Safeguarding the Rule of Law by means of Infringement Procedures?

Dr. Lisa H. Anders
Mrs. Sonja Priebus

A growing body of literature discusses the EU’s political and legal instruments to counter rule of law backsliding in its Member States. This paper focuses on the most prominent legal tool, namely the infringement procedure. While scholars agree that this tool alone cannot stop backsliding tendencies, they disagree on its actual effects in rule of law-related cases: Some argue that, if deployed wisely, these procedures can creatively contribute to tackling rule of law problems in EU Member States. Others contend that they result in symbolic compliance at best and might even strengthen backsliding governments if they succeed in framing them as an illegitimate interference into domestic politics. Up until now, however, we lack systematic empirical studies on the concrete effects of rule of law-related infringement procedures. In order to close this gap, we qualitatively analyse all seven rule of law-related infringement procedures launched against Hungary since 2010. We firstly examine the legal basis the Commission used to launch these proceedings as well as the government’s reactions to the Commission’s requirements. We secondly analyse how the government framed the rule of law-related infringement procedures in its public communication. We demonstrate that in some of the cases the Commission was at least successful in legal terms, even though it was indeed unable to remedy the underlying rule of law problem. We furthermore show the increasingly confrontational stance of the Hungarian government. While in early procedures the government seemed eager to cooperate with the Commission, by now it fundamentally rejects rule of law-related criticism from Brussels and publicly frames the procedures as politically motivated, illegitimate attacks against the Hungarian people, rejecting any changes to the criticized laws. We therefore conclude by discussing the implications of our findings as well as alternative avenues to counter illiberal backsliding in EU Member States.