Re-thinking the Foundations of EU Public Law: Democracy, Market, and Mutual Trust

This paper analyses several ways in which democracy as a core value of the EU can be enforced against its Member States. Following the crisis of democratic backsliding in several Member States, no legal action has been taken on the basis of a breach of democracy or democratic principles. A possible explanation is that violations of Article 2 TEU are subject to a specific enforcement procedure, which is notoriously hard to trigger. Furthermore, since Article 2 TEU refers to abstract values, it is frequently asserted that values such as ‘democracy‘ cannot be legally enforced. This paper, however, claims that the value of democracy has a sufficiently clear core meaning in EU law to be legally enforceable. Secondly, this paper claims that EU law includes several centralized and decentralized enforcement mechanisms beyond Article 7 TEU to enforce democratic principles. Lack of enforcement of democracy against Member States, therefore, is mostly a political choice, not a legal requirement.

This paper traces the initially very narrow framing of European Court of Justice (ECJ) cases regarding democratic backsliding in Hungary and Poland and the incremental development of the jurisprudential line on judicial independence and mutual trust. While the political bodies have debated the democratic backsliding in Hungary and Poland with varied levels of support, the Court has addressed the problem only indirectly. Up until November 2018, the Court has ruled exclusively on violations of specific norms of EU secondary law with regard to both countries, many of them based on internal market rationales. In order to uncover how the Court has indirectly addressed the protection of democratic values, a contextual analysis of the infringement proceedings brought against Hungary and Poland is warranted. At a first glance, these proceedings are about specific violations of EU directives or market freedoms. A contextual analysis, however, reveals how politically salient they have been.

This paper analyses the principle of mutual trust as a methodological tool for EU legal integration. The principle of mutual trust is an ambitious creation of the CJEU. One can find its origins in the mutual recognition case-law of the Court. Very early in its internal market case-law, the ECJ referred to the principle of mutual recognition (Cassis de Dijon). Later, the concept spread to the mutual recognition of diplomas and court judgments. Thereby, when harmonization rules are lacking, the principle of mutual recognition should help to ensure “unity in diversity“. The principle of mutual trust – first of all legal trust between Member States – is in turn based on the mutual cultural and legal heritage of the Member States. The Court's audacious case-law has gradually transformed the mutual trust principle into an integration tool. But many recent events (e.g. sovereign debt crisis, migration crisis, COVID-19 and the rule of law crisis) show the limits of this integration method.

One of the cornerstones of EU internal market law and international trade law more generally is the separation of the questions whether there is a restriction to trade and, if so, whether that restriction can be justified. This paper aims to show that this analytic separation was absent in the early free movement jurisprudence of the European Court of Justice. Instead, the Court conflated the stages of restriction and justification into one analytic stage, which also included the question of whether the case falls within the scope of EU law in the first place. The paper shows how this one-stage model prevailed until the late 1980s, and was only definitively abandoned by the case of Keck and Mithouard. In doing so, this paper sheds new light on several landmark judgments. The paper also connects this revisionist history of free movement jurisprudence to recent histories of neoliberalism in order to analyse to what extent the Court‘s free movement case law can be seen as “neoliberal“.