Countering Democratic Backsliding in (Future) EU Member States: Article 10(3) TEU Unlocked

Abstract The Group of Twelve's report aims inter alia to fortify the rule of law and democratic legitimacy within the European Union (EU). In this context, this paper identifies a new trajectory for operationalising the value of democracy on the basis of key developments in the European Court of Justice's case‐law, marking a paradigm shift in the EU's approach to upholding foundational values enshrined in Article 2 Treaty on European Union (TEU). Following the use of Article 19(1)(2) TEU as an operationalising expression of the value of the rule of law, the question will be considered whether Article 10(3) TEU can be used in the same way in order to operationalise the value of democracy. We contend that Article 10(3) TEU offers an unexplored avenue to prevent and address democratic backsliding in Member States, thereby safeguarding democratic participation in a potentially expanding Union. Four key recommendations are made to EU institutions: (1) recognise that the value of democracy should actively be promoted; (2) use Article 10(3) TEU as an operationalising provision for the value of democracy; (3) recognise the directly effective nature of Article 10(3) TEU; and (4) include Article 10(3) TEU in procedures and cases related to democratic backsliding.