Is there an impact of democratic quality on infringements of EU law ? Part 1

I – Establishing the non-compliance with EU law

A - Determining Infringements

Infringement proceedings can be opened by the EC, regardless their quality and determined by the EC and/or the European Court of Justice (ECJ), the two supranational monitoring and enforcement authorities. Since decisions can take some time and their lengths vary dramatically [6], they do not represent how many infringements per year a certain member state is responsible for. This is why, in the forthcoming study, we will use data on opened cases only.

As laid down in article 258 TFEU [7], the EU has the power to monitor and sanction non- compliance. Nevertheless, the EC prefers informal bargaining to formal sanctions. Infringement proceedings are seen as the last resort [8]. In total, there are five types of infringements:

- violations of treaty provisions, regulations and decisions non-transposition of directives

- incorrect legal implementation of directives

- improper application of directives

- non-compliance with ECJ judgements

Whenever citizens, businesses or other stakeholders, or even the Commission itself, identify possible infringements and the member state in question fails to fully transpose the provisions or directives by the EC or does not rectify the suspected non-compliance with the law, the EC launches a formal procedure. The infringement procedure includes potentially 6 stages.

1: it starts with a letter of formal notice
2: the EC may send a reasoned opinion if the member state still does not comply 3: the EC can transfer the matter to the ECJ
4: the EC may then ask the ECJ to impose penalties if the concerned member state does not communicate measures that implement the provisions of a direc- tive in time
5: if the ECJ finds that the country has breached EU law, the national authorities of the concerned state must take action to comply with the judgement
6: if the member state still does not comply, a second infringement procedure may be launched, and financial sanctions can be imposed

The EC lists all cases of non-compliance of member states. However, there are considerable flaws within this method. Börzel, for instance, questions whether these data are really a valuable indicator for the actual level of non-compliance: “Infringement proceedings are no indicator of the actual or absolute level of non-compliance in the EU. They only cover a fraction of the violations of Community Law in the member states.” [11] The proceedings only cover cases which have been detected by one or several of the above-mentioned ac- tors. Therefore, “Infringement proceedings refer to cases that are both detected by the Commission and on which the Commission decides to take action.“ [12]

Consequently, undetected violations cannot be included in any research. It is also not always clear whether all types of violations are captured by the proceedings. Börzel and Sedelmeier insinuate that the infringement data does not capture serious violations of the EU law by some member states [13] . Indeed, rules might have been transposed into national law without being fully implemented [14] . In addition, the EU depends on member states reporting back [15] . Another difficulty is that “the reasons for failures to comply are unknown due to a lack of knowledge beyond the statistical data offered by Commission sources” [16] . These inconsistencies of data have to be born in mind. At the same time, they

explain the existence of several competing theories.

B-Three types of Member States as a consequence of a multilayer perspective

When a member state fails “to fulfil treaty obligations” [17] , it is necessary to ask for the reasons behind this behaviour. When trying to explain why some countries infringe more often than others, or why countries infringe tout court, it is indispensable to start with the recognition that, in the European context, we deal with a multilayer perspective. That is to say that there is always a national and a supranational level involved. In such an environ- ment, implementation can be expected to be particularly challenging. The same policies have to be implemented in diverging national contexts [18].

This leads to a further important preliminary. Some states may have a similar legal framework to the European framework. Börzel calls this the “goodness of fit” [19] , distinguishing between the institutional and the political fit. In the same vein, Falkner et al. This leads to a further important preliminary. Some states may have a similar legal framework to the European framework. Börzel calls this the “goodness of fit” [19] , distinguishing between the institutional and the political fit. In the same vein, Falkner et al. point out that “adjustment processes are expected to be more problematic if the degree of misfit between European rules and existing institutional and regulatory traditions is high” [20].

These findings can be linked to the possibility for member states to upload their policies to the European level. Thus, they can not only minimise the costs in downloading them to the national level, but also put forward own interests or tackle domestic issues [21] . Member states, hence, com- pete for different policies. Börzel distinguishes between three different types of member states: pace-setters; foot-draggers; and fence-sitters.

