The Luxembourg Court v. Populist Judicial Reforms: Direct and Indirect Strategies of Countering Democratic Erosion Judicially

The ECJ is seen as a crucial actor in countering the populist assaults on judicial independence in Eastern Europe. However, some voices doubt that the ECJ’s technocratic approach can resolve the issues. This paper provides a more nuanced account of the ECJ’s contribution to countering democratic erosion and distinguishes the direct and indirect anti-erosion strategies. In the direct strategy, the ECJ aims to overturn the problematic policy immediately. While potentially highly effective, this strategy has significant legitimacy costs for the ECJ, may have unintended consequences and rests on contingent social and political factors. The indirect strategy sees the ECJ entangled in a complex web of actors participating in an open-ended process of countering democratic erosion. In the indirect scenario, the ECJ’s judgments may not be the direct triggers of change, but still function as resources for a broader anti-erosion community in political battles for the rule of law.