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Defining and Operationalising Defiant Non‐Compliance in the EU: The Rule of Law Case

October 2024
JCMS Journal of Common Market Studies 63(3)

DOI:10.1111/jcms.13676

License
CC BY 4.0

Authors:

Carlos Closa

Spanish National Research Council

Gisela Hernández González

Spanish National Research Council

Existing literature often attributes non‐compliance to either a lack of resources or implementation costs. However, the rule of law crises in Hungary and Poland present a different picture: a deliberate strategy aimed at not complying with EU enforcement actions. This article differentiates this model from previous ones and terms it ‘defiant non‐compliance’, which is characterised by four types of domestic actions (ignoring the Commission's recommendations and warnings; not complying with Court of Justice of the EU (CJEU) rulings; questioning the role of the CJEU as the sole final interpreter of EU law; and impeding national courts' right to raise preliminary questions). A defiant rhetoric questioning the authority and legitimacy of the enforcing authorities accompanies these actions. The article distils defiant non‐compliance by systematising empirical evidence on these governments' reactions to EU enforcement. This model of non‐compliance severely threatens the foundations of the EU, as it erodes the notion of a community of law‐abiding member states' governments.

Defiant Statements on EU RoL Enforcement, by Country (2013 to 2022). [Colour figure can be viewed at wileyonlinelibrary.com]

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Defiant Statements on EU RoL Enforcement, by Category of Non-Complying Behaviour, by Country (2013 to 2022). [Colour figure can be viewed at wileyonlinelibrary.com]

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Defiant Statements Made by the Hungarian Government on the EU RoL Enforcement by European Institution Challenged and Year (2013 to 2022). [Colour figure can be viewed at wileyonlinelibrary.com]

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Defiant Statements Made by the Polish Government on the EU RoL Enforcement by European Institution Challenged and Year (2013 to 2022). [Colour figure can be viewed at wileyonlinelibrary.com]

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Cases in Which the Hungarian and Polish Governments Have Not Complied With CJEU Rulings.

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Figures - uploaded by Carlos Closa

Content may be subject to copyright.

Content uploaded by Carlos Closa

Content may be subject to copyright.

Deﬁning and Operationalising Deﬁant Non-Compliance in the

EU: The Rule of Law Case

CARLOS CLOSA

and GISELA HERNÁNDEZ

1,2

Institute of Public Goods and Policies, Spanish National Research Council (IPP-CSIC)

PhD School, Universidad Autónoma de Madrid

(UAM), Madrid

Abstract

Existing literature often attributes non-compliance to either a lack of resources or implementation

costs. However, the rule of law crises in Hungary and Poland present a different picture: a delib-

erate strategy aimed at not complying with EU enforcement actions. This article differentiates this

model from previous ones and terms it ‘deﬁant non-compliance’, which is characterised by four

types of domestic actions (ignoring the Commission’s recommendations and warnings; not com-

plying with Court of Justice of the EU (CJEU) rulings; questioning the role of the CJEU as the sole

ﬁnal interpreter of EU law; and impeding national courts’right to raise preliminary questions). A

deﬁant rhetoric questioning the authority and legitimacy of the enforcing authorities accompanies

these actions. The article distils deﬁant non-compliance by systematising empirical evidence on

these governments’reactions to EU enforcement. This model of non-compliance severely

threatens the foundations of the EU, as it erodes the notion of a community of law-abiding member

states’governments.

Keywords: deﬁance; Hungary; non-compliance; Poland; rule of law

Introduction

The rule of law (RoL) crisis in Poland and Hungary has proven to be a profound existen-

tial threat to the EU. Since 2010 and 2015, respectively, the Fidesz-Hungarian Civic Al-

liance (Fidesz) and Polish Law and Justice (PiS) governments (the latter until the end of

2023) have engaged in a concerted effort to backslide on their liberal democratic regimes,

inevitably leading to a clash with EU norms and values. EU enforcement actions have had

little effect on compelling the member states’governments to return to compliance.

Worse, national authorities in these backsliding states have openly challenged the EU’s

authority, including validly enacted laws and the obligation to comply. Whilst

non-compliance has not been uncommon throughout EU’s history (European Commis-

sion, 1984–2022), the speciﬁc characteristics of non-compliance in RoL-related issues

represent an existential and distinctive challenge to the EU project (Coman, 2022, p. 271).

This article thus introduces and deﬁnes the notion of ‘deﬁant non-compliance’as a dis-

tinctive type of non-compliance. Whilst other types of non-compliance do not aim at dis-

solving the very foundations of the EU’s functioning (i.e., national governments’volun-

tary compliance with EU law), deﬁant non-compliance regarding the RoL directly erodes

the underpinning of the EU as a community of law. Deﬁant non-compliance is a distinct

modality that not only involves a deliberate and overt strategy of non-compliance with

EU rules but also represents an explicit challenge to, and questioning of, the authority re-

sponsible for creating and enforcing those rules. It goes beyond an opportunistic

JCMS 2024 pp. 1–23 DOI: 10.1111/jcms.13676

Ltd.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

denunciation of speciﬁc policies and measures and is in direct confrontation with the

EU’s membership model. The aim here is therefore to shed light on what deﬁant

non-compliance is. Providing such characterisation is the primary contribution of this

article.

The second contribution involves operationalising the elements of deﬁant

non-compliance and unravelling how it is manifested. We argue that this behaviour en-

compasses deﬁant actions directed against enforcement measures carried out by

centralised [i.e., European Commission (Commission) and Court of Justice of the EU

(CJEU)] and decentralised enforcing institutions (i.e., national courts), combined with a

belligerent rhetoric against the source of authority. This article examines the patterns of

deﬁant non-compliance that can be found in the two empirical cases where the phenom-

enon has been observed (the Polish and Hungarian authorities), with the aim of identify-

ing differences and similarities. We assess qualitatively the actions that typify deﬁant non-

compliance, together with descriptive statistics to examine their frequency, categories and

targeted institutions. By systematising the analysis of the concept in this way, we establish

its distinct nature compared to other types of non-compliance.

The article is structured as follows. The ﬁrst section will review theories on the volun-

tary compliance model on which supranationalism relies, the explanations of why

non-compliance occurs and the non-compliance debates related to the RoL crisis. This re-

view will provide a theoretical explanation for the occurrence of deﬁant non-compliance.

Furthermore, it will anchor and introduce the deﬁnition of deﬁant non-compliance as

qualitatively different to previous instances of non-compliance. It also serves to identify

four speciﬁc actions that typify non-compliance in RoL-related cases. The next section

will operationalise deﬁant non-compliance, present the data collected for examining pat-

terns of deﬁant non-compliance in Poland and Hungary and provide some methodological

considerations for its analysis. This will be followed by a discussion of the ﬁndings,

whilst the conclusion will summarise the theoretical implications of this research.

