Transformative Constitutionalism in Luxembourg: How the Court Can Support Democratic Transitions

Abstract

Under the pressure of illiberal developments in Poland and Hungary, the Court of Justice has started to mobilize the Union’s values in Article 2 TEU. Initially, the Court focused on defending these values against specific national measures. Yet, overcoming the deeply entrenched deficiencies in these Member States will take time, effort and support. We therefore suggest taking a more forward-looking perspective, namely by framing the Court’s jurisprudence in terms of transformative constitutionalism. Such a framing provides a constructive attitude towards court-driven transformations of society. Against this backdrop, the Court can become an active ally in supporting democratic transitions in Member States that suffer from systemic deficiencies. This support can take two forms. First, the Court can insist on the essential preconditions for democratic change. In particular, it should start reviewing whether the Member States observe the essence of Charter rights, such as the freedom of expression, media and academia, and other democratic minimum standards. Second, the Court can support newly elected governments in leading their country back to the path of liberal democracy, for instance, by removing perpetrators from a packed judiciary or by breaking partisan constitutional entrenchments.

Keywords: Article 2 TEU, rule of law-crisis, democratic backsliding, transformative constitutionalism, democratic transitions