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Illiberalism Within: Rule of Law Backsliding in the EU

  • Laurent PECH (a1) and Kim Lane SCHEPPELE (a2)
Abstract

How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried.

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We are indebted to Kenneth Armstrong, Dimitry Kochenov, Israel Butler, Jan-Werner Müller, Daniel Kelemen, Tomasz Koncewicz, Gábor Halmai, Joelle Grogan and Agata Gostyńska-Jakubowska for their insightful comments on an earlier draft. This paper is current as of August 2017. The usual disclaimer applies.

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1 Answer given by First Vice-President Timmermans on behalf of the European Commission to the question for written answer submitted by Claude Rolin (PPE), E-009716-16, 12 April 2017.

2 Viktor Orbán, speech at the 28th Bálványos Summer Open University and Student Camp, 22 July 2017, Tusnádfürdő (Băile Tuşnad, Romania) https://visegradpost.com/en/2017/07/24/full-speech-of-v-orban-will-europe-belong-to-europeans/.

3 Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp, full text reproduced on the official website of the Hungarian government, 30 July 2014: http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-25th-balvanyos-summer-free-university-and-student-camp.

4 Ibid.

5 István Hegedus, co-founder of Hungary’s Fidesz party, quoted in M Fletcher, ‘Is Hungary the EU’s first rogue state? Viktor Orban and the long march from freedom’ (New Statesman, 1 August 2017) http://www.newstatesman.com/world/europe/2017/08/hungary-eus-first-rogue-state-viktor-orban-and-long-march-freedom. Bálint Magyar (former Hungarian minister of education), ‘The EU’s Mafia State’ (Project Syndicate, 21 June 2017) https://www.project-syndicate.org/commentary/orban-hungary-mafia-state-by-balint-magyar-2017-06#comments.

6 Resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)), para 9.

7 For further analysis, see D Kochenov, Busting the myths nuclear: A commentary on Article 7 TEU, EUI Working Paper LAW, 2017/10; Pech, L, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359 .

8 COM(2014) 158 final, A New EU Framework to Strengthen the Rule of Law.

9 See generally Kochenov, D, EU Enlargement and the Failure of Conditionality. Pre-accession Condititionality in the Fields of Democracy and the Rule of Law (Kluwer Law International, 2008). For a detailed account of the origins of Art 7, see Sadurski, W, ‘Adding Bite to Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider’ (2010) 16 Columbia Journal of European Law 385 .

10 COM(2003) 606 final, Communication on Article 7 of the Treaty on European Union. Respect for and promotion of the values on which the Union is founded, sec 1.1.

11 Puddington, A, Breaking Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians (Freedom House, June 2017), p 38 .

12 European Commission, ‘Readout by First Vice-President Timmermans of the College Meeting of 13 January 2016’, SPEECH/16/71.

13 P Sobczak and J Pawlak, ‘Poland’s Kaczynski calls EU democracy inquiry “an absolute comedy”’ (Reuters, 22 December 2016) http://www.reuters.com/article/us-poland-politics-kaczynski-democracy/polands-kaczynski-calls-eu-democracy-inquiry-an-absolute-comedy-idUSKBN14B1U5. Most recently, Kaczyński denounced the Commission’s ‘abuse’ of its powers and the political character of the Commission’s on-going monitoring of the rule of law situation in Poland on the grounds that judiciary ‘reforms’ would fall exclusively within national jurisdiction: ‘Poland’s Kaczynski says EU’s call to halt court reforms ‘political” (Reuters, 19 July 2017) http://www.reuters.com/article/us-poland-politics-judiciary-kaczynski-idUSKBN1A428S?il=0.

14 C(2017) 5320 final, Commission Recommendation of 26 July 2017 regarding the rule of law in Poland, para 58.

15 European Commission, European Commission acts to preserve the rule of law in Poland, Press Release IP/17/2161, Brussels, 26 July 2017.

16 Opinion 2/13 (EU Accession to the ECHR), EU:C:2014:2454, para 168. For an overview of the main normative arguments justifying a reinforced monitoring by the EU of its Member States, see Closa, C, ‘Reinforcing EU Monitoring of the Rule of Law’ in C Closa and D Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016).

17 The first laws to raise concern were media laws bringing all press outlets, whether public or private, broadcast, print or internet-based, under control of a media council that contained only members of the governing party. Statement by President Barroso at the press conference following the meeting of the European Commission with the Hungarian Presidency, SPEECH/11/4, 7 January 2011.

18 The Commission sent a warning letter to the Hungarian government on 12 January 2012, less than two weeks after the new constitution came into effect: ‘The European Commission sanctions Orbán’s Government’ (European Parliament in Action, 30 January 2011) http://europarliament.touteleurope.eu/follow/news/news-details/news/the-european-commission-sanctions-orbans-government.html; ‘European Commission warns Hungary over Central Bank independence’ (EurActiv, 21 December 2011) http://www.euractiv.com/section/central-europe/news/eu-warns-hungary-over-central-bank-independence; Commission v Hungary (judicial retirement age), 286/12, EU:C:2012:687; Commission v Hungary (data protection officer), 288/12, EU:C:2014:237.

19 V Reding, ‘The EU and the rule of law – what next?’ SPEECH/13/677, 4 September 2013. The former Justice Commissioner mentioned explicitly three countries in her speech: Romania, France and Hungary. For further analysis, see Kochenov, D and Pech, L, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11(3) European Constitutional Law Review 512 .

20 State of the Union Address, SPEECH13/684, 11 September 2013.

21 See eg European Commission, Turkey 2016 Report, Commission Staff Working Document, SWD(2016) 366 final, 9 November 2016, p 17: ‘There has been backsliding in the past year, in particular with regard to the independence of the judiciary.’

