In order to full appreciate the Heidelberg proposal, I believe it is important to read it not only as a reaction to the developments of the last year and a half in Hungary, but as a response to a deeper problem of the European Union, of which the Hungarian case is only a grave symptom. From the EU perspective what makes the Hungarian case worthy of reflection is the lack of compelling force in the reactions of the EU to national developments which clearly appeared to go against fundamental principles of constitutionalism, rule of law and the protection of human rights. While before and during the first half of 2011 (i.e. before and during the Hungarian presidency of the Council) the EU’s reluctance might be attributed to mainly political reasons, the overall tiptoeing reflects deep seated problems and tensions within the Union’s own architecture.
The shorthand description of the source of these problems is what many refer to as ‘the gap between accession conditionality and membership requirements’. As Christoph Hillion explains (in Craig / De Burca: The Evolution of EU Law, 2nd ed. 2011) with the latest cycles of enlargement a thick layer of requirements generated by various actors in such European networks as the Council of Europe and its Venice Commission, or the OSCE and its human rights directorate (ODHIR) were layered onto the EU’s own ‘Copenhagen criteria’. Outside the framework of the accession process, however, these conditions become difficult, if not impossible, to impose on member states partly because of the lack of available procedures. The suspension of membership as foreseen in Article 7 of TEU is certainly a means of last resort, while post-accession monitoring of certain matters (as used in the case of Romania or Bulgaria) is clearly not available as a measure towards other, older members ...Zum vollständigen Artikel