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.

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.

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This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.

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