Democracy Manifest? Ensuring the EU Legislature’s Democratic Legitimacy in the Face of National-Level Autocratisation

Table of Contents: 1. Introduction. – 2. The challenge of defining minimal democratic standards. – 3. Ensuring the European’s Parliament’s democratic character. – 3.1. Existing rules and jurisprudence. – 3.2. The case for reinterpretation of the Direct Suffrage Act. – 3.3. Operationalising a reinterpretation of the Direct Suffrage Act. – 4. Ensuring the Council’s democratic character. – 4.1. Existing rules and jurisprudence. – 4.2. The case for an exclusionary interpretation of Article 10 TEU. – 4.3. Operationalising an exclusionary interpretation of Article 10 TEU. – 5. Risks of action versus risks of inaction. – 6. Concluding comments.

Abstract: There are numerous means through which EU institutions can seek to enforce the value of democracy under Article 2 TEU. However, each of these mechanisms may contain weaknesses in the face of determined national-level autocrats. The possibility that attempts to address democratic backsliding at national level may fail must be countenanced. The functioning of the EU’s representative democracy (Article 10(1) TEU) hinges on the legitimacy of its legislature (the European Parliament and the Council) as set out in Article 10(2) TEU, with EU citizens directly represented in the European Parliament and Member States being represented by their governments, ‘themselves democratically accountable either to their national parliaments, or to their citizens’. The EU’s representative democracy is therefore dependent on conditions at national level, whether in the context of European Parliament or national elections. This article examines the extent to which EU law allows the presence in the European Parliament and the Council of democratically illegitimate national-level representatives, with a particular focus on the possibility of exclusion of such representatives. After the acknowledging the problem of identifying the meaning of democracy in EU law, the article concludes that orthodox interpretations of existing primary and secondary EU rules, together with existing jurisprudence of the Court of Justice of the EU, leave the EU’s legislature open to autocratic trespass by national-level representatives. The article then suggests new interpretative approaches to EU primary and secondary law that would allow the exclusion of such institutional representatives and describes how such exclusion could be operationalised procedurally.

Keywords: democracy – principle of representative democracy – democratic legitimacy of European Parliament and Council – consequences of undemocratic trespass to the EU legislature – new interpretative approaches to institutional protections – risks of action and inaction.

1.   Introduction

How vulnerable are the EU’s legislative institutions, the European Parliament and the Council, to trespass by democratically illegitimate national representatives? Two decades ago, such a question might have been deemed to be in the realm of legal science fiction. The EU Treaties assert that democracy is a value of the EU[1] and that the Union is founded on the principle of representative democracy.[2] The Treaties seem to scarcely countenance the possibility of the EU’s legislative organs accommodating democratically illegitimate representatives. This observation is underscored by the unwieldiness and weaknesses of the only specific mechanism contained in the Treaties to respond to serious breaches of core Union values occurring at national level.[3] Whether the silences or limitations in the Treaties result from the framers’ naivety, or – more likely – their desire to maintain national control over matters of state-level democratic structure, the past twenty years have seen a clearly observable trend of democratic backsliding in several Member States.[4] The multi-level and intertwined nature of the EU’s democratic design means that national-level autocratisation is not simply an abstract moral problem to be observed from outside; rather, it poses a profound threat to the EU’s representative democracy.[5] Article 10(1) TEU declares that the Union ‘shall be founded on representative democracy’[6] and Article 10(2) provides the dual-institutional means through which this functioning of the EU’s representative democracy is propagated: EU citizens ‘are represented directly at Union level in the European Parliament’, whereas the Member States ‘are represented in the European Council by their Heads of State or Government and in the Council by their governments’. Despite the Member States being represented in a more democratically indirect manner, Article 10(2) TEU nevertheless makes it clear that national representatives in the European Council and the Council derive their legitimacy, within the context of Article 10(1) TEU, from ‘themselves [being] democratically accountable either to their national parliaments, or to their citizens’.

EU law provides a number of possible means by which the democratic value and principle of representative democracy can be defended from threats originating from national level beyond Article 7 TEU, whether by means of centralised enforcement via infringement/enforcement proceedings or annulment proceedings, or decentralised enforcement via direct effect and indirect effect of key Treaty and Charter of Fundamental Rights (CFREU) provisions.[7] The EU’s institutions have responded to the broader phenomenon of democratic backsliding in various ways, most recently with the Commission’s Democracy Action Plan and Defence of Democracy Package.[8] However, the numerous defensive tools available to the EU, at least as means of effecting change at the national level, are undoubtedly hampered by problems when they encounter a determined, recalcitrant authoritarian Member State regime. These problems include the limited competence at EU level to legislate for democratic conditions at national level, as well as EU law’s heavy reliance on judicial remedies and enforcement of remedies by national courts that may be weakened or cowed in backsliding States. EU responses to national democratic backsliding may also be undermined by the transactionalist strategies and differing timescales of autocratisers, together with autocratic leveraging of veto powers at EU level.[9] As such, the possibility that EU measures to curb autocratisation – or to in any way alter conditions at national level in an appreciable way – may fail has to be countenanced.[10]

The ultimate consequences of failed attempts to defend the EU’s representative democracy or to change inclement democratic conditions at national level are, as alluded to previously, grave: the EU’s legislature containing representatives from or of Member States that are not democratic within the meaning of Article 2 TEU, and all citizens of the Union being made subject to laws that have been adopted by such institutions. It is indeed more than arguable that such laws would be invalid and capable of annulment, whether via Article 263 or 267 TFEU procedures.[11] This foreseeable danger poses a number of questions. Firstly, it may be asked to what extent is the EU legislature empowered to insulate itself against trespass by representatives of autocratic States, in the case of the Council, or representatives elected within the Member States, in the case of European Parliament? Is there any possibility for the Council or the European Parliament, with the possible support/supervision of the CJEU, to exclude representatives from or of an undemocratic national regime? Secondly, if such a possibility does not exist, how should EU primary or secondary law be reformed or re-imagined to better protect the EU’s legislative institutions from autocratic intrusion? Thirdly, given that there are no good options when the EU constitutional order is faced with an implacable national autocracy, what are the risks to the EU constitutional order of exclusion and non-exclusion in this context?

