II. The dilemma

In line with Article 4(2) TEU, the European Union is bound to respect the national identity of member states ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.Footnote ⁵ Besides Article 4(2), the sixth recital of the Preamble also mentions respect for history, culture and traditions of member states. These provisions of the Treaty protect not only constitutional structures that express constitutional identity, but also the cultural and historical roots of national identity.Footnote ⁶ Thus, just like their constitutional structure, member states can define their national identity in differing ways, including approaches that may breach inclusive constitutional values like equality or dignity. Even so, the implications of transforming the member states’ national identities raise legitimate concerns for inclusive values that are labelled as fundamental and protected as such by Article 2:

It is important to note that there is no established hierarchy in the text of the Treaty between Article 4(2) and Article 2. The codification of what is now Article 2 has been an important step in making certain background assumptions of European integration and cooperation fully explicit. The Article lists the content of key commitments, the lack of which would undermine the functioning of the European Union.Footnote ⁷ In summary, Article 2 values as a whole are essential for the functioning of the European Union.Footnote ⁸ The Article lists the fundamental values of the European Union, including the value of human rights protection that is further specified in Article 6(3) with reference to the ECHR as resulting ‘from the constitutional traditions common to the Member States’.Footnote ⁹ Again, member state societies should share these values. In addition, member states should engage in ‘sincere cooperation’, actively ensuring membership obligations and avoiding the undermining of integration under Article 4(3).Footnote ¹⁰ Pluralism is also mentioned in Article 2, the second sentence of which states that the values quoted earlier ‘are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Pluralism is also protected on another level. Integration is limited and is certainly not all-encompassing, as stressed in Articles 4(1),Footnote ¹¹ 5(2)Footnote ¹² and partly 4(2), ensuring leeway in non-covered areas.

As is the case with legal rules, cases of (alleged) violations provide the true test for the workability of this framework. The Hungarian and Polish cases should be enough to demonstrate that the assumption of peaceful convergence has been debunked. As such, we are basically forced to confront the question of how to conceptualize the connection between Articles 2 and 4(2). As a rudimentary classification, we can identify two logical endpoints.

What we could call the universalist reading maintains the primacy of Article 2 under all circumstances. Here, Article 4(2) allows any deviation – regarding the means or other technicalities – only within the field marked by Article 2, rendering the respect for national identity little more than a decorative detail.Footnote ¹³ The other, which we now call the relativist (or strong pluralist) reading, assures the primacy of Article 4(2). Under the latter reading Article 2 serves as a menu, and member states (the customers) are relatively free to define their diet by vetoing particular items that would somehow clash with respect for their national identity. To make this more plausible, a formal interpretation of democracy and the rule of law should be maintained, but in terms of actual conceptualization, wide variation is allowed on the national level.

Under the first reading, Article 4(2) may only work within the boundaries set by Article 2; after all, this is why they are cast as foundational values. This is supported by the wording (‘The Union is founded on …’) as well as the history and will behind the text. What this description fails to capture, however, is that the exact meaning of these values remains contested.Footnote ¹⁴ When defining their content, interpretation will necessarily rely on existing practices in EU member states and would face the same dilemma of having to draw the line somewhere between permissible and impermissible state practices. Accordingly, these values are not items on a menu and selectivity is not possible. This approach is partly due to the fact that textual interpretation of the Article does not support such a reading. It maintains that all of the values listed should be read together, in light of an all-encompassing moral frameworkFootnote ¹⁵ – for example, under the mainstream position holding that each of them is conceptually underpinned by respect for human dignity,Footnote ¹⁶ where violation of one value goes against the entire framework.

Intermediary readings between the two logical endpoints are also available. For example, we can adopt an equalizing or pluralist reading: the two clauses are on the same level, without (clear) hierarchy. However, to make this a workable approach, we have to provide a background theory on how to resolve possible conflicts on a case-by-case basis. Inherent in several readings (e.g. that cited above on undermining the functioning of the EU)Footnote ¹⁷ is a functionalist philosophy: the goal of Article 2 is to guarantee the foundational values without which the European Union cannot function, and whatever does not undermine integration is tolerated under Article 4(2). Even so, functionalism is not self-explanatory and self-validating. We need a normative approach that sets out the goals of integration in relation to which we can tell which functions we seek to protect. What is clear under these readings is that recognition in Article 4(2) comes with limits. It is not a blank check, and we need a coherent framework to decide when divergence is permissible.