I. Theoretical Debates on Compliance and Non-Compliance: What Is Defiant

Non-Compliance?

The EU model of integration is based on voluntary compliance with EU law. The key to

the whole system is the implicit and explicit acceptance of the notion of ‘community of

law’, a term that was introduced in the 1960s by the ﬁrst President of the Commission,

Walter Hallstein, and later echoed by the CJEU (Les Verts, C-294/83). This involves

the existence of law-abiding states committed to complying with EU rules, that is, a

self-imposed duty to implement and observe them. Thus, even when facing norms that

they consider not to be beneﬁcial for them, member states’governments cannot selec-

tively derogate EU legal provisions or choose not to comply with them. And this commit-

ment often persists despite weak or non-existent enforcement mechanisms that might oth-

erwise coerce it (Börzel, 2021; Thomson et al., 2007). Thus, the premise of voluntary

compliance also has implications for the way the Union addresses non-compliance.

Many authors agree that there is a compliance problem in the European Union

(Cremona, 2012; Falkner, 2018; Falkner et al., 2004; Toshkov et al., 2010). Börzel (2021,

pp. 3 and 4), however, has disputed this view, asserting that there is no evidence of a

non-compliance problem and arguing that non-compliance has, in fact, decreased, even

Carlos Closa and Gisela Hernández2

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though steps towards further integration have been taken and the EU has doubled in size.

Nonetheless, Kelemen and Pavone (2023) noted the Commission’s preference for taking

a forbearing approach (Holland, 2016), rather than working to improve national govern-

ments’compliance, goes a long way to explaining the decrease in the use of law enforce-

ment instruments.

Non-compliance refers to state behaviour that does not conform to the obligations pre-

scribed by a legal order (i.e., domestic, international or EU) to which a given state has

committed itself (Chayes et al., 1998, p. 39; Young, 1979, p. 104; cf. Börzel, 2021,p.

4; Raustiala and Slaughter, 2002). Whilst non-compliance threatens the basic agreement

upon which legal orders are constructed, it is common in most systems. Speciﬁcally, even

those who recognise authority and generally support the existence of speciﬁc behavioural

guidelines in international organisations often ﬁnd it beneﬁcial to ignore those rules in

practice (Young, 1979). Why does non-compliance happen? Most of the literature has

discussed the domestic origins of non-compliance from two alternative perspectives: ei-

ther capacity or power (costs). This debate is important not only for compliance but also

as regards the strategies for inducing compliance, labelled as either ‘management’or ‘en-

forcement’, respectively (Tallberg, 2002).

On the one hand, part of the literature attributes non-compliance to a lack of

domestic capacity and rule ambiguity (Chayes and Chayes, 1995; Tallberg, 2002).

Management theorists embrace a problem-solving approach based on capacity building,

rule interpretation and transparency. They assume that non-compliance results from mis-

understandings of legality or capacity limitations. In this line, Arregui (2016) showed

that the variation in legislative implementation can be explained by differing levels of

administrative effectiveness (higher levels improve compliance), amongst other factors.

Falkner et al. (2004) pointed to administrative shortcomings as crucial factors

explaining transposition problems, whereas Treib (2014) conducted a historical review

of compliance theories and identiﬁed the number of veto players at domestic level as

a relevant factor in explaining compliance capacity. Member states’perceived capacity

for complying also shapes enforcement preferences (Closa, 2021; Franchino and

Mariotto, 2021).

On the other hand, enforcement theorists argue that costs and incentives explain actors’

compliance and non-compliance: powerful actors simply will not comply because they can

afford to be sanctioned (Tallberg, 2002). Enforcement theorists characteristically stress a

coercive strategy entailing monitoring and sanctions, as they view non-compliance as a

cost–beneﬁt calculation where higher sanctions are expected to deter violations. Thomson

et al. (2007) highlighted incentives to deviate and discretion in implementing legislation as

factors explaining the success of EU law enactment, downplaying differences amongst

states. The interviews conducted by Dörrenbächer (2017) revealed instrumental implemen-

tation motivations such as avoiding national punishment, whilst explicit national guide-

lines can discourage EU law use. Other interview-based research has also shown how

national administrative authorities prioritise domestic requirements over EU legislation

(Mastenbroek, 2017). Falkner et al. (2004) also noted that the aim of governments to

protect their national regulations vis-à-vis EU rules accounts for non-compliance, although

they made a distinction between governments that were strongly opposed during the

decision-making stage and those that were not, the latter being the most numerous. These

explanations were consistent with Börzel’s(1999) argument, which focused on structural

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 3

Ltd.

overtones: that goodness of ﬁt (i.e., regulatory isomorphism between the supranational

level and the domestic level) determines both non-implementation and non-compliance.

However, a mechanical application of both capacity limitations and incentives for de-

viation may overlook the role played by the ideological and political preferences of do-

mestic actors. In fact, alignment with these domestic preferences is a predictor of the ease

with which new EU legislation will be implemented (Mastenbroek and van Keulen, 2006).

Hence, a focus on actors has achieved a greater prominence in explaining compliance,

as the resources they may activate in the presence of a misﬁt explain compliance and

non-compliance. Focusing on actors sheds light on their enforcement preferences

(Closa, 2021). In a last reﬁnement, Börzel (2021) added politicisation to the classical

duality of capacity and power. Politicisation alludes to national political conﬂicts derived

from compliance with EU law, ‘which crucially affects the ability of states to shape and

take compliance costs’(Börzel, 2021, p. 6).

Neither the conventional explanations centred on capacity nor those related to costs

seem to offer a nuanced understanding of RoL-related non-compliance cases. Instead,

what is at play is a deliberate strategy of non-compliance grounded in ideological posi-

tions (Bugaric and Kuhelj, 2018; Coman and Leconte, 2019; Pirro and Stanley, 2021).

‘Deﬁant non-compliance’is fundamentally distinctive because of how it manifests: it sur-

passes mere non-compliance, as it involves directly challenging the enforcement author-

ities. Contrary to Börzel’s(2021, p. 2) assertion that the Hungarian and Polish govern-

ments’violation of EU rules was comparable to that of the Greek and Italian

governments during the ﬁscal crisis, since non-compliance affects core norms and rules,

we contend that the behaviour of the Budapest and Warsaw governments represents a spe-

ciﬁc form of non-compliance. The differential factor derives from the tactics and justiﬁ-

cation used for non-compliance with enforcement actions. It also goes one step further

from ‘symbolic and creative compliance’(Bátory, 2016) in which governments engage

to create the appearance law-abiding behaviour without giving up their original objec-

tives. In deﬁant non-compliance, governments not only fail to substantially comply, but

they also challenge the very foundation of the authority that enacted the rules as much

as the rules themselves.