This article seeks to address the above questions. After briefly discussing in Section 2 the problems inherent in defining representative democracy or enumerating its minimal requirements, Section 3 first demonstrates that EU primary and secondary law, as currently interpreted by the Court of Justice of the EU,[12] provides extremely limited and highly ineffective, even non-existent, protection to the European Parliament against the risk of autocratic trespass. Potential changes of interpretative approach to existing law or concrete legal reforms, specifically those short of Treaty change or a unified European Parliament electoral process, are then enumerated in the balance of Section 3, along with an account of how existing law could be operationalised to exclude democratically illegitimate legislators from the European Parliament. Section 4 conducts a similar analysis of the rules concerning representation in the Council, again highlighting the Council’s vulnerability to autocratic trespass and then emphasising an interpretative approach to EU primary law that could address this issue and describing how that approach could be operationalised procedurally. Thereafter, in Section 5, the risks of action (exclusion) and inaction (non-exclusion) are considered, before the article closes with some concluding remarks (Section 6). 

2.   The challenge of defining minimal democratic standards

A key purpose of this article is to investigate whether undemocratic representatives may be excluded from the EU’s legislative institutions. This question naturally implies a prerequisite enquiry: when will a representative be democratically illegitimate? In more concrete terms, in the context of the European Parliament, one may ask, at what point would a candidate deemed to have been elected at national level in European Parliament elections not have satisfied the requirements of the principle of representative democracy in Article 10 TEU? Likewise, in the case of a national representative taking up a seat at the Council, when would such a representative not be ‘democratically accountable’ at national level within the meaning of Article 10(2) TEU? These questions are extremely difficult to answer.

There is no precise definition of what constitutes democracy or representative democracy in Articles 2 and 10 TEU respectively, though some rough contours could be established via EU law and the jurisprudence of the European Court of Human Rights.[13] While the rule of law is a notoriously contested concept, specific aspects of it, such as judicial independence, are perhaps more readily capable of enumeration.[14] Democracy would appear to be an even more problematic concept around which to draw red lines.[15] A fundamental question arises, for instance, as to whether thick or thin conceptions of democracy should be adopted in establishing the contours of the principle of representative democracy.[16] In particular, it may be queried whether the concept of democratic accountability in Article 10(2) TEU may be understood holistically as intrinsically linked not just to the democratic value in Article 2 TEU but also to other democratic values in that Treaty provision.[17] A finding that a Member State is in breach of these values might support a view that that State’s representatives are no longer democratically accountable within the meaning of Article 10(2) TEU.[18]Alternatively, one may argue that democratic accountability should be understood in a minimalistic manner and by reference to electoral rules and practice only. 

While one may conceive of circumstances in which it would be readily apparent that a Member State was not a democracy, following a military coup, for instance, autocratisation, in Europe at any rate, has become much more subtle and taken the form of democratic backsliding.[19] The greater subtlety involved in democratic backsliding has made the process more difficult to detect, especially for those who do not take a persistent and close interest in developments in the state in question. Moreover, because it is a process consisting of numerous small but interlinked developments, the extent or even the existence of democratic backsliding becomes a matter of contestation and often plausible deniability for the government in question, which makes mobilising and maintaining resistance to the process more difficult. Courts, in particular, and with good reason, may be reluctant to establish and adjudicate upon red lines in the context of democracy.[20] This reticence may be amplified in the case of the EU, which contains Member States with a variety of democratic traditions,[21] and within which respect for national constitutional identity is a constitutional requirement.[22]

This article does not seek to explore where these red lines might be for the purposes of the principle of representative democracy in Articles 10 TEU. Instead, it poses the question as to whether the EU’s legislative institutions may exclude representatives from or of a Member State in circumstances in which that State ceases to be a democracy for the purposes of Article 10 TEU. It may assist the reader to picture a set of circumstances in which it is evident to all that a Member State is no longer a democracy, following a miliary coup, for instance, but the EU has been unable to respond to this state of affairs, the use of Article 7 TEU remains out of reach, and national authorities are either captured by the autocratising national regime or are otherwise unwilling or unable to intervene.[23] Such a scenario might also arise without the sudden shock of a coup due to democratic backsliding characterised by one or more of the following: unfair electoral rules, electoral fraud or gerrymandering, restrictions on freedom of expression, interference with the independence of the judiciary and other regulatory bodies, etc. However, as suggested above, the watershed moment in the case of more long-term democratic dismantlement may be more difficult to recognise, especially with some consensus.

The sections of this article that follow examine the extent to which the European Parliament and the Council, with the assistance or supervision of the EU’s judiciary, could act in such circumstances to exclude democratically illegitimate representatives from those institutions. 

3.   Ensuring the European Parliament’s democratic character 

3.1.  Existing rules and jurisprudence

As stated above, for the purposes of fulfilment of Article 10(1) TEU’s promise that EU is founded on representative democracy, Article 10(2) TEU provides that the Union’s citizens are represented directly at Union level in the European Parliament. EU primary law contains some minimal detail as to how elections to the European Parliament are to be conducted. Article 14(3) TEU and Article 39(2) CFREU require that Members of the European Parliament (MEPs) are to be elected by direct universal suffrage in a free and secret ballot. The detailed regulation of European Parliamentary elections is, however, left to EU secondary legislation. Article 223(1) TFEU provides a procedure for the adoption of a uniform suffrage procedure, though no such procedure has thus far been adopted.[24] The requirement that a special legislative procedure involving Council unanimity be utilised to adopt such a uniform procedure means that the adoption of such a procedure may face significant obstacles. 

In the absence of a uniform electoral procedure, European Parliament elections are still regulated by the Direct Suffrage Act of 1976.[25] The most striking characteristic of the Direct Suffrage Act is that it establishes a few minimalist requirements and leaves almost all aspects of the overseeing and regulation of European Parliament elections to national authorities and national law. In this regard, the key provision of the Act is Article 8, which provides, ‘[s]ubject to the provisions of this Act, […] the electoral procedure shall be governed in each Member State by its national provisions’. With European Parliament elections being regulated largely at national level and conducted by national authorities, the possibility that there could be breaches of basic EU law or European Convention on Human Rights requirements may easily be foreseen. 

