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Table of Contents: I. Introduction. – II. Overturning democracy in the name of the law: the use of creative compliance by EU autocratic legalists. – III. Setting the context: the Court’s ruling in Transparency of Associations. – III.1. The 2017 Transparency Law. – III.2. The Court is in session! – IV. (Almost) New actors, same old story: State Audit Office v civil society. – V. Remarks beyond the Hungarian case: the impact of creative compliance on the effectiveness of EU law. – VI. Conclusion.
Abstract: In mid-April 2021, the Hungarian government announced the withdrawal of the 2017 Transparency Law. In its ruling in case C-78/18, in the context of a Commission-led infringement procedure, the Court declared such law in violation of civil society organisations (CSO) and foreign funders’ freedom of movement of capital as well as their freedom of association, right to respect for private and family life, and right to protection of personal data. Following intense months of dialogue with the European Commission, in mid-May 2021, the Hungarian Parliament repealed the law. However, at the same time, it adopted a new one on the Transparency of CSOs, which still presents the same shortcomings as the previous one and, consequently, continues to prevent CSOs from exercising their role of democracy watchdogs. This Article argues that the new law is the latest manifestation of Hungary's tendency towards autocratic legalism. By relying on a creative compliance-based approach, the Hungarian legislator proposed a law that is only in appearance in line with and based on the ruling of the Court. The Article argues that such a strategy, if winning, has the potential to spread its effects beyond the Hungarian border. It claims the Commission finds itself forced to choose between continuing the existing infringement procedure or accepting a merely formalistic implementation of the Court’s ruling, in a historical moment where the legitimacy of the Court of Justice to decide on values-related cases is more than ever questioned.
Keywords: rule of law – civil society organisation – Transparency of Associations – infringement procedures – creative compliance – autocratic legalism.
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European Papers, Vol. 8, 2023, No 1, pp. 243-271
ISSN 2499-8249 - doi: 10.15166/2499-8249/650
* Ph.D. Candidate in International, Comparative and European Law, Maastricht University, m.digaetano@maastrichtuniversity.nl.