Additionally, deﬁant non-compliance goes beyond the fourfold typology of

non-compliance traditionally established by the Commission (1984–2022; see also

Börzel, 2021, pp. 14–15) within the EU framework. The ﬁrst three types of

non-compliance relate to directives and cover issues such as failing to communicate the

implementation of measures, incorrect transposition and active or passive infringements.

The fourth category is broader, as it encompasses non-implementation or incorrect en-

forcement of directly applicable Treaty provisions, regulations and decisions. RoL

non-compliance falls under this category, speciﬁcally related to Art. 2, as it involves

enacting, or not repealing, national measures that contradict EU law. Furthermore, the in-

clusion of a deﬁant rhetoric challenging the authority of the EU intensiﬁes this

phenomenon.

Therefore, deﬁant non-compliance refers to intentional and persistent failure to comply

with EU law, accompanied by assertions that contest its legitimacy and validity, as well as

the authority of the institutions responsible for its enforcement. Broadly, this form of

non-compliance targets enforcing mechanisms (i.e., non-complying with enforcement ac-

tions) and ﬁnds its expression through a forceful, deﬁant discourse that questions the

Carlos Closa and Gisela Hernández4

Ltd.

legitimacy of EU institutions to enforce the law. Further, it questions the authority of the

EU itself to prevent non-compliance. Deﬁant non-compliance targets centralised and

decentralised institutions of enforcement, which comprises both political and judicial au-

thorities. Table 1summarises the indicators of deﬁant non-compliance.

The ﬁrst component refers to the explicit negative reaction to the Commission’s imple-

mentation request for complying with EU rules. Centralised mechanisms, often relying on

soft enforcement tools, have proven ineffective in countering this strategy of resistance to

enforcement measures (Kelemen, 2022; Kochenov, 2019; Pech and Scheppele, 2017;

Uitz, 2019). Whilst some authors have afﬁrmed that material sanctions are not particularly

effective in cases of democratic backsliding, and rather advocate for improving the trans-

formative power of monitoring and social pressure (Lacatus and Sedelmeier, 2020;

Sedelmeier, 2017), most scholars agree on their weaknesses in bringing about compliance

in the cases of Poland and Hungary (Priebus, 2022; Uitz, 2019). Whereas the Commission

generally holds that dialogue and engagement with breaching authorities may be sufﬁ-

cient to obtain compliance (Closa, 2018), it has been increasingly assertive in recent years

(Blauberger and Sedelmeier, 2024; Hernández and Closa, 2023; Kelemen, 2024). This

has been made apparent in infringement procedures, where Commission cases rarely

reach the Court stage due to a preference for making out-of-court settlements

(Closa, 2018; Kelemen and Pavone, 2023). Thus, we posit that the initial manifestation

of deﬁant non-compliance is found in the disregard and rejection of the Commission’s

recommendations for improving compliance (in this case, recommendations aimed at re-

versing democratic backsliding).

The second component of deﬁant non-compliance is two-faceted: Backsliding rulers

have deactivated both centralised and decentralised systems of judicial supervision and

scrutiny, that is, CJEU and national courts. Centrally, EU institutions have favoured in-

fringement actions as their preferred enforcement mechanism, in which the Commission

and the CJEU are the main actors. As a reaction, member states’authorities have devel-

oped multiple strategies to limit the practical effect of controversial CJEU case law (Hof-

mann, 2018). Non-compliance with CJEU rulings repeats the broader pattern of

non-compliance with EU rules and regulations in general: national authorities do not en-

force rulings because they aim to protect important (domestic) interests and avoid costly

enforcement measures (rather than attributing this to problems of administrative capacity

or interpretation) (Falkner, 2018). In some instances, governments have resorted to

Table 1: Summary of the Indicators of Deﬁant Non-Compliance.

Indicators of defiant

non-compliance

Targeting

centralised

enforcement

Targeting political authority +Deﬁant

rhetoricIgnoring and overlooking the Commission’s

recommendations

Targeting judicial authority

Dismissing CJEU rulings

Mobilising national courts against EU law/

rulings

Targeting

decentralised

enforcement

Impeding the prerogative of national lower

courts to request preliminary rulings

Source: Developed by the authors.

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 5

Ltd.

‘creative compliance’(Bátory, 2016). As for the RoL case, in order to prevent this façade

of change, Scheppele et al. (2021) advocated for introducing ‘systemic infringement pro-

cedures’, that is, the requirement to ﬁx systemic threats to EU principles rather than

merely technical violations of fundamental values. Whilst dissatisfaction punctuates the

evaluation of Commission enforcement activity via infringement actions, the performance

of the CJEU as an enforcer has adapted to what could have been expected beforehand

(Pech and Kochenov, 2021). Thus, the CJEU can deliver instruments that are capable

of inducing compliance when suitable grounds exist. Precisely because of this, the CJEU

itself has become the target of the deﬁant rhetoric of non-compliant governments, and this

constitutes the second indicator of deﬁant non-compliance.

The decentralised erosion of control mechanisms does not appear, prima facie, to be an

exclusive characteristic of deﬁant non-compliance. Thus, a number of constitutional

courts in different member states have issued judgments that questioned the primacy of

EU law, declaring the ‘illegality’of EU legal provisions and of some CJEU rulings. For

instance, the controversial ruling of the German Constitutional Court on the legality of

the European Central Bank’s bond purchase programmes questioned the primacy of EU

law, although the German government later formally stated that it recognised the suprem-

acy of EU law and the binding force of the CJEU’s decisions (von der Burchard, 2021). A

differential fact in deﬁant non-compliance is the political capture of domestic constitu-

tional (and other) courts, as found in the Polish and Hungarian cases (Bárd and

Pech, 2019; Sadurski, 2019). Political capture of the courts encompasses a variety of prac-

tices that fundamentally undermine the independence of the judiciary. This includes

legislative changes aimed at increasing the executive’s authority over the judicial branch,

as well as interference in the decision-making processes of the judges. Here, governments

act as plaintiffs, actively seeking to pit national courts against the CJEU, creating a dis-

tinctive scenario. Thus, non-compliance involves the refusal to adhere to CJEU rulings

by employing national constitutional courts to reject the primacy of EU law or, in other

words, to quest constitutional supremacy (Castillo-Ortiz, 2023). Consequently, the third

noteworthy characteristic of deﬁant non-compliance is that national courts systematically

become the ultimate interpreters of EU law, questioning the traditional role of the CJEU in

this regard.