Another field where the same tension has erupted is the debate on (constitutional) pluralism. The central question this field grapples with falls within the parameters of our inquiry: can a normative core justify limiting pluralism and how far can this core extend? In Joseph HH Weiler’s words, any constitutional regime has ‘both the pluralist and hierarchical combined – though one can have endless debates on the appropriate dosages of each’.Footnote ¹⁸ As a matter of descriptive pluralism, the European Union’s Article 2 embodies this normative core, which should be ‘common’ to all member states, as we have seen. Normatively, without a common core, pluralism would fall back to radical pluralism – an unappealing scenario for European integration. Mattias Kumm describes this as a realm ‘where actors of each legal order proceed without systemic regard for the coherence of the whole’.Footnote ¹⁹

It is clear that pluralism also needs ‘a doctrinal framework that defines the conditions under which either institutionalized civil disobedience or constitution-based conscientious objection [is] justified’.Footnote ²⁰ For Kumm, ‘Constitutionalism establishes a framework of principles that provide the grounds and limits of legal authority of any legal order within the liberal democratic tradition’.Footnote ²¹ One can ask what happens with legal orders outside this tradition.Footnote ²² Matej Avbelj argues that ‘any Member State which in defence of its own autonomy, invokes the pluralist structure of the Union, can only do so after it has given effect to pluralism within its own constitutional polity’.Footnote ²³ In a similar vein, pluralism on the European level presupposes pluralism on the national level, just as pluralism in a liberal multicultural state presupposes pluralism on the level of the territorial units (e.g. federated member states) of the state.

In a sense, our overview runs parallel to these pluralist analyses. Multiculturalist theories might be more in line with increasingly permissive pluralist approaches in that they acknowledge the worth of giving due recognition to community values, even in the case of non-liberal entities. But these theories also stop short of granting such regimes a free hand.

Up to this point, we have discussed the question of how the tension can be tackled conceptually. However, there is also an institutional and procedural question. Article 7 TEU is about determining ‘the existence of a serious and persistent breach by a Member State of the values referred to in Article 2’.Footnote ²⁴ This procedure could, in principle, lead to the suspension of ‘certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council’,Footnote ²⁵ if a breach of the fundamental values of the EU were established. As events in Hungary, to a degree Romania and lately in Poland have given us clear cases of breaching the rule of law – all while the workability of Article 7 is very much in doubtFootnote ²⁶ – most commentators have focused on the question of ‘how’.Footnote ²⁷ Proposals have been prepared for rendering Article 7 workable,Footnote ²⁸ for reforming the procedureFootnote ²⁹ or for circumventing it altogether.Footnote ³⁰ Instead of revisiting this debate, we focus on the conceptualization of the above-mentioned values and their relationship to pluralism – most notably to member state divergence – and the question of justifying the override of member state commitments in the case of conflict.Footnote ³¹

Before we present our analogy and point out how multiculturalist readings show important parallels with constitutional practice – and thus provide insights into a possible approach to reconcile the conflict arising from variation and establish the limits of recognizing diversity – we first need to differentiate between two sets of values: exclusivity and inclusivity. The distinction is important in understanding the source of the dilemma and where justifications for liberal interference are more likely to succeed.

III. A clash of constitutional values

Constitutional values refer to abstract ethical norms that are binding; their ultimate goal is the interpretation of constitutional documents.Footnote ³² National identities and values are not identical, but specific values establish the core of a shared national identity.Footnote ³³ In our interpretation, inclusive constitutional values are able to integrate the interests of all members of a political community: they treat all members as morally equal and as a result strengthen constitutional democracy. Exclusive constitutional values, however, protect only the ethnic, cultural, political, religious and other identity elements of one or more dominant groups within a society – usually the identity elements of the majority population. They question the equality of certain members of the community, reaffirming pre-existing inequalities and creating new ones, which can ultimately undermine the democratic order.Footnote ³⁴ That being said, there is a level of tolerance in a constitutional democracy for exclusive values to recognize group identities valuable to the group members, but only when these are outweighed by inclusive values.

