Paving the way for an enforcement of democracy under Article 10 TEU? The Court’s judgments in Cases C-808/21 Commission v Czechia and C-814/21 Commission v Poland

On Tuesday this week, the European Court of Justice rendered two judgments (here and here) on whether Article 22 TFEU gives mobile EU citizens the right to join a national party in order to exercise effectively their right to stand in municipal and European elections. The Court’s judgments are groundbreaking. However, this is not because of its rulings in the cases at issue. Rather, it is because the Court, in the judgments, elaborates on the relationship between the value of democracy anchored in Article 2 TEU and the democratic rights of EU citizens anchored in Articles 10(2) and (3) TEU. As such, the Court confirms what scholars have been arguing for some time now (see for example here, here and here), namely that the methodology established in Portuguese Judges to enforce the rule of law does serve as a blueprint to enforce the value of democracy. In doing so, the Court paves the way for a further substantiation and enforcement of the value of democracy in the future.  

Reading between the lines: How the rights of mobile European citizens under Article 22 TFEU might pave the way for an enforcement of democracy under Article 10 TEU

In Cases C-808/21 and C-814/21, the Court had to rule on two infringement actions launched by the European Commission against Czechia and Poland respectively. Both Member States essentially reserve the right to become a member of a political party to their own nationals. The European Commission argued that this constituted a violation of Article 22 TFEU, which ‘guarantees all EU citizens residing in a Member State of which they are not nationals the right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State under the same conditions as its nationals’ (C-814/21, para. 66). 

The Court sided with the Advocate General and the European Commission and found Czechia and Poland in violation of Article 22 TFEU. In essence, the Court interpreted Article 22 TFEU ‘in the light of Articles 20 and 21 TFEU, Article 10 TEU and Article 12 of the Charter’ and found that Article 22 TFEU, ‘requires that, if EU citizens residing in a Member State of which they are not nationals are to be able to exercise effectively their right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State, they must be afforded equal access to the means available to nationals of that Member State for the purpose of exercising those rights effectively’ (C-808/21 para. 127, C-814/21 para. 125).

The Court’s judgments heavily relied on the connection between the principle of representative democracy under Article 10(1) TEU, the right to vote and stand in elections under Article 22 TFEU, and the essential function that political parties play in a representative democracy. In a nutshell, the Court’s judgments can be summarized as follows: mobile Union citizens must have the right to join a national party, because in a system of representative democracy, ‘membership of a political party or political movement contributes significantly to the effective exercise of the right to stand for election, as conferred by Article 22 TFEU’ (C-808/21 para. 122, C-814/21 para. 120).

Although the Court’s judgment relied on, and interpreted Article 22 TFEU, which directly enshrines the right of mobile EU citizens to participate in elections in their host Member State, the Court did also render a groundbreaking interpretation of Article 10 TEU:

‘[U]nder Article 10(1) TEU, the functioning of the European Union is to be founded on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the European Union is founded […]. Article 10(2) and (3) TEU confers on EU citizens the right to be directly represented in the European Parliament and to participate in the democratic life of the European Union. […] Political parties, one of whose functions is to field candidates in elections […], thus fulfil an essential function in the system of representative democracy, on which the functioning of the European Union is founded, in accordance with Article 10(1) TEU.’

(Case C-808/21, paras. 114-121 and Case C-814/21, paras. 112-119; emphasis added)

It is submitted that these few paragraphs, hidden ‘between the lines’ of the CJEU’s actual judgment on Article 22 TFEU, pave the way for the enforcement of the value of democracy under Article 10 TEU. This is because the Court seems to at least suggest that – even in situations not governed by Article 22 TFEU – European citizens have a right to participate in the democratic life of the Union, which necessitates European citizens to be effectively represented in EU institutions.

As such, the Court not only confirms that its Portuguese Judges ruling on the enforcement of the rule of law can be applied by analogy to the value of democracy. Rather, the Court cautiously ventures into concretizing what legal obligations Article 10 TEU imposes upon Member and which national institutions Member States need to protect to fulfil these obligations.