Finally, preliminary rulings (Art. 267 Treaty on the Functioning of the EU (TFEU)) are

the bulk of the decentralised EU enforcement system. The actors that have adopted an

attitude of deﬁant non-compliance have sought to remove or diminish national judges’

ability to request preliminary rulings. Their efforts have included both legal actions and

legislative measures (i.e., court cases and/or pieces of legislation to that effect). Research

has consistently established that judges play an entrepreneurial role in mobilising EU law

for policy change (Mayoral and Torres Pérez, 2018); judges have also collectively

opposed governmental action and defended judicial independence, speciﬁcally regarding

the RoL, by resorting to tools such as preliminary rulings (Matthes, 2022; Puleo and

Coman, 2023). Research has found that backsliding governments have used two instru-

ments related to this fourth modality: disciplinary proceedings against judges asking for

preliminary rulings and, more broadly, legislation prohibiting or limiting their use

(Bárd, 2021; Pech, 2021). Consequently, the fourth type of action within deﬁant

non-compliance refers to mechanisms and procedures seeking to impede the issuance

of preliminary rulings by lower courts.

Carlos Closa and Gisela Hernández6

Ltd.

II. Research Design: Operationalising Defiant Non-Compliance

How to Operationalise Defiant Non-Compliance

Table 2summarises four key actions that serve as indicators for operationalising the con-

cept of deﬁant non-compliance presented in this article. Taken together, the combination

of the four actions of national governments’response to EU enforcement mechanisms

makes this model into an explicit strategy for defying compliance.

As mentioned above, the literature has argued that non-compliance is not uncommon.

What makes deﬁant non-compliance qualitatively different is the combination of actions

(i.e., non-compliance itself) and the rhetorical justiﬁcation of such behaviour: national

governments develop an aggressive rhetoric against compliance in which they question

the EU authorities and law enforcement power. Thus, in order for these actions to be con-

sidered to be indicators of deﬁant non-compliance, they need to be accompanied by na-

tional governments’‘deﬁant claims’backing them. Deﬁant claims are deﬁned here as

those claims (or statements) made by government ofﬁcials declaring their unwillingness

to implement, their preparedness to disobey or their rejection of the validity and

Table 2: Operationalisation of Deﬁant Non-Compliance.

Type of defiant

non-compliance Operationalisation

Ignoring and overlooking the

Commission’s

recommendations

Frequency of instances where EU

recommendations or warnings resulting

from enforcement instruments

(infringement procedures, RoL

Framework and RoL Report on

Conditionality Regulation) are ignored.

+ Frequency of deﬁant claims/

statements rejecting the authority

of the enforcing institution

Dismissing CJEU rulings Frequency of instances of

non-compliance with infringement

rulings (i.e., the infringement procedure

is still ongoing despite a decision

having been taken and, in some cases,

even after a procedure under Art. 260

TFEU has been initiated) or compliance

that might not have prevented the initial

violation (‘creative compliance’).

Mobilising national courts

against EU law/rulings

Frequency of instances of explicit

requests by governments made to their

constitutional courts to assess the

validity of EU legislation, along with

court rulings declaring the ‘illegality’of

EU norms and CJEU rulings.

Impeding the prerogative of

national lower courts to

request preliminary rulings

Frequency of instances of disciplinary

proceedings brought against judges

requesting preliminary rulings and

legislation prohibiting or limiting their

use.

Source: Developed by the authors.

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 7

Ltd.

legitimacy of (certain) EU rules and authority. Unlike the disagreement on the content of

the challenged measure, deﬁant claims refer to the institutional framework for the produc-

tion of such measures (i.e., enforcement measures).

Cases of Defiant Non-Compliance

The behaviour of the Hungarian and Polish authorities in terms of the RoL during the se-

lected period is a unique modality of non-compliance, deﬁant non-compliance, which re-

quires intentional and persistent instances of failure to comply with EU law. As other

member states’behaviour may provide instances of ‘standard’non-compliance, compar-

ing them might be useful for explaining any existing differences. However, this article fo-

cuses on substantiating this speciﬁc modality.

A qualitative overview of the actions characterising deﬁant non-compliance, combined

with descriptive statistics, which cover the frequency of deﬁant non-compliance claims,

the categories of deﬁant non-compliance behaviour and the types of institutions targeted,

serves as the basis for our empirical analysis. We produced and examined a series of

graphics and conducted Fisher’s exact tests (using PositCloud software) to establish

whether statistically signiﬁcant differences existed between the types of deﬁant actions

displayed by the two governments. For the sake of clarity and parsimony, we have not in-

cluded all of the databases and tests produced in the main text, but they are open for con-

sultation in Appendix S2.

Data and Sources

The analysis focused on instances of non-compliance exhibited by backsliding govern-

ments which spanned the timeframe from 2013 to 2022. The Hungarian Fidesz party,

which ruled from 1998 to 2002, did not show a RoL backsliding attitude during this pe-

riod, and therefore, this time span was excluded from our analysis. Fidesz returned to

power in 2010 and remains in ofﬁce at the time of writing. However, no evidence has

been found of deﬁant non-compliance before 2013, and therefore, this year was taken

as our starting point. The approach adopted involved empirically assessing whether deﬁ-

ant non-compliance could be effectively operationalised based on the theoretically ex-

pected indicators and whether these behaviour patterns could be identiﬁed amongst

governments.

The dataset of deﬁant claims, open for consultation in Appendix S1 (which also pro-

vides additional details on the methodology), consists of statements by Hungarian and

Polish governments’ofﬁcials in response to EU institutions’actions seeking to enforce

compliance in RoL-related cases. Observations of deﬁant claims, as identiﬁed in our

dataset, primarily corresponded to a speciﬁc event or action related to EU enforcement

procedures (these are speciﬁed in the column labelled ‘Speciﬁc event challenged’). How-

ever, the same event may have triggered several reactions. In other words, there was not

one deﬁant claim per event, but several deﬁant claims may have been identiﬁed for the

same EU action. Such statements included cases such as the Polish government’s chal-

lenge of the Commission’s infringement procedure concerning the establishment of a Dis-

ciplinary Chamber in the Polish Supreme Court (observations 49, 70, 71, 72 and 73,

Appendix S1) and the Hungarian authorities’reaction to the Commission’s launch of

the Conditionality Regulation (observations 108, 119 and 120), amongst other instances.

Carlos Closa and Gisela Hernández8

Ltd.

Only a few observations reﬂected spontaneous statements by these national authorities re-

garding the Commission’s competences in general terms for RoL monitoring and enforce-

ment in domestic contexts (observations 18, 37, 82, 87, 99 and 107). In other words, they

did not question a speciﬁc event, but rather RoL enforcement in general terms. The

dataset of deﬁant statements consisted of 121 observations collected from ofﬁcial sources,

academic sources, social media and international media specialised in European politics.