EU law does not leave affected citizens or other actors without a remedy, of course. The Commission could commence infringement proceedings against the Member State in question, and interim orders could be sought in an attempt to end infringements urgently.[26] A concerned citizen or political actor could take the matter to a national court, alleging a breach of EU law, perhaps with the hope that the question might be referred to the CJEU, which could provide some clarity on the matter and a solution that the national court could apply to remedy the illegality.[27] However, these remedial processes are not without their weaknesses. First, in both infringement proceedings and preliminary references, the final remedy may be too slow in arriving. Though interim orders may assist in ameliorating this problem, infringement proceedings are nevertheless reactive. Second, the potential utilisation of national courts and the preliminary reference procedure assumes, in the first place, that national courts are sufficiently independent to make references to the Court of Justice and apply resultant rulings or interim orders. This would seem an unsafe assumption in a Member State in which egregious breaches of democratic norms were occurring or in which an autocratic regime had already been consolidated.[28] Moreover, faith in national courts – with or without the preliminary ruling process – to provide a remedy may involve making unsafe assumptions about the extent to which challengers will have access to those courts.[29]Finally, even if these judicial means of redress are successful, there remains a problem where national authorities simply refuse to comply with judgments whether national, supranational, or both.[30]

Therefore, if gross manipulations were to take place at national level in a European Parliament election and Member State authorities were either to block judicial or other means of redress, or simply ignore judicial decisions, the question becomes: would EU law allow for the exclusion of the nationally officially declared winners, or would the European Parliament be obliged to admit them to membership? Currently, it is Article 12 of the Direct Suffrage Act that governs the verification of the credentials of MEPs: ‘The European Parliament shall verify the credentials of members of the European Parliament. For this purpose it shall take note of the results declared officially by the Member States and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers’.[31]

The key words in Article 12 are the European Parliament’s obligation to ‘take note’ of national official declarations of electoral results, which must be read together with the exclusion of the European Parliament’s jurisdiction over disputes arising out of national legal provisions. It is not immediately clear from the text of Article 12 alone what the power of the European Parliament might be in terms of questioning official results declarations at national level. The exhortation to ‘take note’ might be taken literally to imply that the European Parliament must simply acknowledge the declaration but would not be bound by it.[32] Such a reading might permit the European Parliament to refuse to verify results if a conclusion were reached that the election breached the requirements of EU law. However, this approach is not the one that has been taken by the Court of Justice. In a series of cases, the Court has ruled that the European Parliament is bound by a national authority’s official declaration of results and can, under no circumstances, question the validity of such a declaration.[33] While this line of case law began prior to the emergence of democratic or rule-of-law backsliding, the Court has maintained this line up to the present, despite several opportunities to reverse or at least qualify its approach. In Le Pen, a case which involved similar wording in Article 11 of the Direct Suffrage Act, the Court ruled that the words ‘take note’, in that context, prevented the European Parliament from second guessing a national declaration.[34] This judgment was then applied directly to Article 12 in Donnici, in which the Court ruled that it was bound by a national declaration in Italy, notwithstanding what was at best an imbroglio at national level.[35] This absolutist reading of Article 12 has since been upheld by the Court of Justice in September 2024 in Puigdemont.[36]

Given that the applicable existing EU secondary laws, as interpreted by the Court of Justice, appear to prevent the European Parliament in all circumstances from questioning the credentials of nationally declared electoral winners, three further questions may be asked. 

First, it may be asked whether Article 12 of the Direct Suffrage Act, as currently understood, is compatible with the Treaties and the CFREU? The consequences of Article 12 and the Court’s interpretation are stark: even if a Member State were to become a military dictatorship and run sham European Parliament elections, the European Parliament would be obliged to verify the credentials of the nationally declared election winners. Consequently, the European Parliament would contain Members lacking any democratic legitimacy, which would certainly be contrary to Article 10 TEU and in contravention also of the democratic rights of EU citizens in that Member State. Moreover, citizens of all EU Member States would be subject to laws created by this European Parliament. When the European Parliament in Donnici raised the argument that it must possess the power to ensure a minimum standard regarding the appointment of its members, the Court of Justice responded by maintaining that there were remedies within the EU legal order to deal with breaches of EU law in the conduct of European Parliament elections, namely, utilisation of the preliminary reference procedure.[37] The utility of the preliminary reference procedure has been noted by others in this context.[38]However, as stated above, there is little guarantee that such rulings would result in a change of democratic or electoral conditions on the ground in Member States. In the end, a national declaration of electoral results may be compromised regardless of what previous Court of Justice rulings have stated; consequently, the European Parliament may contain democratically illegitimate members. As such, the EU Treaties would provide no safeguard against autocratic trespass to its most directly democratic institution, turning Article 10 TEU into a mere empty formula. There is, therefore, reason to doubt whether Article 12, to the extent that it has been interpreted by the Court of Justice to prevent the European Parliament from defending its democratic character is compatible with Article 10 TEU and the democratic rights of citizens in the Treaties and the CRFEU. 

Secondly, it may be asked whether there is any scope for Article 7 TEU to be utilised to exclude democratically illegitimate MEPs. Article 7(3) TEU provides that the Council ‘may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State [against which a determination of the existence of a serious and persistent breach of Article 2 values has been made]’. One such right is specified, the suspension of voting rights of the representative of the government of that Member State in the Council, which appears to afford the Council some discretion in determining other rights that may be suspended. Whether Article 7 TEU could be utilised to exclude MEPs from a Member State sanctioned under the provision is doubtful. A first doubt arises as to whether the presence of MEPs in that institution constitutes a right deriving from the application of the Treaties to the Member State. On one reading, MEPs are representatives of the citizens, rather than the Member State, something that is evident in the wording of Article 10(2) TEU. On the other hand, Article 14(2) TEU determines the allocation of MEPs to the Member States, providing that, ‘[n]o Member State shall be allocated more than ninety-six seats’. Moreover, if a Member State were evidently autocratic, it would be perverse to maintain that its MEPs continued to represent EU citizens. In truth, however, one can only speculate as to how far the sanctioning power of the Council under Article 7(3) TEU might extend and it is likely that the answer to this question might only become evident in a concrete case rather than in an abstract thought exercise. In all events, the use of the sanctioning powers in Article 7 TEU appears at present to be a remote prospect. Additional to this second question, the question may be posed whether it might be possible, if Article 2 TEU is to be regarded as a freestanding provision, whether a finding by the CJEU that a Member State is in breach of Article 2 TEU might be potential grounds for exclusionary use of Article 12, given that the Court in its case law has stated that compliance with Article 2 TEU values is a basis for enjoyment of EU rights.[39]

3.2.  The case for reinterpretation of the Direct Suffrage Act

The foregoing analysis has demonstrated that the Court of Justice currently appears unwilling to interpret EU primary and secondary law in a manner that would allow for the exclusion of undemocratic representatives from membership of the European Parliament in circumstances in which such representatives have been officially declared at national level. As previously stated, this leaves the European Parliament vulnerable foreseeably to trespass by undemocratic forces from national level. It is therefore necessary to consider how this vulnerability could be addressed. The most readily apparent solution would be by way of an amendment to the Treaties that would allow explicitly for the European Parliament and/or the Court of Justice to exclude democratically illegitimate representatives. However, it is highly unlikely that such amendments would be adopted in the foreseeable future. In the specific case of the European Parliament, the adoption of a uniform electoral law as envisaged in Article 223 TFEU, which might offer more robust assurances against such trespass, would be an obvious improvement. The European Parliament in 2022 proposed a Regulation for this purpose, but this proposed legislation would not make an appreciable change to the existing regime of national results being determined at national level and verified without question by the European Parliament.[40] In any case, the requirement that the Council adopt a uniform procedure makes the realisation of such a solution unlikely. In the absence of utopian solutions, other avenues must be explored.

