparency, openness and accountability. To that end, the Court of Justice and General Court have been active in establishing or expanding on doctrines relevant to ensuring avenues for direct political participation; guaranteeing access to information, which is needed to enable participation; protecting the independence of the judiciary; and setting out how Member States manage situations in which another Member State’s judiciary is not independent.
Through this approach to his remarks, the President clearly, and importantly, signalled the critical role that citizens, civil society, and political actors in building and sustaining democracy. This holistic view is valuable for several reasons, First, courts are essentially ‘reactive fixers’ and cannot address issues not submitted to them. Second, judicial intervention tends to be more effective during early stages of democratic erosion, resulting in heightened importance of these non-judicial actors in situations of more advanced democratic backsliding. Finally, and perhaps most critically, unless citizens are engaged and aware of the value of democracy, they may well let it slip away. Avoiding this situation, and what Hannah Arendt refers to as the ‘banality of evil,’ is possible only through the maintenance of an environment conducive to citizen participation and active civil society engagement, advocacy, and education or awareness-raising efforts.
In short, whether engaged in democracy promotion or democracy protection in the EU, the courts have an essential role to play. But it is their efforts in conjunction with those of the European demos as a whole that will determine the success of these efforts to realise the aspirations of article 2 TEU.