Background: Portuguese Judges and its impact on the enforcement of Article 2 TEU values

In its landmark case Portuguese Judges, the Court held for the first time, that Member State courts must comply with standards of judicial independence stemming from Article 19(1) subparagraph 2 TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter. The reason why the Court found EU law to be applicable to national courts is their very function in guaranteeing effective judicial protection in the EU legal order. In other words, the Court took a functional approach and started to apply standards of judicial independence to national courts not because of their general and universal value, as emphasised in Article 2 TEU, but because of the role national courts play in ensuring the functioning of the Union, more precisely, ‘ensuring that in the interpretation and application of the Treaties the law is observed’ (Portuguese Judges, para. 33). Crucially, those EU standards for judicial independence are applicable to national courts, no matter whether they apply EU law in a specific instance. Their potential to apply, interpret and implement EU law is sufficient for national courts as a whole to come within the realm of Union law. As explained by AG Bobek in his Opinion in a later case, ‘there is simply no “judicial independence within the scope of EU law” as opposed to “judicial independence in purely national cases”’ (Opinion in Prokuratura Rejonowa, para. 136). Hence, national courts have been transformed from purely national institutions into institutions of a dual character, serving not only national but also Union purposes. This then leads to the question whether ‘there now exist [...] other institutional structures in relation to which the interlocking of EU and national systems of governance is so strong, that the relevant national organs ought to comply with the values enshrined in Article 2 TEU, in similar ways’?  

Transposing Portuguese Judges to the value of democracy

As indicated in the introduction, many scholars have argued for the Portuguese Judges case to be transposed to the value of democracy (see for example here, here and here). For the value of democracy specifically, scholars concentrate on Articles 10 and 14(3) TEU. Both of these provisions primarily focus on the principle of democracy at the EU level: Article 14(3) TEU by demanding that the members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot; Article 10(2) TEU by articulating that Member State representatives in the European Council and Council shall be democratically accountable to their national parliaments or to their citizens. Scholars however point out (for example here), that the logic underpinning these provisions mirrors the logic inherent in Article 19 (1) subparagraph 2 TEU.

This is because although EU law requires elections to the European Parliament to be free and secret, it is up to each individual Member State to ensure that the basic elements of a democratic society are provided for. This however means that if a Member State has dismantled the very core components of liberal democracy – such as, for example, a free and fair electoral system and the civil and political rights intrinsic to such a democratic process – elections to the European Parliament might be held in that state but not found to be compliant with the requirements set out in Article 14(3) TEU. Equally, Member State representatives in the Council and European Council derive their legitimacy from the national level. If such legitimacy is to be meaningful, ‘the democratic process through which the representatives of the Member States in the two Councils are selected must meet what we can call “democracy standards.”

As such, Articles 10(2) and 14(3) TEU provide important arguments for why national measures could potentially violate the principle of democracy enshrined in Article 2 TEU. Put simply, because EU democracy and Member State democracy are inter-dependent, measures violating Member State democracy also violate Articles 14(3) and/or 10(2) TEU. Yet, when it comes to concretely defining which democratic standards Member States must comply with under Articles 2 and 10 TEU, the current approach of transposing the Portuguese Judges ruling to the value of democracy leaves many questions open:

1. Article 19(1)(2) TEU, giving concrete expression to the rule of law, places Member States under the obligation to ensure effective legal protection in the fields covered by Union law. Which concrete obligations are imposed upon the Member States by Articles 10(1), (2) and (3) TEU, giving concrete expression to the value of democracy?

2. Independent Member State courts are essential for Member States to fulfil their obligation to provide effective legal protection under Article 19(1)(2) and to protect the EU rule of law. To fully realise the potential of Portuguese Judges for the value of democracy, one then must consequently ask which Member State structures or institutions are essential for Member States to fulfil their obligations under Articles 10(1), (2) and (3) TEU?    

The Court’s judgments in Case C-808/21 Commission v Czechia and Case C-814/21 Commission v Poland : Providing a way forward

This is where the Court’s judgments from Tuesday come back in. In my view, they provide an answer to both questions.  To recall from above, the Court has held the following:

‘[U]nder Article 10(1) TEU, the functioning of the European Union is to be founded on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the European Union is founded (see, to that effect, judgments of 19 December 2019, Puppinck and Others v Commission, C‑418/18 P, EU:C:2019:1113, paragraph 64, and of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 63). Article 10(2) and (3) TEU confers on EU citizens the right to be directly represented in the European Parliament and to participate in the democratic life of the European Union. […] Political parties, one of whose functions is to field candidates in elections (see, by analogy, ECtHR, 8 July 2008, Georgian Labour Party v. Georgia, CE:ECHR:2008:0708JUD 000910304, § 142), thus fulfil an essential function in the system of representative democracy, on which the functioning of the European Union is founded, in accordance with Article 10(1) TEU.’