Pace-setting means the tentative to push policies actively to the European level in order to minimize implementation costs

Foot-dragging, on the contrary, involves a blocking or delaying of costly po- licies. Foot- draggers aim at preventing policies or at achieving at least some compensation for the implementation costs

Fence-sitters, finally, are member states that do not pursue either of these two strategies. They try to build tactical coalitions with both pace-setters and foot-draggers

Not very surprisingly, the second group, the “foot-draggers tend to show a poor level of compliance with Community law” [23]. However, country-specific and policy-specific factors make it difficult to categorize single member states.

Why do Member States infringe? – Three distinct approaches

As shown above, there are different types of member states when it co- mes to non-compliance with EU law. However, this does still not entirely explain why member states do (not) comply. For doing so, several scho- lars distinguish between willingness and capacity of governments [24]. Berglund, mirroring this, mentions of political and administrative reasons [25]. Börzel et al. add a third reason; pointing to the possibility of change in this context [26]. Broadly speaking, thus, there are three main approaches when it comes to explaining non-compliance. Börzel et al. call them enforcement approach, managerial approach and constructivist approach [27].

The enforcement approach

The enforcement approach draws on the possibility of strategic choice. It is “deliberate opposition” [28] or “conscious decisions” [29] that lead to infrin- gement. This approach argues that member states violate EU law because the costs of implementation are too high. Consequently, the more powerful a member state is, the more violations of EU law can be expected [30]. The EU, in this scenario, lacks the power of enforcing the acquis communautaire [31]. Börzel et al. distinguish between different types of power on the national level: power of recalcitrance, power of assertiveness, and power of deterrence [32]. Power can be measured by GDP and by the political weight in the EU institutions, such as voting power in the Council or members in the European Parliament. The Commission and the ECJ “finally depend on member states to be willing to dele- gate authority to them” [33]. Hence, smaller member states seem to be less likely to infringe. Not only because of their limited economical leeway, but also because of fewer potential cooperations with other member states or the EU institutions [34].

The managerial approach

Managerial theories, on the contrary, assume that non-compliance is not a deliberate decision, but rather something that happens. Infringements occur because of structural restrictions, such as insufficient bureaucratic capacity of some member states or just lack of resources [35]. Few staff in smaller coun- tries, an inefficient administration or even just interpretation problems play, thus, an important role in non-compliance: “Sufficient financial or personnel resources are crucial for efficient implementation” [36]. Consequently, govern- ments with relatively small public sectors and/or inefficient bureaucracies are expected to have more issues with the national adjustment processes. Likewise, Toshkov expects a strong effect of administrative efficiency on compliance [37].

Börzel et al. distinguish in a second step between govern- ment capacity and government autonomy. Fewer domes- tic veto players should make compliance more likely [38]. Combining the first two approaches, it can be said that “[c]apa- city helps member states to quickly overcome involuntary forms of non-compliance, while power enables them to resist compliance against increasing pressure by EU enforcement authorities” [39].

The constructivist approach

Thirdly, from the constructivist point of view, the question of compliance depends on the perceived legitimacy of EU legislation and on the socialization of the natio- nal government [40]. If the latter regard the legislation as legitimate and consider compliance as appropriate, they are likely to comply with EU law. These attitudes can change over time, national elites are able to “learn how to cooperate” [41].

Since governments depend on their electorates, the importance of public sup- port for the EU needs to be emphasized. Hence, states with low public support for the EU might not feel as bound to EU legislation as states with a high level of support.

Now, none of these three main approaches to compliance can fully explain the non-compliance patterns [42]. As already shown above, some researches try to in- tegrate these three approaches to account for non-compliance [43]. In conclusion, the best compliers should be member states that have ample administrative capacity at their disposal, that lack political and economic power to withstand the pres- sure of EU enforcement authorities, and that perceive EU legislation as appropriate.

