Inspired by Brussels? What the EU’s Democratic Standards Can Offer a Democratic Transition

This blog post was translated from the original Spanish version by using AI tools.
If you encounter any errors, please contact us.

At first glance, there appears to be a paradox at the heart of any attempt to use European Union law as a tool for a democratic transition, including that of Venezuela. The EU has no explicit authority to regulate how its member states organize their democracies. And yet, democracy—a foundational value enshrined in Article 2 of the Treaty on European Union (TEU)—has gradually moved, in recent years, to the center of the Union’s political agenda. In this sense, the EU itself is undergoing a democratic transition: from being an organization intended to protect democracy in its member states indirectly—through the (primarily economic) interdependencies created by European integration—to becoming a political entity that today actively regulates and defends various pillars of democracy using the (limited) legal and political tools at its disposal.

This makes EU law and policies a rich—albeit highly distinctive—source of standards for a democratic transition, especially one that aspires to take a pluralistic, regional, and multilateral form. In what follows, I will focus in particular on democratic participation, a dimension I consider crucial for building and maintaining a resilient democratic system and society. From a conceptual standpoint, it is useful to divide this idea of democratic participation into two categories: participation in and around elections, and the more ongoing democratic participation that takes place between elections.

Free and Fair Elections

The Court of Justice of the European Union has repeatedly held that the value of democracy finds its most concrete expression in the principle of representative democracy, enshrined in Article 10(1) of the TEU. However, while representative democracy is firmly anchored in the Treaties, electoral legislation itself remains within the competence of the Member States. Consequently, the most comprehensive EU standards exist in the realm of soft law, particularly the Commission’s 2023 Recommendation on Inclusive and Resilient Electoral Processes. Although it is not binding, two central ideas in the Recommendation strike me as essential for any democratic system (whether mature or in transition).

The first is inclusivity. The Recommendation urges Member States to ensure broad awareness of electoral rights throughout the population, tailored to the needs of different demographic groups, which vary according to geography, age, and educational level. Young voters and first-time voters require special attention. The Recommendation also highlights election observation as a means of building trust. Interestingly, it does not view this as a task exclusive to international organizations, but also envisions a role for “citizen observers.” This, in turn, can foster trust and a sense of ownership, especially in a young democracy. Crucially, professional and citizen election observation can reinforce one another: “citizen observers” need training, and that is where international expertise and resources can help.

The second central theme of the Recommendation is resilience. Protecting democratic infrastructure goes far beyond ensuring the integrity of polling stations and election software; it also encompasses the surrounding information environment and campaign financing. With regard to this broader democratic infrastructure, a set of binding rules has emerged in recent years through EU secondary legislation. Under the Artificial Intelligence Regulation, systems intended to influence an election or electoral behavior are classified as high-risk, triggering obligations regarding risk assessment, bias mitigation, traceability, and post-deployment oversight. Under the Digital Services Regulation, very large platforms and search engines must assess and mitigate systemic risks—a category that expressly includes negative effects on civic discourse and electoral processes. Finally, the Political Advertising Regulation requires that political advertisements, their sponsors, and their endorsements be clearly identifiable. It also establishes strict rules to prevent foreign interference: in the three months leading up to an election or referendum, only EU citizens or residents may sponsor political advertising.

It is worth highlighting the deeper regulatory principle that unites these EU legal instruments: private actors that dominate the digital sphere have public responsibilities, because they shape democratic communication and deliberation. It is a responsibility that, as has become evident in recent years, they will not assume without a legal impetus.

Structural Democratic Participation

A promising election result does not complete a transition. This is a lesson that, in the context of the EU, we have learned from Poland and that will hopefully guide the ongoing democratic transition in Hungary. Among other things, the democratic momentum that an election can generate must be harnessed and channeled toward something more stable and structural. This idea of permanent and continuous participation as a prerequisite of democracy is enshrined in Article 10, paragraph 3, of the TEU. It provides that every citizen has the right to participate in the democratic life of the Union, and that decisions must be taken as openly as possible and as close as possible to the citizens. I interpret this as a broad right to democratic participation, which citizens could invoke both vis-à-vis the EU and vis-à-vis their Member States, since “the democratic life of the Union” necessarily includes the national, regional, and local levels.