22 KL Scheppele, ‘The End of the End of HistoryUniversity of Toronto Law Review forthcoming. According to the European Commission’s Communication on a new EU Framework to strengthen the Rule of Law, COM(2014) 158 final/2, 19 March 2014, p. 4, other core sub-components of the rule of law include the principles of legality and legal certainty, the prohibition of arbitrariness of the executive powers, effective judicial review including respect for fundamental rights.

23 A Cooley, ‘The league of authoritarian gentlemen’ (Foreign Policy, 30 January 2013). See also J-W Müller, ‘Rising to the challenge of constitutional capture: Protecting the rule of law within EU member states’ (Eurozine, 21 March 2014) http://www.eurozine.com/rising-to-the-challenge-of-constitutional-capture; Scheppele, KLThe Migration of Anti-Constitutional Ideas: The Post-9/11 Globalization of Public Law and the International State of Emergency’ in S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2006).

24 Report by the Secretary General of the Council of Europe, State of Democracy, Human Rights and the Rule of Law, 2017, p 6.

25 As explained by Prof Jan-Werner Müller, ‘constitutional capture is different from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but it is also different from individual rights violations, grave as the latter might be. Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult’, ‘Rising to the challenge of constitutional capture’, note 23 above. For a more comprehensive account, see Müller, J-W, ‘Should the EU protect democracy and the rule of law inside Member States’ (2015) 21(2) European Law Journal 141 .

26 Sadly, this would mean a return to what was once a prevalent model in Eastern Europe: see eg Frentzel-Zagórska, J (ed), From a One-Party State to Democracy (Rodopi, vol 32, 1993).

27 O Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673; TG Daly, ‘Enough Complacency: Fighting Democratic Decay in 2017’ (International Journal of Constitutional Law Blog, 10 January 2017) http://www.iconnectblog.com/2017/01/enough-complacency-fighting-democratic-decay-in-2017-i-connect-column; A Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ (forthcoming) 65 UCLA Law Review, preprint: https://ssrn.com/abstract=2901776.

28 von Bogdandy, A and Ioannidis, MSystemic Deficiency in the Rule of Law: What is it, What has been done, What can be done’ (2014) 51 Common Market Law Review 59 .

29 Puddington, A, Breaking Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians (Freedom House, 2017), p 1 .

30 This section borrows from Kochenov and Pech, note 19 above.

31 K L Scheppele, ‘EU can still block Hungary’s veto on Polish sanctions’ (Politico, 11 January 2016) http://www.politico.eu/article/eu-can-still-block-hungarys-orban-veto-on-polish-pis-sanctions.

32 See eg H Foy et al, ‘Orban promises to veto any EU sanctions against Poland’ (Financial Times, 8 January 2016).

33 See Gormley, L W, ‘Infringement Proceedings’ in A Jakab and D Kochenov (eds), The Enforcement of EU Law and Values: Methods against Defiance (Oxford University Press, 2017), p 78 : ‘the likelihood of the Commission acting via the infringement proceedings route in relation to Article 2 TEU seems little more than zero’.

34 European Commission, European Commission closes infringement procedure on forced retirement of Hungarian judges, Press Release IP/13/1112, 20 November 2013.

35 European Commission, ‘Hungary: Commission takes legal action on Higher Education Law and sets record straight on ‘Stop Brussels’ consultation’ Daily News MEX/17/1116, 26 April 2017.

36 Council conclusions on fundamental rights and rule of law and on the Commission 2012 Report on the Application of the Charter of Fundamental Rights of the European Union, Justice and Home Affairs Council meeting, Luxembourg, 6 and 7 June 2013, para 9. This request would have most likely never seen the light of day if the Foreign Affairs Ministers of Denmark, Finland, Germany and the Netherlands had not sent a letter to the President of the Commission on 6 March 2013 in which they raised ‘the need to develop a new and more effective mechanism to safeguard fundamental values in the Member states’: European Parliament, Working Document I on the situation of fundamental rights in the European Union in 2012, LIBE Committee, Rapporteur: Louis Michel, PE514.668, 21 June 2013, p 4.

37 This section borrows from the following blog posts: L Pech and K L Scheppele, ‘Poland and the European Commission, Part I: Dialogue of the Deaf’ (Verfassungblog, 3 January 2017) http://verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogue-of-the-deaf/; ‘Part II: Hearing the Siren Song of the Rule of Law’ (Verfassungblog, 6 January 2017) http://verfassungsblog.de/poland-and-the-european-commission-part-ii-hearing-the-siren-song-of-the-rule-of-law/; ‘Part III: Requiem for the Rule of Law’ (Verfassungblog, 3 March 2017) http://verfassungsblog.de/poland-and-the-european-commission-part-iii-requiem-for-the-rule-of-law/.

38 European Commission, SPEECH/16/71, see note 12 above. When the new Law and Justice Party (PiS) government took office in October 2015, it nullified the election of constitutional judges by the prior parliament and substituted its own judges for theirs. The Constitutional Court declared the election of duplicate judges unconstitutional but the government refused to publish or acknowledge the ruling.

39 Ibid.

40 The Opinion was subsequently published following a request to obtain this document lodged by L Pech, ‘Commission Opinion on the rule of law in Poland’ (EU Law Analysis, 18 August 2016) http://eulawanalysis.blogspot.co.uk/2016/08/commission-opinion-of-1-june-2016.html.

41 European Commission, Recommendation of 27 July 2016 regarding the rule of law in Poland, C(2016) 5703 final.

42 Quoted in European Commission, Rule of Law: Commission issues recommendation to Poland, Press Release IP/16/2643, 27 July 2016.

43 J Cienski and M de la Baume, ‘Poland and Commission plan crisis talks’ (Politico, 30 May 2016) http://www.politico.eu/article/poland-and-commission-plan-crisis-talks/.