While inclusive values seek to cover everyone, exclusive values seek to differentiate and exclude some. Inclusive approaches, along with multicultural theories, seek inclusion to counteract inequalities inherent in ‘cultural membership’.Footnote ³⁵ In these theories, the state is never fully neutral, thanks to its majority biases. In this game, every gain by the proponents of emergent authoritarianism translates to a loss on the side of constitutional democracy and the resulting inequalities need to be compensated for. However, accommodation of differences is limited, and is only legitimate to the extent that it does not protect oppressive practices. Denial of recognizing oppressive practices can in certain cases reduce pluralism (and might seem exclusive on the surface) but overall such denials are inclusive, for they enforce equal membership. In the European Union, member states can and do question the inclusive values of Article 2 TEU with reference to protecting their national identities. The EU is now faced with the dilemma of how far member states can extend this right while still retaining their Union membership.

In the game of values, every gain by the proponents of emergent authoritarianism translates to a loss for the side of constitutional democracy, hence ‘zero-sum’. While the recognition of both inclusive and exclusive values is common to constitutional democracies, we think asserting a critical mass of exclusive values can lead to the hollowing out of the democratic order, both on national and supranational levels.Footnote ³⁶ What multiculturalist approaches teach us is that some level of toleration for exclusive values is a necessary and legitimate component of a liberal polity recognizing the values of diversity and pluralism, but also that policing the boundary between accommodation and rejection is central to the functioning and legitimacy of the regime. The line might be drawn differently in different polities or with regard to different groups – for example indigenous peoples might get more leeway than subnational units in a federation, but the underlying dilemma follows the same logic.

A democratic political community is considered inclusive when it protects vulnerable minority identities and allows for those minorities to consider themselves part of the given political community. However, if a constitution one-sidedly favours the values and preferences of dominant groups, it does not fulfil the integrative function expected of democratic constitutions. In the latter case, the state does not promise to take into account the interests of all citizens equally. As Kymlicka argues, ‘some self-government rights and polyethnic rights are consistent with, and indeed required by, liberal justice’.Footnote ³⁷

Individual and collective minority rights are inclusive to the extent that they seek to make all citizens, including minority members, equal by compensating for their disadvantaged position and protecting them from majority decisions. Some groups are simply disadvantaged in the ‘cultural market place’,Footnote ³⁸ and ‘they could be outbid or outvoted on resource and policies’ that would be crucial to the survival of their minority identities.Footnote ³⁹ Of course, minority identities can also include exclusive elements; ‘some ethnic and national groups are deeply illiberal, and seek to suppress rather than support the liberty of their members’.Footnote ⁴⁰ For example, the protection of minority practices such as female genital mutilation should be considered exclusive because they treat women as inferior and push them into a vulnerable position.

State prioritization of one or two specific languages inevitably leads to a loss of rights regarding minority languages. Let us take the example of a strong constitutional democracy like Canada. Canada gave constitutional recognition to two European languages (French and English) as official languages at the expense of other, most significantly Aboriginal, languages. What possible scenarios could this situation lead to?

Let us model possible action based on the game between exclusive and inclusive values detailed above. The state could explicitly strengthen the exclusive value of the two languages – for example, the Parliament could pass an Act prohibiting the official use of Aboriginal languages. Such a step would further weaken the principle of equality. Or the Parliament could decide to strengthen inclusive values and adopt an amendment that gives constitutional recognition to all languages that are spoken in Canada. It could also strengthen the protection of minority languages. These measures would weaken the exclusive character of the two European languages. (We will revisit the example of language protection later in this article through the case of the exclusive language policy of a federated state.) The weakening of inclusive values means domestic and European democratic institutions may become vulnerable.

