Utilities or sector economies are policies characterized by a closed infrastructure. As such, the infrastructure and services provided on the aviation, electricity and gas, telecommunications and railway networks were historically provided by a state-led monopoly. The European Union has sought to liberalize these sectors with the concept of “unbundling”, i.e. a separation between the maintenance of the infrastructure (still performed by a public authority) and the use of such infrastructure (subject to competition and allowing private undertakings to provide services). The EU legislator has empowered independent administrative authorities (called ‘regulators’) to perform and monitor liberalization without interference from national executives, deemed to have vested interests in preserving the dominant position of state-led companies. This empowerment of regulators is not so much shifting sovereignty from Member States as it is changing the essence of national sovereignty. The establishment of independent administrative authorities taking decisions that are only amenable to judicial review means that a genuine Fourth branch of government is established, one that is escaping the direct control of both national and EU institutions. Regulators are tasked with the application of EU liberalization rules that contain several provisions allowing for national discretion. Regulators therefore mediate the tension between EU-led liberalization of utilities and preservation of public services at national level. If regulators are encouraged to cooperate in transnational administrative networks, they retain the flexibility of determining the extent to which cooperation refers to a loose form of discussion about best practices (e.g. the European Network of Regulatory Rail Bodies), become a genuine platform for establishing common rules (Agency for the Cooperation of Energy Regulators) or adopt an halfway practice between these extremes (Body of European Regulators for Electronic Communications). The contemporary constitutional identity of a Member State under EU law is endorsing the agencification process of national governance, one promoting technocratic efficiency and transnational corporatism of regulating elites, at the expense of representation in the field of utilities.

The Russian war of aggression in Ukraine and the perceived geopolitical contestation in the Western Balkans necessitated a serious relaunch of the European Union’s (EU) enlargement policy and with it the requirement of transforming candidate countries into stable and viable liberal democratic states, in particular after experiences with Hungary and Poland have proven the fragility of democratic achievements. This article aims to shed some light on the tedious and contested processes to enforce European standards of judicial independence in Serbia and Ukraine, aiming to provide for better protection of the judiciary from undue political influence (a pre-condition for the rule of law), but also – in particularly in the case of Ukraine – to increase the ethical standards of judges and with it the functioning of the Constitutional Court. While both cases seemingly demonstrate the effectiveness of the European accession process's conditionality when complemented with the expertise of the Council of Europe’s Venice Commission (an institution crucial for the shaping of European transnational constitutionalism), the complexity and time-consuming nature of these processes indicate that challenging the power of elites by dismantling entrenched systems is a task that is acutely prone to contestation. It is exactly these contestations, that are of particular interest here. If we define norm contestation in the context of the European accession and integration process as norm-setting or norm implementation inconsistent with the standards of the European legal space, the two cases present us with three variants of contestation. First, the legitimacy of the norm promoter is put into question and criticized as “legal imperialism”, disrespecting legal pluralism and constitutional identities and limiting the sovereignty of accession candidates by applying “double standards”. Secondly, applicatory and behavioral contestation points us to situations where norm adherence is claimed, but implementation remains fragmented, inadequately financed or monitored. Thirdly, as mechanisms prevail in both systems that undermine the effectiveness of legal rules, voices from civil society contest the competence of the EU to be a truly transformative power, as it is insensitive to systemic deficiencies and continues to support only superficially compliant elites. The discussion of these cases hopes to contribute to a debate on understandings of sovereignty, legal pluralism, and the increasing interconnection of legal spheres during enlargement processes, but also on which factors - beyond the realm of law – are indispensable for a successful transition towards the rule of law.

The return of territorial warfare to the continent has upended mainstream notions of shared sovereignty within a supranational context like the EU. While the war itself has implications at all levels of society, the economy, and politics, a lot of the scholarly reactions appear to have returned their focus to conventional conceptions of sovereignty and national decision-making, alongside a seemingly anachronistic focus on strategic autonomy. This paper may therefore seem counterintuitive: at a time where elite decision-making appears to take centre stage, we propose a focus on the deliberative processes at the group and individual levels and how these condition top-level decisions within a variety of constitutional setups. Based on a comparison between a compound (Ireland) and simple polity (Cyprus), and in line with a discursive institutionalist approach, we illustrate ways in which citizen discourse penetrates decision-making systems at various points in the policy cycle, including in (seemingly elite-driven) foreign policy. The constitutional nature of the EU as a composite system places it at odds with the intergovernmental logic of its foreign policy, which in turn means – as not least Habermas would suggest – that the EU depends on deliberative approaches within the member states to generate legitimacy, and ultimately, sustainability for its strategic decisions. We show under what conditions bottom-up citizen-elite interactions can play a key role in foreign policy decision-making and thereby refine existing discursive accounts of policy change (or the lack thereof).

Its’s been almost two years since the EU has concluded the so-called rule of law conditionality mechanism against Hungary, and the outcome of the procedure had serious financial consequences for the Member State. A considerable amount of EU funds has been frozen for Hungary since December 2022, but not only under the rule of law mechanism, but also within the framework of the Next Generation EU funds, and the horizontal principles of the multi-annual financial framework. The payment of the frozen funds was tied to strict conditions and milestones Hungary had to complete mainly in the areas of corruption and the protection of the rule of law. This can be considered a new, comprehensive approach of the EU to monitor rule of law violations on the national level. At the beginning of 2024 some of the funds were unblocked, due to the sufficient reforms Hungary has undertaken under strict supervision of the European Commission. The question, however, remains: did the Hungarian reforms really improve the situation of the rule of law in Hungary? This paper aims at evaluating the Hungarian reforms introduced in order to unlock EU funds, moreover it also assesses the effectiveness of the EU’s new, comprehensive strategy towards rule of law violations. Connecting a fundamental value of the Union to budget concerns might be the greatest innovation in the fight for the protection of rule of law and democracy, but only if it really addresses such violations. The paper seeks the answer to these questions that are very important in defining the future of rogue Member States within the European Union.