We categorised the evidence into four distinct groups that were aligned with the indi-

cators provided in the previous sections. Empirical evidence was retrieved for Category 1

(‘Ignoring and overlooking the Commission’s recommendations’) from the Commis-

sion’s Database on Infringement Procedures in relation to the Commission’s reasoned

opinions and letters of formal notice (European Commission, 2023); as well as from

Hernández and Closa (2023). For Category 2 (‘Dismissing CJEU rulings’), we also relied

on the Commission’s infringement dataset, supplemented by Pech and Kochenov (2021)

for in-depth case analysis. Category 3 (‘Mobilising national courts against EU law/

rulings’) was substantiated by identifying national Constitutional Court cases and

legislative decisions seeking to cancel CJEU’s primacy, in addition to references from

Jaraczewski (2021) and Halmai (2022). Finally, Category 4 (‘Impeding the prerogative

of national lower courts to request preliminary rulings’) was constructed by referencing

domestic cases and legislative measures. Pech and Kochenov (2021) and Pech (2022)

provided insight into various instances illustrating our argument (although we do not in-

tend to provide a detailed assessment of all court cases, which exceeds the purpose and

scope of this article). Whilst some of the observations could ﬁt into several of these types,

we will only indicate the most obvious and paradigmatic typology in each case. Besides

the substantive content, basic coding includes the date, the actor defying EU authority, the

institution targeted and the category of non-compliance triggering the statement.

The dataset exclusively encompasses RoL-related claims and covers issues linked to

the independence of institutions, in particular, the judiciary; the constitutional system;

elections; and fundamental rights and freedoms, including those of minority groups such

as women and migrants’rights, as well as freedom of the press and academia. These is-

sues were the main concerns raised by the EU regarding the RoL in Poland and

Hungary (see Art. 7.1 activation proposals). Although the Hungarian and Polish govern-

ments have expressed additional critical viewpoints (for instance, references to alternative

visions of the EU such as a ‘Europe of nations’or dissenting opinions on proposals that

are still under negotiation and not yet in force), these have not been included. Likewise,

the dataset does not account for the countries’threats to veto these proposals in the Coun-

cil if they come up for a vote. These critical statements and the associated veto threats are

considered ordinary and lawful disagreements in the EU norm-making process, and there-

fore, they do not represent a deﬁant attitude towards EU enforcement powers as such.

One limitation of the selection of claims refers to its intrinsically oriented approach:

our selection comprises only those cases expressing challenging attitudes towards compli-

ance. Many other claims may not express similar deﬁance: as studied by Bárd and

Grabowska-Moroz (2020), certain statements accompanying non-compliance entailed de-

nying or disguising the lack of enforcement of EU recommendations and rulings, without

necessarily challenging the authority producing them. However, the declarations included

in this database represent speciﬁc attitudes towards EU enforcement procedures, allowing

for the examination of the article’s argument, regardless of potential variations in

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 9

Ltd.

behaviour across different domains. A second limitation is the exclusion of non-English

domestic sources, which may result in a gap in identifying deﬁant rhetoric, particularly

in contexts involving decentralised EU enforcement. Nonetheless, relying on English

sources still offers sufﬁcient valuable insight into deﬁant non-compliance for a compre-

hensive understanding of the phenomenon to be gained.

III. Findings

The following section presents the main ﬁndings of the article before discussing them in

detail. Evidence has been found to support the four types of non-compliance identiﬁed by

the categories; however, we have not found any deﬁant statements associated with the last

one (although this may be due to research limitations, as will be explained below).

Non-Compliance With EU Commission Recommendations

A summary of actions under this category of non-compliance is provided below. Con-

cerning Hungary, the Commission initiated 16 RoL-related infringement procedures dur-

ing the period under review and referred 10 of these to the Court. In the case of Poland,

the Commission instigated eight procedures, six of which progressed to the litigation

stage. Taking forbearance as standard Commission’s behaviour (Kelemen and

Pavone, 2023), referral to the Court of more than half of the procedures for Hungary

and all but two for Poland signals the lack of willingness to comply in the

pre-adjudication stage of the procedure. Further, the Commission required interim mea-

sures in ﬁve of these cases and monetary ﬁnes in four of them, all concerning Poland.

In addition, the Commission activated the RoL Framework in 2016 against Poland and

launched four recommendations during 2016 and 2017 following this decision. The

non-compliance of the Polish government with these recommendations and the further

deterioration of the concerns identiﬁed on them compelled the Commission to activate

Art. 7.1 in December 2017. By contrast, the Commission never triggered the RoL Frame-

work against the Hungarian government, and it was the European Parliament that

launched Art. 7.1 against it in September 2018.

Finally, RoL funding conditionality has also been applied for both Warsaw and

Budapest as a result of lack of compliance (Thinus, 2024). In June and December

2022, the Commission approved the Recovery and Resilience Facility (RRF) plans for

both Hungary and Poland. However, funds were not released within the timeframe

covered by this article (until the end of 2022), as the Commission considered that these

governments had not met the milestones related to the RoL. Nonetheless, it should be

noted that Hungary received RRF payments in January 2024, when the Commission dis-

bursed €140.1 million in grants as part of the pre-ﬁnancing related to the REPowerEU

funds. The Commission also released funds for Poland under the RRF in 2024, following

the change of government. In the case of Hungary, the Commission also invoked the Con-

ditionality Regulation in April 2022 and withheld Cohesion Funds (partly unblocked at

the end of 2023), as it considered that Hungary had not fulﬁlled the horizontal enabling

condition on the EU Charter of Fundamental Rights as regards judicial independence.

Carlos Closa and Gisela Hernández10

Ltd.

Non-Compliance With CJEU Rulings

The non-compliance history of the infringement cases is abstracted in Table 3.

The governments of both Hungary and Poland have refused to comply in eight cases

out of the 13 RoL-related infringement cases, which were referred to and decided on by

the CJEU during the period under review, identiﬁed by Hernández and Closa (2023). This

is evidenced by the fact that several infringement proceedings are still ongoing despite the

CJEU having ruled on them (several years ago in some instances). Moreover, the

Table 3: Cases in Which the Hungarian and Polish Governments Have Not Complied With CJEU

Rulings.

Date Government Topic Infringement Reference CJEU Compliance

2015 Hungary Minority

rights

Asylum and

return.