IV. The analogy of liberal multiculturalism

Multicultural liberal democracies have, from their beginnings, faced the problem of how to accommodate illiberal minorities and to what extent the recognition of cultural differences can be justified. Liberal theories of multiculturalism (e.g. the works of Joseph Raz, Charles Taylor and Will Kymlicka) have discussed this topic extensively. Obviously, the European Union is not a liberal multicultural federal state and member states are not federated states. Nevertheless, we think that these cases are comparable and raise similar theoretical and practical questions and answers. Insights and experiences gained from one case can provide information about the others.

We argue that this analogy is applicable because, based on Raz’s triadic typology differentiating between liberal approaches built on toleration, non-discrimination or multiculturalism,Footnote ⁴¹ the European Union is built on a strong form of the acknowledgement of diversity. It does not simply require toleration of or non-discrimination of national disparities, but actively recognizes differences and affirms nation states as bounded communities with varied constitutional cultures. With regard to these elements, the European Union is similar to a multiculturalist state. This also causes the European Union to stretch the boundaries of traditional federalism,Footnote ⁴² bringing it closer to federalization driven by the constant pressure of substate nationalism – a case where the multiculturalist approach is highly relevant.Footnote ⁴³

At one point, Raz calls the European Union the ‘big brother’ of multiculturalism, Footnote ⁴⁴ or more precisely the big brother of liberal multicultural federal states. Multicultural theories, including those by Kymlicka and Raz, openly acknowledge their reliance on the example of European integration.Footnote ⁴⁵ Kymlicka seemingly uses integration projects like the European Community and NAFTA as a source of inspiration for his theory.Footnote ⁴⁶ It can seem like a strange twist to build on theories that dissect an area from which these authors took inspiration in the first place. Yet their reliance on the European experiment does not mean that there is nothing to be learnt from these multiculturalist experiences. In fact, the presence of these references only underlines the structural similarities we also see, and justifies the parallel we draw from the other direction.

The parallel seems especially useful when it comes to discussing which types of national identities presented by member states are justifiable and compatible with Article 2 TEU. It is important to underline that justification is always needed for limiting the national identity of member states. As Tamás Győrfi argues, ‘We do not expect and cannot demand states to give up part of their authority without justification.’Footnote ⁴⁷ In light of this, we need to find a scale to define the extent to which exclusive elements of national identity may be tolerated by the member states’ legal systems.

The dilemmas presented above can be seen as revisiting the old liberal dilemma on universality, pluralism and the limits of toleration. In Jacob T Levy’s pessimistic phrasing, liberalism either errs on the side of rationalism (universalism) or on the side of relativism.Footnote ⁴⁸ When interpreting the Treaty on the European Union, we can err on the former side with over-demanding uniform standards (Article 2), or on the latter by allowing too much leeway on the national level (Article 4(2)). While we agree with Levy that a theoretically fully satisfying synthesis might not be available, we argue that a workable balance should be struck. Such a balance would maintain core elements (common values) under a principled and constrained standard and secure common ground, the lack of which would undermine integration. However, limitless toleration of anti-pluralism would undermine pluralism and cause serious difficulties in ulterior correction, with devastating effects on democracy.Footnote ⁴⁹

It is at this point that multiculturalist accounts engage with the dilemma in depth. They are willing to concede, if not defeat, losses along the way, and they forcefully address the dilemmas of group recognition, value conflicts, managing diversity and the limits of toleration. Raz states that ‘conflict is endemic to multiculturalism’, adding that this is in fact true of all forms of value pluralism.Footnote ⁵⁰ Levy agrees that this conflict flows from liberty, for it is liberty that ‘generates pluralism, which generates norms, norm enforcement, and local power, which limit freedom’, even if ‘the ability to see freedom in our associational lives and power in the state all too often limits the ability to see power in associations and the possibility of freedom being enhanced by outside intervention – and vice versa’.Footnote ⁵¹

According to theories of liberal multiculturalism, the protection of group identities strengthens the equal dignity of those persons belonging to these groups. With this argument, these theories support not only tolerance, but also the recognition of cultural pluralism in a liberal framework. This is consistent with the wording of the Article 2, the second sentence of which declares that fundamental inclusive values of the European Union ‘are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ The Article can be understood as defining the ‘combined goals’Footnote ⁵² of multiculturalism, recognizing diversity and producing/maintaining equality. The multicultural reading of Article 2 is reinforced by the fact that Article 4(2) obliges the European Union to live with differenceFootnote ⁵³ at the collective level as well, as in a liberal multicultural state.