44 The fact that the Council of the EU accepted the Commission’s request to discuss ‘the state of play of its dialogue with Poland on the rule of law’ before emphasising ‘the importance of continuing the dialogue between the Commission and Poland’ suggest an implicit acceptance of the legality of the Commission’s Rule of Law Framework. See Council of the European Union, Outcome of the Council Meeting, 3536th Council Meeting, General Affairs, 16 May 2017, 9299/17, p 6.

45 Venice Commission, Poland – Opinion on the Act on the Constitutional Tribunal, 108 th Plenary session, CDL-AD(2016)026-e, Venice, 14–15 October 2016, para 128. The Venice Commission is not an EU body but is the Council of Europe’s advisory body on constitutional matters. The Venice Commission has the power to produce reports on its own initiative or at the request of the Council of Europe’s Committee of Ministers, Parliamentary Assembly, Congress of Local and Regional Authorities of Europe, Secretary General, or by a state or international organisation (eg the European Union) or body participating in the work of the Commission. As noted by Paul Craig, ‘liaison between the Venice Commission and the European Commission has been especially prominent in relation to rule of law problems that have arisen in EU countries, such as Hungary and Poland, while cooperation with OSCE/ODIHR is most common in the context of elections’: Craig, PTransnational Constitution-Making: The Contribution of the Venice Commission on Law and Democracy’ (2017) 2 UC Irvine Journal of International, Transnational, and Comparative Law 57, p 72 .

46 ‘What is going on in Poland is an attack against Democracy’ (Verfassungblog, 15 July 2016) http://verfassungsblog.de/what-is-going-on-in-poland-is-an-attack-against-democracy/. The judgments of the pre-captured Polish Constitutional Tribunal, that the Commission has repeatedly required Polish authorities to publish and implement, have since been expurgated from the Constitutional Tribunal’s database after the government finally captured the Court. See Ł Woźnicki, ‘Wyroki Trybunału Konstytucyjnego znikają jak u Orwella’ [Constitutional Court’s judgments disappear as in Orwell] (Gazeta Wyborcza, 16 May 2017), p 3.

47 Commission Recommendation 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Commission Recommendation 2016/1374 of 27 July 2016, C(2016) 8950 final, para 61.

48 Ibid para 25 et seq.

49 Ibid para 60.

50 Ibid para 69.

51 See eg ‘Statement of the Network of the Presidents of the Supreme Judicial Courts of the EU on the Situation in Poland’, http://network-presidents.eu/sites/default/files/StatementPoland.pdf; ‘Statement of the ENCJ Executive Board concerning judicial reforms in Poland’, Brussels, 26 April 2017, https://www.encj.eu/index.php?option=com_content&view=article&id=235%3Ajudicialreformspoland&catid=22%3Anews&lang=en; ‘OSCE/ODIHR, Final Opinion on draft amendments to the Act on the National Council of the Judiciary and certain other Acts of Poland’, 5 May 2017, para 13: ‘If adopted, the amendments could undermine the very foundations of a democratic society governed by the rule of law, which OSCE participating States have committed to respect as a prerequisite for achieving security, justice and stability.’

52 See eg T Koncewicz, ‘Constitutional Capture in Poland 2016 and Beyond: What is Next?’ (Verfassungblog, 19 December 2016) http://verfassungsblog.de/constitutional-capture-in-poland-2016-and-beyond-what-is-next/ and the joint ‘Statement by four former presidents of the Constitutional Tribunal: Marek Safjian, Jerzy Stępień, Bohdan Zdziennicki and Andrezej Zoll’ (Verfassungblog, 30 November 2016) http://verfassungsblog.de/statement-by-the-former-presidents-of-the-constitutional-tribunal-marek-safjan-jerzy-stepien-bohdan-zdziennicki-and-andrzej-zoll/.

53 Council of the EU, 3536th Council meeting, General Affairs, 9299/17, 16 May 2017.

54 Commission, Recommendation of 26 July 2017 regarding the rule of law in Poland, C(2017) 5320 final.

55 Ibid para 45(2).

56 Ibid para 45(1).

57 European Commission, Opening remarks of First Vice-President Frans Timmermans, ‘College readout on grave concerns about the clear risks for independence of the judiciary in Poland’, SPEECH/17/2084, 19 July 2017.

58 See Viktor Orbán’s speech at the 28th Bálványos Summer Open University and Student Camp, see note 2 above: ‘we must make it perfectly clear that a campaign of inquisition against Poland will never succeed, because Hungary will resort to all the legal mechanisms offered by the European Union in order to show its solidarity with the Polish people.’

59 Press release IP/17/2161, see note 15 above.

60 For further analysis, see Part V.B below.

61 For further analysis, see Part IV.B below.

62 Commission v Poland, C-441/17 R, EU:C:2017:622.

63 J Berendt, ‘Defying E.U. Court, Poland is cutting trees in an ancient forest’ (New York Times, 31 July 2017). According to a Court of Justice spokesperson, ‘the idea that the member state wouldn’t comply with a court order is unprecedented, and [so is] what the consequences would be’, cited in K Oroschakoff and W Kość, ‘Poland opens another front with Brussels over primeval forest’ (Politico, 9 August 2017).

64 The Commission acted quickly to initiate an infringement action when the Hungarian Parliament adopted a law that would have the effect of closing American-accredited Central European University, but did not expedite the process to allow its intervention to have any effect before the deadlines set in the law took effect. A new NGO law has just taken effect as we write, requiring NGOs to disclose foreign sources of funding. On 13 July 2017, the Commission decided to send a letter of formal notice to Hungary as this law would breach EU law and in particular the right to freedom of association enshrined in the EU Charter of Fundamental Rights and the rules governing the free movement of capital: European Commission, INFRINGEMENTS - Hungary: Commission launches infringement procedure for law on foreign-funded NGOs, Press Release IP/17/1982, 13 July 2017. See Part III.C for further analysis.