Beyond Article 10(3) of the TEU, EU law assigns two main functions to structural democratic participation: providing input into the development of laws and policies, and acting as a check on power (both public and private).

Regarding the role of providing input, while the Union—once again—cannot harmonize national procedures, it does offer guidance through soft law. Its 2023 Recommendation on citizen and civil society participation urges Member States to establish a specific “framework for participation.” Although this framework remains somewhat vague in the Recommendation, one of its key points strikes me as crucial: the need to anchor and institutionalize participation in unambiguous laws and accessible procedures. This is important to prevent participation from becoming unpredictable and selective, used by state institutions as they see fit.

Another notable feature of the Recommendation is that it urges Member States to integrate so-called deliberative mini-publics (DMPs) into their law- and policy-making processes. In these DMPs, participants are selected by lottery to reflect society. Their task typically consists of deliberating on a specific policy issue and proposing responses in the form of laws and policies. It is interesting to note that the EU itself now regularly organizes so-called European Citizens’ Panels, the next of which will focus precisely on democratic resilience. While “more participation” in quantitative terms is not a democratic panacea, well-designed processes—with clearly defined objectives, adequate follow-up, and channels linking them to broader social debates—hold great potential. They can help build a sense of democratic ownership and a greater understanding of what defines democracy: that it requires time, patience, and commitment, but also that this is the only path to political solutions capable of claiming legitimacy in a pluralistic society.

Regarding the watchdog function, the Recommendation emphasizes that civil society organizations (CSOs) need legal protection and adequate resources to fulfill their role in a democratic society. Unfortunately, this is an area where many EU countries have taken steps backward in recent years, especially with regard to organizations representing marginalized groups. To protect the media as guardians of democracy, the EU also has a binding legal framework. The European Media Freedom Regulation, in effect since last year, seeks to protect journalistic sources and confidential communications, prevent coercion and intrusive surveillance, and ensure editorial independence and transparent funding for public service media. It also requires the disclosure of media ownership and, under competition law, the review of market concentrations for their impact on media pluralism. Furthermore, the Anti-SLAPP (Strategic Lawsuits Against Public Participation) Directive protects journalists from abusive lawsuits designed to deplete their resources and discourage their reporting. However, these safeguards apply only in cases with a cross-border dimension—that is, when a SLAPP involves parties from different Member States.

This caveat has broader implications for the transferability of EU law and standards to other contexts. Due to the EU’s limited jurisdiction, many of its rules on democracy are linked to the internal market, cross-border situations, or the rights of mobile citizens. The standards most worth borrowing are the broader normative ideas that emerge from EU law on democratic participation.

The “holy trinity”: democracy, the rule of law, and fundamental rights

Finally, it is worth situating the EU’s legal standards on democracy within the “holy trinity” of democracy, the rule of law, and fundamental rights. Within the EU’s legal framework, the rule of law—for better or worse—tends to occupy the apex of this triangle. It is defined broadly, which means that it encompasses what in other contexts might be considered a democratic standard in its own right. For example, the definition of “rule of law” in the EU’s Rule of Law Conditionality Regulation includes, within its conception of legality, “a transparent, accountable, democratic, and pluralistic legislative process.” Similarly, the European Commission’s Annual Report on the Rule of Law also assesses Member States in the categories of “media pluralism” and “other institutional issues related to checks and balances,” including the state of civic space. Therefore, anyone seeking EU democratic standards must also look beneath the surface of the rule of law.

Finally, the EU Charter of Fundamental Rights contains rights that directly embody democratic principles, such as freedom of assembly and association, or freedom of expression. The latter was recently declared by the Court, in the Klubrádió v. Hungary case, to be a direct expression of the value of democracy. This case also illustrates how the Charter has become central to infringement proceedings against Member States experiencing democratic backsliding. In recent years, the Court has struck down national measures targeting NGOs, asylum seekers, universities, the LGBTQI+ community, and independent broadcasters. These cases demonstrate how fundamental rights provide more concrete and legally enforceable expressions of democracy, without exhausting its scope.