In line with theories of multiculturalism, values that we call ‘inclusive’ (e.g. equality, dignity, ‘respect for human rights, including the rights of persons belonging to minorities’) should be ensured, and the recognition of national identity can come only after. Value pluralism in this liberal framework presumes that ‘there is a morality which applies to all the traditions and all the cultures, a morality which bridges the divide between them’.Footnote ⁵⁴ This universal morality defines how different moralities can be compatible in recognized communities to support the equality of various cultural groups. Universalism thus does not translate into cultural superiority: ‘At the heart of multiculturalism lies the recognition that universal values are realized in a variety of different ways in different cultures, and that they are all worthy of respect. This … is not to endorse all aspects of any culture. My culture no less than others is flawed.’Footnote ⁵⁵

On the other hand, the protection of national identity with reference to shared history, culture, religion, language and so on cannot override inclusive constitutional values in this theoretical framework. Raz describes liberal multicultural societies as a ‘harmonious coexistence of non-oppressive and tolerant communities’.Footnote ⁵⁶ Therefore, the ideology’s guiding principles are the rejection of oppression and mutual respect between cultural groups, as well as the primacy of inclusive values. However, in multicultural societies the primacy of inclusive values offers some level of tolerance to exclusive values in order to protect valuable group identities. Raz talks about the ‘dialectics of pluralism’, where incompatible values are not only present, but also worthwhile and recognized.Footnote ⁵⁷ Even if certain aspects seem hard to value and support, there might still be reasons to recognize these cultures: ‘even oppressive cultures can give people quite a lot, [so] one should be particularly wary of [campaigns against them]’.Footnote ⁵⁸

Interference with domestic structures will always raise the dilemma of whether intervention is justified or is an affront to the recognition of diversity. Raz lists three types of ‘liberal dilemmas’ with multiculturalism: oppression, superiority and the necessity for a common culture.Footnote ⁵⁹ Raz stresses that the multiculturalist view he endorses is not ‘opposed [to] the change … on the contrary … multiculturalism insists that members of the different groups in a society should be aware of the different cultures in their society, and learn to appreciate their strengths and respect them. This in itself leads to inevitable developments’, the pressure being higher in intolerant cultures.Footnote ⁶⁰ As with recognition under Article 4(2) in the case of the European Union, the recognition of diversity in the case of multiculturalism serves a specific goal, ‘a concern for the [dignity and] well-being of the members of society’.Footnote ⁶¹ Recognition remains conditional, resulting in an ‘uneasy alliance’ that sometimes supports proponents of diversity (like the sovereigntists in the case of the European Union), ‘while at others turning against them to impose ideals of toleration and mutual respect, or to protect the members of those very cultures against oppression by their own group’.Footnote ⁶²

V. Possible implications of the background theory

Weaving together the three lines of our inquiry, Article 2 values are inclusive, but Article 4(2) raises the possibility of recognizing exclusive values based on member state choice. Applying the multiculturalist approach summarized above, the decision will imply a loss, while overriding national commitments will require justification. Our question is thus how the multiculturalist approach can help to inform this debate.

For example, using the concept of ‘nation’ in a member state’s constitution is acceptable only if the legal order of the democratic political community respects the equal dignity and wellbeing of every one of its citizens. The lawmaker thus cannot act against the moral equality of citizens and must exhibit equal attention to and respect towards each member of the political community.Footnote ⁶³ Relying on the premodern vision of the political nation that incorporates values influenced by state identity (e.g. faith and fidelity) without regard for the principle of equality (when only the members of a particular social class, such as the nobility, workers, members of a caste and so on may belong to the nation) naturally does not fulfil this demand.