In the context of the European Parliament, the first approach that may be considered is a change of interpretative tack by the Union’s judiciary to Article 12 of the Direct Suffrage Act. As aforementioned, the Court’s initial interpretation of Article 12, with which it conferred an absolutist status on national declarations of election results, took place in a different temporal context before the emergence of democratic backsliding on the EU. Moreover, the Court’s interpretation was not an inevitable one and it is arguable that the text of Article 12 does not foreclose an alternative reading of the provision that would allow the European Parliament to refuse to accept illegitimately declared election results at national level. In fact, one may even argue that a perfectly literal interpretation of Article 12 would merely require the European Parliament to ‘take note’ of national declarations rather than be bound by them in cases in which there has been an evident breach of EU democratic and electoral standards that has gone unremedied at national level. Such an interpretation might also be supported by a harmonious reading of Article 12 with Articles 2 and 10 TEU, as well as with citizens’ rights under Article 20 TFEU and in the CFREU.

One might counter that any interpretation that would allow the European Parliament to exclude representatives officially declared at national level as election winners would amount to an interference with the autonomy of national constitutional systems and the division of competences between the Union and the States. This argument, however, runs into the problems when one considers the fundamentally intertwined nature of EU and Member State democracies, acknowledged in Article 10 TEU.[41] The EU’s democratic network is, of course, not the Union’s only intertwined system. Most obviously, the EU has a judicial network, depending on the interrelationship of the CJEU and national courts. So intertwined is that relationship that it relies upon the judicial independence of national courts and the Court of Justice has taken the lead in establishing those standards and providing interim measures to be implemented by national courts when that independence has been threatened at national level.[42] The Court has also refused to recognise national courts as a ‘court or tribunal’ in the context of Article 267 TFEU where a referring court’s independence has been compromised.[43] The Court has, however, stopped short of annulling national measures directly, relying instead on findings of infringement under the Article 258 TFEU procedure or preliminary rulings, both of which must be enforced or applied at national level.

In another of the EU’s intertwined networks, the European System of Central Banks (ESCB), however, the Court of Justice has intervened extraordinarily and directly to annul a decision made at national level to protect the independence of a governor of a national central bank and, by extension, the independence of the ESCB.[44] It may arguable that this approach could be extended to protect the functioning of the Union’s representative democracy from threats originating at national level.[45] The extraordinary intervention occurred in Rimšēvičs,[46] a case in which the Court of Justice, in proceedings brought under Article 14.2 of Protocol (No 4) to the Treaties, annulled a decision of the Latvian state to suspend the Governor of the Latvian Central Bank, who was facing accusations of serious misconduct. The most important aspect of the case revolved around how the Court’s jurisdiction under Article 14.2 should be interpreted: was the Court empowered merely to declare the national decision an illegality, in a manner analogous to an infringement proceeding, or could the Court annul the national decision, in a like manner to its powers in an annulment action? The Court ultimately ruled that, in order to adequately safeguard the independence of national central bank governors and by extension the independence of the ESCB, annulment was necessary, notwithstanding Advocate General Kokott’s view that such annulment would be ‘an extremely serious interference in the sphere of competence and the procedural autonomy of the Member States’.[47]

It is unclear how far, if at all, the Rimšēvičs case can be expanded, however.[48] In the first place, the Court’s ruling in that case did not involve the Court ruling on whether a national appointee was qualified to sit on the ESCB. Moreover, the Court had a relatively clear and highly plausible textual authority to annul the national decision, given the existence of Article 14.2 of Protocol (No 4) and its similarity to Article 263 TFEU. Indeed, the Court seemed eager to highlight the uniqueness of the situation before it.[49] The academic consensus after Rimšēvičs would also be that the principle of the case and its encroachment on national autonomy are exceptional to the specific case of the ESCB.[50]

There are reasons, however, to suggest that the Rimšēvičs judgment might have application beyond the ESCB context. First, while the judgment did not constitute a direct ruling on whether a national appointee as central bank governor was qualified to take up their seat on the ESCB, the ruling may imply the existence of the possibility of excluding a national appointee. Suppose for a moment that Latvia had ignored the ruling to annul Mr Rimšēvičs’s suspension and instead appointed a temporary replacement. Would it not be the case that as a matter of EU law, that replacement would have no right to sit on the ESCB? Second, the reasoning of the Court, insofar as it relates to the necessity of the independence of the ESCB, may be applied equally and perhaps even more strongly to the imperative of protecting the democratic character of the EU’s legislative institutions. Moreover, if we are to accept that Rimšēvičs as a precedent of sorts should be limited to the unique circumstances of governorships of national central banks, because of the existence of a specific remedy in the shape of Article 14(2) in Protocol (No 4), it also be asked, why should the independence of the ESCB, which is not a value enumerated in Article 2 TEU, be afforded greater protection than the democratic character of the EU’s legislature, democracy being a foundational Article 2 TEU value? While it is a perfectly orthodox interpretation to suggest that the specificity of Article 14(2) is a key distinction, that distinction would leave us with an uncomfortable conclusion: the EU’s Treaties are more robust in protecting the independence of the EU’s economic and monetary institutions than they are in the protection of its democratic ones. An alternative interpretation, that would allow for the rationale in Rimšēvičs to be extended to the EU’s democratic network sits more easily with the EU as a Union of values. Indeed, if Article 12 of the Direct Suffrage Act cannot be reinterpreted to exclude undemocratic representatives, the question as to the consistency of that provision with Article 2 TEU in conjunction with Article 10 TEU recurs.

In summary, an interpretation of the existing Article 12 of the Direct Suffrage Act, which would allow the European Parliament to exclude national declared electoral winners on the basis that they were not elected in accordance with EU law requirements is plausible, based on Articles 2 and/or 10 TEU, particularly when viewed through the prism of Rimšēvičs, or at least one view of it. The paragraphs that follow describe how such an exclusionary interpretation of Article 12 could be operationalised procedurally.