65 See eg the references given in the multiples resolutions adopted by the European Parliament and most recently, its resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)). For more comprehensive accounts, see also B Jávor (Green MEP), ‘Letter to Mr. Timmermans on the systemic threat to the rule of law in Hungary’ 5 May 2017, http://javorbenedek.hu/en/letter-to-mr-timmermans-on-the-systemic-threat-to-the-rule-of-law-in-hungary; FIDH (International Federation for Human Rights), ‘Hungary: Democracy under threat. Six years of attacks against the rule of law’ November 2016, no 684a, https://www.fidh.org/IMG/pdf/hungary_democracy_under_threat.pdf.

66 European Parliament resolution of 16 December 2015 on the situation in Hungary (2015/2935(RSP)), para F.

67 Ibid para 8.

68 Ibid para 5. The Parliament had enacted many previous resolutions with regard to the situation in Hungary, most ambitiously the ‘Tavares Report’, named after its rapporteur, which passed the European Parliament in July 2013. See European Parliament, Resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary, A7-0229/2013. This resolution concluded (para 57) ‘that the systemic and general trend of repeatedly modifying the constitutional and legal framework in very short time frames, and the content of such modifications, are incompatible with the values referred to in Article 2 TEU, Article 3, paragraph 1, and Article 6 TEU, and deviate from the principles referred to in Article 4, paragraph 3, TEU; [and the Parliament] considers that – unless corrected in a timely and adequate manner – this trend will result in a clear risk of a serious breach of the values referred to in Article 2 TEU’.

69 European Parliament, Question for oral answer to the Commission by Claude Moraes on behalf of the LIBE Committee (O-000140/2015): Situation in Hungary: follow-up to European Parliament resolution of 10 June 2015 (2015/2935(RSP)) (B8-1110/2015), Brussels, 2 December 2015.

70 Ibid.

71 European Parliament, Resolution of 16 December 2015 on the situation in Hungary (2015/2935(RSP)), para 7.

72 For a critique of the Lex CEU adopted on 4 April 2017, see G Halmai, ‘Legally sophisticated authoritarians: the Hungarian Lex CEU’ (Verfassungblog, 31 March 2017) http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu and Bard, P, The Open Society and Its Enemies: An Attack Against CEU, Academic Freedom and the Rule of Law (CEPS, April 2017) Policy Insights 2017/14. For a critique of the Lex NGO, see Venice Commission, Hungary – Opinion on the Draft Law on the Transparency of Organisations Receiving Support From Abroad, CDL-AD(2017)015-e, Strasbourg, 20 June 2017, the Law adopted on 13 June 2017 ‘will cause a disproportionate and unnecessary interference with the freedoms of association and expression, the right to privacy, and the prohibition of discrimination’ (para 68).

73 See eg Central European University, ‘Portuguese Parliament Unanimously Condemns Lex CEU’ (24 April 2017) https://www.ceu.edu/article/2017-04-24/portuguese-parliament-unanimously-condemns-lex-ceu; Council of Europe (PACE), Alarming Developments in Hungary: Draft NGO Law Restricting Civil Society and Possible Closure of the European Central University, Resolution 2162, 27 April 2017; US Department of State, Government of Hungary’s Legislation Impacting Central European University, Press Statement, 23 May 2017 (‘The United States again urges the Government of Hungary to suspend implementation of its amended higher education law, which places discriminatory, onerous requirements on U.S.-accredited institutions in Hungary and threatens academic freedom and independence’).

74 M de la Baume, ‘MEPs increasingly back kicking Viktor Orbán out of EPP’ (Politico, 27 April 2017) http://www.politico.eu/article/viktor-orban-europe-meps-increasingly-back-kicking-out-of-epp.

75 European Parliament resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)).

76 B Wieliński, interview with Timmermans, ‘Poland should be a leader in Europe – but it needs to cooperate’ (Euractiv, 22 May 2017). We might add that Timmermans’ optimism about the effects of the earlier infringement action can be met with evidence that shows that the vast majority of Hungarian judges were in fact removed from office and Fidesz-loyal judges substituted in their place. Once the infringement action was brought on age discrimination grounds, compensation of those adversely affected rather than their reinstatement became an adequate remedy. See KL Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures’ in Closa and Kochenov (eds), see note 16 above, p 105.

77 See P Gorondi, ‘Hungary sees no reason to change law affecting Soros school’ (US News, 25 May 2017) https://www.usnews.com/news/best-states/new-york/articles/2017-05-25/hungary-sees-no-reason-to-change-law-affecting-soros-school.

78 In a preliminary opinion issued on 11 August 2017, the Venice Commission regretted the lack of a ‘more transparent and inclusive legislative procedure’ with respect to the adoption of the Lex CEU and noted that ‘introducing more stringent rules without very strong reasons, coupled with strict deadlines and severe legal consequences, to foreign universities which are already established in Hungary and have been lawfully operating there for many years, appears highly problematic from the standpoint of rule of law and fundamental rights principles and guarantees’: Opinion 891/2017, Hungary – Preliminary Opinion on Act XXV of 4 April 2017, CDL-PI(2017)005, paras 120, 123. This Opinion was met with what has now become the inane default answer of any member or official associated with Hungary’s ruling party when faced with external criticism. See eg ‘Governing Fidesz says some in Venice Commission sponsored by Soros’ (Daily News, 13 August 2017) https://dailynewshungary.com/governing-fidesz-says-venice-commission-sponsored-soros/ (citing the parliamentary group leader of the Fidesz party).

79 A Batory, ‘Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU’ (2016) 94(3) Public Administration 685.

80 N Nielsen, ‘EU commissioner tells Hungarians to resist Orban’ (euobserver, 10 April 2017) https://euobserver.com/justice/137559.