If we apply theories of multiculturalism to the institutional framework of the European Union, we can state, for instance, that the Hungarian illiberal regime breaches the value system of the European Union: it builds the country’s national identity on the rejection of the primacy of inclusive values. The preamble of the Hungarian Fundamental Law, the ‘National Avowal of Faith’, provides an apt example to prove this point. It fails to mention equality as a value, but offers a list of exclusive values – such as belonging to a Christian church, belonging to the Hungarian ethnic nation, fidelity, faith and love – and along these lines it redefines the national identity of Hungary.Footnote ⁶⁴ It conveys that members of national or religious minorities are not equally part of the constitutional power, which violates the principle of mutual respect between cultural groups, as well as the primacy of inclusive values on which liberal multiculturalism is built.

As discussed above, a critical mass of exclusive values undermines a legal system’s liberal core – that is, the equal dignity of residents. Therefore, the exclusive values listed in the Hungarian Fundamental Law had a transforming effect on the country’s legal system. These exclusive values have made their marks in several areas. They are manifest in the Hungarian government’s attacks on the Central European University, the banning of gender studies MA programs in universities, the ‘Stop Soros’ law targeting human rights NGOs and asylum activists, and the criminalization of homelessness in order to protect ‘cultural values’. The Hungarian case is illustrative in many ways. The vision of the national community and its members is cast in a culturally limited way (full of exclusive elements). Further, actual policies are increasingly defining parts of the population as enemies of the state. Finally, this concept is characterized by a constant search for enemies: according to the most common framing, this can mean foreign agents of an international pro-immigration liberal coalition with links to philanthropist George Soros and mainstream forces in Brussels, and so on.Footnote ⁶⁵

However, references to the protection of member states’ national identities also exist that do not contradict Article 2 in this multicultural interpretation. For instance, there are non-exclusive arguments for Brexit on parliamentary supremacy being incompatible with European supremacies. Győrfi, among others, finds normative arguments for ‘the Commonwealth model of judicial review [that] has established a mechanism of human rights protection in which the legislature can disregard or override a court’s determination of what a human right requires’.Footnote ⁶⁶

Brexit and the Hungarian public law crisis have common features: both are about national identity and self-identification of the people and their values, and both express a longing for stronger sovereignty (or ‘taking back control’ from the European Union). The Brexit campaign exploited the loss of sovereignty by arguing that EU legislation, with the support of the Luxembourg and Strasbourg courts, restricts member state institutions (parliaments and courts) and their sovereignty at an unacceptable level. Throughout the Brexit campaign, these arguments were obviously mixed with unjustifiably exclusive, xenophobic discourses, such as the crusade against immigration. But even in this case, reclaiming the ability to decide nationally on who could enter the country seemed central.Footnote ⁶⁷

As demonstrated, two kinds of references to the protection of national identity can exist: those that violate the multiculturalist interpretation of the relationship between Article 2 and Article 4(2) and those that do not. Taking a critical stance against the European Union when it comes to defining national identity can be perfectly acceptable (exercising sovereignty by making otherwise legitimate decisions). But the same act becomes impermissible when used to exert sovereignty to lower the level of protection for inclusive values.

The practice adopted by liberal multicultural federal states – especially the way it affects recognized territorial communities – could also help conceptualize the enforcement of Article 2 values. Quebec’s Bill 101, the Charter of the French Language adopted in 1976,Footnote ⁶⁸ provides a good example of what we call a clash between exclusive and inclusive values. The legislation limited the language rights of the province’s Anglophone and Allophone population by declaring French the only official language (used by legislature, courts, government institutions, public schools, commerce and business sectors) and turned against the Canadian federal constitutional vision of the cultural mosaic.Footnote ⁶⁹ Among other restrictions, Bill 101 severely limited the possibility of English language instruction in the province. The central argument for this was the protection of the French language – inherent to the Quebec culture – against the domination of English.

The Supreme Court of Canada rendered several judgments on Quebec’s Bill 101. In its first famous decision in Quebec v. Quebec Association of Protestant School Boards (1984), the Canadian Supreme Court ruled that the Bill’s provision about French language instruction violated Section 23 of the Canadian Charter of Rights and Freedoms (1982).Footnote ⁷⁰ This section guarantees minority language educational rights to French-speaking citizens outside Quebec and to English-speaking citizens in Quebec. However, because the scope of Section 23 is limited to Canadian citizens only (and mainly to those whose first language is English or French), immigrants and Allophones were not properly protected by the Charter of Rights and Freedoms against the exclusive aspirations of Quebec’s legislation and policies.

