In a forthcoming paper for the Polish Yearbook of International Law (2019), Dimitry Kochenov addresses the present rule of law situation in both Poland and Hungary vis-à-vis Treaty on European Union (TEU) Article 7. These are cases of interest to this project, as examples where we seek to understand related questions on their (anti?) constitutional character, and the extent to which populist moments in these places may illustrate, or even signify, broader (global?) developments.
Entitled ‘Article 7: A Commentary on a Much Talked-about “Dead” Provision’, Kochenov sheds light on that (alleged) demise – pointing to the growing body of Article 7 literature (see note 9 of the article, for example), and observing that:
The inventiveness of the autocrats, populist voting, and the weakness of the EU’s track record and current position on values are no doubt among the large variety of factors that have produced a previously unimaginable situation; whereby the EU harbours Member States which, besides obviously not qualifying for Union membership if they were to apply today (even the EU’s usual “window dressing” of rule of law conditionality notwithstanding) are working hard to undermine key principles the EU was created to safeguard and promote: democracy, the rule of law, and the protection of fundamental rights.Dimitry Kochenov
The article is a highly informative snapshot of where things stand and what scholars have had to say about it so far, accessible even for those of us not rooted in the politics of Europe.
However, the nub of the article is that Kochenov does not see a positive result coming from Article 7 initiatives:
… it is unfortunately beyond any doubt that the Commission’s move to activate 7(1) TEU against Poland in 2018 will not result in any positive change on the ground in Poland. The Hungarian case is in no way different.
In finding a response to the situations in Poland and Hungary, he instead concludes (in part) that ‘Three scenarios of possible action emerge in this context, all of them unrelated to Art. 7 TEU.’
Well worth a read, the paper is available in advance from SSRN. A French language version appeared in Revue des affaires européens (2019/1, dossier sur l’État de droit, A. Iliopouou-Penot (ed.)).
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