EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections

Abstract

The troublesome Hungarian, and possibly Romanian, developments regarding democracy, constitutionalism and the rule of law call for the attention of the European Union and its Member States, in particular regarding violations of the principles of Art. 2 TEU. Various proposals for monitoring mechanisms or even new institutions of oversight have been made, including a Copenhagen Commission and a systemic infringement procedure.1 The core problem faced by the European Union regarding the democratic nature of its Member States seems one of the ‘safeguarding of the core values on which the Union has been established’. If one can find reasonable justifications of why the EU should engage in safeguarding those values, then it is adamant to scrutinize the structural efficacy of potential instruments and mechanisms.3 The larger part of the debate on this matter – which particularly erupted with the Hungarian constitutional 'coup' and subsequently the Romanian constitutional and rule of law crisis – identifies a generally legalistic approach to the problem and endorses distinctive legal remedies, which either need reform of the Treaties or not. My argument here will problematize a purely formalistic and legalistic approach, and for that matter, will be less ‘policy-applied’ and ‘problem-solving’, but rather a suggestion for a more comprehensive analysis grounded in sociological and political reflections. My take will be a sociology of constitutional democracy and the rule of law, and I will ask whether current considerations and solutions offered sufficiently take into account distinctive dimensions of the functioning of constitutional democracy. Such dimensions are crucial for the actual ‘safeguarding of the core values’ of the EU, but are in my view unlikely to be satisfied through a one-sided legalistic and formal-procedural approach.