Cross-post: The Commission gets the point – but not necessarily the instruments (Jan-Werner Müller)

Many readers may have already seen this post by network member Jan-Werner Müller at Verfassungsblog and EUtopialaw – if not, we’re happy to alert you to it here.  It continues Jan's exploration of the ways in which European integration can serve as a check on the failings of democracy on the national level, with particular focus on the Hungarian case (see, e.g., here, here, here, and here).  The first paragraph of the post is reproduced below and the remainder can be read here.  Jan thanks Gábor Halmai as well as network members Dan Kelemen and Kim Lane Scheppele for comments on a draft of this post.  

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This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU Member States.  Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within Member States, so to speak) effectively?  The clear-cut answer is: yes and no.  The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings.  Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work.  But if it doesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new framework formalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de facto approach in recent years.  This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency.  It may well deter some governments.  But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before. [continued reading here]