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

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 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.