81 Wieliński, see note 76 above. European Commission, Opening remarks of First Vice-President Frans Timmermans in the European Parliament debate on Hungary, SPEECH/17/1118, 26 April 2017: ‘We also considered that given the wider situation … a broader political dialogue between the Hungarian authorities, other Member States, and the European Parliament and the Commission should take place.’ This speech includes no less than ten references to the need for or the benefits of a ‘dialogue’.

82 One irony of the Commission’s infringement actions against Hungary is that the Commission was able to ensure that Hungarian judges were protected in the future from unexpected changes in their collective terms of employment but the benefits went to the judges that Orbán’s team had handpicked for office. In short, the infringement action resulted not in Orbán’s judges being removed and the previously independent judges reinstated, but instead in Orbán’s judges becoming more entrenched in office. See KL Scheppele, ‘Making infringement procedures more effective: A comment on Commission v. Hungary, Case C-288/12 (8 April 2014) (Grand Chamber)’ (eutopia law, 29 April 2014) http://eutopialaw.com/2014/04/29/making-infringement-procedures-more-effective-a-comment-on-commission-v-hungary-case-c-28812-8-april-2014-grand-chamber.

83 See eg C Keszthelyi, ‘Hungary counts on Poland veto, won’t backtrack’ (Budapest Business Journal, 23 May 2017) https://bbj.hu/politics/hungary-counts-on-poland-veto-wont-backtrack_133253; H Foy et al, ‘Orban promises to veto any EU sanctions against Poland’ (Financial Times, 8 January 2016).

84 M Matthijs and D Kelemen, ‘Europe Reborn: How to Save the EU from Irrelevance’ (2015) 94 Foreign Affairs 96; interview with R Tavares and KL Scheppele, ‘The Rule of Law Challenge in Europe: From Hungary to Poland’ (European Green Journal, 23 January 2016) https://www.greeneuropeanjournal.eu/the-rule-of-law-challenge-in-europe-from-hungary-to-poland/.

85 For an overview of the additional factors which may explain why the Commission ‘seems to be treating the Polish government more harshly than the Hungarian one’, see also A Gostyńska-Jakubowska, ‘Poland: Europe’s new enfant terrible?’ (CER Bulletin, 22 January 2016) http://www.cer.eu/publications/archive/bulletin-article/2016/poland-europes-new-enfant-terrible.

86 European Parliament, Resolution of 16 December 2015 on the situation in Hungary (2015/2935(RSP)).

87 Council of the EU, 3362nd Council meeting, General Affairs, Press Release 16936/14, 16 December 2014.

88 Legal Service, Council of the European Union, Opinion on the Commission’s proposed Framework on the Rule of Law of 27 May 2014 (10296/14). As noted by Kochenov and Pech, Article 7 ‘already implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis’ with the Commission saying explicitly as much ‘in 2003 in its Communication on Article 7 TEU without the Council expressing any objection then’, note 19 above, pp 529–530. For similarly strong critiques of this opinion, which has since been referred to by the Polish government to argue that the Commission is acting ultra vires, see also P Oliver and J Stefanelli, ‘Strengthening the Rule of Law in the EU: The Council’s Inaction’ (2016) 54(5) Journal of Common Market Studies 1075; L Besselink, ‘The Bite, the Bark and the Howl: Article 7 TEU and the Rule of Law Initiatives’ in Jakab and Kochenov (eds), see note 33 above, p 136 et seq.

89 See Final Report of the Future of Europe Group, 17 September 2012. Ironically, Poland was one of the 11 signatories of the so-called Westerwelle Report.

90 Reuters, ‘Poland crisis: Donald Tusk calls for respect of people and constitution’ (The Guardian, 17 December 2016).

91 See eg Editorial Comments, ‘Fundamental Rights and EU Membership: Do As I Say, Not As I Do!’ (2012) 49 Common Market Law Review 481. Arguably, the Council of Europe was supposed to prevent and remedy any eventual problems arising post EU accession. For a recent book offering a comprehensive overview of the pivotal role played by the Council of Europe in the promotion and protection of human rights, democracy and the rule of law, see Schmahl, S and Breuer, M, The Council of Europe. Its Law and Policies (Oxford University Press, 2016).

92 Amnesty International, EU: Commission’s action to stand up for rights of people in Poland must be backed by European States, Press release, 21 December 2016, http://www.amnesty.eu/en/news/press-releases/all/eu-commission-s-action-to-stand-up-for-rights-of-people-in-poland-must-be-backed-by-european-st-1013/#.WGC9nWSLRhC.

93 D Robinson, ‘EU ministers hit out at Poland over judicial reforms’ (Financial Times, 16 May 2017).

94 Ibid.

95 The adoption of the so-called Tavares report (see resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary) was preceded by the Resolutions of 16 February 2012 on the recent political developments in Hungary and of 10 March 2011 on media law in Hungary.

96 European Parliament, Resolution of 10 March 2011 on media law in Hungary, P7_TA(2011)0094; Resolution of 5 July 2011 on the Revised Hungarian Constitution, P7_TA(2011)0315; Resolution of 16 February 2012 on recent political developments in Hungary, P7_TA(2012)0053.

97 Various statements coming from the Commission indicated that individual Commissioners may have been involved in backstage negotiations with the Hungarian government during this period, but external observers still reasonably interpreted the absence of a public commitment to bringing Hungary back to the rule of law as a lack of concern for the problem. The Council’s silence, however, masked no backstage efforts to address the Hungarian problem, as far as we can tell. For an overview of the European Parliament’s role and initiatives in this area, see J Sargentini and A Dimitrovs, ‘The European Parliament’s Role: Towards New Copenhagen Criteria for Existing Member States?’ (2016) 54(5) Journal of Common Market Studies 1085. In July 2017, Judith Sargentini was appointed rapporteur for the European Parliament’s investigation into whether Art 7(1) TEU should be triggered against Hungary.