In the multilayer context, these three approaches cover the bottom-up pers- pective, i.e. the viewpoint from the domestic to the European level. There are, however, also top-down explanations. Thus, the EC may treat some states differently. Possible reasons are significant contributions that some member states make to the EU or the disposal of considerable voting power. The EC could also try to avoid upsetting populations that already show a low level of support for the EU. The data, nevertheless, does not reveal such biases [44].

Further factors influencing compliance

Mbaye highlights corruption and length of membership besides the aspects mentioned above: increasing membership length could lead to more cases of non-compliance [45]. In support of this claim, Börzel and Sedelmeier point to a “period of grace” on the part of the EC after the accession of a member state [46]. It is not only the generosity of the EC that could have an influence on compliance though. The regulatory structures of latecomers are, as a rule, less developed. Hence, “[l]atecomers are policy-takers rather than policy-makers” [47]. Logically, the necessity of downloading laws should lead to more infringement cases.

Still, Börzel and Sedelmeier also raise the question of reputational pressure for member states [48]. In this sense, Dai mentions mecha- nisms such as reciprocity and reputation that reward those who com- ply [49]. This is particularly true in the framework of the EU, where repeated play with small groups is likely to enhance compliance [50].

In another interesting contribution, Steunenberg and Rhinard point to sector specificity. They assume that “[l]ooking only at the gene- ral characteristics of a national legislative process [...] is too imprecise” [51]. National governments, in this argument, could be very effective in the domain of transports, but lack rigor, for example, in agriculture. Finally, Börzel mentions demographic aspects such as population size [52].

II – Democratic quality

A. Democratic conditionality in the EU

The fundamental values of the EU are respect for human dignity and human rights, freedom, equality, the rule of law, and democracy [53]. States that wish to join the EU must be democratic. This democratic conditionality is set out by the Copenhagen criteria. They include “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of mi- norities” [54] as well as economic and legal criteria, for example the capacity to effectively transpose EU legislation into domestic law. The main theoretical framework that must be mentioned here is the “External Incentives Model of Europeanisation” brought up by Schimmelfennig and Sedelmeier [55]. It seeks to explain when EU conditionality leads to change on the national level.

Most observers were enthusiastic about the progress being made. The external incentives seemed to work well for the EU and its member states. Wolfgang Merkel, for instance, highlights the full democratisation accelerated by the EU and its push-and-pull effect for economic and democratic reforms. This embedding, as he calls it, “will also considerably stabilize the ten central and eastern European new member countries after 2004” [56]. Especially im- portant in this sentence is the reference to the post-accession period. In the case of accession, new member states receive support by the EU. A good case point is the PHARE framework (Poland and Hungary Assistance for the Restructuring of the Economy) [57]. Such projects seek also to establish and ensure the democratic quality of member states, a longstanding and on- going project. Merkel, who is drawing on Robert Dahl’s concept of polyarchy, states that democracies are embedded in two ways; internally and externally. Focussing on the latter, he pursues, “[i]ntegration into international and especially regional, economic or politically democratic organizations has considerable implications for the stability and quality of a democracy” [58].

However, as Carrera et al. point out, “[t]he conclusive presumption accor- ding to which EU Member States comply with the rule of law, democracy and fundamental rights after accession has [.] become increasingly disputed lately” [59]. The cases of Poland and Hungary discussed below are telling examples for this so-called “Copenhagen dilemma”. The EU, nevertheless, tries to respond to these challenges. Thus, after the 2007 accession, the Cooperation and Verification Mechanism (CVM) concluded for ensuring the democratic progress in Romania and Bulgaria has been put into place [60].

Whether this is promising, remains to be seen. Additionally, in 2014, the EU even set up a new Rule of Law Framework that should enable the reversal of demo- cratic backsliding member states [61].

Particularly the examples of political developments in Poland and Hungary lead Pinto to the following conclusion: “Despite positive aims, the efficiency of EU’s legal tools to impede undemocratic behaviour is questionable.” [62] Sedelmeier does not show more optimism: “we have to be careful not to overstate the power of conditionality and the EU’s actual impact on democratization” [63].