3.3.  Operationalising a reinterpretation of the Direct Suffrage Act

The detailed procedure for the verification of the credentials of MEPs is currently set out in Rule 3 of the European Parliament’s Rules of Procedure.[51] The process laid out in Rule 3 would tend to reflect the Court of Justice’s interpretation of Article 12 of the Direct Suffrage Act. According to Rule 3(3), the European Parliament, ‘[o]n the basis of a report by the committee responsible’, which in practice is the European Parliament’s Committee on Legal Affairs:[52] ‘shall verify the credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any disputes referred to it pursuant to the provisions of the [Direct Suffrage Act], other than those which, under that Act, fall exclusively under the national provisions to which that Act refers’.

Additionally, Rule 3(3) provides that the Committee on Legal Affairs’ report ‘shall be based on the official notification by each Member State of the full results of the election […]’. Given that the European Parliament is required to base its verification on the report of the Committee on Legal Affairs and that Committee is required to base its report on the official notifications of the Member States, this would appear accord the final say over the validity of the election of an MEP to the Member State authorities, at least insofar as any dispute relates to compliance with the applicable national rules. If the Committee is tied to basing its report exclusively on the official notifications of the Member States and the European Parliament is then bound by that report, this would seem to go farther than the literal meaning of the requirement to ‘take note’ of national notifications in Article 12 of the Direct Suffrage Act. 

Ideally, to effectuate the exclusionary interpretation of Article 12 suggested above, Rule 3(3) would have to be amended to allow the Committee on Legal Affairs and the European Parliament to extend its considerations, as it is permitted to do under Rule 3(2) in relation to the question of whether an MEP holds an office incompatible with that of an MEP.[53] Short of such an amendment, the Committee on Legal Affairs and/or the European Parliament would have two possible options to seek to refuse to verify the credentials of a candidate whose election has been officially notified by a Member State. First, the Committee and/or the Parliament could afford precedence to an interpretation of Article 12 of the Direct Suffrage Act, as advocated for above, that might allow it to look beyond a national notification in circumstances in which there may have been flagrant breaches of democratic standards which have not and are not being remedied at national level. Second, they could interpret Rule 3(3), in an admittedly creative manner, to argue that while the Committee is required to base its report on the notification of the Member States and the Parliament is required to base its verification on that report, Rule 3(3) does not explicitly require either the Committee or the Parliament to base its report or verification on these factors exclusively.

It should be acknowledged, however, that any refusal of the European Parliament to verify credentials based on the approaches suggested above would almost inevitably be contested and end up before the Court of Justice in Article 263 TFEU annulment proceedings. The Court could then either reaffirm its existing approach of affording no discretion to the European Parliament vis-à-vis the verification of nationally declared results or change its approach as argued for above.

Another means of procedurally operationalising an exclusionary interpretation of Article 12 of the Direct Suffrage Act would be through litigation. In circumstances in which the European Parliament verified the credentials of MEPs based on national notifications, but there was clear evidence that there were either no elections or manifest breaches of democratic standards, there might be grounds to challenge the verification via Article 263 TFEU annulment proceedings.[54] Specifically, it could be argued that the European Parliament is under a duty, deriving from Article 10 TEU, to ensure its compliance with the principle of representative democracy in Article 10(1) and (2) TEU. Moreover, the Court of Justice in the Commission v Czech Republic and Commission v Poland cases stated that Article 10(2) and (3) TEU confers on EU citizens ‘the right to be directly represented in the European Parliament and to participate in the democratic life of the [EU]’.[55] Verification of democratically illegitimate representatives might be characterised as a breach of this right. Moreover, challenges could potentially be brought to annul legal acts adopted by the European Parliament, whether by direct actions under Article 263 TFEU or by indirect actions under the Article 267 TFEU preliminary ruling procedure, on the grounds that such legal acts have been adopted with an unlawfully constituted European Parliament within the meaning of Article 10 TEU. 

By way of a final observation, it should be noted that the chances of the above arguments prevailing are admittedly slim and would be especially remote save in cases of the most egregious disregard by national authorities of democratic standards, e.g., where no elections were held at all and an autocratic Member State regime simply named its candidates or where the deficiencies of the electoral process were almost undeniably manifest and national authorities, including courts and electoral commissions, were unwilling or unable to remedy the issue. In such circumstances, the European Parliament and the Court of Justice would face a choice of either clinging to an unnecessarily restrictive interpretation of the Direct Suffrage Act or protecting the European Parliament’s democratic character within the meaning of Article 10 TEU.

4.   Ensuring the Council’s democratic character

4.1.  Existing rules and jurisprudence

As stated previously, the democratic legitimacy of the Council, in terms of its contribution to the EU’s representative democracy, derives from democratic conditions at national level. In the case of the European Council, the national heads of state or government, and in the case of the Council, the governmental representatives, are described in Article 10(2) TEU as themselves being ‘themselves democratically accountable either to their national Parliaments, or to their citizens’. There are strong arguments in favour of reading this provision as imposing directly effective obligations on Member States, not least the fact that the Court of Justice has described Article 10 TEU as concretising the democratic value in Article 2 TEU in the same way that Article 19(1) TEU has done for the rule of law value.[56] Accordingly, the Court’s reasoning in Portuguese Judges,[57] which advanced the view that Article 19(1) TEU gives concrete expression to the Article 2 TEU value of the rule of law and imposes duties on Member States to ensure the independence of national courts which contribute to the Union’s judicial network,[58] can be applied by analogy to impose a similar duty on the Member States to ensure the functioning of the EU’s intertwined and co-dependent democratic network.[59]

If such duties exist to maintain the democratic accountability of Member State representatives in the Council to ensure the Union’s functioning as a representative democracy, then questions arise as to how such duties should be enforced when they are breached by an autocratising Member State that is unresponsive to centralised and decentralised enforcement mechanisms. How, in such a circumstance, can be democratic legitimacy of these institutions be protected against trespass by undemocratic representatives? The problem of such trespass is arguably more significant in the Council than in the European Parliament. Representation will tend to be less diluted in the Council and more deference may be afforded to national positions. Moreover, a single Member State representative can cause significant disruption through the use of, or the explicit or implicit threat to use, a veto in certain matters. Article 7 TEU provides an obvious solution: the Council, acting unanimously, may suspend the voting rights of a Member State in the Council. However, suspension of voting rights does not prevent participation in the activities or deliberations of the Council.

