These types of statements clearly aim at weakening the link between the Rechtsstaat in a formal sense with the Rechtsstaat in a material sense, thus weakening the constitutional protection of the liberties of the citizens and their access to courts with independent, impartial judges. This has meant that trust according to the principle of mutual recognition has been partially replaced by mistrust, and the concept of Rechtsstaat is again used as a criterion, now when courts have to assess whether courts of another member state meet the standard of judicial independence and thus can provide a fair trial.15 The context of EUexpansion twenty years ago has been replaced by its opposite – the Brexit proceedings. At time of writing in the spring of 2020, the ambition to slow the spread of theCOVID19 has led to unprecedented restrictions on the liberties of citizens in most member states. Unsurprisingly, Victor Orbán has taken it all one step further: an emergency law has given him the power to govern directly by decree without the constraint of existing law.16 The discussion of theRechtsstaat as a criterion relates to what kind of Europe we want. After the Second World War, there was a strong wish to build up cooperation between countries so they would not start new wars against each other. Also based on historical experiences, human rights and the Rechtsstaat were enhanced and given supranational protection, for example under the European Convention on Human Rights. This way of thinking was reinforced post-1989 and lasted well into the first decade of the twenty-first century. At the moment, the situation is more troublesome. 15 See CJEUJudgment 25 July 2018, Case C–216/18 PPUMinister for Justice and Equality [LM] (ECLI:EU:C:2018:586) and Oberlandesgericht Karlsruhe, Beschluss 17.2.2020–301 AR156/19. 16 KimLane Scheppele, ‘Orban’s Emergency’, Verfassungsblog, 29Mar. 2020, verfassungsblog. de/orbans-emergency/. Europa, the rule of law in Europe twenty years on part vi • european legal integration • martin sunnqvist 292
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