These recent developments shed doubt on Wolfgang Merkel’s concept of em- bedded Democracy. Merkel cites the EU as a particularly powerful organization in this context. However, even though historically true, this is not necessarily the case anymore. Likewise, Schimmelfennig and Sedelmeier, pointing directly at the CEECs, doubt that the apparent success of conditionality is really sustainable [64].

B - Democratic backsliding in the EU

In the years following the Carnation Revolution in Portugal, democracy was on a global rise [65]. Researchers use to refer to this period as the third wave of democratisation [66]. However, this development came to a halt in 2006. Since 2000, Diamond counts twenty-five breakdowns of democracies in the world. Thirteen of them resulting from the abuse of power and the dismant- lement of democratic institutions and practices by elected governments [67]. Interestingly, Diamond does not mention a single country of the European Union. However, as Mechkova et al. point out, even among liberal democracies the main trend has been a weakening of their liberal-democratic quality [68].

As seen above, all CEECs passed the test laid down in the Copenhagen Criteria of June 1993 [69]. Quickly after the end of communism, Poland and Hungary became even to be known as “the frontrunners of democratization in ECE” [70]. However, today they are at the front row of global autocratization. Due to their turning away from European core values, the EC tried to discipline both states repeatedly [71].

Today, it is widely recognised that democratic quality has regressed significant- ly over the past years [72].

This democratic backsliding involves “a raft of measures, including centralization of political power, control of the state apparatus, management of the electo- ral process, and the weakening of independent media and civil society” [73]. Still, Bakke & Sitter and Tosiek underline that there is not one single motive or recipe for democratic backsliding [74]. Country-specific endowments differ. Democratic backsliding can, for instance, be the consequence of ideological developments or the quest for power. Sedelmeier concludes that the EU has not only been unable to prevent these slippages in the first place, but also has proved largely unable to redress this democratic backsliding [75].

The Hungarian example

In Hungary, the conservative-national Fidesz party of Viktor Orbán came to power in 2010. Since winning a landslide election victory, it “has procee- ded to dismantle liberal checks and balances; skew the electoral process in its own favour; extend partisan control over state agencies, media and civil society; and develop a harshly anti-liberal ideology” [76]. Orbán started his presidency as one of the most promising defenders of Hungarian demo- cracy but has transformed since then into “the chief author of its demise” [77]. Since 2012, the government has been threatening the independence of the judiciary and targeting media freedom and political pluralism [78].

As early as 2010, Hungary lost its status as a liberal democracy [79]experien- cing thus a democratic regression. In this context, it has even proven to be the most extreme case in recent times [80]. According to V-Dem, Hungary became, in 2020, “the EU’s first ever authoritarian regime Member State” [81].


In Poland, comparable developments can be witnessed. In 2015, the right-populist Law and Justice Party (PiS) won elections and followed the Hungarian example [82]. The democratic backslide proceeds towards a dismantling of laws and of checks and balances. Judicial independence is diminished and institutions are politically destroyed [83]. Furthermore, fundamental freedoms and liberties are threatened [84]. A particularly compelling example are the Polish media laws in 2015/2016 [85].

Hence, very much as Orbán in Hungary, “Kaczynski is seen to be com- promising Poland’s democratic processes achieved during the Pre Accession period” [86]. Since this “dramatic change” [87], the EC has in- deed, for the first time in history, launched an inquiry into the rule of law in Poland, questioning the democratic quality in a member state [88].

Czech Republic, Bulgaria and Croatia

Even though their democratic backsliding has been less dramatic, other countries have experienced a decline in democratic quality. In comparison with Hungary (democratic quality of 0.86 in 2005 in comparison with 0.485 in 2019, according to V-Dem) the degree of autocratization in Czech Republic (0.904 in 2005, 0.796 in 2019), Bulgaria (0.738 in 2008, 0.587 in 2019) and Croatia (0.801 in 2014, 0.687 in 2019) has been shallow. However, if one compares these values to Poland (0.877 in 2005, 0.692 in 2019), the difference is not as big. All three countries have been singled out as examples for countries “with significant changes in liberal democracy” [89].