98 See Resolutions of 16 December and 10 June 2015 on the situation in Hungary.

99 Resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)).

100 For an academic analysis that shows how party loyalties can blunt moves to sanction autocratic regimes within the EU, see Kelemen, D, ‘Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union’ (2017) 52(2) Government and Opposition 211 , p 225: ‘the majority of EPP members and the party leadership have repeatedly undermined the efforts of EU institutions to censure the Orbán regime.’ On party politics as one of the key obstacles to the triggering of Art 7, see also U Sedelmeier, Protecting democracy inside the European Union? The party politics of sanctioning democratic backsliding in the European Parliament (MAXCAP, July 2016) Working Paper 27.

101 The resolution was adopted by 393 votes against 221, with 64 abstentions. The resolution was opposed by the 11 Fidesz MEPs as well as most EPP MEPs from Germany (including Manfred Weber, the Chair of the EPP group), Spain, Italy, Romania and other countries, for a total of 93 EPP votes against the resolution. Overall, however, a majority of EPP members either voted in favour of the resolution (67) or abstained (40).

102 ‘Hungary’s Orban has to change behaviour: EU center-right’, (Reuters, 29 April 2017: http://www.srnnews.com/hungarys-orban-has-to-change-behavior-eu-center-right-2.

103 Most recently, the Hungarian Prime Minister went as far as accusing the EU of siding with ‘terrorists’: see Z Simon, ‘Hungary’s Orban accuses EU as Bloc said to ready refugee probes’ (Bloomberg, 12 June 2017: https://www.bloomberg.com/news/articles/2017-06-12/hungary-s-orban-rails-against-eu-but-says-he-doesn-t-back-exit.

104 According to an unnamed EPP official, losing Fidesz MEPs ‘would be a “wound” to the group’ considering their loyalty and voting record, cited in M de la Baume and R Heath, ‘Center-right’s angry at Orbán, but won’t kick him out’ (Politico, 6 April 2017). See also T King, ‘Ties that bind Hungary’s Fidesz and European Parliament’ (Politico, 7 April 2017), ‘By crudely tying the appointment of the Commission president to the European Parliament elections, the European Council has given Europe’s bigger political groups a perverse incentive to sign up national parties of dubious ideology and/or practice to their ranks, and to keep them signed up, no matter their behavior.’

105 van Hüllen, V and Börzel, T, The EU’s Governance Transfer. From External Promotion to Internal Protection? (SFB 700, 2013)

Governance Working Paper 56, p 22. See also M Meijers and H van der Veer, ‘Hungary’s government is increasingly autocratic. What is the European Parliament doing about it?’ (Washington Post, 3 May 2017) (having examined 1,634 written parliamentary questions from April 2010 until January 2017, the authors argue that the EPP has sought to keep Hungary’s democratic backsliding off the agenda and that radical rights parties similarly kept quiet on this issue).

106 F Eder, ‘Jean-Claude Juncker, upbeat and ready for a fight’ (Politico, 3 August 2017), ‘Asked about the difference between dealing with the Polish leadership and Hungary’s Prime Minister Viktor Orbán, Juncker said: “Well, I’ve got a caring relationship with Orbán. We talk regularly, I see him regularly — even if it’s not always made public — because I think I do not want to lose Hungary.” He didn’t make the same pledge about Poland, or even mention it’.

107 For an overview of the proposals made before the adoption of the Rule of Law Framework in 2014, see Kochenov and Pech, note 19 above, p 526. See also the proposals mentioned in the European Parliament resolution of 25 October 2016 on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), and which can be summarised as follows: Art 2 TEU and the EU Charter to become a legal basis for legislative measures; national courts to gain jurisdiction bring proceedings relating to the legality of Member States’ actions on the same basis; revision of Art 7 TEU; one-third of MEPs to gain the right to refer EU legislation to the Court of Justice; revision of legal standing rules for natural and legal persons under Art 263 TFEU in situations where they allege violations of the EU Charter; abolition of Art 51 of the Charter to transform EU Charter into a proper federal Bill of Rights; revision of the unanimity requirement when it comes to adopting legislation in areas relating to fundamental rights.

108 European Parliament, Resolution of 25 October 2016, ibid, para. 1.

109 The proposal to involve a new expert body is not without recalling the proposal to set up a ‘Systemic Deficiency Committee’ made by A von Bogdandy et al, ‘Protecting EU values’ in Jakab and Kochenov (eds), see note 33 above, p 228 et seq. In this instance, the DRF Expert Panel is to be composed of one qualified constitutional court or supreme court judge not currently in active service designated by the national parliament of each Member State and ten further experts appointed by the European Parliament chosen from a list of experts nominated by: (1) the federation of All European Academies (ALLEA); (2) the European Network of National Human Rights Institutions (ENNHRI); (3) the Council of Europe, including the Venice Commission, the Group of States Against Corruption (GRECO) and the Council of Europe Human Rights Commissioner; (4) the European Commission for the Efficiency of Justice (CEPEJ) and the Council of Bars and Law Societies of Europe (CCBE); and (5) the UN, the Organization for Security and Co-operation in Europe (OSCE) and the Organisation for Economic Co-operation and Development (OECD).

110 Report with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), LIBE Committee, Rapporteur: Sophie in ‘t Veld, A8-0283/2016, 10 October 2016.

111 See Pech, L et al, An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights: Annex I (European Parliamentary Research Service, April 2016) Study PE 579.328; P Bárd et al, An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights: Annex II (EPRS, April 2016) Study PE 579.328. Prof Dimitry Kochenov, a frequent co-author of ours, was also involved in drafting Annex II. According to the European Parliamentary Research Service (EPRS) itself, the root causes of the gap between the proclamation of Art 2 values and actual compliance by EU institutions and Member States are to be found in certain weaknesses in the existing EU legal and policy framework: see van Ballegooij, W and Evas, T, An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights, European Added Value Assessment (EPRS, October 2016) In-Depth Analysis PE 579.328.