The struggle continued. The Supreme Court’s actions were often followed by further restrictive steps by Quebec – for example, when the Charter of the French Language was amended by Bill 104 in 2002. This modification reacted to the practice that sought to circumvent the restrictions of the original Bill: Allophone children could gain access to English-language education in public schools after a brief English-language education at a private school (‘bridging schools’). To further restrict the language rights of Allophone children, Section 3 of Bill 104 added the following to Section 73 of Bill 101: ‘instruction received in English in Quebec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded’.Footnote ⁷¹ In the Nguyen v. Quebec (2009) case,Footnote ⁷² the Supreme Court of Canada declared that Bill 104 was unconstitutional because it infringed minority language education rights. This series of cases demonstrates how a liberal polity can set principled limits on restrictive policies in a sub-entity that invokes existential challenges and identity arguments.

It might be apparent that the parallel with the European Union is more defined when we examine recognized territorial units (i.e. autonomous areas or federated states) in constitutional democracies, and probably even in the case of Indigenous or other minority communities who control a given territory. It also remains true that compared with the European Union, there are important differences: the state still seems to be the central locus of conducting politics and taking collective responsibility. That being said, debates on sovereignty and national identity in certain constitutional democracies liken these cases more to the European Union than generally assumed – see, for example, the (historical and contemporary) discussions on the status of states in the United States.Footnote ⁷³ Crucially, the dilemma of recognizing strong identity claims unites the two sets of cases. The European Union is faced with diversity challenging some of its fundamental tenets, a key concern for multiculturalists considering responses to illiberalism. This is where our parallel is most incisive.

We have seen that Canada has been grappling with policing the boundaries of accommodation (not only with regard to Quebec, but also concerning its Indigenous and immigrant populations), an experience that has led to the emergence of working standards. Kymlicka built a widely cited theory on the Canadian example, one that sets out straightforward principles for when liberal interference is justified. A similar elaboration for the European Union is missing. In the next section, we revisit Kymlicka’s normative framework to see what insights it offers for the illiberal challenge in Europe.

VI. Kymlicka’s account of liberal interference with illiberal minorities

The central dilemma, shared by the multiculturalist and the supranationalist setting, is the point at which illiberal deviation should cease to be tolerated and when liberal interference is legitimate. Will Kymlicka addressed the problem of illiberal minorities in his 1995 book Multicultural Citizenship, an account that can help us to operationalize the dilemma.Footnote ⁷⁴ Kymlicka lists the following points that should be considered when assessing the legitimacy of interference:

1. 1. ‘the severity of rights violations’

2. 2. ‘the degree of consensus within the community on the legitimacy of restricting individual rights’

3. 3. ‘the ability of dissenting group members to leave the community if they so desire’

4. 4. ‘the existence of historical agreements’.Footnote ⁷⁵

The severity argument sounds rather straightforward and would form part of any assessment of the legitimacy of interference. It is, in fact, a key part of Article 7 TEU itself (‘serious breach’). What the multiculturalist approach helps to capture more effectively is the protection of the liberal core, against which pluralism can play out. This is the moral equality underlying inclusive values, most importantly democracy, the rule of law and human rights. The more a legal regime manifests the wholesale rejection of this core (possibly leading to destructive pluralism), the more likely it is that any liberal interference countering these tendencies will be justified.Footnote ⁷⁶ In the case of Hungary, measures that target opposition-held local governments, NGOs, academic institutions and individuals who are critical of the government can be seen as violations of all three values.

Less obvious is the second consideration, on how wide the support for restrictions is. While this might feature as a hidden political motive when deciding on political action, it makes sense to give more leeway for deviations where these are sustained and deeply held commitments of the community, shared by most, as opposed to forged and momentary preferences seeking exemptions for gains by the elite. Deciding what counts as sincere, consensual conviction in a society is no easy task. (It seems no less paradoxical than trying to assess the genuineness of religious views, a move often considered intrusive in the process of testing the legitimacy of intrusion.) For example, in a less-than-democratic society, the government’s sustained efforts to curtail media pluralism can raise suspicions in this respect. In the Hungarian case, these were the first series of measures that raised international attention related to regulating the media. That was also the case that inspired the reverse Solange proposal.