In conclusion, erosion of democratic standards is an acute problem - not only, but particularly in Hungary and in Poland. Even though some scholars question the democratic quality of these countries before the backsliding occurred [90], most researchers share the idea of degrading democracies.

What does this imply for infringements with EU law? Börzel and Sedelmeier assess that the 2004/2007 “enlargement has not led to a deterioration of com- pliance with EU law” [91]. On the contrary, the “12 new member states that joined in 2004 and 2007 have generally scored better than the average of the EU15.” [92] This might have been caused by the pre-accession conditionality.

However, Poland “has become a compliance laggard in the enlarged EU” [93]. What about other states? What, if we include the newest (up to the Covid-19 pandemic) data? Is there a significant correlation between de- mocratic quality and non-compliance? The recent developments in de- mocratic quality within the EU, in any case, underline the importance of researching the effects of this democratic backsliding. In the forthcoming second opus, we will see whether the EC should prepare for a higher nu- mber of infringements with EU-law due to a weakened democratic quality.

Conclusion of Part 1

Before we turn to the actual data in a second opus, it is useful to summarise very briefly what has been said so far.

It has been made clear what infringement procedures are, i.e. how they are trigge- red and how the EC goes about after detecting infringements. In addition, we have learned about some theories that explain non-compliance with EU law and have mentioned various factors that could lead to good or less good compliance. We now have a relevant framework to analyse compliance trends and their causality.

In the second opus, we will examine some trends on democratic quality in Europe. These preliminary remarks will be important for our hypothesis as laid down in the upcoming opus. It will be assumed that states in which the democratic quality, as determined by the team behind V-Dem, is stable and high, tend to comply and act more in accordance with EU law than backsliding democracies.

In the second opus, we will see whether this theory can be supported by data or should be discarded.


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[2] Börzel, T. A. (2001), Non-Compliance in the European Union: Pathology or Statistical Artefact?, in Journal of European Public Policy, No 28

[3]UnitedNations(2012), pdf,p,2.

[4] Simmons, B. A. (1998), Compliance with International Agreements, in Annual Review of Political Science.

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[7] Article 258 of the Treaty on the Functioning of the European Union, https:// article_258.pdf

[8] Börzel, T. A. / Heidbreder, E. G. (2017), Enforcement and compliance, in Research Handbook on EU Administrative Law, Edward Elgar.

[9] Börzel 2001.

[10] Börzel et al. 2012.

[11] Börzel 2001, 7; Börzel et al. 2012; Börzel, T. A. / Sedelmeier U. (2017), Larger and more law abiding? The impact of enlargement on compliance in the European Union, in Journal of European Public Policy, Vol. 24, No. 2.

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[13] Börzel / Sedelmeier, 2017.

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[17] Mbaye 2001, p, 260.

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[22] Börzel, T. A. (2002), Pace-Setting, Foot-Dragging, and Fence-Sitting: Member State Responses to Europeanization, in JCMS, Vol. 40, No. 2.

[23] Ibid, p, 203.

[24] Young, O. R. (1992), The Effectiveness of International Institutions: Hard Cases and Critical Variables, in Governance without Government, Order and Change in World Politics, Cambridge University Press; Toshkov, D. (2008), Embracing European Law: Compliance with EU Directives in Central and Eastern Europe, in European Union Politics, Vol. 9, No. 3; König, T. / Luetgert, B. (2008), Troubles with Transposition? Explaining Trends in Member-State Notification and the Delayed Transposition of EU Directives, in British Journal of Political Science.

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[26] Börzel, T. A. (et al.) (2007), Recalcitrance, Inefficiency, and Support for the European Integration: Why Member States Do (not) Comply with European Law, in Center for European Studies Working Paper Series, No. 151.

[27] Börzel et al. 2010.
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[29] Mbaye 2001, p, 262; Gourevitch, P. A. (1996), Squaring the circle: the domestic sources of international cooperation, in International Organization, Vol. 50, No. 2.

[30] Börzel et al. 2010

[31] Börzel / Heidbreder 2017.

[32] Börzel et al. 2007.

[33] Börzel et al. 2012, p, 10.