112 European Parliament, Resolution of 25 October 2016, note 107 above, para. 10. The idea of systemic infringement action was first made by one of us: see Scheppele, note 76 above, p 105. The use of systemic infringement actions was one of the six main recommendations of a European Parliament (EPRS study), Pech et al (Annex I), ibid, p 135. See also European Parliament, Resolution of 25 October 2016, note 107 above, para 17; this also reflects another recommendation made in Annex I, ibid, p 152.

113 European Commission, Follow up to the European Parliament resolution on with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, SP(2017)16, 17 February 2017.

114 Bárd, P and Carrera, S, The Commission’s Decision on ‘Less EU’ in Safeguarding the Rule of Law: A Play in Four Acts (CEPS, March 2017) Policy Insights 2017/08.

115 European Commission, Commission opens infringement procedure against Hungary concerning its asylum law, Press Release IP/15/6228, 10 December 2015. The new complementary notice includes new allegations in the area of asylum and immigration policy that involve several provisions of the Charter of Fundamental Rights. See European Commission, Asylum: Commission follows up on infringement procedure against Hungary concerning its asylum law, May infringements package – Part 1: key decisions, Memo/17/1280, 17 May 2017.

116 Scheppele, see note 82 above; see also Dawson, M and Muir, E, ‘Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law’ (2013) 14 German Law Journal 1960 .

117 Kochenov, D, ‘Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make it a Viable Rule of Law Enforcement Tool’ (2016) 15(7) Hague Journal on the Rule of Law 153 .

118 The Network of the Presidents of the Supreme Judicial Courts of the EU has recently recalled that ‘co-operation in the field of justice is largely based on mutual trust in the administration of justice within the European Union’ and expressed its concern ‘that the interferences by the Polish authorities will not only have the effect of undermining the rule of law, but also mutual trust in the administration of justice’. See Statement of the Network of the Presidents of the Supreme Judicial Courts of the EU on the Situation in Poland, http://network-presidents.eu/sites/default/files/StatementPoland.pdf.

119 As previously noted and in a welcome move, the Commission has recently and for the first time noted a possible direct breach of the independence of Polish courts by reference to Art 19(1) TEU in combination with Art 47 of the EU Charter in the context of an infringement action aimed at the law on the organisation of ordinary courts: European Commission, European Commission launches infringement against Poland over measures affecting the judiciary’ Press Release IP/17/2205, 29 July 2017.

120 Halberstam, D, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) 16(1) German Law Journal 105, p 131 .

121 See NS and ME, Joined Cases C-411/10 and C-493/ME, EU:C:2011:865 (EU law precludes a conclusive presumption that Member States observe the fundamental rights conferred on asylum seekers) and more recently, Aranyosi and Căldăraru, Joined Cases C-404/15 and C-659/15 PPU, EU:C:2016:198 (where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be for instance systemic or generalised, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Art 4 of the Charter, in the event of his surrender to that Member State). For the argument that the Court of Justice’s case law would already empower if not oblige national courts to generally review compliance with EU fundamental rights law in other EU countries and suspend cooperation in cases of systemic violation of core European fundamental rights, see Canor, I, ‘ My Brother’s Keeper? Horizontal Solange: “An ever closer distrust among the peoples of Europe”’ (2013) 50 Common Market Law Review 383 .

122 Commission, Recommendation of 26 July 2017, note 54 above, paras 12, 45(2).

123 D Sarmiento, ‘The Polish Dilemma’ (Despite our Differences Blog, 17 July 2017) https://despiteourdifferencesblog.wordpress.com.

124 Venice Commission, Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, Opinion 663/2012, CDL-AD(2012)001; Venice Commission, Opinion on the Cardinal Acts on the Judiciary that were Amended following the Adoption of Opinion CDL-AD(2012)001, Opinion 683/2012, CDL-AD(2012)020; International Bar Association’s Human Rights Initiative (IBAHRI), Courting Controversy: The Impact of Recent Reforms on the Independence of the Judiciary and the Rule of Law in Hungary, Report September 2012, http://www.ibanet.org/Article/Detail.aspx?ArticleUid=f95a6bf2-99cf-42c8-9c24-d3b7a531207c; IBAHRI, Still Under Threat: The Independence of the Judiciary in Hungary, Report October 2015, http://www.ibanet.org/Document/Default.aspx?DocumentUid=a00b5f64-4b05-4b25-81c6-5e507c45cc74.

125 In what may be a pure coincidence, in a recent article, the current President of the Court of Justice strongly emphasised that while the principle of mutual trust should be understood as a constitutional one, it is by no means absolute and should not be confused with ‘blind trust’ as mutual trust needs to be ‘earned’ by each Member State through effective compliance with EU fundamental rights standards. See Lenaerts, K, ‘La vie après l’avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54(3) Common Market Law Review 805 .

126 For a critical overview of this suggestion pointing out that financial penalties tend not to improve compliance and, because they are linked to a Member State’s ability to pay, also tend not to be sufficiently significant to result in compliance especially when considering what would be at stake for would-be-authoritarians, see Kochenov, D, ‘On Policing Article 2 TEU Compliance – Reverse Solange and Systemic Infringements Analysed’ (2013) 33 Polish Yearbook of International Law 145, pp 167168 .

127 See eg H Foy and E Huber, ‘Polish pension U-turn alarms economics but cheers voters’ (Financial Times, 3 December 2016).

128 Orbán gained tremendous popularity by cutting utility rates before the 2014 election but after the election, the Commission decided that these rate cuts were not consistent with EU energy policy. E Balogh, ‘A New Crusade in Brussels over the Price of Electricity’ (Hungarian Spectrum, 3 December 2016).

129 For the argument that Regulation No 1303/2013, which governs multiple EU schemes providing financial support under the EU cohesion policy, would necessarily imply independent national courts in the absence of which the Commission would be entitled to suspend EU funding, see I Butler, ‘To halt Poland’s PiS, go for the Euros’ (Liberties, 2 August 2017) https://www.liberties.eu/en/news/to-halt-polands-pis-go-for-euros.