An interpretation that would permit the exclusion of national representatives who fail to fulfil the Article 10(2) TEU qualification of democratic accountability at national level has been advanced in existing literature.[60] According to this interpretation of Article 10 TEU, Article 10(2) TEU should be read as imposing on Member State representatives a necessary qualification for representation in the Council, that of democratic accountability at national level; a failure to fulfil that qualification could allow, indeed require, the Council to refuse to accommodate such a national representative or the Council could possibly be challenged before the Union’s judiciary for failing to exclude that representative.[61] There are, of course, strong, indeed more conventional legal arguments, that can be mobilised against this exclusionary and operative interpretation of Article 10 TEU, not least the lex specialis nature of the Article 7 TEU sanctioning procedure.[62] Moreover, the jurisprudence of the CJEU might tend to foreclose an exclusionary interpretation of Article 10 TEU. In Hungary v European Parliament and Council, the Court of Justice stated that: ‘[T]he EU legislature cannot establish, without infringing Article 7 TEU, a parallel procedure to that laid down by that provision, having, in essence the same subject matter, pursuing the same objective and allowing the adoption of identical measures, while providing for the involvement of different institutions or for different material and procedural conditions from those laid down by that provision’.[63]

However, in the next breath the Court allowed for the possibility of EU legislation establishing other procedures relating to Article 2 TEU values, ‘provided that those procedures are different in terms of both their aim and subject matter’.[64] Moreover, in Wagenknecht,[65] in which the plaintiff alleged in Article 265 TFEU proceedings that the European Council had acted in breach of EU law in failing to exclude the Prime Minister of the Czech Republic from a meeting of that institution,[66] the General Court ruled that the case was manifestly devoid of any foundation of law owing to, inter alia, the fact that: ‘[F]or the purposes of Article 15(2) TEU, it is for the Member States alone, in accordance with their internal constitutional rules, to determine whether, in the context of the various proceedings of the European Council, they should be represented by their Head of State or Government respectively’.[67]

The above judgments do not close the door entirely to a reading of Article 10 TEU that would allow for or require exclusion of a representative of an undemocratic Member State from the Council outside of the use of Article 7 TEU. In the paragraphs that follow, arguments are advanced as to why these judgments do not foreclose an exclusionary interpretation of Article 10 TEU. However, it must be acknowledged the preponderance of evidence would suggest that anyone making the argument for such an interpretation will face an uphill battle. 

4.2.  The case for an exclusionary interpretation of Article 10 TEU

An argument for an operative interpretation of Article 10 TEU that would allow for or require the exclusion of national representatives in the Council, without recourse to the close-to-ornamental Article 7 TEU, has been made in previous literature.[68]However, there are many legal and pragmatic objections that may be made and have been made to this argument.[69] Moreover, there is, as discussed above, CJEU jurisprudence that might suggest that an exclusionary interpretation of Article 10 TEU is not feasible, in particular, Wagenknecht[70] and Hungary v European Parliament and Council.[71] It will be recalled that in the former case that the General Court (upheld on appeal) ruled that it is for Member States alone to determine who represents them in the European Council.[72] In the latter case, the Court of Justice rejected the possible creation by the EU legislature of parallel procedures or identical measures that would replicate those which were available under Article 7 TEU.[73] On a prima facie basis, the exclusion of national representatives in the Council would appear to replicate or even exceed the specific sanction of suspension of voting rights in Article 7 TEU.

It is undoubtedly the case that the arguments against an exclusionary interpretation of Article 10 TEU are compelling. However, there remain counterarguments, and while the CJEU has closed the door somewhat on the exclusionary understanding of Article 10 TEU, it is submitted it has not shut it completely. The Wagenknecht ruling is not necessarily authority for the proposition that Article 10 TEU cannot be a basis for exclusion of a democratically illegitimate national representative from the European Council or the Council. A contrary, narrower reading of that judgment is also possible: while the choice of representative who a Member State sends to the European Council is purely a matter for the Member State itself, the question of whether the Member State has a right to representation in the institution in the first place is another matter.[74] If this narrower interpretation is adopted, then Wagenknecht has nothing to say about whether the Member State has a right to representation in the first place, since it was not argued in that case that the Member State was not entitled to representation at all.[75] Moreover, it could be argued that Wagenknecht relates purely to Article 15(2) TEU and the European Council, which is not part of the EU’s legislature, and that a different calculation might apply in the context of the Council. Likewise, the full Court’s statement in Hungary v European Parliament and Council need not be understood as permanently disabling an operative, exclusionary interpretation of Article 10 TEU, given that it is arguable that the exclusionary effect of Article 10 TEU does not replicate a sanction in Article 7 TEU and, moreover, would not be a creature of EU legislation.[76] It has been argued previously that a last-resort exclusionary interpretation and application of Article 10 TEU would not pursue the same objectives as Article 7 TEU, nor would it involve the adoption of identical measures:

‘Exclusion, owing to failure to meet the requirement of democratic accountability in art.10(2) TEU, is not a sanction [in the sense of the suspension of a Member State’s voting rights in Council under Article 7 TEU] and is not discretionary; rather, it arises by automatic operation of law; that is, when a Member State’s Head of State/Government or its government ceases to be democratically accountable at national level to parliament or citizens’.[77]

This argument could be raised in response to reliance on the Court’s statement about the procedural exclusivity of Article 7 TEU in Hungary v European Parliament and Council.

More generally, it may be argued that in many respects orthodox legal thinking has lagged behind the seismic change that the insertion of Article 10 TEU into the Treaties implied: that the EU should no longer be understood as a combination of two separate estates, the Member States and citizenry, but should be understood as an intertwined representative democracy in which all institutions, intergovernmental, supranational, or directly elected would acquire and maintain their legitimacy from their democratic derivation. It may take some time or confrontation with a stark and undeniable democratic crisis for embedded and internalised notions to shift.

As argued above in the context of the European Parliament, an expansive reading of Rimšēvičs[78] might also provide a basis for an operative reading of Article 10 TEU that would serve to exclude undemocratic national representatives from the Council for the purposes of maintaining the democratic character of that institution. If the independence of the ESCB is an important enough principle to allow the CJEU to annul a national measure suspending a governor of a central bank, despite not attracting specific mention in Article 2 TEU, it is at least arguable that the democratic nature of the EU’s legislature could justify exclusion, notwithstanding the lack of a remedy equating to that contained in Article 14 of Protocol (No 4). If such a reading of Article 10 TEU is not possible, it again raises the awkward question as to why the independence of national central bank governors is placed on a pedestal above that of the EU’s functioning as a polity founded on representative democracy. 