The third consideration is the exit option. On one level, this could be read as a requirement that citizens (residents) should be able to leave the country, and its restrictions, behind. Such moves always have costs but are certainly available, as seen above. In fact, with the most dissatisfied members of the community leaving,Footnote ⁷⁷ this option can end up reinforcing internal cohesion and consensus around the restrictions (point 2 above). Raz rightly notes that a multicultural setting can strengthen restrictive traces.Footnote ⁷⁸ In Kymlicka’s view, if people are free to leave the community, more pressing arguments are needed to interfere with oppressive practices. This might mean the physical aspect of opting out, now guaranteed under free movement rules. (In fact, hundreds of thousands of Hungarians have been making use of this right when they have opted to live in other EU member states.)Footnote ⁷⁹ It can also refer to the ability of residents (especially in the case of a state) to be able to leave the cultural community, meaning the majority as envisioned in public law norms, including the constitution. And the costs of this choice should not be prohibitive.

The exit option can also be applied on another level: if a group is more justified in asking for adherence to its common values when members are free to leave, this should apply equally (or even more strongly) to the European Union. Member States are free to leave if they disagree over key elements of cooperation. Depending on how prohibitive the terms of leaving are (see the Brexit saga), this can tilt the field towards more or less legitimate expectations of members.

Fourth, Kymlicka states that what arrangements have governed the relations of the two entities in question – the European Union and its member states in our case – should matter. For example, new member states by and large joined the European Union under the current rules, including the ‘depth’ of integration and Article 2 values. Countries like the United Kingdom, on the other hand, could voice their opposition throughout the deepening of the integration and the process of encompassing political aspects in addition to economic issues.

There is a fifth consideration that Kymlicka discusses outside his original typology, namely the ‘newcomers’ argument. According to Kymlicka, pressures for change are more legitimate when applied to newly arriving immigrant groups.Footnote ⁸⁰ We connect this to the fourth element, as the fact of new arrival can be taken as a different type of arrangement. Applied to the European Union, this would mean measures like the Cooperation and Verification Mechanism, as an added layer of conditionality, post-accession, for ‘newcomers’ Bulgaria and Romania.

Beyond the list above, Kymlicka also discusses ways of responding to violations. He advises speaking out against them, supporting those who can help overcome them and creating incentives for leaving them behind, including stronger guarantees of human rights.Footnote ⁸¹ The last of these, he says, is a means of possible liberal interference without hard sanctions – the type Raz also favours when available.

What follows from this for the European Union? The legitimacy of interference with illiberal regimes depends on a number of factors. The most uncontroversial will be the severity of the violations. Kymlicka also suggests taking into account the level of domestic support for restrictions and the ability of group members to opt out (the exit option on the level of the individual). Both underline the importance of democratic will-formation at the domestic level and room for dissent. If pluralism suffers because opt-out from illiberalism is too costly – for example, one has to leave physically or is targeted or even pushed out for being considered disloyal to the regime (‘traitors of the nation’) – claiming democratic legitimacy will become problematic. The legitimacy of liberal interference is supported by two further aspects: accession to and participation in the European Union (consent) where leaving is an available option (the exit option on the level of member states). In our view, the most problematic element of Kymlicka’s framework is this differentiation based on the length of membership. Choudhry questions the grounds for the distinction because the community-based arguments that apply to national and indigenous groups seem applicable to immigrant communities, and hence normative distinction is incoherent.Footnote ⁸² The problem of double standards is even more problematic in the case of EU member states: if we want to interfere on liberal multiculturalist grounds, strong and consistent reasons should be provided. In the European Union, distinctions between old member states and newcomers would undermine the legitimacy of liberal interference. How could sanctions in the name of inclusive values rest on rules that exclusively single out some states only because they joined later? The lost sense of fairness could undercut the effectiveness of the entire framework.

More considerations and examples could be added, but this brief overview should suffice to illustrate how insights from multiculturalist theories can help us conceptualize and operationalize the question of legitimate interference in cases of oppressive measures.