(Case C-808/21, paras. 114-121 and Case C-814/21, paras. 112-119; emphasis added)

The Court thus makes clear that all Union citizens have a right to participate in the democratic life of the European Union. The citizen can invoke this right, directly enshrined in Article 10(3) TEU, not only against the European Union but also against the Member States if national measures hinder the Union citizen(s) from effectively participating in the democratic life of the Union. Such effective participation at a minimum means that the Union citizen is directly represented in the European Parliament. For such effective representation to exist, bodies and structures that ‘perform an essential function in the system of representative democracy’ must be protected under Article 10(1) TEU.

 This, admittedly, is a very wide interpretation of what the CJEU has actually said. But read in light of the Portuguese Judges ruling, the Court provides us here with the necessary structure to further define concrete legal obligations on the part of the Member States under Articles 2 and 10 TEU. This is because, in this week’s cases, the Court makes a clear connection between the citizen’s right to democratic participation in Article 10(3) TEU and the need for effective representation of EU citizens described in Article 10(1) and (2) TEU. In other words, the CJEU operationalizes the citizen’s right directly enshrined in Article 10(3) TEU to transform Article 10(1) and (2) into legal obligations, namely, to ensure that the citizen is directly represented in the European Parliament. The two questions posed above can thus be answered in the following way:

1. Article 10(3) in conjunction with Article 10(1) and (2) TEU obliges Member States to ensure that the citizen is effectively and adequately represented in the Union institutions.

2. Access to and free association of national political parties are essential for Member States to fulfil their obligation to ensure effective representation of Union citizens under Article 10(3) TEU.

It is submitted that on this basis, the Member State obligation to respect democracy under Articles 2 and 10 TEU can be further fleshed out.

Two Pillars of Member State Obligations under Article 10(3) TEU: Representation and Accountability

Article 10(3) TEU enshrines the right of the Union citizen to participate in the European Union. It follows from a systematic reading of Article 10 TEU, that such participation can only be effectively guaranteed, if the Union citizen is, firstly, effectively represented not only in the European Parliament but also in the European Council, and, secondly, if the Union citizen can hold the European Parliament and the government representatives in the European Council democratically accountable.

Article 10(1) TEU states that the functioning of the Union shall be founded on representative democracy. This means that not only all Union citizens must be directly represented in the European Parliament (Article 10(2) subparagraph 1 TEU) but also that the representatives of Member States in the Council and European Council must be representative of the people of the respective Member State (Article 10(2) subparagraph 2 TEU).

With regards to the elections to the European Parliament, the Court has already confirmed that the principle of representative democracy gives concrete expression to the value of democracy laid down in Article 2 TEU (here, para. 63 and here, para. 64). Further, it has emphasised that the principle of representative democracy demands that ‘the composition of the Parliament reflects faithfully and completely the free expression of choices made by the citizens of the European Union’ (here, para. 83). As such, and although Member States in principle remain competent to regulate the electoral procedure pertaining to European Parliament elections, Article 10(1) TEU places Member States under an obligation to ensure that Union citizens exercising their right to vote in their territory are effectively represented in the European Parliament (cf. here, para. 104). By analogy, the same argument can be made for Member State representatives in the European Council and Council: just as Article 10(2) subparagraph 1 TEU determines that citizens are directly represented in the European Parliament, Article 10(2) subparagraph 2 TEU states that the people of Member States are ‘represented’ in the European Council and Council. This means the principle of representative democracy in Article 10(1) TEU applies to both, Union citizens as a whole and the people of the Member States. If the principle of representative democracy requires that ‘the composition of the Parliament reflects faithfully and completely the free expression of choices made by the citizens of the European Union’ (here, para. 83), then it must equally demand that the government representatives in the European Council and Council effectively represent the people of the Member States and are held democratically accountable in a process that reflects faithfully and completely the free expression of choices made by the people of a Member State.

Further, Article 10(2) subparagraph 2 TEU establishes that the Member State representatives in the European Council and Council are ‘themselves democratically accountable either to their national Parliaments, or to their citizens.’ Following the Court’s approach in judgments C-808/21 and C-814/21, one could argue that the citizen’s right to effective democratic participation in the democratic life of the Union anchored in Article 10(3) TEU is only effectively fulfilled, if Member States guarantee the democratic accountability of their government representatives in Union institutions. Indeed, scholars have argued that Article 10(2) subparagraph 2 TEU obliges Member States to guarantee ‘a democratically accountable government in order to guarantee democratic legitimacy.’ More precisely, scholars have specified that this means not only that the Member State representatives in the European Council and Council must be accountable to someone, but rather that ‘[t]here must be an uninterrupted chain of democratic legitimacy between the people, exercising their democratic rights in an election, via their national Parliament through to the national government; in presidential systems, the legitimacy is directly provided by the people to the president.’