[34] Young (1992, p, 185) finds that “[t]here is nothing remarkable about the obser- vation that members of a society who are rich and powerful are less constrained by the dictates of social conventions than those who are relatively powerless.”

[35] Falkner et al. (2004, p, 459) argue that “even if the necessary adaptions are not of major magnitude and importance (small- or medium-scale misfit at most) and even if the government as such is not unwilling to transpose, there may still be a delay or (less frequently) an incorrect transposition.”

[36] Falkner et al. 2004, p, 461.

[37] Toshkov 2008; Mbaye 2001.

[38] Börzel et al. 2007; Mbaye 2001.

[39] Börzel et al. 2012, p, 3; Börzel / Heidbreder 2017. [40] Börzel et al. 2012.

[41] Mbaye 2001, p, 264.

[42] Börzel / Sedelmeier 2017.

[43] Börzel et al. 2010.

[44] Börzel 2001.

[45] Mbaye 2001.

[46] Börzel / Sedelmeier 2017.

[47] Börzel 2002, p, 205

[48] Börzel / Sedelmeier 2017.

[49] Dai, X. (2006), The Conditional Nature of Democratic Compliance, in The Journal of Conflict Resolution, 50/5.

[50] Simmons, B. A. (1998), Compliance with International Agreements, in Annual Review of Political Science, 1.

[51] Steunenberg, B. / Rhinard, M. (2010), The transposition of European law in EU member states: between process and politics, in European Political Science Review, Vol. 2, No. 3, p, 497.

[52] Börzel 2001.

[53] Europa (2020), The EU in brief, eu-in- brief_en#goals-and-values-of-the-eu

[54] Pinto, H. (2016), The role of European accession in democratisation processes, Democratic Progress Institute, p, 17; Carrera, S. (et al.) (2013), The Triangular Relationship between Fundamental Rights, Democracy and Rule of Law in the EU, Towards an EU Copenhagen Mechanism; Schimmelfennig, F. / Sedelmeier, U. (2019), The Europeanization of Eastern Europe: the external incentives model revisited, in Journal of European Public Policy.

[55] Schimmelfennig / Sedelmeier 2019.

[56] Merkel, W. (2004), Embedded and Defective Democracies, in Democratization, Vol. 11, No. 5, p, 48.

[57] Pinto 2016.

[58] Merkel 2004, p, 47.

[59] Merkel 2004, p, 47.

[60] Pinto 2016.

[61] Bakke, E. / Sitter, N. (2019), Democratic Backsliding in the European Union, in Oxford Research Encyclopedia of Politics, Oxford University Press.

[62] Pinto 2016, p, 37.

[63] Sedelmeier, U. (2019), The European Union and Democratization in Central and Southeastern Europe since 1989, in Present and Future Challenges, p, 539.

[64] Schimmelfennig / Sedelmeier 2019.

[65] According to Diamond, “[n]othing like this continuous growth in democracy had ever been seen before in the history of the world”. Diamond, L. (2015), Facing Up to the Democratic Recession, in Journal of Democracy, Vol. 26, No. 1, p, 141, p, 141.

[66] Huntington, S. P. (1991), Democracy’s Third Wave, in Journal of Democracy, Vol. 2, No 4; Mechkova, V. (et al.) (2017), How Much Democratic Backsliding?, in Journal of Democracy, Vol. 28, No. 4.

[67] Diamond 2015.

[68] Mechkova et al. 2015.

[69] Bakke / Sitter 2019.

[70] Sedelmeier 2019, p, 541.

[71] Grieveson, R. / Nič, M. (2020), Alle in einem Boot, in Internationale Politik Wirtschaft, Visegrád-Staaten, No. 1.

[72] Mechkova et al. 2017; Cianetti, L. (et al.) (2018), Rethinking “democratic backsliding” in Central and Eastern Europe – looking beyond Hungary and Poland, in Eastern European Politics, Vol. 34, No. 3; Lührmann, A. (et al.) (2020), Autocratization Surges – Resistance Grows, Democracy Report, Varieties of Democracy Institute (V-Dem).

