This article first offers an overview of the European Commission's Rule of Law Framework, which was adopted in March 2014. The mechanism's potential effectiveness and the Commission's reasoning to justify its first activation against Poland in January 2016, when it has failed to do so against Hungary, are subsequently analyzed. While the Commission should be commended for seeking to address increasing rule of law backsliding at Member State level, our main submission is that reliance on the Rule of Law Framework alone, if only because of its soft and discursive nature, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an ‘illiberal’ regime.

An open access repository of Middlesex University research http://eprints.mdx.ac.uk Kochenov, Dimitry and Pech, Laurent (2015) Monitoring and enforcement of the rule of law in the EU: rhetoric and reality. European Constitutional Law Review, 11 (3).

The story of citizenship as a tale not of liberation, dignity, and nationhood but of complacency, hypocrisy, and domination. The glorification of citizenship is a given in today's world, part of a civic narrative that invokes liberation, dignity, and nationhood. In reality, explains Dimitry Kochenov, citizenship is a story of complacency, hypocrisy, and domination, flattering to citizens and demeaning for noncitizens. In this volume in the MIT Press Essential Knowledge series, Kochenov explains the state of citizenship in the modern world. Kochenov offers a critical introduction to a subject most often regarded uncritically, describing what citizenship is, what it entails, how it came about, and how its role in the world has been changing. He examines four key elements of the concept: status, considering how and why the status of citizenship is extended, what function it serves, and who is left behind; rights, particularly the right to live and work in a state; duties, and what it means to be a “good citizen”; and politics, as enacted in the granting and enjoyment of citizenship. Citizenship promises to apply the attractive ideas of dignity, equality, and human worth—but to strictly separated groups of individuals. Those outside the separation aren't citizens as currently understood, and they do not belong. Citizenship, Kochenov warns, is too often a legal tool that justifies violence, humiliation, and exclusion.

Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. (1) There are no empirically observable duties of EU citizenship; (2) such duties would lack any legal-theoretical foundation, if the contrary were true; (3) legal-theoretical foundations of the duties of citizenship are lacking also at the Member State level; (4) EU law plays an important role in undermining the ability of the Member States where residual duties remain to enforce them; (5) this development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de-dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorising EU citizenship duties among the desiderata of EU law.

Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.