As such, two concrete legal obligations giving effect to the value of democracy can be identified on the part of the Member States: Under Article 10(2), they must ensure that their government is democratically accountable. Under Article 10(1), they must ensure effective representation so that the European Parliament reflects faithfully and completely the free expression of choices made by the citizens of the European Union and so that the Member State representatives in the European Council and Council reflect faithfully and completely the free expression of choices made by the people of a Member State. Whereas Article 10(1) and (2) TEU – contrary to Article 19(1)(2) TEU – is not technically phrased as Member State obligations, Article 10(3) enshrines a citizen’s right that is enforceable against the Union and the Member States. The Court’s judgment in the Cases C-808/21 and C-814/21 suggests that the right enshrined in Article 10(3) TEU is able to operationalise Article 10(1) and (2) TEU and transform those into enforceable Member State obligations.  

Member State institutions that are essential to achieve representation and accountability

As described above, the Portuguese Judges case has identified national courts as an ‘institutional double agent’, i.e., as a Member State institution that performs domestic and EU functions at the same time. I suggest pushing the ‘institutional double agent’-theory laid down in Portuguese Judges further, identifying national institutions that – comparable to national courts – act as a double agent of EU and national law and fulfil a purpose essential for the Union’s democratic functioning.

Crucially, the double agents then are not the Member State governments. Rather, the institutional double agents are Member State processes and institutions that, in addition to serving a national function, fulfil the EU function of providing their governments with accountability and ensuring effective representation. To determine which national processes and institutions are essential to guarantee the European value of democracy under Articles 10 and 2 TEU, we thus have to ask whether they are essential for Member States to fulfil their obligation to ensure representation and accountability on the EU level.

The Court’s judgment in Cases C-808/21 and C-814/21 directly makes reference to this by suggesting that national political parties ‘perform an essential function in the system of representative democracy’ (para. 121 and para. 119 respectively). Does this mean that EU law, and specifically Article 10(1) and (3) TEU protect national political parties? Does this mean that, just as national courts are bound by EU law standards of independence, national political parties are bound by EU law?  Does this mean that Article 10(1) and (3) TEU, read in conjunction with Article 4(3) TEU, put Member States under a positive obligation to protect political parties? Does this mean that Union citizens have a right under Article 10(3) TEU against their own Member State to be free to found political parties? In its current judgments, the Court does not elaborate on these questions. It did not have to, as the infringement procedure before it merely related to the rights of mobile EU citizens under Article 22 TFEU, and whether they can be barred from joining national political parties.  However, the connection the Court drew between citizen’s rights to be effectively represented under Article 10(1) and (3) TEU TEU, and the essential function national political parties play in facilitating that right, might become relevant in the future. Consider in this regard a scenario in which Germany decides to ban the AfD which also participates at European elections. Or consider a (nightmare-ish) scenario in which an EU Member State decides to ban all opposition parties. The current judgments of the CJEU suggest, that EU law has something to say on these issues, and that individuals and political parties alike might invoke the protection that EU law, and especially Article 10(1) and (3) TEU provide.

Conclusion

Admittedly, the reading of the Courts judgments in the cases C-808/21 and C-814/21 is a very extensive one. After all, the Court’s explanations on Article 10(1) and (3) TEU were not relevant to render a decision in the present case and took up only three out of over 150 paragraphs in the Court’s judgments. However, I believe there is a reason why the Court – although mobile citizen’s rights to participate in municipal and European elections is directly enshrined in Article 22 TFEU – equally recognized a citizen’s right to participate in the democratic life of the Union under Article 10 TEU. This is because Article 10 TEU, read in conjunction with Article 2 TEU, has a wider scope than Article 22 TFEU and might even apply to ‘purely internal’ situations. As such, I believe that the Court’s explanations on Article 10 TEU pave the way for an enforcement of the principle of democracy against Member States in the future. After all, in Jakab’s words, ‘a usual method for expanding judicial competences is to establish the competence but not to use it […]. The next step […] is the establishment of a violation.’

Miriam Schuler is a PhD candidate at King’s College London. She has passed the First Legal State Examination in Berlin, and holds a Master in European Law from the Université Paris II Panthéon-Assas as well as a Master of Laws in Transnational Law from King’s College London.