Failure to comply

with the judgment

of the Court in

Case C-808/18

INFR(2015)

2201

Case C-808/18

Case C-123/22

Refusal to

comply

(Case C-

123/22 in

progress)

2017 Hungary NGOs NGOs funding

law

INFR(2017)

2110

Case C-78/18 Refusal to

comply

(ongoing,

Art. 260

TFEU)

2017 Hungary Academic

freedom

Higher education

law

INFR(2017)

2076

Case C-66/18 Refusal to

comply

(ongoing)

2017 Poland Judicial

independence

Amendment to

the law on

ordinary courts’

organisation

INFR(2017)

2119

Case C-192/18 Refusal to

comply

(ongoing)

2018 Hungary Minority

rights

Stop Soros law INFR(2018)

2247

Case C-821/19 Refusal to

comply

(ongoing)

2019 Poland Judicial

independence

Disciplinary

Chamber of the

Supreme Court

INFR(2019)

2076

Case C-791/19 Refusal to

comply

(ongoing,

Art. 260

TFEU)

2020 Hungary Minority

Rights

Non-compliance

with EU acquis

on asylum of

Hungarian Act

LVIII of 2020

INFR(2020)

2310

Case C-823/

21*

Refusal to

comply

(ongoing)

2020 Poland Judicial

independence

Legislative

changes affecting

the judiciary

(‘muzzle law’)

INFR(2020)

2182

Case C-204/

21*

Refusal to

comply

(ongoing)

Source: Developed by the authors based on data from European Commission’s Database on Infringement Procedures and

Hernández and Closa (2023), updated in December 2023.

Cases ruled upon in 2023. These were included because they (i) were initiated in the timeframe discussed in this article and

(ii) contribute to the understanding of the overall pattern, since they reveal a continued non-compliance trend.

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 11

Ltd.

Commission has even initiated proceedings under Art. 260 TFEU in some cases. The

Hungarian government has failed to comply in ﬁve cases, out of nine infringement pro-

ceedings referred to and decided upon by the CJEU related to the RoL under Fidesz’s

mandate. Similarly, the Polish government has failed to comply in three cases out of a to-

tal of four infringement proceedings referred to and decided upon by the CJEU concern-

ing the RoL under the PiS mandate.

National Constitutional Courts’Adjudication Against EU Law and CJEU Authority

For Category 3, this article identiﬁes three key instances in which national governments

sought adjudication from their respective national courts regarding CJEU rulings and/or

powers: two for Hungary and one for Poland. In 2016, Hungary’s captured Constitutional

Court ruled [Decision 22/2016 (XII. 5.) AB] that the national court itself could examine

whether the EU’s exercise of power violated human dignity, any other fundamental rights,

Hungary’s sovereignty or Hungary’s constitutional identity. Based on this examination,

the Court had the power to override EU law in the name of constitutional identity. Whilst

this still moves within the classic ‘Solange’doctrine, more important challenges occurred

in 2021 when the RoL crisis intensiﬁed and the governments of Hungary and Poland re-

quested that their Constitutional Courts adjudicate on the primacy of EU law.

In 2021, the Hungarian government sought the adjudication of its Constitutional Court

to determine the compatibility of implementing CJEU rulings with the Hungarian consti-

tution. The speciﬁc inquiry related to a CJEU decision on Viktor Orbán’s asylum policy,

whereby the CJEU urged Hungary to halt the practice of pushing back asylum-seekers to

the Serbian side of its 2015 border fence without initiating a formal procedure. The Hun-

garian Constitutional Court addressed the issue of the primacy of EU law regarding na-

tional immigration law [Decision 32/2021. (XII. 20.) AB]. However, the Court refrained

from directly challenging the CJEU by rejecting prior case law or directly contesting their

primacy. The Hungarian government interpreted the decision as approval, declared that its

migration policy would remain unchanged and asserted that the Constitutional Court

ruling supported its existing policy.

In Poland, the challenge to the primacy of the CJEU centred around two signiﬁcant

cases decided upon by the Polish Constitutional Tribunal. These decisions followed inqui-

ries from the Polish government that speciﬁcally addressed the constitutionality of regu-

lations related to the judicial system and examined whether interim measures concerning

the judiciary, granted by the CJEU, conformed to the Polish Constitution. In rulings dated

14 July (P7/20) and 7 October 2021 (K3/21), the Tribunal declared certain provisions of

the EU Treaties incompatible with the Polish Constitution, explicitly contesting the pri-

macy of EU law. The Tribunal asserted that the interim measures imposed by the CJEU

interfered with the organisation of the Polish judiciary in an ultra vires manner.

Procedures and Legislation to Prevent Preliminary Rulings

Finally, the fourth category concerns both new legislation and/or judicial procedures that

seek to prevent lower courts from issuing preliminary rulings. Requests for preliminary

rulings from higher courts were excluded from this analysis. Some of these courts upheld

the RoL vis-à-vis their governments at certain points in time, such as the Polish Supreme

Court under the Presidency of Judge Małgorzata Gersdorf, who stopped the enforcement

Carlos Closa and Gisela Hernández12

Ltd.

of the law ordering the early retirement of older judges and referred a question to the

CJEU for a preliminary ruling in 2018. However, the independence of higher courts in

both Hungary and Poland has raised serious concerns in recent years, as reﬂected in the

Commission’s annual RoL Reports, as well as in the case law of the European Court of

Human Rights. Moreover, these higher courts have been involved in silencing lower

courts through disciplinary proceedings, as will be discussed below. Their inclusion in

the analysis would therefore provide limited information, as their involvement has mainly

focused on hindering other courts from initiating requests for preliminary rulings.

Table 4provides an overview of various cases in the period under analysis, several of

which refer to disciplinary regimes enforced against judges. In line with the above, the ta-

ble contains only instances of preliminary questions from lower courts.

Whilst both governments have sought to hinder these courts from resorting to the

CJEU, they have used different routes to do so. In Hungary, the (captured) Supreme Court

ruled that one particular application (C-564/19) was unlawful and threatened the request-

ing judge with disciplinary action. Even though these actions were not effectively imple-

mented, the threat had the effect of discouraging lower courts from seeking guidance from

the CJEU in future cases. Adopting a much more explicit and radical stance, the Polish

government sponsored a 2019 law, known as the ‘Muzzle Law’, which gave powers to

the Disciplinary Chamber of Poland’s Supreme Court to instigate disciplinary proceed-

ings against judges who referred preliminary questions to the CJEU. In this case, the

CJEU found that the law contravened EU law (INFR(2019)2076, C-204/21). In both

countries, disciplinary procedures secured a robust implementation of these restrictive

measures.

Table 4: Instances of Preliminary Ruling Requests and Cases Brought by Polish and Hungarian

Lower Courts.

