Enforcement of a Formal Conception of the Rule of Law as a Potential Way Forward to Address Backsliding: Hungary as a Case Study

Abstract

The rule of law as a foundational value of European integration has been taken for granted in the Member States, along the presumption that “once a democracy, always a democracy”. This optimistic presumption proved to be wrong, when in the 2010s a top-down and systemic decline in the rule of law started, first in Hungary, then in Poland. Even though EU action against rule of law backsliding in the Member States is of existential importance for the whole European project, EU institutions seem to be either silent or too slow and inefficient when tackling the problem. In this paper we are focusing on the Court of Justice of the EU, which was emphasizing violations of a substantive understanding of the rule of law. Against this background we argue that adherence to a formal understanding or at the minimum incorporating arguments related to a formal concept of the rule of law would have been beneficial both in terms of speed and desired effect. Taking Hungary as an example we show that the lack of preliminary consultations and impact assessments during lawmaking, the enactment of significant legislative reforms in accelerated procedures without any adequate justification, the adoption of ad hominem laws, or the unclarity and unpredictability of legislation are all manifest violations of the formal understanding of the rule of law. There is significant potential in this approach that we believe the EU institutions have not exploited fully.