4.3.  Operationalising an exclusionary interpretation of Article 10 TEU

It is one thing to demonstrate that an exclusionary interpretation of Article 10 TEU may be open and another to show how it could be operationalised procedurally. As with operationalising Article 12 of the Direct Suffrage Act, the Treaties and EU secondary law present some potential obstacles. If one is to accept that Article 10(2) TEU presents an opportunity to exclude national representatives who are not democratically accountable from the Council, there are two possible ways in which the operation of such an exclusion can be conceptualised. On one reading, Article 10(2) TEU could be read as a necessary qualification for national representation on the Council; a failure for national representatives to fulfil this qualification, i.e., democratic accountability, would lead to exclusion of those representatives from the Council by automatic operation of law. Conceived of as such, a failure by the Council or the Council Presidency to exclude such national representatives would constitute a breach of Article 10 TEU, making the Council unlawfully constituted and potentially opening the Council to challenge for a failure to act under Article 10 TEU.[79] Such an understanding of Article 10 TEU would then also, of course, leave any legal act of the unlawfully constituted Council open to challenge, whether by means of direct (Article 263 TFEU) or indirect (Article 267 TFEU) actions. Alternatively, one could read Article 10(2) TEU as not operating automatically to exclude democratically illegitimate national representatives, but as providing the Council with an opportunity to decide on that question. Such an understanding runs into at least two objections, however: first, there is no specific procedure or legal basis provided for in the Treaties to allow the Council to make such a determination; secondly, the wording of Article 10(2) TEU would suggest that the democratic accountability of national representatives is either an assumed state of affairs or a necessary qualification for representation on the Council irrespective of the Council’s views on the matter. For these reasons, it is suggested that an interpretation that would require exclusion of democratically illegitimate national representatives from the Council by automatic operation of law is to be preferred. The question remains, however, as to how this exclusion would be realised in practice.

Given the lack of a procedure that would allow the Council to vote to exclude democratically illegitimate national representatives from that institution, the only opportunity to exclude such representatives, or to at least bring the matter to a head, would appear to lie in the convening of the Council. The key procedural provision would appear to be Article 237 TFEU, which is replicated in Article 1(1) of the Rules of Procedure of the Council,[80] and provides: ‘The Council shall meet when convened by its President on his or her own initiative or at the request of one of its members or of the Commission’.

Although it would undoubtedly constitute a creative interpretation of Article 237 TFEU, the convenor of the Council, whether its presidency, another member, or the Commission, could in convening the Council specify the membership of the institution for the purpose of its meeting, calling attention to the requirement under Article 10(2) TEU that national representatives be democratically accountable at national level, and excluding the democratically illegitimate national representatives. Such an approach, however, would appear contrary to Article 16(2) TEU, which provides for the composition of the Council: ‘The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote’.

This provision read in isolation appears to fix membership of the Council: each Member State is entitled to representation in the Council by mere virtue of being a Member State. One might counter, however, that Article 16(2) TEU must be cross-read with Article 10(2) TEU, which, of course, requires that national representatives be democratically accountable at national level. Another objection to such an approach might be the uncertainty and practical chaos that it would unleash: the impugned Member State and the Council might simply ignore the exclusion, and the potential for abuse of the convening power in this way is readily apparent.[81] However, in an extreme circumstance, in which a Member State were undisputedly no longer a democracy and no other avenue, such as Article 7 TEU, appeared open, this approach would at least serve to bring matters to an apogee in the form of a judicial review before the CJEU: either the Member State would seek to challenge the purported exclusion of it representatives or, if the Council continued as before, the attempt to exclude might lead to proceedings seeking to annul any legal acts adopted by the unlawfully constituted Council. Indeed, an attempt to exclude the democratically illegitimate national representatives would not be a required precursor to the latter type of challenge to the Council’s output, whether by way of direct or indirect actions. Such actions could also potentially be instituted by natural persons, as well as other EU institutions, though the hurdle of standing for the former might be considerable.

As with any attempt to operationalise an exclusionary interpretation of Article 12 of the Direct Suffrage Act, it must be emphasised that operationalisation of Article 10 TEU to exclude democratically unaccountable national representatives from the Council would face significant doctrinal and practical resistance. It would, therefore, be suitable only in the most egregious of circumstances and, even then, as a last resort. In every event, as acknowledged above, such an approach would bear significant risks. These risks are discussed in greater detail in the Section that follows, which also considers the risks of inaction in such circumstances. 

5.   Risks of action versus risks of inaction

It cannot be denied that the reinterpretation of Article 12 of the Direct Suffrage Act and the adoption of an operative interpretation of Article 10 TEU as last-resort responses to autocratic consolidation at national level would bear significant risk.[82] It must be acknowledged that these interpretative solutions involve conferring significant power on the European Parliament, the actor convening the Council, as well as the CJEU, which would allow them to make a determination that representatives from or of a Member State should be excluded from the relevant institution. Moreover, these interpretative approaches also place the CJEU in the invidious position of, almost inevitably, having to be the arbiter on when democratic red lines have been crossed and in determining the contours. This, in turn, of course, could lead to intervention by national authorities, especially superior courts, who might charge that the EU’s institutions are trespassing on the constitutional autonomy of the Member States. 

The potential for abuse of this power is easily imaginable; the European Parliament could, for instance, decide to exclude democratically elected representatives simply because a majority of members wished to do so for purely political reasons. However, the likelihood of such a possibility is – in this author’s view – highly remote for a number of reasons. Firstly, any exercise of a power to exclude, whether under the Direct Suffrage Act or Article 10 TEU would have to be performed under the judicial control of the CJEU. The CJEU’s involvement would not be limited to just post-review of the decision to exclude either; it is possible that the CJEU would already have delivered rulings on the compliance with EU law of electoral rules and practices at national level, whether in the context of infringement proceedings or the preliminary reference procedure. These rulings, whether interim or final, might also provide a basis for the European Parliament’s decision under Article 12, with that decision, as stated above, being subject to review by the Court under Article 263 TFEU. Second, from a pragmatic standpoint, it is unlikely that the European Parliament would abuse a de facto power of exclusion. For one thing, use of an exclusionary power for purely self-interested reasons by a faction or factions of parliamentarians would be an unsafe practice beyond a potential short-term advantage, in that such a tactic could subsequently be wielded against those using it. More significant, however, is the diffusion of power within the European Parliament. Owing to the lack of pan-European electoral lists, and the lack of a European demos and a common European media space capable of significant cut-through with citizens at national level, as well as the use of proportional representation in European Parliament elections, the European Parliament has not developed the type of highly partisan and disciplined party system present in many national-level parliaments.[83] As a result of this, it may be difficult for wield a majority in favour of excluding representatives under Article 12, given that to do so will invariably require the support of a plurality of political groupings within the Parliament. Similar dynamics will play out within the Council in terms of both judicial review and of self-interest and diffusion of power. Moreover, calls by the presidency of the Council or of another Council member to exclude national representatives would entail serious political risks for the political figures in question.

