Countering Democratic Backsliding by EU Member States: Constitutional Pluralism and ‘Value’ Differentiated Integration

Abstract

Constitutional pluralism (CP) and differentiated integration (DI) have been criticised as potentially legitimising democratic backsliding within the EU. Critics contend that effective measures require strengthening the legal authority of the Court of Justice of the European Union and the political authority of the European Commission. We dispute this criticism, which rests on a federal conception of the EU at odds with its confederal features. We argue that the value of democracy for the EU derives from pluralism between as well as within states, thereby justifying CP and DI. While both prove incompatible with democratic backsliding, they challenge the legitimacy of the strong assertions of federal authority some advocate to tackle it. Drawing on CP, we propose four criteria for EU action against backsliding regimes, and suggest processes and penalties that meet them. We liken the latter to ‘value’ DI, whereby backsliding states can be excluded from EU funding and voting rights.