MS Actor Year Case Topic

Poland Polish district/

regional courts

2018

and

2019

Joined cases C-

558/18 and C-

563/18

Disciplinary Regime

Poland Polish district/

regional courts

2018 C-623/18 Disciplinary Regime

Poland Polish district/

regional courts

2019 Cases C-748 to C-

754/19

Disciplinary regime and powers of the

Minister of Justice to appoint and dismiss

judges

Poland Polish district/

regional courts

2020 C-615/20 and C-

671/20

Disciplinary Regime

Poland Polish district/

regional courts

2021 C-181/21 and C-

296/21

National Council for the Judiciary

Poland Polish district/

regional courts

2021 C-521/21 + C-

647/21 and C-

648/21

National Council for the Judiciary

Hungary Hungarian

district/regional

court

2019 C-564/19 Disciplinary proceedings

Source: Developed by the authors based on information from Pech and Kochenov (2021) and Pech (2022).

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 13

Ltd.

Defiant Claims

The graphs below present the ﬁndings concerning deﬁant claims associated with the four

types of actions described above. The Hungarian government made 70 statements (58%

of the total identiﬁed) and the Polish government 51 (42%). Figure 1provides a break-

down by national government and year.

The graph above shows a signiﬁcant increase in deﬁant claims in the last 2 years under

review and reveals that a very similar pattern has been followed by both governments

over time, although the Hungarian government has been slightly more critical of EU in-

stitutions’enforcement actions. Figure 2shows which types of actions have been the sub-

ject of these deﬁant claims.

The most frequent deﬁant claims made by both the Polish and Hungarian governments

are associated with actions of non-compliance with the Commission’s guidelines and rec-

ommendations. In the case of the Polish government, the second most frequent type of

deﬁant non-compliant behaviour involved mobilising national courts to challenge the role

of the CJEU as the sole ﬁnal interpreter of EU law. Meanwhile, in the Hungarian case, the

second most common type of deﬁance accompanies non-compliance with CJEU judg-

ments. Interestingly, no claims related to the fourth type of action, that is, questioning

or impeding national courts’right to refer preliminary questions to the CJEU, were found.

Although it is important to note related cases of government attacks on individual judges,

Figure 1: Deﬁant Statements on EU RoL Enforcement, by Country (2013 to 2022). [Colour ﬁgure

can be viewed at wileyonlinelibrary.com]

Source: Developed by the authors.

Carlos Closa and Gisela Hernández14

Ltd.

such as the repeated attacks on several Polish judges such as Igor Tuleya or Beata

Morawiec, who were suspended by the Supreme Court’s Disciplinary Chamber, we have

not found declarations related to these cases that directly impinge on the right of national

courts to request preliminary rulings. However, a salient selection bias may be in opera-

tion here: this kind of action happened almost exclusively at the domestic level; that is,

it targeted decentralised authorities of EU law enforcement. Hence, claims may have pre-

dominantly happened at the national level and in the vernacular language. This research

has not delved into domestic sources in languages other than English, and this may ac-

count for this vacuum, which future research could clarify.

Insufﬁcient evidence was found to argue that there was a quantitatively signiﬁcant dif-

ference in the categories of types of deﬁant non-compliance attitudes displayed between

the Hungarian and Polish authorities, based on the data and the Fisher’s exact test per-

formed (see Appendix S2). Nevertheless, based on the analysis presented in the previous

sections, a qualitative assessment could be made, which found that the Polish govern-

ment’s attacks on the judicial authorities have been more profound. First, Polish authori-

ties have explicitly challenged the primacy of EU law. The Polish Constitutional Court

explicitly contested primacy and legitimised explicit governmental challenges to this

Figure 2: Deﬁant Statements on EU RoL Enforcement, by Category of Non-Complying Behav-

iour, by Country (2013 to 2022). [Colour ﬁgure can be viewed at wileyonlinelibrary.com]

Source: Developed by the authors.

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 15

Ltd.

principle, including statements by Prime Minister (PM) Mateusz Morawiecki that ‘there is

no doubt about the primacy of Polish constitutional norms over other legal norms’(obser-

vation 58, Appendix S1) and that ‘this principle is not unlimited. In each of our countries,

primacy is maintained by the Constitution’(observation 79, see also 80 and 81). On the

contrary, Hungary avoided ‘an immediate legal battle with Brussels after the country’s

constitutional court stopped short of disputing the primacy of EU law’(observation 88,

claimed by the Minister of the PM’sOfﬁce Gergely Gulyas; see also observation 89 by

Justice Minister Judit Varga). Second, the efforts by the Polish government to prevent na-

tional courts from requesting preliminary rulings were also more incisive and openly

launched than those of the Hungarian government, as discussed in the previous section

(although it has not been possible to empirically prove that the latter attitude can be fully

considered a case of deﬁant non-compliance in this article).

Finally, Figures 3and 4show deﬁant statements targeting the different EU institutions

made by each of the governments (Hungary and Poland) over time:

Figures 3and 4(as well as Figure 2) show that deﬁant claims targeted mainly the Com-

mission and the CJEU, both of which concentrate the EU’s enforcement capacities. Given

the active role of the EP in RoL dossiers, surprisingly, it attracted less deﬁance in the

claims made by these governments during the period under study. The Council was

Figure 3: Deﬁant Statements Made by the Hungarian Government on the EU RoL Enforcement by

European Institution Challenged and Year (2013 to 2022). [Colour ﬁgure can be viewed at

wileyonlinelibrary.com]

Source: Developed by the authors.

Carlos Closa and Gisela Hernández16

Ltd.

conspicuously absent. In line with this institutional concentration, these governments

targeted mainly Commission recommendations and warnings. Given that the Commis-

sion’s actions are numerically much higher than those of any other institution, the pattern

does not provide a distorted view of non-compliance actions. In both cases, instances of

pronounced deﬁant behaviour by the Hungarian and Polish governments coincided with

the key moments of identiﬁed non-compliance mentioned earlier. Insufﬁcient evidence

was found to claim the existence of a signiﬁcant difference in the institutions targeted

by the deﬁant non-compliance behaviour displayed by the Hungarian and Polish author-

ities, as indicated by the data and the Fisher’s exact test performed (see Appendix S2).

IV. Discussing Defiant Non-Compliance

As a law-based community, the EU expects member states to engage in voluntary compli-

ance with its rules, which they agreed to follow at the time of accession. The behaviour of

the Polish and Hungarian governments has clearly challenged the EU premise, as it has

gone beyond ordinary disagreement; rather, it has questioned not only the content but also

the authority of the Commission’s recommendations and the CJEU’s rulings, coupled

with the use of strong deﬁant rhetoric. This article has shown that deﬁant

Figure 4: Deﬁant Statements Made by the Polish Government on the EU RoL Enforcement by

European Institution Challenged and Year (2013 to 2022). [Colour ﬁgure can be viewed at

wileyonlinelibrary.com]

Source: Developed by the authors.