The risks of inaction have been indicated previously: autocratic trespass to the EU’s legislative institutions; autocratic influence over legislative procedure and legislative output, as well as the subjection of other EU Member States and EU citizens to laws that are made by bodies that do not comply with the requirements of Article 10 TEU. There may, of course, be a school of thought that would counsel against any (perceived) overreactions to such trespass, if it is by one Member State or a small number of minor Member States. Advocates of such an approach may take succour from Kelemen’s autocratic equilibrium thesis and the history of federal-style governments hosting and out-surviving (soft) autocratic sub-units.[84] However, there are a number of problems with any such sanguine approach that could be derived from an optimistic reading of the authoritarian equilibrium thesis.[85] First, once again, one cannot simply ignore the constitutional requirements of Article 2 and 10 TEU. Additionally, there is a compelling argument to be made that acts adopted by these institutions when constituted in a manner contrary to the principle of representative democracy are invalid and ought to be annulled, whether directly via Article 263 TFEU or indirectly via Article 267 TFEU.[86]Second, and related to the previous point, the presence of undemocratic representatives in the EU legislature and their involvement in creating and adopting acts that apply across all Member States would be difficult to square with the democratic rights of EU citizens. Third, any argument for a more circumspect approach to some minimal autocratic trespass to the EU’s legislature, the power of which might be diluted by the preponderance of democratic representation, and which might – in any case – disappear over time, contains weaknesses both general and specific to the EU. Generally, it should be noted that even minorities of undemocratic representatives in greater federal-style structures can have an outsized influence over legislation and decision-making. This observation is particularly true in the EU context, specifically in the Council, where Member States will enjoy vetoes in some areas, which can also be used as leverage more generally across a number of policy areas.[87] Moreover, the Council is considerably smaller in size than the European Parliament and there tends to be a culture within that institution and within EU governance more generally which is deferential to sovereignty and seeks consensus.[88] The presence of even a single undemocratic national representative in the Council can, therefore, have deleterious consequences on the EU’s functioning as a representative democracy.

The final and most significant problem with inaction is the danger of disintegration of the EU or the loss of the authority of its laws in all Member States. EU institutions may not, in real terms, have the final say over whether the EU’s democratic network can tolerate the presence of undemocratic national representatives in the EU’s legislature, particularly the Council. A failure to act by EU institutions like the Commission or the CJEU could provoke national constitutional or superior courts to intervene. In other words, inaction could lead to a Solange III-type moment in which a national court could annul or refuse to recognise acts adopted by EU institutions which do not fulfil the requirements of Article 10(1) and (2) TEU.[89] The German Federal Constitutional Court in its Lisbon judgment may already have laid the groundwork for such a possibility: in its ruling, the Karlsruhe court warned that the German principle of democracy could not be balanced against other legal interests and that the principle of democracy was not amenable to amendment because of its fundamental quality.[90] It is arguable that if a situation arose in which national representatives in the Council and/or the European Parliament lacked democratic legitimacy within the meaning of Article 10 TEU, those institutions and their acts might not comply with German constitutional requirements pertaining to democracy. 

6.   Concluding comments

This article demonstrates that existing orthodox interpretative approaches to the rules concerning the composition of the European Parliament and the Council leave the EU’s legislature vulnerable to trespass by representatives from or of the Member States who do not fulfil basic conditions of democratic legitimacy. This state of affairs would appear to exist, in part, due to an initial interpretative approach taken to the Treaties both in scholarship and by the Court of Justice that prioritised national autonomy and constitutional identity over the protection of the EU’s foundational values. It is an approach also which had its seeds prior to the emergence of the rule-of-law crisis in the EU but has persisted, in some contexts, thereafter. Whether the Court would continue with this approach in extremis is doubtful, however. In this author’s view, there is a point at which this approach becomes unsustainable. If one is to accept that the EU is a constitutional order of infinite duration with its own values, it is surely a corollary that the same order is entitled to defend itself as a last resort against threats emanating from national orders. While there is a division of competences between the Union and the Member States, with some tasks in the defence of the EU’s values being within Member State competence, it is also the case that an absolutist approach to respect for national autonomy and constitutional identity may leave the EU defenceless in terms of assuring the democratic legitimacy of its legislature. In other words, while national identity and autonomy must be respected, this respect has its limits. Indeed, the Court of Justice’s impatience with national identity claims in the context of the EU’s democracy has been evident in the recent judgments.[91]

This article suggests that if textual reforms to the Treaties and secondary law are not possible pragmatically, a change of approach to interpretation of the existing rules may need to take place as an ultima ratio. This approach would involve interpreting Article 12 of the Direct Suffrage Act as allowing the European Parliament to refuse to certify representatives that had been declared officially as electoral winners at national level, if the elections in question were not conducted in accordance with minimal EU democratic standards. Moreover, it has been argued that Article 10 TEU should be understood in an operative manner as precluding representatives from national level who are not democratically accountable within the meaning of Article 10(2) TEU. This article has also sought to outline how these exclusionary interpretations could be operationalised procedurally. It is contended in this article that this new interpretative approach is not only plausible, but is more consistent with the Union of values into which the EU has evolved constitutionally. If the EU is to be founded on representative democracy as Article 10(1) TEU claims, then the EU’s legislative institutions must be able to defend their democratic status if this claim is to be anything but rhetorical. The ultimate means of defence, when all else fails, must be the ability for these institutions to quarantine themselves against undemocratic representatives. While this ultimate means of defence may conflict with other core principles such as respect for national constitutional identity, these principles should not prevail over the democratic value and the requirement that the EU be founded on the principle of representative democracy. The approach of the Court in Justice in Rimšēvičs,[92] in which the Court was prepared to prioritise the independence of the ESCB over national autonomy and annul a national measure directly, also potentially paves the way for more a more direct and muscular approach to the protection of the democratic credentials of EU institutions when threatened by events or conditions at national level. There are of course risks attendant with the suggested interpretative approach. However, the risks of inaction, in terms of the spread of autocratisation to the EU’s institutions or the loss of authority of EU law and even disintegration, are equally if not even more profound.