[73] Bakke / Sitter 2019, p, 7.

[74] Bakke / Sitter 2019; Tosiek, P. (2019), The Polish Vision of EU Future: Imitation of the Hungarian Model?, in Rocznik Integracji Europejskiej, No. 13.

[75] Sedelmeier 2019.

[76] Cianetti et al. 2018, p, 244.

[77] Lendvai, P. (2019), The Transformer, Orbans’s Evolution and Hungary’s Demise, in Foreign Affairs, Septembe/October 2019, Vol. 98, No. 5, p, 44.

[78] Pinto 2016.

[79] Mechkova et al. 2017.

[80] Lührmann et al. 2020.

[81] Lührmann et al. 2020, p, 9.

[82] Bakke / Sitter 2019; Cianetti et al. 2018; Tosiek 2019.

[83] Lührmann et al. 2020; Bucholc, M. (2018), Commemorative Lawmaking: Memory Frames of the Democratic Backsliding in Poland After 2015, in Hague Journal on the Rule of Law, Vol. 11.

[84] Pinto 2016.

[85] Lührmann et al. 2020.

[86] Pinto 2016, p, 39.

[87] Sadusrki, W. (2018), How Democracy Dies (in Poland): A Case Study of Anti- Constitutional Populist Backsliding, in Revista Forumul Judecatorilor, Vol 104, p, 104

[88] Pinto 2016.

[89] Lührmann et al. 2020, p, 12.

[90] Cianetti et al. 2018.

[91] Börzel / Sedelmeier 2017, p, 197.

[92] Ibid, p, 203.

[93] Ibid.

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In recent years, infringement, or non-compliance, of EU law has become a central aspect of research in the realm of European politics. For good reason, because compliance with law is central to the functioning of the European Union (EU), as Jean-Claude Juncker, former president of the European Commission (EC), states: “any legislation is only ever as good as its implementation and enforcement”[1] .Generally speaking, non-compliance is not a systemic problem for the EU [2]. However, it must be pointed out that member states vary in their degree of law-abiding behaviour and that measuring non-compliance is not an easy task. Implementation - understood as the transposition of EU legislation into natio- nal law as well as the enforcement of these legal provisions - depends on the member states governments and their respect for the EU legislation.Despite the recent surge in research, there does not seem to be consensus on how to explain non-compliance with EU law. In other words, which factors contribute to (non-) compliance? Commonly, three different approaches are suggested: firstly, some researchers focus on power of the member states or the EU institutions (enforcement approach); secondly, others think about the bu- reaucratic capacities of the states (managerial approach); finally, some scholars think about the intellectual and societal adaptation of member states toward the EU (constructivist approach). A combination of these three sources of explana- tion could then, consequently, explain why some member states infringe more often than others.In this in-depth study of compliance (which will consist of two parts), we want to suggest another aspect that has been overlooked so far: the democratic quality of member states. In a so-called “perfect EU-world”, the national governments would transpose EU laws directly into national law. Consequently, violating EU law has to be seen as a partial rejection of the European rule of law that is, in its turn, linked to our specific democracies. Moreover, to quote from the UN declara- tion from 24 September 2012 by the General Assembly: “human rights, the rule of law and democracy are interlinked and mutually reinforcing” [3] . Consequently, states with a high level of democratic quality are expected to comply better with international agreements than other regimes [4].This study follows Mbaye’s demand, the demand – made two decades ago – according to which implementation research should concentrate upon further factors that may influence (non-) compliance. In this first contribution we will first gain an overview on the study of infringements and then also briefly examine the state of democracy within the EU. Our This study follows Mbaye’s demand, the demand – made two decades ago – according to which implementation research should concentrate upon further factors that may influence (non-) compliance. In this first contribution we will first gain an overview on the study of infringements and then also briefly examine the state of democracy within the EU. Our hypo- thesis is that democratic quality is an important factor for predicting compliance with the common European legal framework. In the forthcoming study, building on the theoretical framework developed in this contribution, we will undertake a quantitative analysis aiming at finding out whether this hypothesis should be pursued further in the future.
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