130 P Taylor, ‘For EU, Poland is not yet lost’ (Politico, 23 November 2016) http://www.politico.eu/article/for-eu-poland-is-not-lost-yet-jaroslaw-kaczynski-sanctions.

131 This might be less effective in Hungary where the national government removed the autonomy of local governments in the massive constitutional reform of 2011–12.

132 See the proposal for a new EU funding instrument modelled on the European Instrument for Democracy and Human Rights and the European Endowment for Democracy made in report commissioned by the European Parliament: Pech et al (Annex I), see note 111 above, pp 152–153.

133 M Meyer-Resende, ‘How to fix Europe’s ‘rule of law’ blindspot’ (Politico, 12 June 2017) http://www.politico.eu/article/how-to-fix-europe-rule-of-law-blindspot-poland-hungary-democratic-decline/. For an instructive overview of the rise of spending conditionality in EU internal policies in the 2014–20 budgetary period and the argument that ‘the influx of conditionality in the EU internal budgetary process suggests a paradigm shift towards a conditional solidarity, contingent upon Member States’ continuous performance under the treaties’, see V Viţă , ‘Revisiting the Dominant Discourse on Conditionality in the EU: The Case of EU Spending Conditionality’, (2017) 19 Cambridge Yearbook of European Legal Studies, published online 9 August, https://doi.org/10.1017/cel.2017.4.

134 ‘10 years of the EU Fundamental Rights Agency: a call to action in defence of fundamental rights, democracy and the rule of law’, SPEECH/17/403, 28 February 2017.

135 See eg the European Structural and Investments Funds data: https://cohesiondata.ec.europa.eu/. Poland has for instance been allocated ESIF funding of €86 billion representing an average of €2,265 per person over the period 2014–20.

136 M Becker, ‘Democracy in Europe. EU Commissioner Pushes for Hard Line on Poland’ (Spiegel Online, 7 March 2017) http://www.spiegel.de/international/europe/eu-commissioner-pushes-for-hard-line-on-poland-a-1137672-druck.html.

137 F Eder, ‘Berlin looks into freezing funds for EU rule-breakers’ (Politico, 30 May 2017) http://www.politico.eu/article/poland-rule-of-law-europe-germany-berlin-looks-into-freezing-funds-for-eu-rule-breakers/; E Maurice, ‘Commission hints at political conditions for EU funds’ (euobserver, 30 May 2017) https://euobserver.com/institutional/138063.

138 One should however note that the adoption of the EU’s multiannual financial framework requires the unanimous agreement of the Council (Art 312 TFEU). When it comes however to the definition of the tasks, priority objectives and the organization of the EU structural funds, the ordinary legislative procedure applies (Art 177 TFEU).

139 M Steinbeis, ‘The hand on the faucet’ (Verfassungblog, 3 June 2017) http://verfassungsblog.de/the-hand-on-the-faucet/. To this criticism, one might respond that systemic infringement actions followed by fines paid for by state treasuries are still available.

140 See scenario 3 ‘Those Who Want More Do More’ in European Commission, White paper on the future of Europe – Reflections and scenarios for the EU27 by 2025, COM(2017)2025, 1 March 2017. European Commission, Reflection paper on the deepening of the economic and monetary union, COM(2017)291, 31 May 2017. To reinforce the democratic accountability and effective governance of the EMU, the report suggests among other things the institutionalisation of the Eurogroup and the setting up of a Euro area Treasury and a European Monetary Fund. One may note in passing that this reflection paper also suggests the strengthening of the link between policy reforms and the EU budget to foster convergence by making inter alia the disbursement of EU structural and investment funds conditional on progress in implementing concrete reforms in areas such as public administration and the judicial system via the European Semester.

141 I Krastev, ‘Central Europe’s Tough Choice: Macron or Orban?’ (European Council on Foreign Relations, 23 June 2017) http://www.ecfr.eu/article/commentary_central_europes_tough_choice_macron_or_orban_7303.

142 Magyar, see note 5 above.

143 M Verrier, ‘“Je ne poursuivrai pas l’Europe comme elle est”, affirme Emmanuel Macron’ (La Voix du Nord, 27 April 2017) http://www.lavoixdunord.fr/154291/article/2017-04-27/je-ne-poursuivrai-pas-l-europe-comme-elle-est-affirme-emmanuel-macron#

144 Ibid.

145 European Commission, Relocation and resettlement: Commission calls on all Member States to deliver and meet obligations, Press Release, IP/17/1302, 16 May 2017. The Commission’s twelfth report on relocation and resettlement explicitly singles out Poland and Hungary: ‘Hungary and Poland should start pledging and relocating immediately, while the Czech Republic should start pledging and relocating again without delay’, COM(2017) 260 Final, p 4. And the Commission has filed a commentary infringement action against Hungary for its asylum policy: Commission follows up on infringement procedure against Hungary concerning its asylum law, MEMO/17/1280, http://europa.eu/rapid/press-release_MEMO-17-1280_en.htm.

146 J-C Juncker, State of the Union Address 2017, Brussels, SPEECH/17/3165, 13 September 2017.

147 J-C Juncker and F Timmermans, State of the Union 2017: Letter of intent to President Antonio Tajani and to Prime Minister Jüri Ratas, Strasbourg, 13 September 2017.

* We are indebted to Kenneth Armstrong, Dimitry Kochenov, Israel Butler, Jan-Werner Müller, Daniel Kelemen, Tomasz Koncewicz, Gábor Halmai, Joelle Grogan and Agata Gostyńska-Jakubowska for their insightful comments on an earlier draft. This paper is current as of August 2017. The usual disclaimer applies.

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Cambridge Yearbook of European Legal Studies
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