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 17

Ltd.

non-compliance consists of at least three different types of actions matched by an equally

deﬁant rhetoric: ignoring EU recommendations and warnings; non-compliance with the

CJEU’s rulings; and questioning the role of the CJEU as the sole ﬁnal interpreter of

EU law. Whilst evidence of a deﬁance discourse for the fourth category (questioning na-

tional courts’right to raise preliminary questions) is inconclusive, its potential signiﬁ-

cance warrants further analysis in future research using national sources in languages

other than English.

Deﬁant non-compliance reached its highest points in 2017 and 2021. Notably, the de-

crease observed between 2018 and 2020 coincided with a decline in the Commission’s

enforcement actions, as indicated in the literature (Hernández and Closa, 2023). There-

fore, the patterns reﬂected in the data seem to align with EU enforcement actions over

the years; that is, deﬁant non-compliance seems to respond logically to patterns of en-

forcement activity.

Despite the Hungarian government experiencing a comparatively more lenient

enforcement approach from the Commission over the years than its Polish counterpart

(i.e., several RoL enforcement instruments, such as the RoL Framework or Art. 7.1 were

instigated by the Commission against Warsaw and not Budapest), its deﬁance harshly

targeted this institution. The frequent Commission’s utilisation of infringement actions

against the Hungarian government may explain this. This suggests that deﬁant non-

compliance may not be exclusively linked to the use of enforcement tools designed for

safeguarding fundamental values but could be a more extensive trend affecting the broader

EU law enforcement framework; that is, similar behaviour may manifest in other policy do-

mains beyond the RoL, as long as extreme cases of non-compliance occur within these policy

areas. By ignoring the Commission’s recommendations and warnings, the governments of

PiS and Fidesz called into question the management approach to compliance, as soft actions

aimed at dialogue with the offending government (i.e., the pre-litigation stage of the infringe-

ment procedures) proved ineffective and met with opposition.

Comparatively, the Polish government’s challenges to judicial authorities, especially

the CJEU, have been qualitatively more intense than those of the Hungarian executive.

This underscores the perception of judicial institutions as having the capacity to compel

compliance and, consequently, posing a threat to the Polish government’s institutional

transformations. The shift from the CJEU to national courts as the ultimate interpreters

of EU law is thus more pronounced in the Polish case.

The fact that most of the deﬁant claims have been directed at these two institutions (i.e.,

Commission and CJEU) shows that they are indeed perceived as the enforcers of EU core

values. This reﬂects a perception that the Council plays a less active role in the ﬁeld of RoL

protection. However, this contrasts with the central role the Council plays in enforcement,

particularly considering its ultimate authority in deciding on Art. 7 (although it has proved

impossible to enforce it when more than one member state has problems of RoL compli-

ance) and its crucial function in monitoring non-compliant governments through hearings.

The fact that the challenging claims were focused on the Commission and the CJEU sug-

gests a divergence in the perception of the roles played by these institutions regarding RoL

enforcement in the eyes of those contesting EU norms and values. Targeting the Council

would make less sense, given that the majority required makes it difﬁcult for the Council

to act forcefully on RoL issues (at least until the majority requirements were changed under

the Conditionality Regulation in 2022). Additionally, it also indicates that the Polish and

Carlos Closa and Gisela Hernández18

Ltd.

Hungarian governments may ﬁnd it costlier to challenge the authority of the Council, of

which they are members and where open contestation is rare.

Finally, the similarities identiﬁed in terms of the type of deﬁant behaviour and the institu-

tions targeted by the Polish and Hungarian governments also reinforce the idea that deﬁant

non-compliance is one and the same phenomenon, as shown in this article. Additionally,

there are similarities in the underlying factors leading to deﬁant non-compliance in both

cases. Ideological factors explain the emergence of this phenomenon, as anticipated in the

literature (Bugaric and Kuhelj, 2018; Coman and Leconte, 2019; Pirro and Stanley, 2021).

Conclusion

Examining deﬁant non-compliance in the RoL crises related to Hungary and Poland

challenges conventional perspectives on non-compliance, which typically attribute it to

factors such as a lack of capacity or incentives to deviate. It also reveals some critical im-

plications for the functioning of the EU: the absence of compliance and the deliberate and

persistent deﬁance of enforcing mechanisms and authorities not only hampers the EU’s

legal framework, but also poses a signiﬁcant threat to its core principles and values. This

has critical consequences for the role of Eurosceptic governments within the EU. For

instance, unlike the United Kingdom during Brexit, where, despite critical rhetoric, com-

pliance with EU recommendations and rulings remained intact, the behaviour of the

Hungarian and Polish governments indicates that a more challenging dynamic is at play.

Whilst the United Kingdom ultimately opted for the activation of the ‘exit’option

(Art. 50 TEU) and left the EU, deﬁant non-compliance in Hungary and Poland directly

erodes the fundamental premise of the EU as a community bound by the RoL. Deﬁant

non-compliance also raises concerns about the resilience of the EU’s RoL framework

and its ability to address and rectify non-compliance effectively. The spread of this form

of resistance to other governments within the EU holds the potential to undermine the co-

hesiveness of the Union and diminish its ability to uphold fundamental principles. Finally,

evidence has so far shown the deﬁant non-compliance associated with RoL issues. Fur-

ther comparative research could trace whether this variety of deﬁant non-compliance ap-

pears in other issue areas. This agenda is particularly relevant, since current enforcement

mechanisms have only partly corrected violations of EU law.

Acknowledgments

The authors would like to thank the JCMS anonymous reviewers and editors who provided excellent

comments on the article. The authors also acknowledge support of the publication fee by the CSIC Open

Access Publication Support Initiative through its Unit of Information Resources for Research (URICI).

The authors gratefully acknowledge support received from the “Institutional design for enforcing Rule

of Law compliance in the EU”(InDeComply) Project (Grant PID2021-122448NB-I00, funded by

MCIN/AEI/10.13039/501100011033). One of the authors also acknowledges support received from

Grant FPU20/01664 funded by MCIN/AEI/10.13039/501100011033.

Correspondence:

Gisela Hernández, Institute for Public Goods and Policies (IPP), Spanish National Research Coun-

cil, and Universidad Autónoma de Madrid (UAM), Madrid, Spain.

email: gisela.hernandez@csic.es

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 19

Ltd.

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Supporting Information

Additional supporting information may be found online in the Supporting Information

section at the end of the article.

Appendix S1. Database of deﬁant statements on the EU rule of law by Polish and

Hungarian governments.

Appendix S2. Analysis.

Deﬁning and Operationalising Deﬁant Non-Compliance in the EU: The Rule of Law Case 23

Ltd.

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